Litton Precision Products, Inc.

CLIFTON PRECISION PRODUCTS DIVISION, ETC. 555 dues or initiation fee arises. The Union then, as the Board held in Philadelphia Sheraton, is bound to inform him fully as to his membership obligations. The failure of an employee to apply for membership may simply mean that he is not interested in working for more than 31 days; or having had a free ride for that period, he may believe he will thereafter be overlooked if he does not file an application, and ride free for a longer period. Dunn did so for nearly 3 months after the initial escape period.2 This was the posture of this matter when I granted Respondent's motion to dismiss for lack of a prima facie case at the end of the General Counsel's case. Dunn, it was apparent, had never approached the Union. On remand, Respondent adduced the evidence related above as to the circularization of the Company's employees along the 11-mile worksite. Though not in my opinion required as a defense against a charge of violation of the Act, in view of Dunn's failure to approach the Union, it neverthe- less did undertake to inform every eligible employee of his obligations under the con- tract, specifically the amount of the dues, the manner in which they might be paid, and the proper time and place of payment. In the absence of any comprehensive list of employees and their residence, I know of no more reasonable or effective way of conveying this information. In my opinion Dunn did not want to join the Union, and played hide-and-seek with it, much easier to do here than in a factory or in the Philadelphia Sheraton hotel. Even on the last day of his employment, when he has been advised by his employer that arrangements have been made with McWade, the Union's International repre- sentative, to have him reinstated in his job if he will go to the Union's hall the follow- ing night, he nevertheless deliberately stays away. Even when on the same night he by chance encounters McWade in another place, he conspicuously avoids asking him what arrangements he has made for him with Local 98D, and what his financial obligations are to that organization. I conclude and find that Dunn at no time had any real intention of applying for membership in the Union. Whether he had or not he did not apply and tender his membership dues and initiation fees as required by the provisions of a valid union shop contract. By reason of this failure Respondent Union could lawfully request his discharge by the Company. CONCLUSIONS OF LAW 1. Respondent Local 98D, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Construction Field Surveys, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent Union has not engaged in any unfair labor practices in violation of Section 8(b)(1)(A) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 2 Dunn testified that as late as May 1, 2 months after his employment, he was not certain whether he would stay in the community and on his job, and a day or so later asked Shapiro if the Company was going to send him back to a project he had formerly worked on. Shapiro told him he could go back to the other project but If he stayed with the Company he would have to join the Union. The following day he informed Parker that he had intended to stay with the Company and join the Union. Clifton Precision Products Division , Litton Precision Products, Inc. and Local 137, International Union of Electrical , Radio & Machine Workers, AFL-CIO. Case No. 4-CA-3431. January 4, 1966 DECISION AND ORDER On September 9, 1965, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that the Respond- 156 NLRB No. 59. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,ent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and -a supporting brief. The General Counsel filed cross-exceptions and a supporting brief and Respondent also filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. r The Board has reviewed the rulings of the Trial Examiner made at .the-hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions and briefs, and the entire record in this case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the addi- tions and modifications noted herein.' [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 1(c) and reletter paragraph 1(c) as paragraph 1(d) : ["1(c) Refusing to bargain about job posting procedures with the above-named labor organization and instituting wage increases with- out bargaining with said labor organization." [2. Add the following as the third paragraph of the notice : [WE WILL NOT refuse to bargain about job posting procedures with the above-named labor organization nor will we institute wage increases without bargaining with said labor organization.] 'Considering all the circumstances herein, we reject Respondent's claim that its uni- lateral institution of a job posting procedure gave rise merely to a -matter of "substantive contract interpretation" and is not properly before the Board in this unfair labor practice proceeding. See Century Papers, Inc., 155 NLRB 358 Like the Trial Examiner, we find that the contract did not vest in Respondent the right to take this unilateral action and we conclude that Respondent thereby violated Section 8(a) (5). Although the Trial Examiner found, as do we, that the Respondent's unilateral institution of a job posting procedure and its unilateral grant of a wage increase violated the Act, he failed to pro- vide a remedy for these violations in the Recommended Order and Notice. We hereby correct this inadvertent error by amending the Recommended Order and Notice to reflect these additional violations TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on September 2, 1964, and thereafter amended, by the above- named Charging Party, herein referred to as the Union , the General Counsel of the CLIFTON PRECISION PRODUCTS DIVISION, E1C. 557 National Labor Relations Board, herein referred to as the General Counsel, by the Regional Director for Region 4 (Philadelphia, Pennsylvania), issued a complaint dated November 30, 1964, thereafter amended, against the above-named Respond- ent, herein referred to as the Respondent. The complaint alleged that the Respondent had engaged in, and was engaging in, unfair labor practices in violation of Section ,8(a)(1) and (5) of the National Labor Relations Act. Respondent duly filed an answer to the complaint, which, as amended, admitted certain allegations of the com- -plaint, but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Sidney J. Barban at Philadelphia, Pennsylvania, on various dates between February 23 and April 13, 1965. All parties appeared at the hearing and were afforded full opportunity to participate, -examine witnesses and adduce relevant evidence. Oral argument was waived. Briefs have been received from the General Counsel and the Respondent and have been carefully considered. Upon the entire record in this case,' and from my observation of the witnesses, I -make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, is engaged at Clifton Heights, Pennsylvania, in the manufacture of electrical components? During the year previous to the issu- ance of the complaint, Respondent shipped from its Clifton plant-in interstate com- merce manufactured items of a value in excess of $50,000, and in the same period, received at its Clifton plant in interstate commerce goods and materials of a value in excess of $50,000. Respondent admits and I find that Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Preliminary As a result of proceedings initiated by the Union in Case No. 4-RC-5494, an election was conducted, on June 26, 1963, by the Regional Director of the Board among the production and maintenance employees at the Clifton plant 3 to determine whether those employees desired the Union as their collective-bargaining representa- tive. The tally of ballots shows that there were approximately 660 employees eligible to vote; 638 employees appeared at the polls; 330 voted in favor of the Union, and 300 voted against; 8 voters were challenged. The Union was certified, on July 5, 1963, by the Board as the collective-bargaining representative of the unit in which the election was held. The parties thereafter engaged in numerous collective-bargaining sessions, during the course of which there was a strike of the employees from Octo- ber 23 to December 8, 1963.4 The strike was ended with agreement of the parties to 1 Respondent's motion to correct the record, to which no objection has been filed, has been granted, with certain exceptions, in a separate order, together with certain correc- tions In the record made on my own motion. 2 The certification of representative issued by the Board on July 5, 1963, was based upon an appropriate unit of production and maintenance employees at Respondent's two plants located at Broadway and Marple Streets, Clifton Heights, Pennsylvania, and 557 East Baltimore Pike (Boat House), Clifton Heights, Pennsylvania. It was stipulated that this continues to be the appropriate unit. The two plants will be referred to together herein as the Clifton plant. i The employer was then Clifton Precision Products Company, Inc., herein referred to as Clifton, which became a division of Litton Precision Products, Inc, herein sometimes referred to as Litton, on December 10, 1963. No contention is made that the change in corporate ownership, as such, affected the obligation of Respondent, as the successor employer at the Clifton plant to deal with the Union as the collective-bargaining repre- sentative of certain employees at that plant. * It was estimated that approximately 200 employees worked during the strike, appar- ently including some employees hired during the strike. It was also estimated by a union representative that approximately 425 employees were on strike It appears that about two-thirds of the work force ceased work during the strike. This accords with the statement in Respondent's brief that "at least one-third of the workforce continued to work during the strike." 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a collective-bargaining contract effective December 9, 1963, for a period of 1 year, to December 8, 1964, subject to automatic renewal in the absence of 60-day notice by either party to terminate the agreement. The record indicates that the agreement was actively administered by the parties during its term. Respondent asserts, however, that during this period it was advised of employee dissatisfaction with the Union and the agreement. Allegedly the tempo of this employee dissatisfaction increased in June and July, immediately prior to the plant vacation period (the last week of July and the first week of August), which itself preceded what may be described as a very active August on the labor relations front at the Clifton plant. During August 1964, Respondent, without prior consultation with the Union, instituted a "job posting" procedure designed to afford "Clifton personnel greater opportunities to advance their careers with the Company," by publicizing job vacan- cies to the employees prior to hiring personnel from outside the plant. Also during August, supervisory and management personnel became involved on a large scale in activities designed to effectuate employee withdrawal from checkoff of union dues or union membership, to be effective in the early part of October 1964. The collective-bargaining agreement, which did not provide for compulsory union membership, contained a provision for checkoff of dues for those employees who executed voluntary authorizations dated after December 9, 1963. The contractual period of escape from the checkoff was a 5-day period in October. However, in August a number of supervisors, management personnel, and employees became actively engaged, in advance, in preparing and completing withdrawal letters, many of which were held by supervisory and management personnel for employees until just before the escape period in October.5 About this same time, the record shows that a committee of employees initiated a movement in support of a petition for an election to decertify the Union as the bar- gaining representative of the employees Such a petition was filed with the Board, on September 14, 1964, and docketed as Case No. 4-RD-327. Respondent's indus- trial relations director, Noel England, testified that he was informed by the person who appears to have been the leader of the group, an employee named Gallagher, that there were 356 employees who signed in support of this petition 6 By letter dated September 17, 1964, the Union requested that the Respondent bar- gain with it for changes in the current agreement. On September 24, 1964, the Respondent replied in a letter advising the Union that Respondent had a "good faith doubt that you now represent a majority of the employees in the bargaining unit," declining to meet with the Union as requested and notifying the Union that Respond- ent desired "to terminate the existing labor agreement effective December 8, 1964." 