Page Aircraft Maintenance, Inc.

PAGE AIRCRAFT MAINTENANCE, INC. 159 It has further been found that the Respondent discriminatorily failed and refused to recall Samuel Blair to work because he sought to enlist the Union's aid in processing grievances, an activity protected by Section 7 of the Act. It will therefore be recommended that the Respondent cease and desist from discriminating against or visiting reprisals upon any of its employees because they engage in protected concerted activities. Because of the underlying purpose and tendency of this unlawful conduct, it is concluded that there exists danger that the Respondent will in the future commit other unfair labor practices. Accordingly, it will be recommended that the Respondent cease and desist, not only from the unfair labor practices found, but also from in any other manner infringing upon the rights guaranteed in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent withdraw and with- hold all recognition from the Union as the representative of any of its employees for the purposes of collective bargaining, unless and until the Union demonstrates its majority status in a Board-conducted election. It will further be recommended that the Respondent offer to Samuel Blair immediate reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered because of the discrimination against him, by paying to him a sum of money equal to the amount he normally would have earned from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during the said period. The back pay provided for herein shall be computed on a quarterly basis in the manner established by the Board; earnings in one particular quarter shall have no effect on the back-pay liability for any other period 38 It will be further recommended that the Respondent make available to the Board or its agents, upon request, all records necessary to compute the amount of back pay due under the terms of this recommended order. Finally, it will be recommended that the Respondent post the usual notices at its main office and also at all its other establishments which service dredging work in the territory described in the contract of October 1, 1955, between it and the Union, namely, "on the Atlantic Coast from the Canadian border to the southerly border of the State of Maryland and tributory waters in this zone emptying into the Atlantic Ocean." [Recommendations omitted from publication.] 88 F. W. Woolworth Co., 90 NLRB 289. Page Aircraft Maintenance, Inc. and Lodge 889, International Association of Machinists, AFL-CIO Page Aircraft Maintenance, Inc. and Lodge 889, International Association of Machinists, AFL-CIO. Cases Nos. 16-CA-1016 and 16-CA-1071. March 12, 1959 CONSOLIDATED DECISION AND ORDER On April 30, 1958, Trial Examiner A. Norman Somers issued his Intermediate Report in Case No. 16-CA-1016, finding that the Respondent (herein called Page) had engaged in and was engaging in certain unfair labor practices, and recommending that Page cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Page filed exceptions to the Intermediate Report, and a supporting brief. 123 NLRB No. 23. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 4, 1958, Trial Examiner Arthur E. Reyman issued his Intermediate Report in Case No. 16-CA-1071, finding that Page had not engaged in the unfair labor practices alleged, and recom- mending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Party (herein called the Union) and General Counsel filed exceptions to the Intermediate Report, and the General Counsel filed a supporting brief. As the parties in both cases are identical, and as the determinative issues in both cases are identical, the Board, in order to effectuate the policies of the Act, hereby consolidates these cases for decisional purposes and issues a consolidated Decision and Order. The Board has reviewed the rulings of the Trial Examiners made at the hearings, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Reports, the exceptions and briefs, and the entire record in each case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiners, only insofar as they are consistent with the findings herein. The complaint in Case No. 16-CA-1016 alleged, and the Trial Examiner found, that on and after July 15, 1957, Page violated Section 8(a) (5) of the Act by illegally refusing to bargain with the Union as representative of an appropriate unit of Page's em- ployees at its Fort Sill, Oklahoma, operations, consisting of all service, repair, maintenance, and inspection employees, stockhan- dlers, and employees of the supply department.' The complaint in Case No. 16-CA-1071 alleged that on and after July 15, 1957, Page refused to bargain with the Union as the representative of a -unit of Page's office clerical employees. The Trial Examiner found that in the circumstances, Page had no obligation to bargain for the alleged unit of office clerical employ- ees, and had not violated Section 8 (a) (5). The Board finds that Page did not violate Section- 8( a) (5) of the Act in either case. As described fully in the Intermediate Report, both cases arose from the same virtually undisputed sequence of facts connected with Page's attempts to initiate operations at the U. S. Army Base at Fort Sill after being awarded a Government contract to repair and maintain aircraft. From July 1, 1953, to August 1, 1957, Spartan Aircraft Company had maintained the aircraft at Fort Sill. In 1953, and again in 1955, the Union was certified as repre- sentative of Spartan's production and maintenance unit, which it represented under successive 1-year bargaining contracts with Spar- 1 As the parties and both Trial Examiners refer to this unit as the "production and maintenance" unit, this terminology will be followed herein. PAGE AIRCRAFT MAINTENANCE, INC. 161 tan, the last of which expired July 31, 1957. In 1954, Spartan voluntarily recognized the Union as representative of its office cler- ical unit, and signed a separate contract with a sister local of the Union. However, in 1955, this arrangement was abandoned, and the separate local was dissolved. The office clericals were included in the 1955 and 1956 contracts with the Union, which covered both the production and maintenance 'employees and the office clericals, and specifically recited that the office clericals were ". . . added to the bargaining unit. . . ." The latter contract was effective through July 31, 1957, the last day of Spartan's operations. Page was scheduled to begin operations August 1. On July 16, the Union telephoned Page's employment manager, Sweeney, and requested a meeting to discuss "possible further labor relations." Sweeney refused to meet before August 1. On July 20, Page began to interview selected applicants for em- ployment. Those interviewed were offered jobs, and told to report to work August 1. Of the 184 applicants offered production and maintenance jobs, 178 were Spartan employees. Of the 55 office clericals offered jobs in the alleged office clerical unit, 47 were Spartan employees. Apparently it took several days to complete these interviews, but the record does not indicate on what date they were completed. On July 24, a union representative telephoned Page's general manager and arranged a tentative meeting on July 25 to discuss. "collective bargaining," but on July 25 the Union was informed the general manager would not meet with the Union, and that after August .1 the Union could ". . . petition the . . . Board." On July 25, the Union wrote to Page calling attention to the fact that it had been certified, and had bargained and contracted for "the employees" ' of Spartan. This letter specified "The unit for which the Union is requesting recognition is as follows : all pro- duction and maintenance employees ... at Fort Sill ..., also our recognition is for . . . [office clerical employees] . . . excluding .. . [various categories]." 2 On the next day, July 26, at a meeting of the Spartan employees, the Union passed a resolution to "strike" on August 1, because of what it considered to be Page's discriminatory hiring practices, and because of Page's refusal to recognize or deal with the Union. Page never responded to the Union's July 25 letter. However, on July 29, Page wrote to all prospective nonsupervisory employees ". . . to confirm [their] employment . . . effective August 1 ...." 2 The July 25 letter is reproduced in full at Appendix D of the Intermediate Report in Case No. 16-CA-1016. 5 0 8 8 8 9-- 6 0-v of . 123-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning of August 1, the Union began picketing Page. Only 21 of the prospective production and maintenance workers and 37 of the clericals reported for work.' There was no further contact between Page and the Union until August 16, when the Union's attorney approached two of Page's managers at a local hotel. When the Union's attorney attempted to engage them in a discussion of the problems at Fort Sill, they refused to talk to him. The Trial Examiner in Case No. 16-CA-1016 found that Page had violated Section 8 (a) (5) by illegally refusing to bargain with the Union as representative of the production and maintenance unit, beginning on July 16, the date of the Union's first oral request to meet with Page. He also found that those individuals who did not report for work had engaged in a strike caused by Page's 8(a) (5) violation. In so concluding, he found, contrary to Page's contentions, that the individuals who were offered jobs in the pro- duction and maintenance unit, but did not report to work, were Page's "employees" within the meaning of Section 8 (a) (5) of the Act. The Trial Examiner's findings do not specify the date on which he deemed these individuals to have become employees of Page, but as he dated the refusal to bargain from July 16, appar- ently he deemed them to have become employees by that date. 'The Trial Examiner found that Page was obligated to bargain with the Union for these "employees" on request, because the appropriate- ness of a production and maintenance unit and the Union's repre- sentative status had been determined by the outstanding certifica- tion, and because the Union made a request of Page to bargain for the appropriate production and maintenance unit. The Trial Examiner in Case No. 16-CA-1071 found that the individuals in the alleged office clerical unit who did not report for work never became Page's employees within the meaning of Section 8 (a) (5) . He also found that the Union's request to bargain specified a single inappropriate unit of production and maintenance and office clerical employees, and that in any event, there was not adequate proof that the Union represented a majority in the alleged office clerical unit.4 The Board finds that Page did not violate Section 8(a) (5) either with respect to the production and maintenance personnel or with respect to the clerical personnel. Section 8(a) (5) requires that an employer bargain in good faith with the representative of "his em- 3 The record indicates that a few of the prospective employees who did not report on August 1, reported to work within a few days after August 1, and were accepted as employees by Page. However, so far as the record shows, the vast majority of those who failed to report on August 1 never reported for work. * In view of our decision to dismiss both of the complaints for the reasons stated infra, we find it unnecessary to adopt or rule on the various additional grounds on which Trial Examiner Reyman based his recommendation. PAGE AIRCRAFT MAINTENANCE, INC. 163 ployees." We find that those individuals who did not report to work for Page did not become Page's employees within the meaning of Section 8(a) (5). Trial Examiner Somers' implicit finding that the individuals involved were employees of Page on July 16 ignores the fact that they were unquestionably employees of Spartan, and were covered by Spartan's collective-bargaining contract with the Union, through July 31. They therefore could not have been Page's employees prior to August 1, the date upon which Page began its operations, .and the earliest date that Page can be held obligated to bargain for them was thus also August 1. We find further that in order for the Spartan employees to acquire .status as Page's employees within the meaning of Section 8 (a) (5) of the Act, it was necessary for them to comply with the condition that Page had attached to their employment. Thus it was necessary for them to report to work on August 1, as directed by Page at the time Page offered them jobs.5 However, instead of reporting to work on August 1 as instructed, approximately 163 of the 184 prospective employees in the alleged production and maintenance unit, and 18 of the 55 prospective employees in the alleged office clerical unit, did not report because Page had not recognized and dealt with the Union before August 1. In this failing to report for work, these individuals, themselves, imposed a second condition on the creation of an employment relationship with Page-specifically, that Page first recognize the Union. As the vast majority of the persons in the alleged production and maintenance unit were thus not Page's employees within the meaning of Section 8 (a) (5) on, or after, August 1, we find that Page was not obligated to bargain with the Union for the production and maintenance unit,6 even if it is assumed that the Union had made a valid request of Page to bargain for such a unit. It is true that a majority of the individuals in the alleged office clerical unit did report to work on August 1, and thus became Page's employees. However, even assuming a valid request for a clerical unit, the evidence as to the Union's representative status among the clericals is insufficient to establish that it represented a 8 We do not regard as controlling for purposes of determining for whom an employer must bargain those cases cited by Trial Examiner Somers which hold that the anti- discrimination provisions of Section 8(a) (3), (4 ), and (b ) (2) of the Act forbid dis- crimination against applicants for employment . The antidiscrimination provisions refer to "employee" generally, whereas, unlike those provisions , Section 8(a) (5) contains specific language requiring an employer to bargain for "his employees." 9 As the individuals from the production and maintenance unit which had been certified under Spartan never became employees of Page, we regard as inapplicable N.L.R.B. v. Lander Shoe Corp ., 211 F. 2d 284 (C.A. 1), and N.L.R.B. v. Albert Armato, 199 F. 2d 800 (C.A. 7), cited by the Trial Examiner in Case No . 16-CA-1016. Those cases hold that an employer is obligated to bargain with a union certified under a preceding employer, if the individuals in the certified unit become his employees , and their duties do not change significantly. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD current majority either in the group of 3'7 office clericals who re- ported for work, or in the larger group of all 55 clericals, including both those who reported for work and those who did not. It follows therefore that Page had no obligation to bargain for the office clericals. It also appears, and we find, that the Union's July 25 request for bargaining described an inappropriate unit,' because the request combined production and maintenance personnel with office clericals in a single unit.s We therefore hold that the Union did not make a valid request upon Page to bargain for an appropriate unit or units. In the absence of a valid request for bargaining, it cannot be said that Page violated Section 8(a) (5) of the Act.9 For the foregoing reasons, we shall dismiss the complaint in. Case No. 16-CA-1016 and the complaint in Case No. 16-CA-1071.. [The Board dismissed the complaints in Cases Nos. 16-CA-1016 and 16-CA-1071.] MEMBER FANNING took no part in the consideration of the abo've: Consolidated Decision and Order. 7 Dlember Jenkins does not agree with , or rely on, this finding. He would find, in view- of the outstanding certification for the production and maintenance unit, and the history- of separate recognition and bargaining by Spartan for the clericals, all of which was known to Page, that the Union's request constituted a valid request to bargain for the production and maintenance and office clerical employees separately. 8 Office clerical employees are excluded from production and maintenance units under- customary Board policy, despite a contrary bargaining history (The Texas Company, 104 NLRB 197; Dare Steel Products Company, 109 NLRB 179), and although neither- party objects to their inclusion . Buckeye Rural Electric Co-operative, Inc., 88 NLRB 196, 197. As indicated in the text above, the phrasing of the Union's July 25 letter to Page clearly contemplates continuation of the single bargaining unit set up by the- Union's last two contracts with Spartan. The letter specified the ". . . unit which the- Union is requesting recognition for . . . . 8 Joslin Dry Goods Company, 118 NLRB 555. Even if construed in the most favorable manner possible, the unit request was at least ambiguous, and as such was legally in- effective to impose an obligation on Page to bargain. C. L. Bailey Grocery Company,. 100 NLRB 576. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard by the Trial Examiner January 7 and 8, 1958, in Lawton, Oklahoma, on complaint of the General Counsel and answer of Respondent. The issue litigated was whether the refusal of Respondent to meet with the Union was in violation of Section 8(a)(5) and: (1) of the Act. The parties presented oral argument and have filed briefs, which have been duly considered. On the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent , Page Aircraft Maintenance, Inc., is an Oklahoma corporation.. Beginning August 1, 1957, under contract with the United States Army, it has been PAGE AIRCRAFT MAINTENANCE, INC. 165 engaged in the service of aircraft maintenance at the post in Fort Sill, Oklahoma. The service is necessary for national defense and is valued at in excess of $100,000. Jurisdiction is not contested.' (Neither is the status of the Charging Party as a labor organization within the meaning of the Act.) H. THE MERITS A. The issues The basic issue concerns the status of workers at a defense post in the transitional period between two employers, one the current contractor whose con- ,tract is expiring, and the other the contractor who is due to take over as soon as the old one bows out. In preparation for embarking on its own performance, the new contractor has chosen its prospective force largely from the ranks of those presently doing the work under the incumbent contractor. During the latter's tenure, these workers chose a union which the Board certified as their repre- sentative and with which the present employer made a contract currently in force. Is the new contractor, during this transitional period and before it has actually embarked on performance of its own contract, under a duty to meet with this representative on request? The next question is whether there has been here the kind of request which satisfies the conditions to the duty to meet, assuming the latter exists. B. Nature of the service: its performance by Spartan until 1957, and the award of the 1957 contract to Respondent The "old" contractor referred to in the statement above was Spartan Aircraft Corporation, and the new one is Respondent. They have no connection with each other, except sequence: for 4 years, from July 1, 1953, to August 1, 1957, Spartan was the company which performed for the Army the service of aircraft .maintenance here involved; and from August 1, Respondent has done so. The service is performed under contract, which the Government lets out on bids, each .being for the fiscal year beginning July 1. The nature of the service which the Army buys and the contractor provides is, as John E. Woodward, contract officer at the post for the Army, put it, "management primarily ... supervision, engineer- ing, labor." The Army provides everything else: the grounds and the installations on which, and the tools and equipment with which, that service will be rendered. And under a "cost plus fixed fee" arrangement, the Army reimburses the con- tractor for the wages and salaries of the persons with whom that service will be performed.2 Spartan was the successful bidder every fiscal year, beginning .July 1, 1953, and in 1955, it was awarded a 2-year contract ending June 30, 1957. Early in 1957, Spartan decided not to bid for the ensuing fiscal year. The :successful bidder for 1957 was Respondent, or more accurately, since Respondent was not yet in existence, by persons who indicated that if successful, a corporation would be formed to assume the contract, with performance underwritten by the bidders. The latter were Clarence E. Page, who became Respondent's president when later formed, and Page Aircraft Industries, a parent organization, which, through subsidiaries, has engaged in similar kind of maintenance. Early in April, -the Army representatives announced they were recommending the Page bid to Washington for approval, whereupon, on April 16, Respondent was incorporated. The bid was formally approved June 20, and on that day Respondent, as the new contractor, embarked upon the "phase-in," or groundwork-laying, period for its performance. The interval remaining until July 1 being insufficient for the •purpose, the Army extended the date for Respondent to take over the operation to August 1, and arranged with Spartan to carry on at the post for that addi- tional month. 