5In March of 1963, the first month in which the checkoff was operative, the Respond- ent checked off dues from 299 employees. In September 1964, the Respondent checked off dues from 269 employees. The problems of determining the exact number of authoriza- tions in force, as well as the problems of determining the number of employees in the unit at critical times will be considered hereinafter 8 Respondent subpenaed the attorney for the General Counsel to produce the list of employees supporting this petition from the Board's files, but stated that a stipulation as to the number of names would be acceptable in lieu thereof The General Counsel refused to stipulate the number of names and filed a motion to quash the subpena, which was granted by me after full argument and due consideration. Respondent claims that the ruling was erroneous. In argument on the motion to quash the subpena, Respond- ent suggested two grounds for the admission of evidence that it was seeking* first, that it would corroborate England's testimony and second, that the evidence would prove or tend to prove that the Union was rejected by a majority of the employees As to the first point, I, as stated on the record, hold that since England asserts that he relied upon what he was told by Gallagher to be the number, without any investigation on his part of the actual number supporting the petition, the actual number is of only tangential materiality The actual number would not support England's testimony as to his con- versation with Gallagher, upon which alone, he relied. Gallagher's testimony might be probative for that purpose, but it was not offered In any event, it is not error to refuse to permit Respondent to subpena Board files for purely cumulative evidence Mak-All Manufacturing, Inc. v. N.L R.B , 331 P. 2d 404 (C.A 2). With respect to the second point, contrary to the contention of Respondent, the fact that the petition was filed with the Board does not authenticate the signatures supporting it To the extent that these proposed facts might be relevant or material, they were within the possesssion of Gallagher, who was not called or shown to be unavailable. In these circumstances, I am convinced that the application in this case of the Board's rule against disclosure of the Agency's Iles has not prevented Respondent from the full development of its defense herein. CLIFTON PRECISION PRODUCTS DIVISION, ETC. 559 This decision was made by Respondent's industrial relations director, Noel Eng- land. England testified that four basic factors contributed to his doubt that the Union continued to represent a majority of the employees in the unit. Briefly, these were (1) the fact that the Union originally was certified on the basis of a favorable vote of less than a majority of the actual number of employees in the unit (330 voted for the Union out of a total unit of 660); (2) the receipt of a number of reports of employee dissatisfaction with the Union; (3) knowledge that the Respondent had checked off dues for 269 employees in September, which England believed to be less than a majority of the employees in the bargaining unit; (4) the receipt of Gallagher's report that 356 employees had executed a document in support of a petition for a new election , which had been filed with the Board. At the same time that England advised the Union that Respondent was declining to bargain with it for a new agreement, Respondent also filed a petition with the Board for an election, docketed on September 24, 1964, as Case No. 4-RM-497. The record indicates that the Respondent continued to recognize and deal with the Union for the purpose of administering the current agreement until its termination date. In December 1964, after the termination of the agreement, Respondent uni- laterally granted a wage increase to the employees in the unit. Both the petition in Case No. 4-RD-327, filed by the employees, and the petition in Case No. 4-RM-497, filed by Respondent, for an election, were dismissed by the Regional Director on the basis of the issuance of the complaint in this matter. Upon appeal, the Board affirmed these actions of the Regional Director. Respondent, thus, is here accused of refusing to bargain with the Union as the rep- resentative of its employees in an appropriate bargaining unit in violation of the Act. Respondent admits that it has refused to bargain, but asserts that it was justified in this action by its belief in good faith that the Union no longer represented a majority of its employees.7 Under well settled principles of law, during the first year after its certification, absent unusual circumstances, a labor organization is conclusively presumed to be the representative of the employees in the bargaining unit and the employer must deal with it as such. After the first year of certification, the presumption continues, but is rebuttable. It may be rebutted at an appropriate time, as at the end of a current collective-bargaining agreement, by a showing that the union clearly does not represent a majority of employees in the unit, in which case the employer has no further obli- gation to deal with the union as the representative of the unit, unless the union's loss of majority status was improperly caused or contributed to by the employer. The employer, also, at the end of the certification year, or at an appropriate time there- after, may be relieved of an obligation to deal with the certified union, if the employer has a good-faith doubt that the union continues to be the designated or selected rep- resentative of a majority of the employees in the appropriate unit. The Respondent does not here contend that the evidence clearly shows that the Union had lost its majority status, but asserts that it raised the question of the Union's majority in "good faith," within the meaning of the law. With respect to this issue, the Board has said in Celanese Corporation of America, 95 NLRB 664, 673: By its very nature, the issue of whether an employer has questioned a union's majority in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of the totality of all the circumstances involved in a particular case. But among such circumstances, two factors would seem 7 Respondent agreed at the hearing to the appropriateness of the bargaining unit in which the election was originally held. Based upon this agreement and the record as a whole I find the appropriate unit for bargaining pursuant to Section 9(b) of the Act to be: All production and maintenance employees, including model shop (prototype) em- ployees and parttime student employees, and truckdrivers employed by Clifton Precision Products Division, Litton Precision Products, Inc. at its two plants located at Broadway and Marple Sts., Clifton Heights, Pa, and 557 E. Baltimore Pike (Boat House), Clifton Heights , Pa., but excluding professional and technical employees, in- cluding engineering department employees ; draftsmen ; tool designers ; methods de- partment employees , quality control analysis technicians ; environmental test em- ployees; quality control gauge and instrument employees and quality control receiving inspection employees ; office production control employees, including expediters and dispatchers ; office and shop clerical employees ; purchasing department employees ; personnel department employees ; salesmen ; guards ; and supervisors as defined in the Act. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be essential prerequisites to any finding that the employer raised the majority issue in good faith in cases in which a union had been certified. There must, first of all, have been some reasonable grounds for believing that the union had lost its majority status since its certification. And, secondly, the majority issue must not have been raised by the employer in a context of illegal antiunion activi- ties, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union. The General Counsel asserts that the Respondent may not here assert a claim of "good faith," because of its alleged unlawful activities in unilaterally establishing a job posting procedure and other alleged unlawful conduct causing employee disaf- fection from the Union. B. Establishment of the job posting procedure Early in August 1964, Respondent posted a notice to its employees announcing the introduction of a job-posting procedure, "consistent with Litton' s employee rela- tions philosophy of providing career advancement opportunities for its employees." As stated therein, over the signature of James W. Weidenman, a vice president of Lit- ton Industries and chief executive officer of Respondent: The chief feature of the plan is that production job vacancies will be publi- cized to our employees prior to hiring candidates from outside the plant, thereby affording Clifton personnel greater opportunities to advance their careers with the Company, consistent with their job interests and abilities. It is my sincere conviction as well as that of the Litton organization that this Company's continued growth will be dependent in large measure upon the people it employs. Not only is it the Company' s aim to provide job security insofar as possible, but also to offer career opportunities to those who are willing and able to contribute to the Company's success. In short, it is our hope that as the Com- pany grows, our employees will grow along with it. The new job posting proce- dure, I believe, will be one step in that direction. Later in August, this procedure was confirmed and further details supplied in the company paper, "The Synchronizer," distributed to Respondent's employees. It was there explained that the decision to post all production job openings was part of Respondent's "continuing effort to improve employee relations and encourage employ- ees to make a career with our company." It was stated that employees would have a 24-hour period to consider and apply for such jobs and that applicants not accepted would be given the reason for their rejection. Prior to the institution of this procedure, the filling of job vacancies had been han- dled by the various foremen, based on their knowledge of the job openings available and their wishes in filling them. As a result, employees were uncertain of the basis used by supervisors in determining transfers from one job to another and were particu- larly concerned because the Respondent appeared to have a policy of filling higher rated vacant jobs by hiring from the outside, rather than promoting employees from within the present employee complement. Because of these concerns on the part of the employees, the Union sought, as part of its 1963 proposal for a collective-bargaining agreement with the Respondent, a pro- vision for the posting of certain jobs before new employees were hired: This pro- vision was included among the clauses in the proposal dealing with the application of seniority. In pertinent part, the job posting proposal stated that "No new employ- ees shall be hired until ... employees who have requested transfer to the job have first been given an opportunity to fill such job. Such job openings shall be posted for a period of five (5) full working days." Other clauses in the seniority proposal provided for the application of seniority of employees in the making of transfers and promotions, and the rates of pay in such situation. There is a dispute as to whether this job posting proposal, specifically, was dis- cussed during the bargaining negotiations. Witnesses for the General Counsel assert that the subject was discussed briefly at one negotiation meeting, at least. Testimony was adduced by ' Respondent that the Union's seniority proposal became enmeshed in fundamental and serious differences between the parties over seniority rights gen- erally, which were finally resolved without specific discussion of job posting. It is unnecessary to the decision in this matter that this dispute be resolved. It is suffi- cient to note that the proposal for a job posting provision was rejected by Respondent and no reference to lob posting is contained in the collective-bargaining agreement CLIFTON PRECISION PRODUCTS DIVISION, ETC. 561 signed by the Respondent and the Union.8 The final draft of the agreement was prepared by Respondent's counsel at the request of the Union. Certain changes, not including job posting, were thereafter requested by the Union and some of these were agreed to by the Respondent and incorporated into the final agreement. Respondent's industrial relations director, England, who had not been employed at the Clifton plant at the time of the 1963 negotiations, testified that in July 1964, because of an anticipated large increase in new job openings, he recommended to Respondent's management that a job posting system be instituted. He stated that this was expected to serve the purpose of taking the burden off the foremen to fill job vacancies and also provide opportunities to employees to advance and better them- selves. In England's view, the change was purely one of mechanics and did not provide an additional benefit to employees, because, as he stated, the Respondent had always provided "an opportunity" for the employees "to get another job." The job posting procedure was instituted by Respondent without notification to or prior consultation with the Union. England agreed that it never occurred to him to consult with the Union about this. He asserted that Respondent relied on "a transfer clause" in the agreement, which he considered gave the Respondent the right to take unilateral action in this situation, which will be discussed hereinafter. Although the Union filed a charge in this matter, alleging, in part, that Respondent had "promised and made unilateral changes in terms and working conditions," and also asserted to England that the Respondent's action indicated that Respondent was not willing to deal with the Union on a fair basis,9 the Union made no request to the Respondent to bargain concerning this matter after the institution of the job posting procedure by Respondent. Respondent contendsrthat General Counsel's claim that Respondent violated the Act by its unilateral institution of the job posting procedure should be dismissed, first, "on the ground that the Union did not make a timely request to bargain over the institution of the job posting procedure" and, secondly, on the basis that "in any event, the Union clearly waived any right to compel the Company to negotiate about the job posting procedure by the very terms of the Collective Bargaining Agreement." The provisions of the Agreement relied upon by Respondent in its brief in support of the latter position are the following, in pertinent part: ARTICLE XXIII. MANAGEMENT CLAUSE 23.01 Any of the rights, powers or authority the Company had prior to the signing of this agreement are retained by the Company except those specifically abridged, granted or modified herein. Accordingly, the Union recognizes and agrees that the management of the plant and the direction of the working forces are vested exclusively in the Company. 23.02 Among the rights and responsibilities which shall continue to be vested in the Company, which is not intended as a wholly inclusive list, shall be:... to promote, transfer, and relieve employees from duty because of lack of work or other legitimate reasons, and to take such actions as the efficient operation of the plant and the necessities of the business shall, in the opinion of management, require, provided....... 10 ARTICLE XXV. SCOPE OF AGREEMENT 25 01 The parties acknowledge that during the negotiations which resulted in this agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining, and that the understandings and agreements 8It is clear, however, that during the course of the bargaining sessions, one or more of Respondent's top officials, other than Respondent's counsel and chief negotiator, had occasion to advise the Union that-they opposed intracompany transfers of employees be- cause this would be burdensome to Respondent and would require additional training of employees for jobs vacated in such transfers. 0 Union Representative Martin testified that he made such a statement in a meeting with England on September 10, which England denied. England, however, admits a discusssion with Martin and others on November 18, in which a discussion of job posting and the charges in this matter were discussed Charging Party's Exhibit No 7, a letter from England to the Union supports the conclusion that the Union did not raise this issue before November 18. It is found that the comment was made by Martin to England on November 18, rather than on September 10 10I have also noted in article XIV, "Seniority," paragraph 14 10, "Transfers," provid- ing: "There shall be no limitation on the Company's right to transfer employees." 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arrived at by the parties after the exercise of that right and opportunity are set forth in this agreement. Therefore, the Company and the Union, for the life of this agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter referred to, or covered in this agreement, or with respect to any subject or matter not specifically referred to, or covered in this agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both or the parties at the time they negotiated or signed this agreement. It is now well established that not only is the Respondent under a duty to bargain exclusively with the chosen representative of its employees concerning the terms and conditions of their employment, but that the Respondent is under the correlative obligation not to unilaterally change established employment conditions without con- sultation and bargaining with the representative of its employees, in the absence of circumstances excusing us or justifying such unilateral action. N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736. Included within the terms and conditions of employment upon which the Respondent is required to consult with the Union are job posting and the application of seniority thereto. The Perry Rubber Company, 133 NLRB 225; cf. General Electric Company, 127 NLRB 346.Respondent, however, contends that it was excused from any obligation to bargain with the Union on the subject of the job-posting procedure, which was unilaterally instituted by Respondent, because the Union did not make a timely request of Respondent to bargain concerning the subject The contention is obviously without merit. One obligated to bargain under the Act may not thus claim that its own uni- lateral action, in derogation of that obligation, should also, serve as the very excuse for its failure to bargain. The Court of Appeals for the Fifth Circuit, in rejecting a simi- lar claim in Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843, a case involving, inter alia, unilateral wage increases, stated (847, 848): Good taith compliance with Sections 8(a) (5) and (1) of the Act presupposes that an employer will not alter existing `conditions of employment' without first consulting the exclusive bargaining representative selected by his employees, and granting it an opportunity to negotiate on any proposed changes .... Here, we think petitioner's action in . . . granting merit increases . . . without consulting their union as requested, constituted unilateral action which naturally tended to undermine the authority of their certified bargaining representative, and violated the above sections of the Act. We further find no justification for petitioner's action regarding the wage increases from the union's failure timely to object, or specifically to request bargaining on these issues, nor can we accept its excuse that the union would have rejected a similarly offered wage increase as inadequate 11 [Emphasis supplied.] Respondent contends, nevertheless, that the Union had waived in advance, by the terms of the collective-bargaining agreement above noted, any right to be consulted or to require bargaining with respect to the institution of the job-posting procedure. It is, indeed, well settled that, in appropriate situations, a union may waive its right to be consulted in the case of employer unilateral action concerning a bargainable subject. However, such waiver, in derogation of rights granted by the statute, will not be lightly implied, but must be clear ,and unmistakable.12 In fact, it has been held that the employer violates Section 8(a) (5) of the Act if he refuses to bargain or takes unilateral action on a term or condition of employment, "unless it can be said from an evaluation of the prior negotiations that the matter was `fully discussed' or `consciously explored' and that the Union `consciously yielded' or clearly and unmis- takably waived its interest in the matter." 13 11 See Insulating Fabricators Inc., Southern Division, 144 NLRB 1325, 1332; New Orleans Board of Trade, Ltd., 152 NLRB 1258; Paris Manufacturing Company, 149 NLRB 15 '2N L R B. v. Perkins Machine Company, 326 F. 2d 488 (C.A. 1) ; The Timken Roller Bearing Co. v. N L.R.B., 325 F. 2d 746 (C.A. 6), cert. denied 376 US. 971; N.L.R B. v. The Item Company, 220 F. 2d 956 (CA. 5), cert. denied 350 U.S. 836; Smith Cabinet Manufacturing Company, Inc., 147 NLRB 1506; Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410. ' See Proctor Manufacturing Corporation, 131 NLRB 1166, 1169; C & C Plywood Corporation, 148 NLRB 414; The Press Company, Incorporated, 121 NLRB 976. CLIFTON PRECISION PRODUCTS DIVISION, ETC. 563 Manifestly, the issue of job posting in this matter was not either "fully discussed" or "consciously explored" in the negotiations preceding the execution of the agree- ment here involved. While it is clear that the Union consciously agreed to the elimi- nation of its own job posting proposal, it cannot also be said, on this record, that the Union also "consciously yielded" caste blanche to Respondent to institute its own job posting procedure-at a time when Respondent was clearly opposed to the insti- tution of any job-posting procedure.14 The mere fact that the Union proposed a job- posting procedure which was not accepted would not be evidence that it had thereby consciously conceded its statutory rights with respect to the issue. "To hold that mere failure under such circumstances operates as a forfeiture of a statutory right would have the effect of restricting a Union freedom in a legitimate area of collective bar- gaining. It would greatly lessen the possibility that a union would bring up matters of this sort ... save in situations where [it] was sure it could achieve its demands or where it was willing to strike to [achieve] employer concurrence. This would be `disruptive rather than fostering its effect upon collective bargaining,' and hence con- trary to the broad policy directives of the Act." See Adams Dairy Co., supra, pp. 1413-1414; Henry I. Siegel Co., Inc., 147 NLRB 594-595; The Press Company, Inc., supra, 978. Indeed if I were to infer any expectation or intent on the Union' s part in agreeing to a contract here, without a job-posting provision, it would be that the Respondent's promotion and transfer procedures would continue as in the past, without substantial change, for there was no showing here that Respondent had indicated any desire to make changes.15 The fact that the contract confirms certain rights in Respondent to make promo- tions and transfers does not require a different answer, since the issue as to whether the Union "consciously yielded" its statutory rights here must be determined not alone upon the literal language of the agreement, but upon all of the facts in the rec- ord bearing upon the issues,16 which, as I have noted, militate against such a finding rather than support a conscious decision on the part of the Union here to concede its statutory rights Indeed, the literal language of the Agreement, standing alone, does not evidence that clear intent upon the Union's part to knowingly relinquish its statutory rights, which would be required to support a finding of waiver in this matter. See John R. Peterson, et al. v. S. S. Wahcondah and Ahern Shipping Company, Ltd., et al., 331 F. 2d 44, 48, defining waiver of statutory rights "as the intentional relinquishment of a known right with both the knowledge of its existence and an intention to relinquish it." It is noted that in the instant case the rights reserved to the Respondent to transfer and promote employees are merely those which "the Company had prior to the sign- ing of the Agreement" (See article XXIII, par 23.01), which rights "continue to be vested in the Company" (article XXIII, par. 23.02). Such "prior" rights clearly did not include the right to take unilateral action concerning a bargainable subject while the Union was the certified bargaining representative. Nor does the "Scope of Agreement" clause confer any additional right upon the Respondent since it is merely a customary "wrap up" clause which "does no more than express the fact that the collective-bargaining contract was intended to repre- sent the complete agreement of the parties. See International Union of Electrical, Radio and Machine Workers V. General Electric Company, 322 F. 2d 485, 489; New York Mirror, supra.17 11 England testified that he, also, had to overcome opposition in Respondent's own camp to his proposal to institute job-posting procedures. 