1 Official notice is also taken of the findings concerning the commerce ramifications of the above operation in the Intermediate Report of George A. Downing, Trial Examiner, in consolidated Cases Nos. 16-CC-76 and 16-CC-79, involving secondary boycott activity, which flowed from a phase of the strike attending the dispute between the Union and the Respondent here involved . See International Association of Machinists, Local Lodge 889, AFL-CIO, et at. (Freeman Construction Company, et al.), 120 NLRB 753. 2 Except that of the general manager. Ilis salary , during the term of the contract, comes out of the "fixed fee." ( Art. 52 of contract of 1957.) 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Respondent's staffing of its force during the "phase-in" period 1. Purpose of "phase-in" The "phase-in" period is of crucial importance, because during that time the contractor works out and submits to the Army for approval , in rather full detail , the implementations for its performance . So critical is that step that the Government bears its cost, including the salary of the general manager,3 whose salary during the term of contract itself is not reimbursable as a cost item (supra, footnote 2). The description of what the "phase-in" encompasses was given by Contract Officer Woodward as follows: It requires that the contractor submit accounting procedures , supply proce- dures, various other items, to show the practices and procedures and imple- mentation that would be followed to carry out the contract. Also during the phase-in period the contractor would need to recruit the necessary personnel to perform the service . . . . They would have to recruit and employ a force capable of performing services who would be available the 1st of August. . . The necessary people, salary and hourly , would have to be provided by them in order to fulfill their contract obligations. We are concerned here with the recruiting of the force. It should be noted that while the Army is concerned that this should be done , the matter of how it is done is the contractor's responsibility. The Army reserves a veto power over the choice of general manager and his top assistants , but over no one else. Also, since it foots the labor expense, the Army passes on the proposed structure and size of the personnel , and the wage scale. But it is the contractor which determines the composition of the personnel and fixes the wages as such , whether by negotiation, or unilaterally , or otherwise, subject to Army approval of the scale. 2. The selection of personnel The Army's performance requirements under the 1957 contract were to be more modest than under the expiring one with Spartan . This necessitated a smaller force . ( Contract Officer Woodward stated that under Spartan the average total force, salaried and hourly, was about 390, while the total authorized for Respondent was 279.) The authorized number being a projection, it is usually a bit larger than the actual . The total size of the force finally selected the week before August 1, as Respondent put it in a letter sent on July 29 to the persons selected , was 257. Albert D. Sweeney, assistant manager of Respondent, who sent the letter, stated the figure was correct. However, the list of personnel chosen to work beginning August 1, as prepared by Respondent at the General Counsel's request during the hearing, would seem to show (if the Trial Examiner's computation is correct) a total of 274 . The difference does not matter . Significant here is that though the force chosen was smaller that at Spartan 's, it would seem to have come almost exclusively from the ranks, of Spartan . Those coming from Spartan were: All but 2 of the supervisory force of 31 , from the general manager on down ; all but 6 of the 184 workers engaged in supply and maintenance ( comprising the crucial "p and m" unit, which is the one in respect to which the wrongful refusal to bargain is alleged to have taken place ); and all but 9 of the 59 office clerical employees.4 This near-unanimity of choice from the ranks of Spartan would suggest that Respondent had simply adopted the Spartan force, but had trimmed it down to conform to the Army's reduced requirements . The events would tend to reinforce the inference derived from the proportions themselves . Indeed, reliance upon the existing force from top management down would appear to have been a necessity in Respondent's case, since the Page organization's own prior experience with aircraft maintenance was on a scale less extensive than that involved in the Fort Sill operation. The Page organization had had no experience with a 8Id., art. 59. 4 These figures being the Trial Examiner 's own computation from the personnel list of Respondent , previously referred to, they are set forth with allowance for a possible margin of error previously expressed . At any rate , since they were stipulated to, they presumably supersede the figures as Sweeney gave them on the stand . He testified the total selected was 257, of which the number in the appropriate , or "p and m ," unit was. 183. He also testified that all 183 , without exception , were from Spartan ; also that the remainder of the force, except 11 , was also from Spartan. PAGE AIRCRAFT MAINTENANCE, INC. 167 military post ; had had no experience with rotary, as distinguished from merely fixed, wing maintenance ; and had not theretofore handled a supply depot of the magnitude of that at Fort Sill. What Respondent did reflected an expectable dependence upon the knowl- edgeability of the existing force. On June 20, the day its bid was formally approved, Respondent chose as the general manager of the Fort Sill operation, Rex H. Madeira , then Spartan's director of the training at the post. To assist him, it employed Sweeney , who along with an administrative assistant was the lone non-Spartan in the entire supervisory force engaged by Respondent . Madeira and Sweeney , on July 1, set up headquarters at the Lawtonian Hotel in Lawton, about 20 miles from the post . The purpose at that time was to formulate the proposed organization and procedures , and to that end they selected, as the "directors" or heads of the three divisions , the ones who were performing this function at the post for Spartan . These were A. L. Charipar for maintenance, E. L. Stone for supply , and T. C. Wadley, the controller, for accounting. An outside accounting firm was retained to formulate the accounting procedures and structure , but for maintenance and supply , the departments encompassing the group in the "p and m" unit here involved, Respondent largely relied on the directors at Spartan . Sweeney first omitted mentioning the role of these direc- tors in the process, making it appear that this was the work of Madeira and himself, but when pressed , finally admitted the directors ' active role in setting up the structure . The reasonable inference from his testimony, from its character, and from the situation as a whole is that theirs was the actual work, with Madeira and Sweeney simply giving it the nod . All the three division heads were permitted to select their personnel . Respondent gave these directors that discretion despite its having advertised for applications for positions . It received 800 such, from the outside, as well as among Spartan employees , but what it did with them would reflect the intention to adopt the force already on the job. Thus, as Sweeney testified , the applications were separated into departmental groups, and: They were then submitted to the directors of the various departments whom we had hired, committed ourselves to hire, for their approval , since we had told them that they would have the right to select those persons whom they wanted to work for them. Sweeney opened a "recruiting office" near the Fort Sill post on July 15, at which he interviewed the applicants thus selected . He did so with the help of R. E. Birk of Spartan, whom Respondent engaged as its own personnel counsellor. As Sweeney made clear , however, only those were called for interview who had been selected by the division heads purely on the basis of the applications. That was something which the persons called for interviews did not know . Some of them accordingly offered further proof of their qualifications, but Sweeney told them no further proof was necessary. As Sweeney put it, "we had predetermined who we were going to hire and we called them in, " and "we only called those we intended to hire." Respondent, about a week before August 1, announced to the Army that it had recruited its full force . There was extended controversy between opposing counsel during the hearing over the proper terminology applicable to the relation- ship between Respondent and those whom it engaged for the work . Sweeney, a practical man, sent all such persons a letter on July 29 ( here reproduced as Appendix A of this report ), addressing them as "Dear Employee ," confirming their "employment . effective August 1, 1957," and telling them that they had "been hired to help with that job [for the Government ]," and that "257 people had been hired ." Counsel for Respondent , to underscore its position that these persons were not its "employees" before August 1 for any purpose, mani- fested a distinct aversion to these expressions , with the result that the personnel list, previously referred to, which identifies the persons engaged for work before August 1, is left without a name or caption acceptable to the opposing parties. Counsel for Respondent employed the legend , appearing on the exhibit, of "Personnel Offered Employment Effective August 1, 1957 ," and opposing counsel prefer the simpler terminology, used by Sweeney in his July 29 letter, of "hired." Sweeney, during the hearing , found difficulty attuning himself to the pitch of his company's counsel-at least that part of it which made the word "hired" anathema . This was apparently so even in respect to the division heads. They, unlike Madeira , who at once transferred from Spartan 's payroll to that of Respondent , continued on Spartan's payroll through July 31, and , according to Sweeney , were donating to Respondent their spare time in setting up the structure and selecting the personnel for their departments . Sweeney would 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seem to have been forced to regard the word "hired" as applied to the engagement of these division heads before August 1 as a lapse which had to be corrected. As appears in the portion of his testimony in which he told of referring the applications to the division heads, he referred to them as "directors ... whom we had hired, committed ourselves to hire." Transcending the matter of terminology would seem to be the inherent signifi- cance of the action taken. The relationship of Respondent to the Spartan force was apparently determined even before the "Dear Employee" letter of July 29. Respondent's action in taking on the three division heads, whether it "hired" or "committed ourselves to hire" them, and vesting them with plenary discretion in selecting their own force directly from the applications and before the interview, would make rather clear the election which it had made: it was electing to adopt an existing working force to be cut down to the new requirements, leaving that function to the discretion of those who would be expected to make the choice on the basis of the only knowledge available to them, the performance of the people in their respective divisions at Spartan. The choice of personnel having been made from among those already on the job on Spartan, the function of the advertisements and the 800 applications in the process becomes a bit obscure. Respondent also fell back on the old in the matter of establishing the wage scale and working conditions. Concerning the wage scale, Sweeney testified how it was set. He explained that it was based upon Respondent's independent valuation of each employee's capacities and of the job to be assigned to him. It turned out that the job assigned, subject to simplifications of nomenclature and regrouping of certain positions, was the same as the preceding one, and the rate was likewise the same (except that employees who, like Eldon Weedn, had received 10 cents extra pay because of their lead positions reverted to the regular pay by reason of the abolition of leads).. Also, Respondent got up a booklet detailing its personnel policy. This duplicated in large measure the conditions and benefits which had been negotiated by the Union for the employees with Spartan. Both the wage scale at Spartan, which Respondent adopted, and the benefits, which Respondent in large part duplicated, were contained in the then current contract between Spartan and the Union, which was due to expire July 31, 1957. Yet Sweeney, on the stand, insisted that Respondent never saw that contract and deliberately avoided looking at it. He testified that the source of Respondent's information concerning the wage scale and the benefits was the Army, but he also admitted that on matters of policy and benefits, he also consulted the division heads, who it must be inferred were well acquainted with the contract. (Supply Director E. L. Storie was a signatory of the Spartan-Union contract on behalf of Spartan.) It would thus seem that Respondent from the outset of the "phase-in" period, ,or at least from the time it engaged the Spartan directors as its own division heads, rather "committed" itself, by its own election, to an existing staff, with (albeit yet undisclosed to employees and Union) existing conditions, as pre- viously worked out between its predecessor and the Union, subject only to structural changes peculiar to its own mode of operations and to the reduction in staff required by the Army's reduced contract requirements. It is so found. D. The Union's unsuccessful request for a meeting and the ensuing strike The transition period was one of uncertainty for the employees. There were the trappings of advertisements for applications and the "recruiting office," to which some were called for interview and some not, and where those called, as shown, were in the dark concerning the purpose and concerning what was ahead. These created apprehensions, which occasioned the Union's first request for a meeting. During Spartan's tenure, the Union had twice been certified by the Board as the exclusive bargaining representative for the employees engaged in supply and maintenance work-i.e., for work in the "p and m" unit-first in 1953 and again in 1955. For 3 successive years beginning 1954, the Union had entered into a contract with Spartan. In the contract of 1954, Spartan recognized the Union for the employees in "p and m" unit, as described in the certification. This, as previously noted, is the one in respect to which the complaint alleges Respondent wrongfully refused to bargain. The complaint, as does the certifica- tion , describes the unit as follows: All service, repair, maintenance and inspection employees employed to service, repair, and maintain aircraft and aircraft parts, stock handlers, and PAGE AIRCRAFT MAINTENANCE, INC. 169 employees of the supply department, exclusive of all other employees, in- cluding office clerical, and professional employees, guards, watchmen, and supervisors, as defined in the Act, and all employees in the supply department whose principal duties are office clerical. The contracts of 1955 and 1956, however, expanded the recognition to include office clerical employees as well. The recognition clause reads as follows: The Company recognizes the Union as the exclusive bargaining agent for all employees in the bargaining unit as provided in the N.L.R.B. certification dated July 7, 1955, Case No. 16-RC-1699, with respect to wages, hours, and other terms and conditions of employment for all service, repair, maintenance and inspection employees, employed to service, repair and maintain aircraft and aircraft parts, and stock handlers. In addition, this recognition is extended to include but not limited to the following classifications, since added to the bargaining unit: general clerks, stock control clerks, cost accounting clerks, forms and records clerks, clerk-typists, comptometer operators, messengers, and duplicator operators, but excluding all employees in the Personnel and Accounting Departments, Private Secretaries, professional, guards, watchmen, and supervisors as defined in the Labor-Management Relations Act of 1947, as amended. On July 16, Bill Sexton, president of Lodge 889, the Local here involved, called Sweeney on the telephone and asked for a meeting between Respondent and the Union's negotiating committee, to "find out what the deal was." Sweeney said he felt sure a meeting would be arranged but that Respondent's attorney would first have to be consulted. According to Sexton: Later on that afternoon I called him back and he said on advice of their attorney that they didn't wish to meet with the negotiating committee of my lodge, and that is all that was said. The same day Sexton sent Sweeney by registered mail a letter summarizing their conversation. It is here reproduced as Appendix B, and the accuracy of its recital has not been challenged. This letter was returned "refused." Another request was made on July 24, this time by James W. Witcher, Grand Lodge representative. On that day, Witcher called Madeira, and as he testified: I asked for a meeting that day so that he and I could sit down and talk regarding collective bargaining because of Page taking over the operation at Fort Sill. He said that due to his commitments and tight schedule that day that he would be unable to have a meeting, and said how about the following day, that we would have dinner together and we could talk while we ate. Concerning the outcome, Witcher testified: The morning of the 25th, the following day, July 1957, Mr. Sweeney called me at the Lawtonian Hotel and told me that Mr. Madeira would not be able to meet with me, upon advice of their attorney, Mr. Soule, and for me to take whatever course through law or whatever I had to do, that he was just not able to meet. On the same day, July 25, Witcher sent Sweeney a letter which is here reproduced as Appendix C. He also sent a letter to Clarence E. Page directly, which is here reproduced as Appendix D. Witcher's letters were not returned, but neither were they acknowledged or replied to. On July 24, the day Witcher made the tentative dinner engagement with Madeira, the executive board of the Union voted to call a meeting to take a strike vote. The vote was taken at midnight of Friday, July 26, as scheduled, and the cause of the strike, as announced before the vote, was "discriminatory hiring practices and failure to recognize Local 889 as the employees' bargaining agent." On the morning of August 1, of the 183 (or 184) employees in the "p and m" unit, who were engaged by Respondent, all but 21 went out on strike and with the exception of 19, who abandoned it, have remained so. The strike, so far as ap- pears, is still current. Another request for a meeting was made by Louis Poulton, attorney for the Union, on August 16. After a meeting with representatives of the Board and the Army, Poulton, at his own request, was introduced to Madeira and Sweeney. He described his talk with them as follows: 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said to both of them directly, "We have some problems to iron out if we can sit down and discuss them," and the chorus was loud and strong, "No," and that was the end of the conversation.5 E. Concluding findings 1. Cause of strike This case presents troublesome aspects largely because of the conviction which one derives from the record that had Sweeney and Madeira been permitted to meet with the Union, as each was inclined to do when approached, it would likely have averted the strike. As practical men, they would seem to have had no difficulty relating the Union's request for a meeting to the context of the sur- rounding events and in understanding its purpose in the light of them. The situ- ation was fraught with uncertainties, calculated to arouse fear and suspicion unless matters were clarified. However, the judgment of the only two representatives of Respondent in a position to evaluate the situation at close range was superseded by a higher strategy aloof from the scene, which obliged them to reverse their course, to substitute adamancy for reasonableness, and stony silence for words which might have made Respondent's course comprehensible. The rejection out of hand of all overtures for a clarifying meeting, aggravated by Respondent's refusal to accept mail from the Union and its snubbing of such letters as were received, could only serve to deepen the suspicions and to provoke the bitterness and resentment culminating in the strike. 