11 The Board has held that established past practices, whether to the benefit or detriment of employees, become themselves conditions of employment, which an employer is privileged to continue until changed through bargaining with representatives of the employees, but which the employer is also obligated not to change without consulting the bargaining representative See Shell Oil Company, 149 NLRB 283; New Orleans Board of Trade, Ltd., supra. 19 New York Mirror, Division of the Hearst Corporation, 151 NLRB 834 17 The cases cited by Respondent, as well as other cases in which the Board has found in the language of the bargaining agreement a waiver of the right to be consulted with respect to changes in working conditions, involve situations in which either the plain meaning or the necessary implication of such language, or the actions of the parties to the agreement, indicates a conscious acquiescence in the employer's unilateral action None of these cases involved a situation in which the Respondent had unilaterally granted employees benefits. See International Shoe Company, 151 NLRB 693, Ador Corporation, 150 NLRB 1658, General Motors Corporation, 149 NLRB 396, Shell Chemical Company, 217-919-66-vol. 15 6-3 7 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, there is a clear distinction that must be made between contract rights and statutory rights,18 which has significant application in this situation. Thus, while Respondent's institution of the job posting procedure involved here may not be a violation of the agreement, for there is no limit in the agreement on the Respondent's right in this respect, this is not the issue before us.19 An arbitrator, looking only at the agreement, might conclude that the job-posting procedure was a permissible mechanism to effectuate Respondent's contractual freedom to transfer and promote employees for proper operational purposes,20 as Respondent's industrial relations director, England, suggested in his testimony. However, it is clear that Respondent consciously conceived and used the job-posting procedure here not merely as a mechanism to achieve a proper operational objective, but as a means of endowing the employees with "career advancement opportunities" involving significant pros- pects of employee job security-in short, benefits which the Union had sought to obtain for the employees, but which had been rejected by Respondent.21 Whatever another tribunal might determine with respect to the Respondent's con- tractual right to take such action, it has long been established that it is a violation of the statute for an employer to grant unilaterally to employees benefits which have been denied or not offered to the employees' bargaining representative.22 Both the Board and the courts have repeatedly had occasion to note that such unilateral action, or other attempts to bargain directly with employees in derogation of the bargaining representative, obstruct the policies of the Act favoring collective bar- gaining 23 and have "as a normal and foreseeable consequence" the "impairment of the Union's prestige," see Insulating Fabricators, Inc., supra, 1332, and tend "to undermine the authority of the certified bargaining representative." See Armstrong Cork Company v. N.L.R B., supra at 847. In view of the foregoing, it is found that Respondent was under a statutory duty to notify and bargain with the Union as the collective-bargaining representative of employees in the appropriate unit prior to the institution of the job-posting proce- dures involved herein, which duty was not waived by the Union. The failure of Respondent to fulfill that duty and afford the Union an opportunity to negotiate with respect to this condition of employment prior to its unilateral establishment by Respondent violated Sections 8(a)(l) and (5) of the Act. C. Withdrawal from union checkoff and membership 24 The collective-bargaining agreement which ended the strike at the Clifton plant went into effect, as has been noted, on December 9, 1963, for a period of one year. Although the agreement contained no provisions compelling membership in the Union, it did provide that Respondent would check off dues in favor of the Union from the pay of any employee, who, after December 9, 1963, executed a voluntary authorization permitting such deduction. The agreement also provided that such 149 NLRB 298; Kennecott Copper Corporation (Chino Mines Division), 148 NLRB 1653; Leroy Machine Co., Inc, 147 NLRB 1431. Cf. New York Mirror, supra These cases are clearly distinguishable from the present matter In other cases involving contract clauses of a character similar to that involved here, the Board found no waiver of statu- tory rights See Proctor Manufacturing Corporation, supra; C of C Plywood Corpora- tion, supra; New Orleans Board of Trade, Ltd, supra; Smith Cabinet Manufacturing Company, supra; Puerto Rico Telephone Co, 149 NLRB 950 18 See The Timken Roller Bearing Co. v. N L.R.B., supra, 751. 1° See C of C Plywood, supra; Smith Cabinet, supra 20 See Asa Bros. Co., Inc, 31 LA 426, 428; cf. Kaiser Aluminum of Chemical Corp , 31 LA 951. 21 Apparently aware of the problem involved, Respondent's industrial relations director testified to the opinion that the job posting procedure conferred no benefit upon the employees, but was a mere mechanism to facilitate promotions. This is not credited 22 Armstrong Cork Company v. N L R B., supra; N L.R B. v. J H Allison Company, 165 F. 2d 766 (C.A. 6) ; Aztec Ceramics Company, a division of Texstar Corporation, 138 NLRB 1178. 23 N.L.R.B. v. Katz, supra, J I Case Company v. N.L R B , 321 U S. 332, Medo Photo Supply Corporation v. N.L R B., 321 U S 678. 24 About 37 of the witnesses called by the parties testified with respect to some aspect of this issue. There are many conflicts and some inconsistencies in the testimony. It would unduly burden this decision to relate all of the instances, reconcile each of the in- consistencies and resolve all of the contradictions herein. All of these matters have be carefully considered. Only that part of the testimony and evidence adduced which is consistent with the findings herein is credited CLIFTON PRECISION PRODUCTS DIVISION, ETC. 565 authorizations would be automatically renewed unless revoked by notice to the Respondent and the Union by registered mail, not more than 65 and not less than 60 days prior to the expiration of the agreement, thus making October 5-9, 1964, the "escape period." It was stipulated that when the Respondent made the first checkoff of dues in March 1964, there were in effect 299 checkoff authorizations. There is no evidence as to the total number of employees at that time. However, the Respondent was still recalling employees in March 1964, who had been on strike. Industrial Relations Director England testified that, shortly after coming to the Clifton plant, he began receiving reports of employee dissatisfaction with the Union, commencing in January 1964, and running through September. These were, he felt, unusually heavy in June and July. A number of the other supervisory personnel tes- tified with respect to their personal experiences in this regard With the exception of some individuals, however, I do not believe, for reasons discussed hereinafter, that the evidence shows a crystallized and rooted rejection of the Union among the employees prior to August 1964 In August, however, a movement to withdraw from the check- off of dues and, perforce, from the Union, took shape and achieved velocity. The activities with respect to this movement began shortly after the first week in August, when the plant vacation period ended, and shortly after a dinner meeting of Respondent's supervisors and managerial personnel on August 11, at the Alpine Inn, at which, in answer to a query from the floor, the procedure for revocation of checkoff authorizations was explained to thse in attendance. There is no question but that during this period a substantial number of the letters of withdrawal from checkoff and the Union executed by employees were drafted by supeivisoiy and managerial peisonnel, in some cases typed on Respondent's equip- ment by Respondent's personnel using Respondent's materials.25 It apparently became a standard procedure for these letters to be held by supervisory and mana- gerial personnel for the employees and were returned to the employees immediately prior to the October "escape period." All of these activities were apparently carried on during working hours. It is suggested by Respondent that "the widespread movement of the employees to cancel their checkoff and withdraw from the Union" was "touched off" by an "inci- dent" in the plant division coming under the general supervision of Production Man- ager David Brown. We shall, therefore, consider this situation in some detail. Brown is one of three or four production managers at the Clifton plant with approx- imately 30 persons working under him, including several foremen. In June 1964, according to Brown, an employee named Donnelly told Brown that he wanted to get out of the Union and asked Brown how to do this Brown ascertained the procedure set out in the contract from England and informed Donnelly that such action was then premature. However, about a week later, Brown states, Donnelly was back again requesting that Brown write a letter of withdrawal for him. Brown advised England of this and states that "England told me there was no point. Don't do it now " Also during the period prior to August, Brown testified, he took four employees, not including Donnelly, to England for assurance that they would not lose their jobs if they withdrew from the Union. After Brown returned from vacation in August, he asserts that Donnelly became a pest with his insistence that Brown help him write a letter to get out of the Union. Brown again went to England about this and "was told that [Donnelly] should not write the letter at this time." However, Biown states that sometime shortly there- after, he gave in to Donnelly's importunities in this respect and typed the required two letters of withdrawal for Donnelly, and, at Donnelly's request, agreed to hold the let- ters for him until the appropriate time for sending them off.26 Brown testified that he reported his action in assisting Donnelly to England, who was quite upset about Brown's action and asked Brown why he did it, saying "It doesn't have to be done. It doesn't have to be done now, or something to that effect." 25 It is clear that the employees and their supervisors equated withdrawal from the checkoff as withdrawal from the Union. In the circumstances of this case that would be realistic and I reject the argument of General Counsel that an inference adi erse to Respondent should be drawn from the fact that some supervisors drafted letters of withdrawal from the Union for employees who stated only that they isished to be relieved of checkoff of union dues Cf Movie Star, Inc. et at., 145 NLRB 319, 320 2 "The record is convincing that this occurred during the second week of August (the first week after return from vacation) Brown placed the writing of the letter and the Alpine Inn meeting as occurring a week or two after the return from vacation How- ever, the meeting took place on August 11 Other credible evidence indicates the begin- ning of the withdrawal movement as a week to 10 days prior to August 21. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown stated that thereafter, beginning about a week after the Donnelly "incident," he and his foreman supplied letters of withdrawal to a number of employees, which were also retained by supeivision for the employees, at their request He stated that he continued to prepare letters for the employees because, having done so for one person, he felt he must do the same for the others. However, he asserts that he did not report these actions, further to England because he did not want to make England "more unhappy." England, on his part, testified that the morning after Brown reported Donnelly's letter to him, he had reports from foremen that Brown's action in supplying the letter of withdrawal had spread all over the plant, and other employees were asking for letters England stated that this caused him to change his previous instructions on the subject, and that he now advised the supervisors they could give assistance in -respect to such letters, so long as the supervisor (lid not initiate the question of the employee withdrawing, or hold on to the letters. England stated that this change in policy, together with his instruction that the supervisors should not hold on to these letters, was communicated directly to some foremen, but was particularly given to the "product managers" (among whom, as noted above, was Brown) to pass on to the other supervisors. It is difficult to understand, therefore, how Brown should have continued to remain unaware of the change in policy, as his testimony indicates It is further difficult to comprehend why England's asserted additional instruction to supervisors not to hold on to the withdrawal letters was not obeyed, for it clearly was not followed. Indeed, England, rather than attempting to secure compliance with his instruction, states that he acceded to the procedure of holding these letters, and ended by holding some of the letters for employees, himself. At the end of September, England gave instructions to the foremen to return the letters they were holding to the employees Respondent argues, in essence, that it was not responsible for the employee with- drawal movement, that no threats or promises of benefits were made, and that, with rare exceptions, the initiative for the preparation of withdrawal letters came from the employees and not from the supervisors. On the basis of the record as a whole, however, I am convinced that Respondent's involvement with and responsibility for the withdrawal movement was much more substantial than Respondent concedes. Nicholas Tecco, a former supervisory employee of Respondent, who impressed me as a credible witness,27 testified that he and Brown, his superior, talked about employees withdrawing their checkoff authorizations and speculated as to whether the employees knew the mechanics of withdrawing from the Union and considered talking to the unionized employees to see if those who wanted to get out were familiar with the mechanics of withdrawal. Tecco testified that he and Brown talked among themselves as to "how this should be handled" and considered saying to "union employees" that the Union had a year in the plant, and "How about giving Litton a year in the plant." Tecco further testified that in talking to at least one employer, himself, he said that the Union had been in a year and he "thought it would be a good idea if Litton had a year to show what they could do." He further told this employee that he thought "Litton was a better paying company than Clifton Precision was" and that "Litton was a better organization to work for than Clifton Precision was" and suggested that this would be grounds to give Litton time, perhaps a year or so, to be union free, "to see if things could be better than they had been when it was owned by just Clifton Precision." 28 There is credible testimony by a number of employees that other supervisors made similar statements to them. Thus employee Duffy testified that Supervisor Sachs said Duffy "ought to give Litton a chance, and they have a lot of benefits and all, and the union wasn't doing much good ... he says that he made out by Litton paying his hospitalization, on his bills and all, `they would probably give you benefits,' and all." Former employee Wick testified that Sachs had stated ". . . the way I recall it, it was that he actually told me about the benefits we would get not to have a union; that-like they sold stocks to the-or the supervisor was able to buy stocks; that as m Tecco appeared to be a disinterested witness, restrained, even reluctant, in his testi- mony for the General Counsel who called him. 48 It is clear that Tecco was it supervisor within the meaning of the Act at the time of these occurrences. Although General Counsel relies on Tecco's testimony in his brief, General Counsel did not allege his activities to be violative of the Act. Brown testified that he discussed with his subordinate supervisors assisting employees who might not know the mechanism of getting out of the Union, but denied discussing with Tecco bene- fits Litton could give or telling Tecco to ask employees if they knew how to get out of the Union. To the extent that Brown's testimony is inconsistent with that of Tecco, the testimony of the latter is credited. CLIFTON PRECISION PRODUCTS DIVISION, ETC. 567 I recall, he even mentioned the Company would have a pension plan in time. He actually spoke good for the Company if we would not have a union see. And so he said it would be nice if I would sign a card to withdraw." Employee Invanocchi testified that Supervisor Malmowski "was telling me about what Litton's can do for us and what side of the fence I'd like to be on...... Both employees Fanean and Ferrari testified that on separate occasions Super- visor Rosato argued to them that they had given the Union a year and should now give Respondent a chance. Employee Gorman testified that Edward Brink, whose supervisory status is con- sidered hereinafter, after asking her what the Union had done for her and whether she intended to withdraw from the Union, "began to tell me about the new company that had taken over Clifton Precision and the new management and why didn't I see what they had to offer." It is clear, therefore, that a number of supervisors, through use of this argument; i e., give Respondent a chance to show what it could do in comparison with the Union's past performance, sought to induce employees to withdraw from the check- off and the Union. The evidence also supports the conclusion that a number of supervisors took the initiative in asking employees if they wanted to withdraw and in offering assistance for the purpose of withdrawal from the Union and the checkoff. Moreover, the evidence is convincing that this activity was not isolated as the Respondent argues, but is mdicati%e of a pattern of conduct. Reference has been made to Foreman Tecco's testimony in this regard. The record also contains evidence of other activity of the same character, which is either not controverted or is substantially admitted. Employee Grace Kovacik testified that her supervisor, Edward Porter, approached her on three occasions to withdraw from the Union. On the first occasion, as stated by Kovacik, "He said, I guess you know about the paper that's going around to be signed, and are you interested in signing it. He was very nice, spoke very nice to me. And that's how he put it." Kovacik asked for time to think it over. Shortly thereafter, Kovacik states that Porter approached her again and asked whether she had made up her mind about signing the paper, and later approached her a third time with the same question, at which time Kovacik told Porter she would not sign. Porter testified that he did approach Kovacik with respect to withdrawal from the union checkoff, because he "had heard rumors that she was possibly disgruntled with the union." Porter further admitted that he approached Kovacik on a second occasion and asked again if she "wanted to know how to get out." Porter stated that Kovacik still said she was not positive about this, but that he did not ask Kovacik about the matter again. To the extent Porter's testimony conflicts with that of Kovacik, I credit the latter's testimony. Porter had also assisted two other employees with letters of withdrawal prior to talking to Kovacik, to the point of having Respondent's personnel office type up the letters for the employees and had held the letters for those employees. Since Porter talked to Kovacik, as a result, in part, of these prior conversations and activities, it is also found that the reference to a "paper" in Kovacik's testimony referred to letters of withdrawal from union checkoff and the Union, as indicated by Porter. Similarly, Foreman Rosato testified that he took employees Fanean and Ferrari, separately, into the hallway to talk with them because he had heard that they wanted to talk to him. Again, this arose in a context involving assistance by Rosato to employees in the preparation of letters of withdrawal from the Union and checkoff. The record is clear that Rosato had this in mind in approaching these employees, as evidenced by his testimony that when Ferrari said she did not want to talk to him, he nevertheless persisted, first asking if she was sure she did not want to talk to him, and finally asking, "Are you sure you don't want to talk to me perhaps about withdrawal from the Union checkoff?" On the basis of the testimony of Ferrari and Fanean, it is found that Rosato urged these employees to withdraw from the Union and the checkoff. In so doing, Rosato argued to Fanean that the Union was "falling apart," and that she would be surprised how many had signed "the paper," while in talking to Ferrari, he compared the situation to a "sinking ship " Similarly, each testified that he argued that they had given the Union a year and that Respondent should have a chance. He advised both he would be available to assist them if they desired. To the extent that Rosato's testimony conflicts with that of Fanean and Ferrari, the testimony of the latter two is credited. Employee Katherine Kelly testified that after she had "let it be known" that she was interested in getting out of the Union, her supervisor, Dorothy Wiltshire, stopped her and told her that Wiltshire had heard that Kelly wanted to get out of the Union. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Kelly agreed, Wiltshire supplied her with the necessary letter and held it for her for a period.29 Employee Josephine Greising testified to a conversation initiated by Joseph Grande, identified as assistant to the mechanical engineer, or assistant manufacturing engi- neer, and a former supervisor of Greising, in which he interrogated her with respect to her opinion of the Union and, when she expressed satisfaction, advised her that "most everyone" was signing out, showed her some signed letters to that effect, and suggested that she ought to consider doing so also. Thereafter, on another day, Grande asked her if she had made up her mind and when Greising stated that she was not going to sign out of the Union, stated "do you mean you would cut your own throat?" Greising answered "Yes." 30 A quite similar conversation with Edward Brink, a methods engineer and former supervisor of Joanna Gorman, was related in the credible testimony of Gorman. Neither Brink nor Grande denied this testimony. Respondent contends that neither is a supervisor within the meaning of the Act and that Respondent is not responsible for their actions. I do not agree. Both Grande and Brink are former foremen, presently stationed in production areas where they have responsibilities directly affecting production operations. The record shows that their status in the Respondent's organization continues to be on a level at least equal to that which they occupied as supervisors. They continue to be salaried and attend meetings dealing with production problems which are limited to management personnel.31 They are not covered by the collective-bargaining agreement. While both of these men are presently occupied with production problems mainly involving contacts with production supervisors, each has significant and regular contact with production employees, during the course of which they have occasion to give orders and instructions to such personnel in respect to the work in which they are involved. It is clear that in such instances, the production employee con- cerned is expected to carry out the orders and instructions given by these men. Brink has had occasion to reprimand the employee who regularly assists him on a part-time basis and has been consulted as to his evaluation of this employee's work by the supervisor for whom this employee also works. Brink has on occasion replaced this supervisor, in his absence as foreman of the department. The super- visor to whom Grande is responsible testified that he would expect Grande to report to him unsatisfactory or commendable conduct on the part of employees with whom Grande works, but that Grande has not had occasion to do so. He has, however, criticized some employees' work. Respondent contends, in essence, that insofar as Brink and Grande have contact with production employees, their position with respect to the employee is similar to that of a group leader, who is covered by the contract. I do not agree. Both Brink and Grande occupy positions in the managerial hierarchy distinctly superior to that of the group leader. On the basis of the record as a whole, I find that both Brink and Grande have authority, using their independent judgment, to responsibly direct employees in the performance of their work, and are thus supervisors within the meaning of the Act. Indeed, if these two men did not meet the technical require- ments of a supervisor as defined in Section 2(11) of the Act, it is clear that they are 29 Respondent stipulated that Wiltshire was a supervisor within the meaning of the Act and it was indicated that General Counsel would amend the complaint to specifically allege this incident. He did not do so, but relies upon it in his brief. Respondent did not cross-examine Kelly, and Wiltshire did not testify. 