2. Status of those engaged for work beginning August 1 All of this is to say that I do not go along with the underlying ground on which Respondent, during the events, refused to meet with the Union. This ground was that until August 1 the people Respondent selected for work begin- ning August 1 were not its "employees," and therefore, any bargaining request before then was premature. I am persuaded that they were "employees" in the only sense here relevant, which is this: that there was a valid scope for the opera- tion of the policies of the Act upon the situation as it then existed. Though work under Respondent was to begin August 1, the relationship of the persons engaged for that purpose was a present one, as Sweeney's "Dear Employee" letter of July 29 fully recognized. That being so, they were employees within the meaning of the Act, entitled to have matters explained to them through their chosen representative. A like, functional standard was employed by the Supreme Court in Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, when it held that mere applicants for employment were "employees" within the meaning of the anti- discrimination provisions of the statute. The reason given was that the national interest in preventing industrial strife flowing from denial of jobs to applicants is no less than that in preventing conflict flowing from dismissal of employees from jobs at which they are working. Such a standard is not unique to the statute here involved. Where the practicalities require it, the law not infrequently treats the relationship of parties to a transaction to be undertaken in the future as if it were a consummated one. We find it so in contracts for the sale of real estate, where, in equity, ownership is deemed to have changed hands when the contract was signed, without regard to whether the deed of title has yet been delivered.6 The doctrine is additionally applied in the law of corporations, where promoters can make a binding commitment for a corporation which is in con- templation but not yet formed, of which this Respondent is itself an example.? Indeed, the whole law of negotiable paper rests upon treating executory obliga- tions as if presently fulfilled, and giving the instruments embodying them certain attributes of legal tender, in deference to the need under our credit system of giving present effect to the reasonable expectations concerning the future created by them. The field of labor relations is no exception. By way of example, a 5 The Union filed a charge on August 12, and a first amended charge on August 19, accusing Respondent of wrongful refusal to bargain and discriminatory refusal to employ the persons who were not taken on. Respondent on November 19 filed with the Board a petition under Section 9(c) for an election to determine the choice of bargaining repre- sentative of the employees in the "p and m" unit. The Board dismissed it because of the pending unfair labor practice charges. 0 "Williston on Contracts" (1936 Williston & Thompson ed.), sec. 927 ; "Williston on .Sales" (1948 ed.), sec. 131. 713 American Jurisprudence 245, et seq. PAGE AIRCRAFT MAINTENANCE, INC. 171 raised announced by an employer to take effect in the future is, because of the reasonable expectation it creates, treated as an existing condition of employment in a situation where, after the employees have interveningly chosen a bargaining agent, the employer withdraws the promised raise before it takes effect. The employer's doing so without consulting the employees' bargaining representative is in such instance viewed as a unilateral change of an existing condition of employ- ment, in violation of the employer's bargaining obligation under Section 8(a)(5).8 What the above would seem to connote is that the determination of whether the operative relationship exists before actual performance under it has begun ,hinges on the reasonable expectations of the parties created thereby and the need for presently assuming that they will be fulfilled. Where an employee has been hired for work to begin at a future date, a reasonable expectation has been mu- :tually created. That is all which is involved in ordinary employment even after -work has commenced. The employment being normally one at will, which either party is free to terminate at any time, the only thing that characterizes the em- ployment in the intervals between working days, when the employee is off the job, is the reasonable expectation, mutually entertained, that the employee will be working on the next working day. But if Respondent's theory were sound, a person could only be an "employee" during the 8 hours of the day in which he is actually working.9 What gives that person the status of employee between working days is what gave these persons that status after they were hired and .before work was to commence, which was the reasonable expectation that on August 1 they would be working. The very purpose of recruiting the personnel during the "phase-in" period was to have a corps of people with whom Respondent -could reciprocally share that reasonable expectation, so that it could address .them, as it did on July 29, as "Dear Employee." That being so, there was scope -for collective discussion of their employment just as there is for that of employees :actually working. Illustrative of how the practicalities call for treating a reasonably anticipated relationship as if it had already commenced is the very contract between the Government and Respondent. That contract is dated April 17, 1957, although, as previously related, official confirmation of the bid was not forthcoming until June 20. Yet the various facets of performance are spelled out in a contract negotiated in all its details and executed upon the hypothesis of an existing rela- tionship, subject of course to approval by higher authority in Washington. Even when that approval was forthcoming, the preliminary groundwork for actual !performance, which included mustering a working force as one of its essential aspects, was sufficiently important for the Army to extend the beginning date .for Respondent's performance for 1 month, and meanwhile to reimburse Re- spondent for the expense of performing these preliminaries. It seems anomalous, then, for Respondent to argue that while, for certain practical purposes, it was proper to treat its own relationship to the forthcoming operation as an existing one, nevertheless, the working force whose mustering was one of the preliminaries ,prescribed by the Army to Respondent's taking over, was, in legal contemplation, as complete a stranger to it before August 1 as if it had never engaged it. If it ,was appropriate for the Army and Respondent to work out the details of their ,relationship in advance of the performance date, would it not seem equally ap- propriate for Respondent to have discussed with the representative of the persons .hired the details of their employment at least to the limited extent sought by the Union? For all the above reasons, I do not accept Respondent's contention that the --personnel which it mustered for work beginning August 1 were not and could not be "employees" within the bargaining provisions of the Act before August 1. 'They were such insofar as the situation was one upon which the congressionally enunciated objective of insuring industrial peace and stability through collective :negotiations could effectively operate. In the Phelps Dodge case, previously men- 8Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843, 847 (C.A. 5). 9 That, indeed, was the contention once made before, and rejected by, the Supreme Court, concerning the status of merchant seamen between voyages, that between shipping articles for each voyage, they were strangers, rather Ethan, as the Board found and the Supreme Court ruled, still "employees" within the Act, even though during that period the relationship was terminable by either party at will. N.L.R.B. v, Waterman Steamship ,Corporation, 309 U.S. 206, 218 (1940). 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned, the Supreme Court put this question to justify its holding that job appli- cants were "employees" within the compass of the Act's protection (p. 183) : It is no longer disputed that workers cannot be dismissed from employment because of their union affiliations. Is the national interest in industrial peace less affected by discrimination against union activity when men are hired? The applicable paraphrase here would seem manifest: it is no longer disputed that an employer may not refuse to meet with the representative of employees after work has commenced. Is the national interest in industrial peace less affected when the employer refuses to meet with the representative of a presently mustered force who, before commencement of work under him, want to know something about the conditions under which they are to work, or to allay fear and sus- picion, the basis for selection from among them? I would not deem pertinent here the line of cases advanced by Respondent, in which the Board, in elections to determine employees' choice of representatives, has limited voting eligibility to employees actually working on the prescribed eligibility date.10 These cases were concerned with ascertainment of the choice of representative of a working force presently on the job. The Board's rationale for excluding from voting eligibility persons merely "hired" but not yet working is not spelled out. The one which spontaneously suggests itself is that the rule is a safeguard against possible fraudulent padding of voting eligibility lists. An- other is that the choice of representative of a working force presently on the job should not be diluted by the vote of one who though hired is bound to be a stranger to the common problems of the group. Here the group involved was the total force; it was not they who were not yet on the job; it was the incoming contractor, who was taking over as employer under conditions and standards unknown to them, and concerning which they sought enlightment. In these cir- cumstances, the request for a meeting was not premature, as Respondent contends. 3. Majority status I would deem the record to warrant a finding that the Union, when it requested'. the meeting, was the representative of the employees in the "p and m" unit here involved. The certification issued in 1955 was still in effect and there was no indication that the sentiment of the group had undergone an intervening change. There was thus operative the presumption that "a state of affairs once shown to exist is presumed to continue to exist until the contrary is shown." 11 Such other evidence as the record contains on the subject confirms the presumption of con- tinued majority.12 The Union would thus seem to have enjoyed the status of exclusive bargaining representative of the "p and m" group, by virtue of a majority in fact. Inde- pendently, it enjoyed it by virtue of the subsisting certification. The General Counsel contends this was "binding" on the Respondent as Spartan's "successor," under the doctrine of N.L.R.B. v. Armato, 199 F. 2d 800, 803 (C.A. 7), and N.L.R.B. v. Lunder Shoe Corp., 211 F. 2d 284, 286 (C.A. 1). Respondent opposes this contention because of the absence of privity between itself and Spartan: there was no enterprise which Spartan had sold to Respondent or any transaction be- tween them in which Respondent assumed Spartan's obligations. But the duty to honor the employees' choice of bargaining representative is not a private one, whose existence hinges on the assumption of obligations incident to a sale. It is a public one arising by operation of the statute and is imposed as an incident of protecting the national interest. Respondent succeeded to Spartan's relationship to the employees by reason of two factors: (1) under its contract with the Army, it was stepping into the operation heretofore performed by Spartan; (2) while it could have chosen all its employees from the outside, its rights are determined by the election it made-it elected to adopt a force whose choice of representative had already been expressed and ascertained. Nor is it pertinent that here, in 10 Barry Controls, Incorporated, 113 NLRB 26 ; Dorothy F. Fitzpatrick, d/b/a Asso- ciated Business Service, 107 NLRB 219, 221, and cases cited. nLocal 50, Bakery and Confectionery Workers International Union, AFL-CIO (Arnold Bakers, Inc.), 115 NLRB 1333, 1336, footnote 4, and cases cited. 11 The General Counsel introduced a list of names of 234 employees, whose dues were checked off on June 15, 1957, pursuant to subsisting voluntary authorizations. In that group were 114 of the 184 "p and m" employees hired by Respondent for August 1. Also, as earlier noted, an overwhelming majority of these 184 have, since August 1 and thereafter, supported the Union in this strike for recognition. PAGE AIRCRAFT MAINTENANCE, INC. 173 contrast with Armato and Lunder, the "one-year certification period" has already run. That fact gives the succeeding employer, just as it does the original one, wider leeway concerning the refusal grounds. But it does not alter as between the two the character of the obligation arising under a valid certification. When the certification' year has not yet expired, the' certification -is invulnerable to attack by reason of loss of majority, either on the part of the original employer 13 or the succeeding one.14 However, where the certification year has already expired, the certification has lost that invulnerability. At that time, the original and succeeding employer alike can refuse to honor the certification, if the normal presumption of a continued majority has been overcome by other evidence,15 which is not the case here (supra, footnotes 11 and 12), or if the refusal is motivated by a good- faith doubt concerning the union's majority 16-something upon which Respondent here never even premised its refusal. Thus, original and succeeding employer alike enjoy equal grounds of immunity from, and where the grounds of immunity have not been met are equally subject to, the obligation arising under a valid certification. 4. Adequacy of bargaining request While Respondent was thus under obligation to meet with the Union on request, as I have found, there still had to be a request adequate to put Respondent on notice that it wished to discuss the employment relationship. As I have already indicated, I am satisfied from the context of the situation which existed and to which Sexton and Witcher alluded in making their respective requests of Sweeney and Madeira, that the latter had no difficulty understanding the purpose of the requested meeting. As men accustomed to responsibility, they knew that a re- quest to meet with a negotiating committee of a Union in regard to the aspect of a pending transition of employers is not to engage in a game of bridge, but to talk about that situation. "The statute . does not require that the request to bargain be in haec verba, so long as there is one by clear implication." 17 It is reasonable to expect that if Sweeney and Madeira had been in the dark con- cerning the reason for the requested meeting, they would have asked its purpose before they indicated their tentative assent. And if that was any impediment to their receiving clearance for the meeting from the architects of Respondent's higher strategy, the latter could easily have authorized Sweeney and Madeira to ask the Union concerning the purpose. The conclusion manifest here is that Sweeney and Madeira were forbidden to go through with the meeting, not because its purpose was unknown, but because it was known all too well: to meet with the negotiating committee of the Union was to negotiate with it. That was what Respondent did not want Sweeney and Madeira to do. 5. The unit for which bargaining was requested We come to the portion of the case concerned with the unit. As stated in Barlow-Maney Laboratories, Inc.,18 and only recently reaffirmed in Joslin Dry Goods Company,19 "[a] prior appropriate request for bargaining is a condition precedent to any finding of a refusal to bargain." An "appropriate request" en- tails a request to bargain for an appropriate unit. Where the request to bargain is for an inappropriate unit, it will not sustain a complaint based on an alleged refusal to bargain for an appropriate one.20 Our question concerns the interpretation to be given to the Union's request to bargain, equitably called for in the particular circumstances of this case. When Union President Bill Sexton, on July 16, and Grand Lodge Representa- tive Witcher, on July 24, asked Sweeney and Madeira, respectively, for a meeting with the Union's negotiating committee, they did not expressly define the group or groups for which the meeting was requested. Neither did Sweeney or Madeira ask that that be done at the time each expressed his tentative assent to the meet- ing. As previously indicated, Spartan since 1955 had recognized and contracted with the Union for the "p and m" group, for which the Union had been certified 13 Ray Brooks v. N.L.R.B., 348 U.S. 96. 11 N.L.R.B. v. Armato, 199 F. 2d 800 at 803; N.L.R.B. v. Lunder Shoe Corp., 211 F. 2d at 286. 15 Local 50, supra, footnote 11 ; Armato, supra, footnote 14. 19 National Carbon Division, Union Carbide and Carbon Corporation, 104 NLRB 416. 17 Scott & Scott, 113 NLRB 911, 930, enfd. 245 F. 2d 926 (C.A. 9). 18 65 NLRB 928, 943. 19118 NLRB 555, and cases cited 'at footnote 4. 20 Ibid. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 1955, and also for the office clerical employees, for whom Spartan "also" recog- nized the Union, apart from any certification. A fair appraisal of the record would require a finding that the oral requests were made against a background of knowledge by Respondent of this prior course of practice with Spartan. Sweeney, as previously noted, testified that Respondent put into effect the wage scale (sub- ject to certain adjustments incidental to regrouping of the titles of certain positions. calling on basically the same skills) which appeared in the contract with Spartan; and also that, in a desire to institute conditions doing the least violence to em- ployees' expectations resulting from their experience on the job with Spartan, it instituted conditions and benefits largely duplicating those which appeared in the contract. He testified Respondent never consulted the contract, and that the source of his and Madeira's information concerning the rates and conditions of benefits was the Army, and, also, in regard to conditions, the three division heads at Spartan. The latter were asked by Respondent concerning them during the. "phase-in" period, in which they were doubling as directors of Spartan and as. de facto directors for Respondent. As previously stated, one of them, E. L. Stone, is a signatory of the 1955 and 1956 contracts. It is difficult to see how Respondent could avoid having attributed to it the knowledge of the contract. possessed by these directors, either in law or on the basis of sheer commonsense,_ unless we are to say that their intelligence as directors for Spartan went into brain cells completely insulated from those with which they were performing for Respondent. The above is in addition to the fact that commonsense could have told Respondent, if the Army representatives had not done so, that the source of the latter's information would also be the contract.21 It is thus a fair inference that Sweeney and Madeira, when they initially indicated their tentative assents,. understood the request as one for bargaining for the two groups and they raised. no question concerning it either at that time or in the later calls in which they stated Respondent would not meet with the Union. In the formal letter addressed. to Page on July 25 (Appendix D), the paragraph relating to unit reads: The unit which the Union is requesting recognition for is as follows: all production and maintenance employees employed by the service, repair and. maintaining aircraft and aircraft parts on fixed wing and rotary wing aircraft, by reason of a Contract between the Company and the United States Army at/in the vicinity of the Fort Sill Army Base, also our recognition is for- general clerks, forms and record clerks, clerk-typist, comptometer operators,. messengers, duplicator operators, payroll procurement clerks, payroll clerks,.. but excluding all employees in the personnel department, private secretaries,, professionals, guards, watchmen and supervisors as defined in the Act. Neither then nor during the time of the oral requests did Respondent express.. any reservation about the groups for which bargaining was requested, its position being on July 16, as recited in that day's letter of Sexton to Sweeney, the accuracy of which is not disputed, that "in the second conversation, you informed me that the Company did not care to meet with the Negotiating Committee of this Lodge: at any time or for any reason before August 1st," and, on July 25, according to- Witcher's letter to Sweeney, the accuracy of which is likewise not disputed, that "Rex Madeira (sic) ... who was going to meet with [Witcher] at 11:30 o'clock a. m. on [July 25] would not be willing to meet now because of advice from. their Attorney .; and that after August 1st, we could petition the National Labor Relations Board or take what other course that we desire, through law. And the letter of July 29, as sent to the persons hired, rather indicates that Re spondent repudiated any obligation to bargain with the Union, on the ground that. "the fact that they [the employees] had a union at Spartan's has nothing to do• with what happens at Page's." The foregoing seemed to be Respondent's position during the hearing, until Respondent's counsel, on summation, challenged the adequacy of the request and: contended that the unit therein described is inappropriate and hence fatal to the. complaint. 21 The contract was printed in booklet form, apparently for convenience of interested. parties. Since it was a ready source of reference for the wage scale, as negotiated and ultimately approved, and of the benefits and conditions, it.is unlikely that the Army would: have been without one, particularly so since Army's contract with Spartan made certain. labor cost items "chargeable [to the Army] only insofar as : . . . Costs are incurred pursuant to agreement made as a result of collective bargaining with the representatives of employees." [Emphasis supplied.] Art. 50(d) (11) (b). A like provision appears in. the contract with Respondent. Art. 52(d) (11) (b). PAGE AIRCRAFT MAINTENANCE, INC. 175 . The General Counsel does not dispute the proposition, well documented by; Respondent's counsel, that "office clerical employees cannot appropriately be in- cluded in a production and maintenance unit." 22 But he does dispute that the request to bargain was for a single unit of these two groups. Rather does he contend that the request was for two separate units, first of the "p and m," and secondly, the office clerical group. On that score, he is confronted with the fact that in the letter of July 25, and, indeed, also the Union's initial charge filed August 12, the reference to the two groups is preceded by the words "The unit. which the Union is requesting recognition for is as follows: . ." Additionally, the recognition clause in the 1955 and 1956 contracts precedes the reference to the office clericals with the words "since added to the bargaining unit." The General Counsel contends that this is due to infelicitous phrasing and urges that an intention to segregate the two groups is manifested by the fact that in every instance the description of the positions in the "p and m" unit is walled off by an introductory reference to the office clerical group as one for which it is "also" recognized. Concerning the words in the contract, "since added to the bargaining unit," the General Counsel contends that this expression could not change the unit as defined by the Board in the certification. He makes this state- ment in a dual context, first on the issue of how the request to the Respondent is to be interpreted, and second, on an issue, which I introduced and concerning which I invited discussion, of whether the use of these words in the contract might not suggest an abandonment by the Union of its rights under the Board's certifi- cation for the "p and m" group in favor of informal recognition for the two groups combined. Disposing of the second issue first, I would say that after fuller consideration, I am satisfied that the law's aversion to forfeiture would prevent attributing to the Union an intention to abandon its rights under the Board certification under the circumstances here present, more particularly so in the face of the express reference in the recognition clause to the certification as the basis for the Union's rights in respect to the "p and m" group. I would accord- ingly find that in its relations with Spartan, the Union, while welcoming the informal recognition given it for the office clericals, did not thereby intend to abandon or in fact abandon its rights under the certification for the "p and m" group. This brings us back to the question of how the request itself is to be interpreted and of its legal efficacy in invoking the underlying obligation, which I have con- cluded to be here present, of bargaining with the Union for the "p and m" group, on request. The background of a prior certification for the group for which a wrongful refusal to bargain is alleged and a prior informal recognition for the additional group would appear to be unique to this case. At least, I have not found it present in the roster of cases, exemplified by Joslin Dry Goods, supra,. holding a request for an inappropriate unit to be fatal to a complaint alleging wrongful refusal to bargain with an appropriate one, nor in the line of cases holding that where there is an ambiguity in the request, it must be resolved against the party which made it.23 It is that element, present here, which gives one pause against falling into "a purely mechanical application" 24 of the doctrine of these cases that would ignore differentiating backgrounds, calling into play important competing equitable doctrine. Unlike the other cases, the request of the Union for bargaining for the two groups was not a thing from the blue. It came upon a background of 2 years of contractual relations on that basis with Spartan, apparently productive of peace- ful, uninterrupted operations. This, of course, would not make appropriate a single unit of the two groups, assuming that that was sought to be done.25 But it provides a background which would have given the Union reasonable basis for assuming that until Respondent raised some question about it, as it had concern- ing its duty to bargain with the Union for any purpose, Respondent, if it had to bargain at all, in view of its borrowing from Spartan experience in other ways, 22 Citing, among many others, Marvin Lumber and Cedar Company, 117 NLRB 363, 366 ; Wm. R. Whittaker Co., Ltd., 117 NLRB 339, 343; Bi-States Company, 117 NLRB 86, 88. 23 See Smith Transfer Company, Inc., 100• NLRB 834; C. L. Bailey Grocery Company, 100 NLRB 576. 21N.L.R.B. v. Associated Musicians, Local 802 (Gotham Broadcasting Corp.), 226 F. 2d 900, 906 (C.A. 2), enfg. 110 NLRB 2166, cert. denied 351 U.S. 962. 2- Dura Steel Products Company, 109 NLRB 179, 182 International Smelting and Refining Company, 106 NLRB 223, 224; Greenbrier Dairy Products Company; 100 NLRB 432, 434. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might well have wanted also to bargain for the two groups. Giving a particularly anomalous twist to Respondent's belatedly raising this point now is the fact, as appears from its adoption for both groups of the wage scale and benefits which appear in the contract , that it appropriated to its own use the fruits of the very dual bargaining whose merely suggested continuance Respondent urges now as fatal to all the Union's rights. Careful reading of prior precedents persuades one that the Board will in a proper case not hesitate to apply the basic legal tenet that when a party , during the transaction, totally repudiates its obligation out of hand , it cannot, in ensuing litigation, fall back on the claim that the condition on which it was contingent was not performed or was inadequately performed . Williston has thus explained the general basis for the application of that principle in his own field. He states: It is an old maxim of law that it compels no man to do a useless act, and this principle was applied in the time of Coke, if not before , to the case of a conditional promise. If the promisor is not going to keep his promise in any event, it is useless to perform the condition and the promisor becomes liable without such performance.26 Where fitting, the Board has, with court sanction , applied this maxim in a large variety of situations . Thus, by way of example, a union may not escape liability for causing the discharge of an employee for nonmembership under a valid union- shop contract by reason of failure to tender dues where it appears that the tender would have been futile, if made; 27 also , an employer cannot justify his refusal to reinstate strikers because of their failure to make application therefor, in the face of prior indication that it would not have reinstated them even if they had applied; 28 and a bargaining representative in certain circumstances need not make or renew a request to bargain where the employer has, in advance, so totally repudiated the bargaining obligation as to have rendered any request a "useless gesture." 29 What gives this doctrine a special appeal here is that the more the Union re- quested a meeting, the more Respondent ostensibly rested on the total repudiation of any obligation to bargain with the Union, and the more it was silent on the point it belatedly raises now . Some inquiry, some hint concerning the unac- ceptability to it of bargaining for any group apart from the one for which the Union was certified might have clarified the Union 's position, and might well have avoided the Union's acting upon the reasonable inference from Respondent's silence concerning it, that the continuance of the existing bargaining pattern was acceptable to it, once its basic objection to the existence of a bargaining obliga- tion for any purpose was disposed of. This would appear to call into play an allied doctrine, which frowns upon a party's taking refuge in the specific, when the ground relied on during the transaction itself was general. The reason, basically, is that reliance on the general , without mention of the specific, lulls the other party into assuming that there is no problem concerning the latter and, in a sense, entraps him into repeating the claimed defect, and worse still , deprives him of the opportunity to correct his error , if it be such, or to indicate such quali- fications as may inhere in his position in the light of any specific question or objection raised. The basic doctrine here stated finds a familiar application in other fields, but underlying its application would be the same rationale, that of avoiding . distortion of transactions through the covert nurturing of correctible error as a means of later escaping liability. The field of appellate litigation presents many instances of the application of this doctrine : thus, the doctrine precludes a litigant from urging on appeal a specific error in the trial court's charge to the jury, when the exception taken was a general one, which did not call specific attention to the precise error later claimed ; 30 it precludes a litigant, on appeal from a judgment based on the report of a special master , from urging error in the master's report which was not claimed on proper exceptions to the court 26 "Williston on Contracts," supra, footnote 6, at sec. 698 A. ar United Brotherhood of Carpenters etc. (Brunswick -Balke-Callender Company), 115 NLRB 518 , 528, footnote 8. 28 N.L.R.B. v. Nevada Consolidated Copper Corporation, 316 U. S. 105, enfg. 26 NLRB 1182 ; N.L.R.B. v. Sifers Candy Company, 171 F. 2d 63 (C.A. 10) ; N.L.R.B . v. Stewart Oil Company, 207 F. 2d 8, 11 (C.A. 5) ; N.L.R.B. v. Anchor Rome Mills, 228 F. 2d 775, 780 (C.A. 5). 29 Old Town Shoe Company, 91 NLRB 240, 241. Norfolk Southern Bus Corporation, 66 NLRB 1165, 1176; Burke Machine Tool Company, 36 NLRB 1329 , 1341-1342. 20 3 American Jurisprudence 114-115 (§ 381 under "Appeal and Error"). PAGE AIRCRAFT MAINTENANCE, INC. 177 below; 31 and, finally, under Supreme Court doctrine, it has operated to preclude a party, under Section 10(e) of our Act, from urging, on court review, an objec- tion to the Board's order, where the exception taken from the recommended or proposed order was general and did not specifically call the Board's attention to the defect claimed on review.32 There are, of course, reasons grounded in sound procedure for applying such a rule in appellate ligitation, but it has its roots in principles of fair dealing as well. It safeguards against harboring, for use as a weapon at the time of judgment, specific objections never disclosed or ever thought to be relied upon during the events being judged. Just as the tribunal below, whether it be the court or the agency, should be given a chance "to consider" 33 the specific item later relied on, so, too, should the opposite party in a transaction out of court be given a chance to consider a specific objection, before it is exploited in litigation. Particularly should this apply here, where, as amply appears from Respondent's total repudia- tion of its obligation, its action would have been the same, however precise the Union would have been in limiting its bargaining request to the concededly appro- priate "p and m" unit, for which it was certified. In sum, the basic deficiency in the Respondent's position is that it gives no breathing space to the underlying purposes for which the statute was passed. As the Supreme Court made clear in its decision in Phelps Dodge, supra: Congress explicitly disclosed its purposes in declaring the policy which under- lies the Act. Its ultimate concern, as well as the source of its power, was "to eliminate the causes of certain substantial obstructions to the free flow of commerce." This vital national purpose was to be accomplished "by encour- aging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association" §1. Only thus could workers ensure themselves economic standards consonant with national well-being.34 The position of Respondent throughout every vital question here presented, and which apparently governed its higher strategy during the events themselves, is one which simply gives no scope to the statute's purpose of dealing with living situ- ations in a manner calculated to avoid the frustrations and resentments which engender strikes disruptive of the national interest. It is this failure to think in terms of end and function which would seem to underlie its and conception of the employee relationship as confined to a group actually working and as exclud- ing a complete complement of employees newly hired, its failure to recognize the need for some sympathetic consideration to be given to these persons' request for a meeting to clarify the situation incident to a transition of employers on an operation on which they are presently performing, and its reliance, in litigation, on the wording of a request to excuse its refusal to meet, under circumstances rather clearly showing that, during events preceding the litigation, it was not the wording of the request, but the basic obligation it encompassed, which motivated, and led the Union to think was the motivation for, its refusal to honor it. The anomaly in Respondent's position is that to accept it would be to interpret obliga- tions under a statute dealing with a broad social purpose on the basis of primitive exaltation of form over substance, long outmoded even in private law. The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal Mr. Justice Cardozo so stated over 40 years ago in a landmark case in which, to save a covenant from being declared void for lack of mutuality, the court read into it an implied, though entirely unexpressed, counterpromise by the plaintiff as the requisite consideration for the covenant on which he was suing.35 Not long later, the Justice in his classic work 36 cited that case and his own quotation from it to illustrate his larger observation that "rules derived by a process of logical deduction from pre-established conceptions of contract and obligation have broken 31 Sheffield, etc. R. Co. v. Gordon, 151 U.S. 285, 290; Medsker v. Bonebraker, 108 U.S. 285, 290; Kinsman v. Parkhurst, 18 How. 289, 294-295. 31 Marshall Field 1 Co. v. N.L.R.B., 318 U.S. 253, 255. 33 Ibid. 34 313 U.S. 177 at 182. Emphasis supplied. 35 Wood v. Duff Gordon, 222 N.Y. 88, 118 N.E. 214 (1917). se Cardozo, "The Nature of the Judicial Process" (1921 ), p. 100. 508889-60-vol. 123-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD down before the slow and steady erosive action of utility and justice," 37 and that all of this is but an aspect of the basic theme that "we are thinking of the end which law serves, and fitting its rules to the task of service." 38 Referring to that particular case as an instance of that process, he explained: "We no longer inter- pret contracts with meticulous adherence to the letter when in conflict with the spirit. We read covenants into them by implication when we find them `instinct with an obligation' imperfectly expressed." (Emphasis supplied.) 39 Should we, in applying a statute intended to cope with the realities of industrial life, construe communications • between the parties with "meticulous adherence to .the letter when in conflict with the spirit," or should we not here too "read" con- ditions into them which "utility and justice" require? Since Respondent's total silence at the time of the Union's request concerning the point it now raises shut off all exploration at that time into the significance of the Union's mentioning the office clerical group, "utility and justice" would require that the onus of the resulting doubt fall on the one who secretly nurtured it, and that the latter should not be permitted to exploit it in litigation, to his unmerited advantage. To prevent the unjust forfeiture which would otherwise flow, the request is entitled to either of two interpretations which give it character as the requisite request for bargain- ing for the "p and m" unit in question. These interpretations are as follows: Either, in the manner contended by the General Counsel, as a request in two parts, one for the "p and m" group, for which the Union was certified, and the other, separately and severally, for the office clerical group, for which it had been recog- nized apart from any certification; or, if as a request for a single unit inclusive of the office clericals, then as containing the implied condition that such inclusion be as acceptable to Respondent as it had been to Spartan, but if not so acceptable, then as limited to the "p and m" group, in accordance with the certification.40 The interpretation of the Union's request as above indicated effectuates the objective of fair and open dealing not only by avoiding unjust forfeiture; it also does so by vindicating the tenet, having, as noted, wide application in our general jurisprudence, that one should not be permitted to profit from a claim of non- performance or inadequate performance of a condition, which his own action has shown would have been an idle thing, and where the very basis for the claimed inadequacy was created by silence concerning this matter, against a background of a spoken objection to the basic obligation, which, in the totality of the setting presented, created the appearance of acquiescence in, or at least unconcern about, the matter belatedly urged. Appropriate as the principles above are in interpreting even purely private transactions, they would seem all the more fitting when what is involved is the discharge of a public obligation congressionally created in aid of achievement of a national purpose, for even less seemly there would it be to interpret communica- tions between persons untutored in legal niceties with the "primitive . for- malism" of a bygone era, when "every slip was fatal." The congressional objective "to make appropriate collective action of employees an instrument of peace rather than of strife" 41 is thwarted where communications between parties are enmeshed in intricacies beyond their depth. The trend urged upon us by Respondent would convert what should be the simple matter of a request for a meeting to a delicate step fraught with so many traps and pitfalls as to make the drafting of deeds of conveyance of future interests in real property a veritable kindergarten exercise by comparison.42 That mode of approach would, as shown, be retrogressive if used in private law, most especially in fields concerned with human relations; and when applied to a statute of the character here involved, which is concerned with the dynamics of emotion-laden industrial relations, it works a definite frustration of its purpose. We need no better example than what happened here of how such a "ritual[istic]" approach works out in practice; indeed, it would be hard, at this advanced stage of industrial enlightenment, to encounter a more graphic illus- 3714., at 99-100. 3B Id., at 101. se Id., at 100. 40 The list referred to in footnote 12, supra, shows the Union to have had a majority (138 out of 243) in the 2 groups combined, just as it had a majority in the "p and m" group alone. 41 N.L.R.B. v. Jones d Laughlin Steel Corporation, 301 U.S. 1, 34. 43 Mr. Justice Jackson; writing for a majority of the Supreme Court in N.L.R.B. v. Rockaway News Supply Company, 345 U.S. 71, put it this way (p. 75) Substantive rights and duties in the field of labor-management do not depend on verbal ritual reminiscent of medieval real property law. PAGE AIRCRAFT MAINTENANCE , INC. 179 tration of the finding of Congress , expressed in the preamble to the Act , that "the refusal by some employers to accept the procedure of collective bargaining lead[s] to strikes and other forms of industrial strife or unrest, which have the intent or necessary effect of burdening or obstructing commerce... . A little more of the kind of understanding manifested by Sweeney and Madeira on the ground, when they initially expressed approval of the meeting , and less blindness, strategic or otherwise, to one of "the plainest facts of our national life," 43 that the adamant refusal to hold a clarifying meeting in the anxious situation here presented would be bound to have the explosive consequences it did, would have tended to carry out the spirit of the statute , if not also its letter.44 It is accordingly found and concluded that the record sustains the General Counsel 's complaint that Respondent, in violation of Section 8(a)(5) and (1) of the Act, refused to bargain collectively with the Union as exclusive bargaining representative of an appropriate unit of Respondent's production and maintenance employees , as requested , and that because of this refusal , the employees in that unit struck on August 1, 1957. The refusal was a continuous one from July 16 on, and caused the strike's continuance as well as outbreak . Apart from this, and to the extent that Respondent asserts the requirement of a new request at any stage thereafter , if, indeed, it is not satisfied by the later requests made before and after the outbreak of the strike by Witcher and Poulton , respectively, Respondent's standing to rely upon it is, under the principles previously enunciated , lost as a result of its continued total repudiation of any obligation to bargain, which' rendered any new request a "useless gesture." 45 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section II, occurring in connec- tion with the operations of the Respondent described in section I, have a close, intimate, and substantial relation to trade, traffic , and commerce among the sev- eral States, and tend to lead to labor disputes and did in fact lead to a labor dis- pute, burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY It having been found that Respondent refused to bargain collectively with the Union as representative of its employees in the appropriate unit of production and maintenance employees , it will be recommended that Respondent cease and desist from such refusal and that it bargain with the Union for the employees in that unit on request. By way of affirmative action calculated to restore the status quo to what it would have been but for such refusal , it will be recommended as follows: Those employees in the appropriate production and maintenance unit , whose names ap- pear on General Counsel's Exhibit 30, being the list entitled "Non-Supervisory Personnel Offered Employment by Page Aircraft Maintenance , Inc., Effective August 1, 1957," and who went on strike beginning August 1, 1957 , who have heretofore applied for but were refused reinstatement , should be offered immediate and full reinstatement to their former or substantially equivalent positions with unimpairment of rights or seniority or other privileges ; and be made whole for any losses in pay sustained by reason of such refusal , from 5 days after applica- tion was made , to the date on which they are thus offered reinstatement; those in that group who have not heretofore applied for reinstatement or been reinstated shall, upon application , be offered reinstatement to their former or substantially equivalent positions , likewise without prejudice to seniority or other rights or privileges ; and in the event Respondent refuses to do so, they shall be made whole for any loss in pay resulting therefrom from 5 days after application to the date they are so offered reinstatement . Such present employees of Respondent whose names do not appear on said exhibit and who were newly hired to replace the said employees thus to be offered reinstatement shall be dismissed if necessary to make room for the latter. Should there still be insufficient positions available for the said persons thus to be offered reinstatement , the selection for the filling of posi- S3 N.L .R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 41. 14A request for clarification is in the nature of a grievance presentation , which is a valid subject of collective dealing . See West Texas Utilities Co., Inc., v . N.L.R.B., 206 F. 2d 442 , 446-447 (C.A., D.C.), cert . denied 346 U.S. 855; Northeastern Engineering, Inc., 112 NLRB 743, 749. 40 See authorities in footnote 29, supra. The strikers have at all times retained their employee status . Sec. 2 ( 3) of the Act. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions from among them shall be on a nondiscriminatory basis, Respondent to utilize such standards, including seniority, as it normally uses in the matter of hire, layoff, retention , and recall of personnel . After the foregoing procedure is applied, the persons embraced in the remedy , for whom positions are still unavail- able, shall be placed on a preferential hiring list; and in the event of Respondent's failure to do so, Respondent shall make them whole for any loss in pay sustained by reason thereof, from the time of such failure to the date of such placement upon a preferential hiring list. All back-pay computations shall be made in accordance with the principles enun- ciated in F. W. Woolworth Co., 90 NLRB 289. Since the persons embraced by the remedial provisions are identified in the exhibit previously mentioned , it shall be deemed incorporated here by reference, thereby dispensing with the need for repeating the names in a separate appendix. .Since these persons will not be in a position to observe the notices to be posted, and hence informed of their rights, until actually reinstated , copies of the notice :should be mailed to them in addition to being posted. Upon the foregoing findings and the whole record , I hereby make the following: CONCLUSIONS OF LAW 1. The operations of Page Aircraft Maintenance, Inc., Respondent herein, affect commerce within the meaning of the Act. 2. Lodge 889, International Association of Machinists , AFL-CIO, the Charging Party, is a labor organization within the meaning of the Act. 3. At all times here material the said labor organization has been and still is the exclusive representative for the purposes of collective bargaining of the appro- priate unit of Respondent's employees at its operation in Fort, Sill, Oklahoma, as follows : All service, repair, maintenance , and inspection employees employed to service, repair, and maintain aircraft and aircraft parts, stockhandlers, and employees of the supply department , exclusive of all other employees , including office clerical and professional employees, guards, watchmen , and supervisors as defined in the Act, and all employees in the supply department whose principal duties are office clerical. 4. By refusing to bargain with said representative on request , as found, Re- spondent has engaged in and is still engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act; and has interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act, thereby engaging also in an unfair labor practice within the meaning of Section 7 of the Act. 5. The said unfair labor practices affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A AIRCRAFT MAINTENANCE INCORPORATED FORT SILL, OKLAHOMA Clarence E. Page Rex H . Madeira President Executive Vice-President JULY 29, 1957. Mr. ELMO RICHARDSON, 2505 E Street, ,,Lawton, Oklahoma. DEAR EMPLOYEE : We are glad to confirm your employment by Page Aircraft Maintenance , Inc., effective August 1, 1957. We welcome you to our Company. ,We shall see you Thursday morning at 7:30 a.m. Newspaper stories indicate that a labor union will attempt by picket lines or other means, to keep you away from work. There is no labor union authorized by law to deal with this company at this time . In no event can you be penalized by anyone for going to work on time Thursday morning. We are here at Fort Sill to do a job for the United States Government. You I bav_e been hired to help with that job. If anyone tries to interfere with your going ;to ,-work, please report it at once to this company or to U. S. military authorities. PAGE AIRCRAFT _NIAINTENANCE, INC. 181 If the employees of this company decide that they want an union to represent them, they will be entitled to have it. The fact that they had an union at Spartan's has nothing to do with what happens at Page's. Over 700 people have applied for work with this company; 257 people have been hired. Any employees who do not report for work Thursday morning will be replaced by other applicants. Sincerely, APPENDIX B (S) A. D. Sweeney, A. D. SWEENEY, Employment Manager. INTERNATIONAL ASSOCIATION OF MACHINISTS LOCAL LODGE NO. 889 BUSINESS OFFICE, IOOF HALL CERTIFIED MAIL RETURN RECEIPT REQUESTED LAWTON, OKLAHOMA, July 16, 1957. Mr. A. D. SWEENEY, Personnel Manager, Page Aircraft Company, Lawtonian Hotel-Room 918. DEAR SIR: This will confirm our two telephone conversations on this date. The first was to request a meeting between the Negotiating Committee of Lodge 889 of the International Association of Machinists for the purpose of discussing possible future labor-management relations with Page Aircraft Company. I was informed during the conversation that you had to confer with Mr. Maderia and your Attorney. In the second conversation, you informed me that the Company did not care to meet with the Negotiating Committee of this Lodge at any time or for any reason before August 1st. Yours truly, BILL SEXTON, President, Lawton Central Labor Union. CC: C. Page Lodge 889 File REGISTERED RETURN RECEIPT REQUESTED APPENDIX C Mr. A. D. SWEENEY, Personnel Manager, Page Aircraft Maintenance, Inc., Lawtonian Hotel-Room 918, Lawton, Oklahoma. LAWTON , OKLAHOMA 1091/2 "D" AVENUE ELGIN 3-7927 July 25, 1957. DEAR SIR: This is to confirm our telephone conversation at approximately 8 o'clock a.m. on this date. Highlights of the conversation were as follows: that Mr. Rex Madiera, General Manager of Page Aircraft Maintenance Inc., at Fort Sill, Oklahoma who was going to meet with the writer of this letter at 11:30 o'clock a.m. on this date would not be willing to meet now because of advice from their Attorney, Mr. Edward E. Soule from Oklahoma City, working with the D. I. Johnson Law Firm; and that after August 1st, we could petition the National Labor Relations Board or take what other course that we desire, through law. Very truly yours, CC: Rex Madiera C. Page Hayes McGlon N.L.R.B. JAMES W. WITCHER, Grand Lodge Representative. J82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REGISTERED RETURN RECEIPT REQUESTED MR. CLARENCE PAGE, President, Page Aircraft Maintenance, Inc., Lawtonian Hotel-Room 918, Lawton, Oklahoma. APPENDIX D 1091/z D AVENUE ELGIN 3-7927 LAWTON, OKLA. July 25, 1957. Subj: Union Recognition and Request to bargain collectively. DEAR SIR: I am writing you regarding collective bargaining at Fort Sill, Okla- homa and the above subject. The International Association of Machinists won a National Labor Relations Board representation election and was certified by the N.L.R.B. with Certification dated December 9, 1953, Case No. 16-RC-1397 at Fort Sill, Oklahoma. Also the International Association of Machinists, Lodge 889 won a N.L.R.B. election in 1955 and was certified, July 7, 1955, Case No. 16-RC-1699 at Fort Sill, Oklahoma. We have bargained collectively with Spartan Aircraft Company at Fort Sill, Oklahoma since 1953 and have signed in good faith, three collective bargaining agreements. The first in 1954, another in 1955 and the last agreement was signed in 1956 of which terminates at midnight, July 31, 1957. Certainly this eliminates all doubts that our Union has been the exclusive bar- gaining representative at Fort Sill, Oklahoma for the employees of Spartan Aircraft Company. The same foremen and supervisors that work for Spartan Aircraft apparently will be working for Page Aircraft Company. The location is the same and also the work duties of the employees are the same. The only change, is the name of Page Aircraft instead of Spartan Aircraft. The International Association of Machinists, Lodge 889, AFL-CIO therefore, request of the Page Aircraft Maintenance Inc., that they recognize the Union as the exclusive bargaining representative for the purpose of collective bargaining with the Company for wages, hours and other conditions of employment. The unit which the Union is requesting recognition for is as follows: all production and maintenance employees employed by the service, repair and maintaining aircraft and aircraft parts on fixed wing and rotary wing aircraft by reason of a Contract between the Company and the United States Army at/in the vicinity of the Fort Sill Army Base, also our recognition is for general clerks, forms and record clerks, clerk-typist, comptometer operators, messengers, duplicator operators, payroll procurement clerks, payroll clerks, but excluding all employees in the personnel department, private secretaries, professionals, guards watchmen and supervisors as defined in the Act. - We are hereby making this as our formal request upon your Company for recognition of the Union as bargaining representative and request an early con- ference for the purpose of bargaining collectively. ' We are arranging our work schedule in order to be available for such conference on Tuesday, July 30th or Wednesday, July 31st at your office, or will try to suit your convenience should an earlier date be advisable. Looking forward to a pleasant and mutually amiable relationship, I am Very truly yours, (S) James W. Witcher, JAMES W. WITCHER, Grand Lodge Representative. CC: NLRB Maderia McGlon Hayes Cameron INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136; 29 U.S.C. Sec. 151 et seq.), herein referred to as the Act. PAGE AIRCRAFT MAINTENANCE, INC. 183 On January 29, 1958, Lodge 889, International Association of Machinists, AFL- CIO (hereinafter sometimes called the Union) filed a charge against Page Aircraft Maintenance, Inc. (hereinafter sometimes called Page, the Respondent, or the Company) with the Regional Director for the Sixteenth Region, in which it was asserted that the Company: On or about July 30, 1957 . . terminated the employment of and dis- criminated in tenure of hire, the employees whose names are listed and attached hereto, because of their membership and activities in behalf of Lodge 889, International Association of Machinists, AFL-CIO. On or about July 25, 1957, it . refused to bargain collectively with the authorized representative of Lodge 889, International Association of Machin- ists, AFL-CIO, chosen by a majority of its clerical employees at its Fort Sill, Oklahoma, plant to represent them for the purposes of collective bargaining and in respect to rates of pay, wages, hours of employment, and other condi- tions of employment. By the acts set forth in the paragraphs above, and by other acts and conduct, it . . . interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. and therefore had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. Thereafter, on May 29, 1958, the General Counsel of the National Labor Relations Board, by the Regional Director for the Sixteenth Region, caused a complaint and notice of hearing to be signed and issued against the Respondent. The complaint, sufficient on its face, alleges violations of Section 8(a)(5) and (1) of the Act. The Respondent filed a timely answer to the complaint, effectively denying violations of the Act as alleged, and setting up an affirmative defense: That the alleged acts complained of in the charge filed January 29, 1958, and in the complaint occurred more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon Respondent, by reason whereof issuance of the complaint herein is prohibited by law. On the issues raised by complaint and answer, this matter came on to be heard, pursuant to notice, before the duly designated Trial Examiner at Lawton, Okla- homa, on July 8, 1958; the hearing was closed on the following day. At the hearing, the General Counsel and the Respondent were represented by counsel and the Union, as Charging Party, was represented by two of its official representatives. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues, to argue orally upon the record, to file proposed findings of fact and conclusions of law, and to file briefs was afforded each party. Briefs were filed on behalf of the General Counsel and the Respondent and have been carefully considered. Upon the entire record of the case, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF PAGE AIRCRAFT MAINTENANCE, INC. The Respondent is and has been at all times material hereto, a corporation duly organized under and existing by virtue of the laws of the State of Oklahoma, having its principal office and place of business at Fort Sill, Oklahoma, and is now and has been at all times herein mentioned continuously engaged in said place of business in the maintenance of aircraft for the United States Army. The Re- spondent in the course and conduct of its business operations at Fort Sill is engaged under a defense contract with the Army in providing maintenance services on Army aircraft, which services are valued in excess of $100,000. The Respondent is, and at all times material to this proceeding has been, engaged in commerce and its activities affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Lodge 889 , International Association of Machinists , AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background The Artillery and Guided Missile Center of the United States Army located at Fort Sill, Oklahoma, through its purchasing and Contracting Division, G-4, be- 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ginning in the year 1953 and up until July 31, 1957, entered into four separate contracts for the maintenance of aircraft at Fort Sill. Each of these contracts was an individually negotiated agreement (as distinguished from contracts let on bid) and each was on a cost-plus fixed-fee basis. Each of these contracts provided in general scope for the furnishing of management , training, personnel , labor, equip- ment, supplies, services, and materials (except such as might be furnished by the Government) sufficient and adequate for the maintenance of aircraft. Each con- tract was written in general terms because the provisions of the basic contract were implemented by the individual contractor with respect to policies and procedures. The organization of the working force, the number of people involved, and the precise approach to these problems were covered by the contractor's procedures. The contractor had his own procedures on maintenance, organization, supply, cost accounting, and other details. Each contract was negotiated with Spartan after Spartan had been invited, along with other companies , to submit proposals to cover the work. Details of each contract were worked out between the Army and the contractor to cover both the requirements of the Government and the type of procedure or the implementation that the contractor was capable of furnishing or had offered to furnish.' Each of these agreements set forth an estimate of the quantity called an aircraft density schedule, showing the estimated number of aircraft by types anticipated to be maintained under the contract ; the actual performance of the contract was based on the actual number of aircraft assigned. The last such contract between the Army and Spartan was entered into as of May 20, 1955, to run from July 1, 1955, through June 30, 1956. Spartan elected not to become a bidder on an Army contract to cover the same work at Fort Sill to begin July 1, 1957. For reasons stated below, this last agreement between the Army and Spartan was modified to extend through June 30, 1957, and by later modification through July 31, 1957. Page Aircraft Industries had been an unsuccessful bidder against Spartan during some or all of the contract bidding periods shown above . This corporation again bid for a new contract to be effective July 1 , 1957, and became the successful bidder, whereupon on April 16, 1957, Page Aircraft Maintenance , Inc., Respondent herein , was organized as a new corporation for the purpose of performing field and organizational maintenance for the Army at Fort Sill under the same general type of cost-plus-fixed-fee contract which had theretofore existed between the Army and Spartan. On April 17, 1957, the Army and Page Aircraft Maintenance, Inc., entered into a contract for aircraft maintenance at Fort Sill for the fiscal year 1958, that is, for the year beginning July 1, 1957 , through June 30, 1958 . Modifi- cation Number 1 of that agreement changed the contract date to an 11-month period effectively August 1, 1957, through June 30, 1958 , and a subsequent modi- fication extended the contract through June 30 , 1959. That contract therefore is now in effect. For substantial reasons, the agreement made between the Purchasing and Con- tract Division, G-4, and Page Aircraft Maintenance, Inc., on April 17, 1957, was not finally approved by the Department of the Army until June 20, 1957. The short time between June 20 and July 1, the original initial contract date, was too short to permit Page to be in a position to start immediately to work under the contract, and therefore the Spartan contract was modified , as above mentioned, and Spartan continued to do the work called for under its last contract until July 31. The contract between Page and the Army follows the -same general form as those between the Army and Spartan. The principal difference in the last contract held by Spartan and the contract entered into between the Army and Page is in the implementation-that is, policies and procedures , organization of the working force, number of people involved, and so on. Another difference between the last Spartan contract and the Page contract is that the Spartan contract involved con- siderable organizational maintenance, but by the time the Page contract went into effect, the Army had technical units capable of carrying most of the organizational maintenance within themselves , so that the Spartan contract covered a great deal more of the organizational maintenance than the later Page contract. 1 A negotiated contract differs from an advertised contract in that in the latter case the Government Contracting Office writes up a contract down to the last detail and pub- lishes it for bids and thereafter awards it to the successful bidder exactly as the Govern- ment had written it and offered it for bid. PAGE AIRCRAFT MAINTENANCE; INC. 185 John Woodward, the contracting officer for the Army at Fort Sill, explained organizational maintenance as follows: The Army classifies maintenance into several groups, the first group being that maintenance which normally would be within the capabilities of the army unit to which the equipment is assigned. It is the easier part of the main- tenance work. The next step is field maintenance, which is maintenance normally beyond the capabilities of the unit to whom the equipment is assigned. The next break-down is depot maintenance which generally is done at some central point for a number of installations. He explained that the contract with Page covers primarily field maintenance, although Page is authorized to do a certain amount of organizational maintenance. He said that the contract with Spartan essentially, during the entire period, covered all the field maintenance and all the organizational maintenance. An examination of the provisions of each of the contracts covering this detail confirms Mr. Wood- ward's testimony. The basic contracts mentioned above do not establish standards for clerical or for hourly or salaried personnel, but merely require that the contractor organize his personnel in a way that will satisfactorily accomplish the mission, the actual organization of personnel being the responsibility of the contractor.2 In summary, with respect to the provisions of the several Spartan contracts and the provisions of the Page contract, it can be said that the basic contracts were substantially the same, but the implementation of each of the contracts, as between Spartan and Page, were different, depending upon the organizational and procedural efforts of each company and the requirements of the Army at particular times. For example, about one-half the work anticipated for Page on the basis of prior work done by Spartan actually was required of Page during the first contract period of Army and Page. The Company Organizational Activities of Page Just Prior to and on August 1, 1957 3 As explained by the Army contracting officer, ordinarily the Army is required to solicit bids on their contracts once a year because of the limitations on the annual appropriations made by the Congress, and therefore a contract normally cannot extend more than for a 1-year period. Consequently, the aircraft main- tenance contract at Fort Sill was announced and proposals were solicited from five or six more firms who had indicated an interest in doing that type of work. Such solicitations generally were made during February with the closing date in March because it would take that much time to meet approval requirements. In 1957, the proposals were invited in February and were closed in March with the anticipation that a final contract would be approved by May 1, which would allow a new contractor at least a 6-week period to get ready to take over the per- formance of the contract. Spartan did not rebid. There were five or six other bids received for the renewal contract and after a long period of evaluation by a board appointed for the purpose, it was determined that the proposal offered by Page was the one that was in the best interest of the Government and therefore a tentative award, subject to the approval of the Department of the Army, was given to Page. The award was not approved until June 20, and since Page had not been authorized to incur any reimbursable expense or to write procedures, it was in no position to take over the responsibility of the contract as of July 1. Consequently, as above noted, the Spartan contract was modified, as was the Page contract, which allowed the Army the benefit of Spartan's services through July 31. An estimate of the number of personnel which would be required by Page to begin the operation, made several months prior to August 1, and during negotia- tions, was approximately 297. On August 1, because of the decrease in workload, Page would not have needed that many people. On either August 1 or 2 Page reported to the Army that it had hired some 279 persons for the period beginning August 1, the report showing that 202 were hourly rated employees and 77 were Minor points of difference between the Spartan operation and Page operations are these : most of the tools and equipment under both contracts were provided by the Government but under the Spartan contract there was a certain number of tools and pieces of equipment furnished by Spartan, while under the Page contract there is nothing furnished by Page other than one or two items of office equipment ; the buildings used by Spartan, or some of them, are used by Page, although -there have been certain reassign- ments of space during the time of the Page contract. 3 Unless otherwise shown, all dates hereinafter mentioned are for the year 1957. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salaried employees. Of the hourly rated employees 9 were administrative, 32 were overhead, 7 were radio and electrical, and the remaining 154 were for direct assignment to aircraft maintenance. Of the salaried employees 3 were assigned to headquarters, 1 to the administrative office, 16 to the controller, 4 to personnel, 21 to supply, and 32 to maintenance. Prior to August, 1, during a so-called "phase-in" period, June 20-July 31, Page assigned a general manager and an assistant and perhaps one or two others from its Tulsa office to start the organiza- tional process. During this time it appears that four or five Spartan supervisors began to work with the general manager and his assistant either on an off-duty or nonreimbursable basis; however, according to the contracting officer, these persons could have been reimbursed from the time of their employment by Page through July 31, during the period June 1 through August 1. He said the approval of the contract to Page on June 20 authorized Page to incur necessary expenses for the phase-in period, which would be reimbursable, and that the contract did not specify how many people they could employ or how much could be spent on personnel or how much on other costs. Summary of History of Labor Relations at Spartan The Union (that is, Lodge 889) was first certified by the Board as a representa- tive for the purposes of collective bargaining of those employees of Spartan employed as production and maintenance workers and a collective agreement was entered into between Spartan and Lodge 889 in about June 1954. The following year, Spartan having questioned the right of the Union to represent the same employees, the Union again petitioned the Board and again was certified as a representative of the employees in the production and maintenance unit. In about June or the first part of July 1954, Spartan as the employer and repre- sentatives of the Union met and that company then agreed to a card check against its payroll to determine whether or not the Union represented another unit covering office and clerical employees. As a result of this card check, the Union was recognized as the bargaining representative for the employees in this unit and on July 16, 1954, a collective agreement was entered into between Lodge 853, having as members the office and clerical employees of Spartan, the agreement to run from May 16, 1954, until July 1955. In 1955, Spartan having questioned the right of the Union, Lodge 853, to represent the clerical employees, another card check against the payroll was made and a recognition agreement dated July 14, 1955, was entered into between Local 853 and Spartan. The collective-bargaining unit described in this recognition agreement was: All office and clerical employees, such as General Clerks, Stock Control Clerks, Forms and Records, Clerk-Typists, Comptometer Operators, Messen- gers and Duplicator Operators. Excluding all employees in the Personnel and Accounting Departments and Private Secretaries. Upon the expiration of the collective agreement between Lodge 889 and Spartan at the end of July 1956, representatives of Lodge 853 and Spartan agreed to merge Lodge 853 into Lodge 889. Another collective agreement between Lodge 889 and Spartan was entered into, to run from August 1, 1955, through July 31, 1956. The recognition clause of this agreement provided: The Company recognizes the Union as the exclusive bargaining agent for all employees in the bargaining unit as provided in the NLRB certification dated July 7, 1955, Case No. 16-RC-1699, with respect to wages, hours, and other terms and conditions of employment for all service , repair, maintenance and inspection employees, employed to service, repair and maintain aircraft and aircraft parts, and stock handlers. In addition , this recognition is extended to include but not limited to the following classifications, since added to the bargaining unit: general clerks, stock control clerks, cost accounting clerks, forms and records clerks, clerk-typists, comptometer operators, messengers and duplicator operators, but excluding all employees in the personnel and accounting departments, private secretaries, professional, guards, watchmen, and supervisors as defined in the Labor Management Relations Act of 1947, as amended. Upon the expiration of the 1955-1956 agreement another collective agreement was entered into between Lodge 889 and Spartan, this agreement to run from August 1, 1956, through July 31, 1957. The bargaining unit set forth in this- last agreement was identical to that contained in the 1955-1956 agreement, above quoted. (The 1956-57 agreement was on February 5, 1957, amended by a memorandum exclud- ing the term "the secretary" from the bargaining unit.) PAGE AIRCRAFT MAINTENANCE, INC. 187 On May 29, 1957, Spartan by letter of that date notified Lodge 889 that in accordance with the requirements of the labor-management agreement, dated August 1, 1956, Spartan desired to terminate the existing labor-management agreement. Under date of May 31, 1957, Lodge 889 by its recording secretary directed the following letter to the plant manager of Spartan: GENTLEMEN: This is to advise that Local Lodge 889 of the International Association of Machinists wishes to terminate our current agreement with your company effective July 31, 1957. This notice is given in accordance with the Labor-Management Relations Act of 1947 as amended and Article 39.2 of the current labor-management agreement, titled, "Duration of Agreement". We wish to meet with the company as soon as can be arranged in an earnest effort to complete negotiations as soon as possible regarding our new agree- ment for the coming year. Under date of June 5, 1957, Spartan wrote the Union to the following effect: GENTLEMEN: We acknowledge your letter of May 31st in which you advise of your wish to terminate the current agreement with this company. We wrote you a few days ago stating our desire to terminate the present agreement. We again invite your attention to our letter of February 21, 1957 in which we advise you that Spartan Aircraft Company was not accepting the govern- ment's invitation to bid on the proposal to perform aircraft maintenance work at Fort Sill beginning July 1, 1957. Since Spartan activities at Fort Sill will end on June 30, 1957 and since we are not empowered to negotiate an agreement for any successor who may follow us, we do not believe that there would be any benefit to the parties in the meeting you suggest in the last paragraph of your letter. Spartan has no knowledge that it will be involved in anything except duties associated with contract termination , after June 30, 1957. Union Efforts to Obtain Recognition by Page Bill Sexton, a representative of Lodge 889, on July 16 telephoned Albert D. Sweeney, at that time employment manager of Page, and requested a meeting between the negotiating committee of Lodge 889 and the general manager, Rex Madeira. Sweeney told him that he would inquire whether or not such a meeting could be arranged and would notify Sexton, or Sexton could call him back. Early in the afternoon, Sweeney told Sexton over the telephone that on advice of counsel the Company did not care to meet with the Union for any purpose until after the first of August. After this telephone conversation, Sexton immediately wrote a letter to Sweeney, certified mail return receipt requested, confirming the substance of the two telephone conversations. This letter was returned to Sexton unaccepted by the addressee. On or about July 24, James W. Witcher, Grand Lodge representative of the International Association of Machinists, was assigned to assist Lodge 889. On or about July 24, Witcher telephoned Plant Manager Madeira and arranged a dinner appointment for the following day. On the following day Sweeney telephoned Witcher and told him it would be impossible for Madeira to meet that day, July 24, whereupon Witcher wrote the following letter to Sweeney: DEAR SIR: This is to confirm our telephone conversation at approximately 8 a.m. on this date. Highlights of the conversation were as follows: that Mr. Rex Madeira, general manager of Page Aircraft Maintenance, Inc., at Fort Sill, Oklahoma who is going to meet with the writer of this letter at 11:30 o'clock a.m. on this date would not be willing to meet now because of advice from their Attorney, Mr. Edward E. Soule from Oklahoma City, working with the D. L. Johnson Law Firm; and that after August 1, we could petition the National Labor Relations Board or take what other course we desire through law. On that same day, July 25, Witcher wrote the following letter to Clarence Page, president of the Company: Subj: Union Recognition and Request to bargain collectively DEAR SIR: I am writing you regarding collective bargaining at Fort Sill, Oklahoma and the above subject. The International Association of Machinists won a National Labor Relations Board representation election and was certi- J88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lied by the NLRB with Certification dated, December 9, 1953, Case No. 16-RC-1397 at Fort Sill, Oklahoma. Also the International Association of Machinists, Lodge 889 won a NLRB election in 1955 and was certified, July 7, 1955, Case No. 16-RC-1699 at Fort Sill. Oklahoma. We have bargained collectively with Spartan Aircraft Company at Fort Sill, Oklahoma since 1953 and have signed in good faith, three collective bargaining agreements. The first in 1954, another in 1955 and the last agree- ment was signed in 1956 of which terminates at midnight, July 31, 1957. Certainly this eliminates all doubts that our Union has been exclusive bargaining representative at Fort Sill, Oklahoma for the employees of Spartan Aircraft Company. The same foremen and supervisors that worked for Spartan Aircraft appar- ently will be working for Page Aircraft Company. The location is the same and also the work duties of the employees are the same. The only change, is the name of Page Aircraft instead of Spartan Aircraft. The International Association of Machinists, Lodge 889, AFL-CIO there- fore, requests of the Page Aircraft Maintenance, Inc., that they recognize the Union as the exclusive bargaining representative for the purpose