30 During the conversation on the previous day, Grersing testified that when she in- dicated resistance to revoking her checkoff, Grande asked if she were willing to "wash her job down the drain 9" Greising's testimony with respect to these remarks by Grande, which were not denied, are credited. However, since in these conversations both Grande and her supervisor, Rose, specifically assured Greising that her job did not depend upon her union status, it is clear that these remarks were not meant as a threat. Both remarks seem to have been rhetorical questions used as a very strong manner of advising that Greising did not know where her best interests lay. Taken in that sense, these statements become compatible with the remainder of the conversation It also becomes more com- patible with the remainder of the evidence in the case, which is notable for almost com- plete lack of threats to employees by Respondent 31 Personnel Manager William Wallace first described the invitation to attend these meetings as a "list of the foremen who were invited to attend " Later Wallace and Industrial Relations Manager England stated that there were certain persons on the list who were not foremen Those identified, however, were management personnel and per- sons employed in the personnel department. Grande stated that he considered that he attended these meetings "in a supervisory capacity " CLIFTON PRECISION PRODUCTS DIVISION, ETC. 569 part of the managerial complex in Respondent's operations and were treated by Respondent as such. Each of these two men, former supervisors of the two employ- ees involved, respectively, were placed in a strategic position to translate to the employees the desires and policies of management. Both attended Respondent's production meeting at the Alpine Inn on August 11, 1965, where advice with respect to employee withdrawal from the checkoff was given to those assembled. Brink testified that his knowledge of the "escape period" resulted from this meeting. The subsequent activities of both these men, in regard to employee withdrawal from the checkoff and the Union, paralleled that of contemporaneous activities of other supervisors. Grande, indeed, appears to have had access to letters of withdrawal left with other supervisors and used them to solicit and encourage employee with- drawal from the checkoff and the Union. In the circumstances, Respondent may be fairly held to be responsible for their activities set forth above. N.L R.B. v. Des Moines Foods, Inc., 296 F. 2d 285 (C.A. 8); N.L.R B. v. Solo Cup Company, 237 F. 2d 521 (C A. 8); N.L.R.B. v. Fiore Bros. Oil Co., Inc. & Amalgamated Union Local 355, 317 F 2d 710 (C.A. 2); see N.L.R.B. v. Mississippi Products, Inc., 213 F. 2d 670, 672-673. Other testimony confirming the conclusion that supervisors took the initiative in seeking to induce or assist withdrawals from the Union and Union checkoff was given by witnesses Palmer, Duffy, Wick, and Ivannochi, which I credit. A detailed resolution of each incident is not necessary here 32 Further, in regard to Respondent's involvement with the letters of withdrawal, General Counsel offered the testimony of employee Elizabeth Kilman, who had previously been quite active in the Union. Kilman testified that on August 25, 1964, she had a conversation with John Rogacz, one of Respondent's production managers, during which he asked if she were having "any trouble." Kilman testified, "I said, 'No, no trouble unless the trouble we're having with the Company."' "He stopped for a second and said 'You mean about the letters and things7' I said 'Yes' . I hope you don't expect me to sign any. He says, 'No, you won't be asked.' And I said something about how many were there and he said he couldn't tell me exactly, but the company had them in the three numbers...." Thereafter Kilman testified he said about how much better it was going to be with Litton, and I says, 'Well I can't buy it about Litton-they're a new company but we have been dealing with them since December the 5th.' I said, 'That's what a lot of people have been told but it's not true'. . . . I said, 'Unless this management changes, you're going to have another union.' He said that's why they're going to treat us differently because the next time a union came in it would be ninety-five percent for the union and they didn't want it." Kilman was a particularly impressive witness. Her testimony was not denied and it is credited.33 In support of its contention that the employees sought out supervisors to obtain assistance in withdrawal of union checkoffs of membership, and that these activities were not initiated by the supervisors, Respondent adduced testimony with respect to these matters from at least 11 supervisors. Almost without exception, these super- visors testified that employees came to them for assistance in preparing letters of withdrawal, which the supervisor then prepared or had his superior or the personnel office prepare. In almost every instance the supervisor testified he was requested by the employee to hold the letters for the employee until the time for mailing and that he did. Some of the supervisors asserted that they carefully advised the 33 Two points in the testimony, however, require special mention: (1) Because of the confusing nature of the testimony, I make no finding with respect to a statement con- cerning employee DiMichael attributed to Supervisor John Sachs by employee Duffy. It is noted that the General Counsel, also, has not urged the point in his brief (2) There is testimony by Paul Wick, whom the undersigned finds to be a credible witness, that when Wick, in a conversation with Supervisor Fiala, questioned the Respondent's right to let employee Lightcap go for being active in the Union, Fiala replied that it was "just natural that they would want to get rid of some of the leaders." It is noted, however, in connection with this testimony, that Fiala was not the supervisor of either Wick or Lightcap. Fiala further appears to have been on terms of personal friendship with Wick, and such was the tone of the conversation involved here. Fiala, also, so far as this record is concerned, was not involved in employee withdrawals from the Union or checkoff. "This evidence was offered on rebuttal and General Counsel disavowed any intent to urge it as independent instance of violation of Section 8(a)(1). There is no allegation in the complaint naming John Rogacz. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees that the letters could be withdrawn at any time, and, also, upon returning the letters to the employees , advised them that it was up to the employee whether or not the letters were sent in. It is clear that instructions to return the letters to the employees were issued by Respondent's industrial relations manager just before the date upon which they might properly be sent in by the employees.34 I, although not crediting all of the testimony of these supervisors, find that credible uncontroverted evidence does support the contention that, beginning with the middle of August 1964, a number of employees came to supervisors for assistance in withdrawing from the checkoff and the Union, and that the supervisors gave to or obtained material assistance for the employee in this respect, including holding letters of withdrawal for the employees and returning them to employees at the appropriate time. However, I cannot agree that the evidence shows that the actions of the employees in this situation were merely voluntary acts flowing naturally, and uninfluenced by Respondent, out of a well of discontent and dissatisfaction caused by the Union, as urged by the Respondent . To do so would require me to ignore the obvious realities of the matter. First of all , the question arises as to the reason for the sudden outburst in August of withdrawal letters which could not validly be used until October. Respondent suggests the inference of employees bursting from an unwanted captivity of having to pay dues, triggered by the action of Brown in composing a letter for Donnelly. This, however, ignores the Respondent's action, just prior thereto, in unilaterally granting the employees job posting privileges, which was quite significant. The consequences of this action by Respondent, as it must have anticipated, served to undermine the prestige and standing of the Union in the eyes of the employees and thus prepared the way for the actions that followed. See Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843; Insulating Fabricators, Inc., 144 NLRB 1325. Nor is the record convincing that the supervisory involvement in employee with- drawals resulted from a situation which left the management of the Respondent no reasonable alternative , as Respondent seems to urge . The credible testimony of former supervisor Tecco shows that Product Manager Brown was engaged in dis- cussion with his subordinates as to affirmative methods of overcoming employee inertia and stimulating employee action in the area of withdrawal from union adherence. Brown's testimony itself indicates no particular reluctance to become involved in this area . It is otherwise difficult to explain why one of Respondent's production managers should permit a rank-and-file employee to make a pest of himself by continuing on 10, 15, or 20 occasions to ask for a letter of withdrawal from the Union after Brown had refused the request . It must be assumed that Brown did not so much discourage Donnelly from seeking such assistance as to put him off to a future time. This would be consistent with Brown's testimony as to the instruc- tions he stated that he received from England. Brown testified that he spoke to England on at least two occasions about writing a letter for Donnelly. On the first occasion he states "England told me there was no point. Don't do it now"; on the second occasion , "I said, `Look I-why can't I help him out and write a letter as I was asked by him and get him off my back.' I was told that he should not write the letter at this time " [Emphasis supplied ] This is consistent with England's testi- mony that, when foremen came to him concerning the problem of employee with- drawal, ". . . in the earlier days my reply was it was the sixty-fifth day and it was certainly not the time to get involved in this sort of thing. This was my general type of reply to them-just as it was to Mr. Brown." [Emphasis supplied.] Indeed, even Industrial Relations Director England's resistance to supervisory involvement in employee withdrawals from the Union does not seem to have been very stouthearted. England very quickly decided to let the bars down once Brown's action in regard to Donnelly became known Further, even though England asserts that he instructed the supervisors , if they assisted employees, not to keep the letters because "that was something the company was not interested in holding on to," it does not appear that he made any substantial effort to sustain this instruction, and, in fact ended by holding on to a number of these letters himself. 