of collective bargaining with the Company for wages, hours and other conditions of employment. The unit which the Union is requesting recognition for is as follows: all production and maintenance employees employed by the service, repair and maintaining aircraft and aircraft parts on sixth wing and rotary wing aircraft by reason of a Contract between the Company and the United States Army at/in the vicinity of the Fort Sill Army Base, also our recognition is for general clerks, forms and records clerks, clerk typists, comptometer operators, messengers, duplicator operators, payroll procurement clerks, payroll clerks, but excluding all employees in the personnel department, private secretaries, professionals, guards, watchmen and supervisors as defined in the Act. We are hereby making this as our formal request upon your company for recognition of the Union as bargaining representative and request an early conference for the purpose of bargaining collectively. We are arranging our work schedule in order to be available for such conference on Tuesday, July 30th or Wednesday, July 31st at your office, or we will try to suit your convenience should an earlier date be advisable. Looking forward to a pleasant and mutually amiable relationship, I am Very truly yours, The Union received no answer to this letter. The Union called its members out on strike against Page on August 1, and the strike was still on at the time of the hearing herein. Shortly after the strike began, union representatives conferred several times with the commanding general and other Army personnel regarding the use of gates at the post so that regular work involving transportation could continue at Fort Sill without undue interruption. On August 16, Witcher encountered Madeira and Sweeney in the lobby of a local hotel and at that time introduced them to Louis Poulton, an attorney representing the Union who had come into Lawton from Washington in connection with the strike. Although requested, Madeira and Sweeney refused to discuss the situation with Poulton and Witcher at that time.4 Recruitment of Employees by Page After Page knew that it had been awarded a contract, Rex Madeira, vice presi- dent and general manager, together with Albert D. Sweeney, now vice president and assistant manager and then employment manager, were concerned with devel- oping policies and methods of procedures of operation looking forward to the beginning of performance under the contract by Page. During the month of July, they worked with three supervisors, then employed by Spartan, who had agreed to become directors in the maintenance and supply departments of Page after opera- tions should start. These three men were employed by Spartan until Page began actual operations on August 1. At the time prior to this date, the three super- 4 The Union filed a charge on August 12, and a first amended charge on August 19, accusing the Respondent of wrongful refusal to bargain and discriminatory refusal to employ certain former employees of Spartan. These employees of Spartan or former employees of Spartan had been employed in the production and maintenance unit. Case No. 16-CA-1016, attached hereto. PAGE AIRCRAFT MAINTENANCE, INC. 189 visors, later directors of Page, worked on a gratis basis with Madeira and Nelson on Saturdays and Sundays and during their off-time. On about July 15, Sweeney opened a recruitment office which was kept open until about July 22 or 23. At the recruitment office, applications for employment were received not only from employees of Spartan but other persons. According to Sweeney, more applications were received from persons other than Spartan or former Spartan employees than were received from the latter groups. At the recruitment office, Robert Burke, who had been the placement man for the Spartan organization and who had re- signed on July 15 to go to work for Page on July 16, worked with four or five female employees employed on a temporary basis, the latter doing clerical work only. In connection with the applications received at the recruitment office, Sweeney testified that the applications were sorted into groups based on past experience and other factors which it was thought would be determinative of which of the applicants were desirable for hire. He said: Those that we felt were eligible we would discuss with the people with whom they were going to work. We had promised them in the beginning that these people who were the directors of various departments-I am speaking about maintenance and supply, primarily-that we would give them an opportunity to pass upon these people who were to be employed. Ultimately, as it worked out, the directors of the several departments did have the final say as to which person would be employed in his particular department. The interviews conducted by Sweeney and Burke at the recruitment office were on the basis of information furnished by each applicant.5 Supervisory personnel offered employment by Page to be effective August 1, 1957, included 28 persons formerly employed by Spartan and 3 others, or a total of 31. Each of these reported for work, 1 on July 8, 2 on July 15, 25 on August 1; of the others, Madeira, general manager, reported June 20, Sweeney, assistant manager, on June 26, and an administrative assistant on June 25. It is also shown that 237 applicants, nonsupervisory and including production and maintenance and clerical help, were offered employment to be effective August 1, 1957, and that of these, 82 subsequently were hired, all except 24 being employed on August 1. A few others reported a few days later, with one or two going to work in late September and early October. Those employees who did not report to work are called strikers by the General Counsel. Of this group of so-called strikers, none of them have ever performed any services for Page, they have never been on the Page payroll, they have not been subject to the Page insurance protection program, nor in any way have obligated Page to compensate them for services performed. In other words, although offered employment by Page, they did not take advantage of the offer of employment made to them by Page after they had filed applications for employment prior to August 1. After Sweeney and Burke had sorted out the applications, and made offer of employment to persons who had applied therefor, Sweeney under date of July 29 sent the following letter, addressed to named persons at their street addresses: DEAR EMPLOYEE: We are glad to confirm your employment by Page Air- craft Maintenance, Inc., effective August 1, 1957. We welcome you to our company. We shall see you Thursday morning at 7:30 a.m. Newspaper stores indicate that a labor union will attempt by picket lines or other means, to keep you away from work. There is no labor union authorized by law to deal with this company at this time. In no event can you be penalized by anyone for going to work on time Thursday morning. We are here at Fort Sill to do a job for the United States Government. You have been hired to help with that job. If anyone tries to interfere with your going to work, please report it at once to this company or to U. S. military authorities. If the employees of this company decide that they want an union to repre- sent them, they will be entitled to have it. The fact that they had an union at Spartan's has nothing to do with what happens at Page's. I. D. Williamson, a former employee of Spartan, testified that on July 25 he was inter- viewed by F. l\I. Paulk, one of the three men who later became a director for one of the departments of Page. According to Williamson, Paulk had a Spartan personnel file before him at the time of the interview. Sweeney testified that he had never seen Spartan personnel files and did not have access to them and that at the time of the interview reported by Williamson, Paulk had not yet been employed by Page and certainly was not interviewing applicants at that time. The testimony of Williamson is disregarded ; obviously, he was mistaken. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Over 700 people have applied for work with this company ; 257 people have been hired. Any employees who do not report for work Thursday morning will be replaced by other applicants.6 Lodge 889 was last certified as bargaining representative for the employees in the production and maintenance unit on July 7, 1955. The employment of any employee still within that unit still employed by Spartan on July 31, 1957, termi- nated on that date. If those employees of Spartan whose employment had terminated on July 31 and who had been offered employment by Page to begin on the following day, August 1, refused to report to work after being offered employment by Page, it becomes doubtful whether or not any such employee had status as an employee of Page. Consequently , the question arises as to whether or not they were strikers in the real sense after August 1. Why did not the Union avail itself of the established procedures of the Board to show affirmatively that it did represent the employees in the claimed clerical unit ? It had done so :twice before with Spartan. Was it uncertain of its majority? The collective agreement between Lodge 889 and Spartan in effect in July 1957 contained a maintenance-of-membership clause to the effect that all employees ,covered by the agreement "shall 31 days after the agreement, or in the case of new employees, 31 days after date of employment , become members in good standing of the union during the time of this agreement ." The financial secretary of Local 889 identified a list showing amounts of dues deducted by Spartan from the wages of their employees, the list being dated June 26, 1957 , and containing 257 names. This would indicate that that many employees were members of the Union in good standing as of that date. Also furnished was a strike donation claim list, showing that as of August 15 , 345 persons previously employed by Spartan claimed strike benefits from the International Lodge. The financial secretary also identified a list of names prepared by her showing that 22 former employees of Spartan had crossed the picket line set up at Page between August 1 and August 27, the date of the list . None of these lists show segregation as between supervisory and non- supervisory personnel either of Spartan or Page, or segregation of clerical and 6 The complaint herein (paragraph 5) alleges : In order to insure to the employees of Respondent the full benefit of their right to self-organization and to collective bargaining and otherwise to effectuate the policies of the Act, all general clerks , forms and record clerks, clerk-typists, comptometer operators, messengers , duplicator operators , payroll procurement clerks, and payroll clerks at the company 's operation at Fort Sill , Oklahoma, excluding all employees in the personnel departments , private secretaries , professionals, guards, watchmen, and other supervisors as defined in the Act of 1947 , as amended , constitute an appro- unit for the purposes of collective bargaining within the meaning of Section 9, subsection ( b) of the Act. The record herein shows a list submitted by the Respondent containing the name, classi- fication, the date the individual reported , and those who did not report who would be called a striker by the General Counsel , in a unit alleged by the Respondent to be an appropriate office clerical unit. The list shows a total of 34 persons who were offered employment , of which 21 reported and 13 did not report . Also, attached to the complaint herein as Exhibit A is•a list of 67 persons alleged to be eligible for inclusion in the unit as described in paragraph 5 of the complaint who, the General Counsel alleges, "ceased work concertedly and went on strike " on August 1. In connection with this list the record shows an exhibit submitted by the Respondent referring to the same persons as listed in Exhibit A of the complaint in which four columns are set up for the purpose of showing categories of employment for these persons . The first category, "office clerical employment-did not report" shows the names of the persons who were offered office clerical employment in the unit claimed appropriate by the Respondent who failed to report for work on August 1 ; the second column , "office clerical employment-did report" shows those persons who reported for work in the unit called by the Respondent the appropriate office clerical unit ; the third column , "non-office clerical employment" shows the persons who were offered employment in classifications not within the office clerical bargaining unit ; and the fourth column shows the names of persons who were not offered employment . Of the 67 names shown in Exhibit A of the complaint, the records of the ,Company disclose that 17 of them were never offered employment by the Respondent ; that of the other 50. 25 were offered non-office -clerical employment and of the 25 who were offered office clerical employment , 13 did not report for work and 12 did report. If material , the Trial Examiner would find that the allegation of the complaint that all 67 employees listed in Appendix A went on strike is negated by the accurate records of the Respondent. PAGE AIRCRAFT MAINTENANCE, INC. 191 production and maintenance workers as between Spartan and Page. The Trial Examiner took these lists in evidence , and having considered them in the light of the whole context of the case , considers the weight to be given to them of no consequence in relation to the real issues of the case. The complaint alleges (paragraph 6-c): "Thus between May 1 , and August 1, 1957, the Respondent succeeded to all the identical rights and responsibilities of its predecessor, Spartan, with substantially the same employees ." In support of this allegation of the complaint , the General Counsel takes the position that be- cause Page employed a large number of former supervisory employees of Spartan, it necessarily follows or at least tends to prove that Page adopted the labor policies of Spartan . Implicit in this position is that Spartan through its former supervisory personnel subsequently engaged by Page imposed its labor policies upon Page. Nothing could be further from actual fact. In setting up the three departments for service and management, Page put a man at the head of each of these departments who formerly had been employed by Spartan. According to Sweeney, When we committed ourselves to employment with them , we told them at that time we would give them an opportunity to have the final say-so in the selection of the people who were to work for them; that as we got the appli- cations and sorted them out, those we thought would be acceptable , we would consult with them about these prospective employees and on their acceptance, we would tender them an offer of a job . We did that with the engineering department, the maintenance department and the supply department , but not with personnel and accounting . In the accounting department , Mr. Madeira hired Billups, Wood and Mascho, which is an accounting firm, to have a man come down and set up a new accounting organization-Mr. Fred Hendon I believe, was the name. He was the man who set up the department and assisted in the hiring. The man who is now head of accounting had no voice in that. Subsequently, the person who had been in charge of accounting for Spartan, one Mr. Wadley, became the head of the accounting department at Page. Wadley, after his employment, had no voice in the selection of employees in the account- ing department, that function being handled by Madeira , Hendon, and Sweeney. Paulk, on August 1, became the head of the personnel department of Page. He formerly had been employed by Spartan for about a year prior to August 1. Madeira selected the employees of the personnel department who subsequently served under Paulk. With respect to policies concerning operation of Page, the actual setting up of the organization was accomplished by Madeira and Sweeney- the heads of departments other than accounting and personnel , as above noted, had the final acceptance of employment of prior applicants , but in no sense can it be found in this record that these department heads had anything to do in connection with the shaping of the labor policy or organizational planning with respect to Page operations. The General Counsel seems to believe that because the general wage scales or rates of pay at Page were generally in line with those in effect during the Spartan operation, this proves labor policy as to wages was inherited from Spartan or was imposed upon Page by Spartan . Actually, the going and approved rates of wages were secured from the contracting officer at Fort Sill and, as is generally known, the going rates of wages applicable to the performance of Government contracts are those going rates for particular areas which are approved or are set and approved by the Government. The record shows that Page provided the same number of paid holidays and about the same length of vacation as had been in effect at Spartan ; on the other hand, the welfare program and the insur- ance program of Page were entirely different from those which had been in effect at Spartan. Page published and furnished to each employee a manual describing the rules and regulations under which the employee works and describes the bene- fits which he receives.? Nowhere in this record can there be found evidence which would indicate that Spartan had in any way influenced or attempted to influence Page either before or after the latter employer took over the obligations of its contract with the Army. On the contrary, almost the whole weight of the evidence goes to show that Page had independently, and without regard to what prior practices or policies of Spartan had been during the time Spartan had been performing under its con- tracts with the Army, established its own. 7 This booklet Is entitled "Welcome to PAMI." 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings As noted above, the Respondent contends that because the acts of alleged violation set forth in the charge occurred more than 6 months prior to the filing thereof, the complaint is invalid . The Respondent takes the position that the only demand to bargain made by the Union was made by letter dated July 25, 1957. However, it will be noted that the charge does allege discriminatory discharges on July 30, 1957, and also that the record discloses that Poulton, the attorney for the Union , and Witcher attempted to persuade Madeira and Sweeney to discuss bargaining with them sometime during the month of August . The Trial Examiner believes that the allegations of the charge with respect to dates of alleged violation are sufficient to support the issuance of the complaint.8 This case concerns the alleged refusal of the Respondent to bargain with the Union concerning conditions of employment of those employees in the so-called clerical unit described in the complaint. The Respondent contends that the appro- priateness of the unit has not been proved herein although the burden of proof rests upon the General Counsel. The Trial Examiner, if called upon to deter- mine the question, would find that the unit described in the complaint is an appro- priate unit for the purposes of collective bargaining . He is of the opinion that the individual positions held by persons within the unit would be a matter of payroll determination and more or less an administrative procedure, but that for the pur- poses of this case it could be found that the unit as described is an appropriate unit. That question , however, is not the main one to be decided herein. In the 1955-56 and in the 1956-57 agreements between Local 889 and Spartan, the clerical unit which had been separate prior to those dates was included within the purview of an overall unit for the purposes of collective bargaining . The his- tory of the clerical unit at Spartan shows very clearly that the parties always regarded the clerical employees as far as function was concerned as separate and apart from the production and maintenance employees , and it was only for con- venience that the clerical workers were written into the recognition clause of the two last collective agreements between the Union and Spartan.9 In KTRH Broadcasting Company, 113 NLRB 125 (at p. 127), the Board laid down principles which may be applied here in connection with the prior recogni- tion of the Union as the representative of employees of Spartan: Ordinarily, when faced with a union's demand for recognition as bargain- ing representative of employees in an appropriate unit on the basis of signed authorization cards, an employer may lawfully reject the union 's demand and insist that it prove its majority in a secret election conducted under Board auspices. [Citing A. L. Gilbert Company, 110 NLRB 2067 .] However, the Board's election machinery exists for the purpose of ascertaining the desires of employees as to a bargaining representative. It is not intended to be a shield behind which an employer may engage in a campaign of unfair labor 8 The pertinent provision of the Act in this respect is : SEC. 10 . . . . ( b) Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice , the Board, or any agent or agency desig- nated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect , and con- taining a notice of hearing before the Board or a member thereof, or before a desig- nated agent or agency , at a place therein fixed, not less than five days after the serving of said complaint : Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made , unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces , in which event the six-month period shall be computed from the day of his discharge. 