94 The extent of supervisory involvement in the withdrawal movement is shown by the fact that among the 16 supervisors who testified ( out of a total of 75 to 80 supervisors), the testimony shows at least 30 instances of assistance by supervisors in the preparation and holding of such letters . There were 173 letters of withdrawal received by the Union between October 5 and 9, 1964. CLIFTON PRECISION PROD_ CTS DIVISION, ETC. 571 After a protest by the Union that supervisors were engaging in improper activities, the supervisors were advised by an instruction dated August 21, 1964, that they should not "encourage, discourage or in any manner interfere with the individual employee's right to participation in check -off or union membership," and, further, that, "If an employee inquires as to how withdrawal from check -off may be accom- plished, the supervisors may advise the employee of the contractual provisions for withdrawal and explain how this may be accomplished ." However, as has been noted, the supervisors had already been instructed by England that they could write letters of withdrawal for the employees Moreover, by the time the later written instruc- tion to the supervisors was issued , the supervisory involvement in the movement to withdraw was already substantial and the movement itself had gained considerable impetus. It was not until August 27, that Respondent posted a notice to the employ- ees advising that "Whether or not an employee participates in the checkoff of union dues or union membership is a matter of personal and individual choice," which would have "no bearing on his employment." After the so-called Donnelly `incident,' the record reveals that it was a matter of common knowledge among a substantial part of the supervisory force, as well as the employees, that employees were securing letters from supervisors , without appar- ent distinction then being made that this was being done only on the initiative of the employees .35 In any event, as has been found, supervisors and managerial agents of the Respondent did, in a substantial number of instances , take the initiative in interrogating employees with respect to their desire to continue financial support of the Union and remain in the Union , and in inducing the employees to withdraw from membership in and support of the Union . In a number of cases this solicita- tion was accompanied by suggestions that such withdrawal would be in the employ- ee's best interests , since the new company , Litton Precision Products , Inc., was in a position to afford the employees more advantageous conditions of employment. In this context, the idea conveyed , clearly, was that the employees would be more likely to receive such advantages without the Union. To employees who had very recently seen the new company unilaterally grant significant protection in job security , which the Union had been unable to secure for them, these assertions would have particular impact.36 I therefore find, on the basis of the entire record, that Respondent 's interrogation of employees with respect to their desire to continue affiliation and support of the Union, and its solicitation, inducement and encouragement of; and active participa- tion in employee efforts to withdraw from Union affiliation and support of the Union constituted interference , restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act and therefore violated Section 8(a)(1) of the Act 37 ss In fact , both management and employees appear to have considered these letters as "Company letters." This is evidenced by Rogacz ' conversation with Kilman , Grande's use of letters apparently being held by supervisors in trying to persuade Greising to sign, and is also indicated by the testimony of employee i\largaretta Kelly, who insisted she used her own letter in withdrawing , and did not use the " Company letter" ( a remark she sub- sequently sought to disavow). 16 i do not find that Respondent engaged in acts of coercion or threats to the employees. The only evidence of this character involved supervisors Grande and Fiala These were not only isolated , and out of character with respect to the gencial treatment of employees shown by the record , but the only such activity linked with the withdrawal movement, that of Grande , was effectively neutralized , as has been noted 37 Safeway Cabs, Inc , 146 NLRB 1334 , Curtis Mathes iliana[acturing Company, 145 NLRB 473 , Movie Star, Inc , et al., 145 NLRB 319 ; Reilly Tar CC Chemical Coi poration, 151 NLRB 1503 Porter County Farm Bureau Co-operative Association, Incorporated, 133 NLRB 1019 ; Winn-Dixie Stores, Inc., et al , 128 NLRB 574 ; Heaton Furniture Com- pany, 111 NLRB 342 See Gene Hyde, d/ b/a Hyde's Super Market, 145 NLRB 1252, 1260-1261. See also Edward Fields, Inc v. NL RB, 325 F 2d 754, 759-760, holding that supervisory assistance to employees in withdrawing from a union, given at the em- ployees' request, may constitute a violation of the Act The facts in the instant case are similar to the situations in the cases cited and the holdings in those cases are controlling here, rather than the readily distinguishable fact situations and holdings in the cases cited by Respondent * (Martin Theatres of Georgia., Inc, d/b/a WTVC, 126 NLRB 1054; Alice Hazen, et al, d/b/a Hazen d Jaeger Funeral Home, 95 NLRB 1034 ; .N7 L R B v. West Ohio Gas Company, 172 F. 2d 685 ( C.A. 6) ; Perkins Machine Compaivy, 141 NLRB 697). 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint in this matter was amended at the hearing to allege, as a separate violation of the Act , that Respondent had discriminatorily maintained and applied the prohibition in the collective-bargaining agreement against union activity , solici- tation of union membership or collection of union dues by employees during work- ing hours. The facts show that , in accordance with that provision , employees were generally restrained from such interdicted activities. The record also shows that the activities of supervisory and managerial personnel in respect to employee withdrawal from union membership and support detailed above was carried on during working hours. In his brief, General Counsel does not urge this matter as a separate violation of the Act, but refers to it only in connection with General Counsel's argument that Respond- ent supplied substantial , material, and tangible assistance to its employees in respect to the withdrawal movement Respondent's brief relies upon N.L.R.B . v. United Steelworkers of America, CIO (Nutone, Inc.), 357 U.S . 357. However, the Court there held that whether an employer violated the Act by engaging in activities which the employer forbade to his employees and the union was a matter to be decided on the facts of each case 38 It has already been found on the basis of all the facts in this matter that Respond- ent violated the Act by reason of its involvement in employee withdrawals from union membership and support . There is no need under the circumstances to also deter- mine whether each and every aspect of each and every act of Respondent, standing alone, would also violate the Act. I therefore conclude that the finding of violation already made is sufficient and no separate finding is required. D. Respondent's alleged doubt of the Union's majority status Respondent contends that it had good grounds in September 1964, for doubting that the employees in the appropriate unit desired continued representation by the Union, and was therefore justified in refusing to bargain with the Union for a new contract. Four principal bases are asserted in support of Respondent 's position. It is stated , first, that Respondent relied on the fact that only a bare majority of the employees voted in favor of the Union originally, indicating that the Union was never strongly supported by the employees However, in my opinion , this factor is so signally offset by the fact that two-thirds of the employees shortly thereafter sup- ported the Union in a 11/2 month strike, as to merit little consideration. It is found that Industrial Relations Director England was awaie that a substantial majority of the employees did not work during the strike 39 Secondly, England states that reports of employee dissatisfaction with the Union "had some influence" on his decision that the Respondent should no longer deal with the Union . I have given considerable attention to this assertion, par- ticularly with respect to the situation existing prior to August 1964. Considering the large group of employees with which we are here concerned. I believe that the evidence of employees ' dissatisfaction prior to August 1964 is not particularly impressive and rather illustrates the almost insuperable problem of determin- ing the desires of a large group of people on the basis of casual reports, over- heard conversations and the forceful statements of a few outspoken individuals. Thus, only about 25 employees were identified as expressing dissatisfaction with the Union at the times that can be placed before August 1964.40 Although England stated that he "felt" that the reports increased in June and July, reference to the instances of such reports to which he testified , and to the testimony of supervisors who England stated gave him such reports , furnish no substantial support for such assertion . In fact, four of the supervisors ( Rose, Rosato, Porter, and Dougherty) who England states reported employee dissatisfaction to him in June and July, made ° The Board has held , in appropriate circumstances , that permitting the circulation of antiunion petitions during working hours while prohibiting prounion activities violates the Act. See Monroe Auto Equipment Company, 146 NLRB 1267 , 1274; see also Standard Manufacturing Company , 147 NLRB 1608, 1609 99 England testified that he did not know that substantially more people were on strike than voted for the Union However, he also testified that he had been informed that only a little over 200 employees worked during the strike and he was also aware that 660 employees had been eligible to vote in the election 10 While there was some testimony as to talk overheard by supervisors in the cafeteria and some other generalized recollections of employee statements , these are considered too vague and indefinite to be reliable See Laystrom Manufacturing Co , 151 NLRB 1482, footnote 8. Cf. The Randall Company, Division of Textron, Inc., 133 NLBI : 289, 293, footnote 10. CLIFTON PRECISION PRODUCTS DIVISION, ETC. 573 no mention in their own testimony of employee dissatisfaction with the Union at that time.41 It may well be that England was unduly influenced in his judgment by a few employees who, he recalled, personally expressed their dissatisfaction to him in June and July, and apparently made a considerable impression upon him. There was unquestionably some dissatisfaction with the Union prior to August, but the record is not convincing that there was widespread defection from the Union prior to that time. Whether this would have occurred in the absence of action by Respondent undermining the Union and encouraging employee withdrawal becomes a moot question in the face of the evidence that such action did occur. Subsequent to August, 1964, Industrial Relations Manager England testified that he was most impressed, first, by the fact that as of September 13, 1964, the Union had only 269 employees on checkoff 42 out of a total of 610 employees on that date, and secondly, by the information received about the same time from employee Gallagher that 356 employees had supported the decertification petition. While the number of employees on checkoff is a factor to be considered in assess- ing Respondent's asserted good-faith doubt, it is by no means conclusive and must be appraised on the basis of all the facts 43 Of considerable importance here is the fact that Respondent's employment picture was in a state of considerable flux, as Respondent was aware. During August and September, Respondent's