0 Case No . 16-CA-1016 , heard by Trial Examiner Somers on January 7-8, 1958, in which he issued an Intermediate Report on April 30, 1958 , concerned the production and maintenance unit which in that case , the General Counsel contended , was applicable as it existed at Spartan to the employees at Page . In that case , the General Counsel seems to have based his position upon the certification of the Union at Spartan for a production and maintenance unit . As noted , there was never a certification for an office clerical unit at Spartan . In that case, therefore , it would seem that the General Counsel rested upon the contractual recognition of the Union by Spartan without any proof of actual majority either at Spartan or at Page, and without positive or affirmative proof as to the appro- priate unit . That case at this writing has not as yet been decided by the Board. PAGE AIRCRAFT MAINTENANCE, INC. 193 practices to destroy the union's majority . For that reason when, as stated in the Joy Silk Mills case [185 F. 2d 732, 741 (C.A., D.C.)], the refusal to recognize the union is due "to a desire to gain time to take action to defeat the union's majority, the refusal is no longer justifiable and constitutes a violation of the duty to bargain set forth in Section 8(a)(5) of the Act." But whether, in any case, the employer is legitimately or illegitimately motivated in asking for an election , whether he sincerely or insincerely ex- presses doubt as to the union's status, depends in the final analysis upon all the facts and circumstances of that case . There is no simple yardstick by which a good - or bad-faith determination can be made . The Board is per- force compelled to weigh all the evidence in the particular case, including the character and extent of the unfair labor practices , and the sequence of events, before making a finding of good- or bad -faith refusal to bargain . [Emphasis supplied.] It is well established that a bargaining request must be made for an appropriate unit to serve as a basis for a finding of unlawful refusal to bargain. In Joslin Dry Goods Company, 118 NLRB 555, the Board, with this requirement in mind, wrote (p. 558): In our opinion the Union 's failure to request bargaining in the proper unit is fatal to the General Counsel 's Section 8(a)(5) allegations against the Respondent. "[A] prior appropriate request for bargaining is a condition precedent to any finding of a refusal to bargain ." [See Barlow-Maney Lab- oratories, Inc., 65 NLRB 928, 943; The C. L. Bailey Grocery Company, 100 NLRB 576, 579.] While the existence of "minor variations" between the unit originally proposed by the Union and the unit which the Board ultimately finds appropriate , will not, in and of itself, preclude the Board from sus- taining a refusal to bargain allegation [see Barlow-Maney Laboratories, Inc., supra, at p. 944; Washington Coca-Cola Bottling Works, Inc., 117 NLRB 1163], we note that here the proposed unit is virtually twice as large as the unit which we would normally find appropriate, and includes categories which are not properly in the unit . Accordingly, in the face of this sub- stantial variation between the proposed unit and the appropriate unit, we shall dismiss the complaint herein, insofar as it alleges that the Respondent violated Section 8(a)(5) of the Act. In respect to the instant case , the principles enunciated by the Board in KTRH Broadcasting Company and Joslin Dry Goods Company are consistent and in support of the contention of the Respondent herein that no proof was offered by the General Counsel that the bargaining unit described in the complaint was appropriate . The nature of the proof offered by the General Counsel in this connection was in effect evidence offered and accepted to show that the clerical unit recognized by Spartan was made up of the classifications of employees as de- scribed in the complaint . The Trial Examiner is willing to recognize that such a unit so described would be an appropriate unit insofar as Spartan might have been concerned ; he is prepared to concede and to find, for the purposes of the instant case, that such a unit might be appropriate . But that would be to avoid the real question involved herein. Actually, the fact is that the clerical unit first recognized by Spartan either had not existed for more than 2 years, having been merged into the production and maintenance unit as described in the 1955 -56 and 1956-57 collective agreements between Spartan and the Union , or that, on the basis of the testimony of Witcher in this case, the clerical unit was always regarded at Spartan as being something different from the production and maintenance unit even though , as a matter of convenience, the recognition clause in the last two collective agreements with Spartan made the terms of those agreements applicable to both production and maintenance and clerical employees. Now the question arises as to whether the Union made a clear and unequivocal demand for bargaining, either by its letter to the Respondent dated July 25, or the informal interception of Madeira and Sweeney by Witcher and Poulton in the lobby of the hotel .'° Bearing in mind the letter of July 25, the telephone calls made by union representatives to company representatives , and the informal meet- ing at the hotel , the Trial Examiner cannot in good conscience assume that the 10 See Waiord Cabinet Company, 95 NLRB 1407, 1408. 508889-60-vol. 123 ' 14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union intended to ask anything other than a date for a meeting to discuss its recognition by Page of the production, maintenance, and office clerical unit de- scribed in the last two Spartan collective agreements with the Union. In Case No. 16-CA-1016, Trial Examiner Somers was confronted with a situation which showed a prior certification of the production and maintenance unit. The 1955 certification of the Board certainly would have remained valid as between the Union and Spartan had Spartan continued after July 31 to perform in accord- ance with Government contract. The clerical unit claimed to be appropriate here can exist only by virtue of the agreement to recognize it without certification, such agreement having been made between the Union and Spartan, and not between the Union and Page. The Trial Examiner is impelled to find that the letter of July 25 clearly defines the bar- gaining unit concerning which the Union wished to talk about with the Company, and that the unit included production and maintenance and all office clerical em- ployees except private secretaries and the personnel department." As remarked before, the establishment of a clerical unit at Spartan was by card check only and the unit existed only because of the agreement between the Union and Spartan that such a unit could be regarded as an appropriate unit. That fact, however, cannot be taken as one to conclusively establish that the bar- gaining unit as such is an appropriate one insofar as Page may be concerned. Those cases referring to bargaining history where such history has impelled the Board to decide that it signifies the appropriateness of a unit as such, are not conclusive in the circumstances of this case.12 The Trial Examiner finds that the 1955-56 and 1956-57 Spartan contracts, taken together with the letter of July 25, show conclusively that the Union had in mind an attempt to persuade Page, prior to August 1, to accept the bargaining unit (which might be described as the combined bargaining unit) existing at Spartan prior to the latter date. So far as the Trial Examiner can determine, representa- tives of the Union, in correspondence and in conversation with representatives of the Company, referred only to that one claimed unit. The Trial Examiner has analyzed as best he can the exhibits submitted by General Counsel in connection with the employment of personnel by Page, as to maintenance and production and supervisory and clerical. It is shown that the Company offered employment, to be effective as of August 1, to some 34 appli- cants who would fall within the office clerical unit described in the complaint. Two of these persons worked prior to August 1; neither of them had previously worked for Spartan. Prior to August 1 no person who worked for Spartan worked for Page. Page, the new contractor, had no one on its payroll in the described office clerical unit prior to August 1. No union members were employed and working for Page in the so-called appropriate bargaining unit on July 25, so that the demand for recognition which the Trial Examiner takes to mean recognition of the unit or enlarged unit described in the Spartan contract then in effect, was "The Respondent, in the brief filed on its behalf, cites a number of cases where the Board has held that office clerical employees should not be included in a production and maintenance unit. Haleyville Textile Mills , Inc., 117 NLRB 973; Bachmann Uxbridge Worsted Corporation, 109 NLRB 868 ; and others including a number of cases where generally the employer and the union were in disagreement as to certain categories which should be included within the unit, and where office clerical employees and others have been separated from production and maintenance employees. 12 See, e.g., Greenbrier Dairy Products Company, 100 NLRB 432, 434, where the Board said : Office employees. This classification includes payroll, accounts receivable, accounts payable, and sales record clerks and a receptionist-telephone operator in Beckley, and sales record and payroll clerks in Lewisburg. They work in the office at these locations and are supervised by the office manager ; the plant clerical employees, discussed above, work in the plant or garage under the supervision of the plant superintendent. The duties of the office employees are companywide ; plant clerical employees are concerned only with the respective branch plants. The main reason advanced by the Employer for including the office employees is that they have been included for bargaining purposes in the past . However, because of the fundamental differences in the work and interests of the two groups, we do not consider bargaining history to be sufficient reason for departing from the Board 's established policy of excluding office employees from production and maintenance units. [ Citing Standard Oil Company, 80 NLRB 1275. ] [Emphasis supplied.] PAGE AIRCRAFT MAINTENANCE, INC. 195 premature because then the Union could not possibly have had a proven ma- jority of employees of Page in the unit. It has been said that the question of good faith of an employer in refusing to bargain, and its desire to destroy the majority status of a union and defeat it in an election, is a question of intent. On this question of good faith, in the instant case, it has been shown that less than a majority of the employees in the claimed unit, said to be inherited from Spartan by Page, were on the picket line or on strike or did not report for work on August 1. On July 25, and on August 1, there is grave question as to whether the Union actually did represent as a union (that is, an organization holding membership) a majority of those former Spartan employees who through application to Page might have been eligible for employ- ment beginning August 1. Certainly it would appear that at the time of the demand by the Union or for bargaining purposes, there was no legal necessity for Page to bargain with the Union. The Company, on the matter of good faith, has not been shown to have known or believed that the Union represented a ma- jority of the office clerical employees. The request of the Union never was renewed after Page began performance of its contract with the Army. So far as Page could ascertian or know, absent collusion between it and Spartan which has not been shown, Page could not assume that the Union represented a majority of this unit of employees. The Union after August 1 made no effort to show the Respondent that it did actually represent a majority of the employees in such a unit. Page rightfully could look with question upon the majority claimed among these employees while they or some of them were employed by Spartan, because of the simple fact that these employees were members in good standing of the Union by virtue of the maintenance-of-membership clause contained in the col- lective agreement between the Union and Spartan. The Trial Examiner believes Page was entitled to start from scratch on and after August 1 in its dealings with the Union, and was not required to have im- posed upon it an uncertified unit of employees simply because Spartan, with which Page had no connection whatsoever and with which it competed in business, had seen fit to accept the office clerical employees employed by it as a part or addition to an appropriate bargaining unit.13 The Trial Examiner expressly finds that Page did not stand in the position of a true successor to the business of Spartan.14 Page was a new employer, working under a contract with the Army which differed materially from the contracts pre- viously performed for the Army by Spartan, and Page as the new contractor cer- tainly had the right, after it began business, and after it had established its personnel structure, to determine or have determined by the processes of the Board, what constituted an appropriate unit for the purposes of collective bargaining and, further, it had the right to question whether or not the Union actually represented the employees in an appropriate bargaining unit. This case differs from the situation where equipment or machinery or goodwill or assets of a business are purchased and used while a collective-bargaining agreement is in effect between the first employer and his successor. See, for example, N.L.R.B. v. Armato, 199 F. 2d 800, 803 (C.A. 7); N.L.R.B. v. Lunder Shoe Corp., 211 F. 2d 284, 287 (C.A. 1). Cf. N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 402-- 405.15 The demand of the Union to meet with the Company, whether to request rec- ognition or to request to bargain, is not the sort of situation anticipated by the court in N.L.R.B. v. Dahlstrom Metallic Door Company, 112 F. 2d 756 (C.A. 2) where the court wrote (p. 757) : The evidence also supports the finding that respondent unlawfully refused to bargain collectively. The contention that bargaining was not mandatory 13 See N.L.R.B. V. Scott & Scott, 245 F. 2d 926, 927 (C.A. 9). 14 True successorship is exemplified in J. W. Dickey et at. d/b/a Ohio Hoist and Mfg. Co., 108 NLRB 561, 217 F. 2d 652 (C.A. 6) and Car City, Inc., 116 NLRB 1571. is Section 8(d) of the Act provides : For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession : . 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until the Board had accredited Local No. 307 as bargaining agent is frivolous. An employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support. N.L.R.B. v. Remington Rand, Inc., 2 Cir., 94 F. 2d 862, 868 , certiorari denied 304 U.S. 576. . . . We do not mean that respondent had to bargain with any one claiming to represent a majority, but adequate proof tendered by the claimant could not in good faith be ignored . The union offered to submit the signed membership cards, but this offer was not accepted . Respondent "made no effort to learn the facts and took the chance of what they might be. " N.L.R.B. v. Reming- ton Rand, Inc., supra, 94 F. 2d at page 869. Here, Page was under contractual obligation to set up, within a short period of time-June 20-July 31-an organization effectively to perform under the condi- tions required by the contract between it and the Army . This was not the situ- ation or even comparable to that in which a successor employer could be legally bound to inherit and assume the labor policies, collective agreements , and other matters relating to the organization of employees and their right to be represented for the purposes of collective bargaining by a representative chosen by them, freely and without pressure either from employer or union.ls The facts in this record disclose that the Union called the strike on the very day Page began performance of its contract with the Army and before any accepted applicant for employment by Page had reported for work. What would have happened had the Union not called a strike, but had renewed its request to meet with the Company or for recognition by the Company on or after August 1 is purely problematical and only conjectural . Nothing within the record in this case shows animus on the part of Page against the Union. The record demon- strates that Spartan recognized, when it terminated by notice its contract with the Union, that it could not contract on the part of Page; and that the Union, without more, undertook to assert that it would carry over without certification , without a showing of majority, without anything more than the fact that it had represented the employees of Spartan , and would impress itself upon Page as a recognized bar- gaining agent. If the General Counsel is correct in his position , the Trial Examiner interprets it to mean that it is lawful and correct to undertake to perpetuate a labor organization as the bargaining agent for a succession of independent and separate successful bidders on defense contracts-contracts made - between an agency of the United States Government and independent employers . The abuses which could grow out of the adoption of such a principle or philosophy could be almost endless. The Trial Examiner finds that : Page should not be held to be bound by the contractual recognition extended to the Union by Spartan prior to the time that Page undertook the performance of its contract with the Army ; it has not been proven that the employees of Page, employed as office clerical employees, favor the Union as their representative by an actual majority; the demands of the Union for recognition or for a meeting to discuss recognition with the Company were pre- mature; and the General Counsel has failed to show that the office clerical unit described in the complaint is an appropriate bargaining unit insofar as Page is now concerned . It further is found that there is a complete failure of proof that Spartan had any control of or connection with Page in relation to the operations of Page either before or after August 1. On the basis of the foregoing findings of fact , the Trial Examiner makes the fol- lowing: CONCLUSIONS OF LAW 1. The Respondent , Page Aircraft Maintenance, Inc., is, and at all times material hereto has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Lodge 889, International Association of Machinists , AFL-CIO, is and during the times material hereto has been a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. The Respondent above named has not been and is not now in violation of the National Labor Relations Act, as amended, as alleged in the complaint herein. [Recommendations omitted from publication.] '"See N.L.R.B. v. Birdsall-Stockdale Motor Company, 208 F. 2d 234 (C.A. 10).