hiring rate was four to five times the normal rate . There were 26 new hires in August, 15 new hires from September 1 through September 14 and 33 new hires from September 14 through 30 Thus, there were 41 new employees as of the date England stated he made his decision not to further recognize the Union and about 74 new employees about the time he notified the Union of his decision. Since, under the contract, these employees were on probation with Respondent for the first 60 days of their employment (art XIII of the agreement) they could not be expected to execute checkoff authorizations before the expiration of that period. During this same period in September, the record shows widely varying reports and estimates made by Respondent of the total number of employees in the unit at the Clifton plant One report of the number of employees at the Clifton plant as of the week ending September 13, 1964, shows 610 in the unit 44 The petition for an election filed by Gallagher on September 14, 1964, estimated the number of employ- ees in the unit at 597, a figure supplied to Gallagher by England. Moreover, on September 24, 1964, when Respondent filed its own petition for an election, England estimated that there were approximately 585 in the unit As has been previously noted, as of September 13, Respondent's record shows at least 273 employees on checkoff, and Respondent was aware of 7 other employees who were paying their dues directly to the Union. Thus, if the number of employ- ees in the unit were adjusted by the number of probationary employees at any time after September 13, it would appear that the Union had close to or an actual majority of employees known to Respondent to be paying dues. In my opinion, these figures demonstrate that, based on checkoff records, it cannot be said with assurance, that the Union did not represent a majority of the employees at the times that Respondent refused to bargain with the Union. 41 Out of a maximum of 75 to SO supervisors, England identified 28 as having made reports of employee dissatisfaction with the Union to him Fifteen of these are positively identified as making such reports in June or July, 2 as making such reports in either May or June, and 1 "all year long " Of these 18 supervisors only 8 testified at the hearing Employees who were questioned with respect to this, on cross-examination, stated that they were aware of criticism of the Union prior to August, but not of any desire to withdraw from the Union prior to August 4i England obtained this number from a memorandum received as Respondent's Exhibit No. 8. Reference to that exhibit, however, shows a minimum of 273 checkoffs in force on that date. 269 employees for whom dues were actually checked off, 3 who did not work during that period, and 1 on leave The record also raises the possibility, which I doubt, that there were other employees on leave who were on checkoff and were not counted 43 Compare The Randall Company, supra, holding an employer justified in doubting a union's continued majority status, even though a majority of its employees continued on checkoff, with Gulfmont Hotel Company, 147 NLRB 997, holding an employer, in different circumstances, not justified in believing that a union had lost its majority status, even 'though less than a majority of the employees were on checkoff. 44 Respondent stated that it would not produce an official payroll because of con- fidential information contained thereon. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As was well stated by the Trial Examiner in Gulfmont Hotel Company, supra (1001-1002), in a Decision adopted by the Board: Employees for various reasons unconnected with their desire to have a union represent them, may fail to execute checkoff authorizations. There may be some who prefer, as a matter of principle, to pay their financial obligations in person; there may be others who prefer to decide when and if they can afford to spare the money for dues and fees; and there may even be some who are willing to vote for and accept union representation but who decide to be free riders and enjoy the expected benefits of representation without paying for them at all. Accordingly, although the voluntary signing of checkoff authorizations by a majority in the unit may be considered as evidence of a union's majority status, the converse is not true. It must further be assumed that the Union's ability to secure additional checkoff authorizations during this period was adversely affected also by Respondent's actions, which, as has been found, served to undermine and destroy the Union's status in the eyes of the employees.4a For the same reasons, it must be held that the alleged employee support of the decertification petition relied upon by England was likewise the product of the events which the Respondent had set in motion, and cannot, therefore, be considered the voluntary expression of the employees' choice as to representation by the Union. In his testimony upon redirect examination, for the first time, England asserted that he was also influenced in his doubt of the Union's status, by the resignation late in August of the president of the Union, allegedly because he was concerned over support of the Union by the employees. It was my understanding from England's original testimony on the point, which is borne out by the transcript, that the resigna- tion was due to the Union president's concern over employee support for himself, personally. However, assuming that the resignation was rooted in employee defec- tion from the Union in August, such defection, as we have noted, was the result of Respondent's own conduct contributing to that end, and thus does not constitute a basis for a doubt of the Union's support by the employees As the Board stated in Celanese Corporation of America, 95 NLRB 664, after the end of the certification year, an employer may be insulated against a charge that it has refused to bargain in violation of the Act, by a doubt of the Union's continuing majority status, only where such claim is made "in good faith," upon "reasonable grounds," and is not raised "in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the Union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union " Assessed against this standard, it cannot be said that Respondent's conduct in this matter satisfies the requirements of "good faith," or constitutes a valid defense to the complaint that it has violated the Act by refusing to bargain with the Union. See Rohlik, Inc., 145 NLRB 1236; Porter County Farm Bureau Co-operative Associa- tion, Incorporated, 133 NLRB 1019; Laystrom Manufacturing Co., 151 NLRB 1482; see, also, Moore's Seafood Products, Inc., 152 NLRB 683. It is therefore held that by its refusal to bargain with the Union on and after September 24, 1964, the Respondent violated Sections 8(a) (5) and (1) of the Act.46 It follows, therefore, that Respondent's action in unilaterally instituting a wage increase in December, after the expiration of the agreement, without consultation with the Union, was also a violation of Section 8(a)(1) and (5) of the Act, and it is so held. 46 It appears that the Union obtained 16 new checkoff authorizations in July, but none In August 1964. England first testified that the 16 new authorizations had been sub- mitted from July through September 1964, but later corrected his testimony to state that none were received after the vacation period (the last week in July and the first week to August). I consider this to be further evidence of lack of widespread disaffection for the Union in July, as contrasted with the situation in August. Se During the hearing General Counsel adduced evidence apparently intended to show that Respondent refused to bargain on changes in the agreement with the Union as early as September 10, 1964 Respondent's testimony denies this General Counsel in his complaint and brief urges only September 24 as the first date on which the refusal to bargain occurred For this reason, and because of substantial questions as to Re- spondent's obligation to bargain on amendments to the agreement at the earlier time, I have not passed on this matter. In any event, this would make no difference in the Order hereinatter provided CLIFTON PRECISION PRODUCTS DIVISION, ETC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 575 The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent Company engaged in unfair labor prac- tices in violation of Section 8(a)(1) and (5) of the Act I shall recommend that the Respondent cease and desist theiefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire case, I make the following • CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 137, International Union of Electrical, Radio & Machine Workers, AFL- CIO. is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act is that set forth in footnote 7 above. 4. On September 24, 1964, and at all times thereafter the Union was, and con- tinues to be the exclusive representative of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Clifton Precision Products Division, Litton Precision Products, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Refusing to recognize and bargain collectively with Local 137, International Union of Electrical, Radio & Machine Workers, AFL-CIO as the exclusive bargain- ing representative of its employees in the unit herein found appropriate. (b) Soliciting, urging, and assisting employees to withdraw from the Union or revoke checkoff authorizations in favor of the Union (c) In any like or related manner interfer!ng with, restraining, or coercing employ- ees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act • (a) Upon request bargain collectively with the above-named labor organization as the exclusive representative of the employees in the unit herein found appropriate with respect to rates of pay, wages, hours of employment, and other terms or condi- tions of employment, and, if an agreement is reached, embody such understanding in a signed agreement. (b) Post at its plants at Clifton Heights, Pennsylvania, herein referred to as the Clifton plant, copies of the attached notice marked "Appendix." 47 Copies of the said notice, to be furnished by the Regional Director for Region 4, shall, after being signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, S7 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply with the Recommended Order herein made 48 w In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with Local 137, International Union of Electrical, Radio & Machine Workers AFL-CIO, as the exclusive bar- gaining representative of all our employees in the appropriate bargaining unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an agreement is reached, embody such under- standing in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees, including model shop (proto- type) employees and part time student employees and truck drivers employed by Clifton Precision Products Division, Litton Precision Prod- ucts, Inc. at its two plants located at Broadway and Marple Streets, Clifton Heights, Pennsylvania, and 557 E. Baltimore Pike (Boat House), Clifton Heights, Pennsylvania, but excluding professional and technical employ- ees, including engineering department employees; draftsmen; tool design- ers; methods department employees; quality control analysis technicians; environmental test employees; quality control gauge and instrument employ- ees and quality control receiving inspection employees; office production control employees, including expediters and dispatchers; office and shop clerical employees; purchasing department employees; personnel department employees; salesmen; guards and supervisors as defined in the Act. WE WILL NOT Solicit, urge, and assist employees to withdraw from the Union or revoke checkoff authorizations in favor of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 137, International Union of Electrical Radio & Machine Workers, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their choosing or to engage in con- certed activities for their mutual aid or protection. All our employees are free to become, remain or refrain from becoming or remain- ing, members of Local 137, International Union of Electrical, Radio & Machine Workers, AFL-CIO, or any labor organization. CLIFTON PRECISION PRODUCTS DIVISION, LITTON PRECISION PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone No. 735-2612.