Hughes Aircraft Co.

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-We will notify the above-named employee if serving in the Armed Forces of the United States of her right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Serv- ice Act, as amended, after discharge from the Armed Forces. 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, Sixth Floor, 707 North Calvert Street, Baltimore , Maryland 21202, Telephone 752-2159. Hughes Aircraft Company and H. Charles Starner, an Individual Electronic & Space Technicians Local 1553, AFL-CIO (Hughes Aircraft Company) and H. Charles Starner. Cases 31-CA-58 (formerly 21-CA-6588) and 31-CB-15 (formerly 21-CB-2527). June 23, 1966 DECISION AND ORDER On March 11, 1966, Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that Respondents had not engaged in unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connec- tion with these cases to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 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 and briefs, and the entire record in these cases, and finds that the General Counsel's exceptions have merit. The Board therefore adopts the Trial Examiner's find- ings, conclusions, and recommendations only to the extent consistent herewith. 1. The underlying facts are not seriously disputed and may be summarized essentially as follows : The Company engages, among other things, in various aerospace projects such as manufacturing the Surveyor spacecraft designed to land on the moon. Because components for these projects must vir- tually be flawless, expert workmanship by all production personnel is one of. management's most vital concerns. Department 76, the one involved in this case, employs a total of 22 machinists. Thirteen of these were recommended for promotion 159 NLRB No. 100. HUGHES AIRCRAFT COMPANY 1081 by their immediate superiors, Foremen Dill and Reed, in early Feb- ruary 1965. Admittedly, the latters' recommendations were based on considerations of ability and production. Included among those proposed for promotion were Starner and Goularte, two employees who had consistently refused to join the Union; 1 excluded from this group were Rollins and Roden, both of whom were members of the Union. For some time before the promotions took effect in late February 1965, Union Steward Goodman repeatedly sought without success to enlist Starner and Goularte in *the Union. During one such approach Goodman remarked that he would be able to help Starner obtain a promotion if Starner enrolled in the Union. When Starner declined, Goodman declared that he would not try to "bargain" for Starner but would represent only union members. Similarly, in soliciting Goularte, Goodman said "Well, we got your name on the [recommended promotion] list and I think you [had] better join the Union." Goodman also declared that the list "wasn't final" but had to be approved by the Union. Understand- ably concerned that his promotion was in danger, Goularte asked Foreman Dill whether getting a promotion depended on joining the Union. Dill assured him it made no difference at all whether or not he belonged to the Union. Starner also sounded out Dill on this matter, approaching him two different times. As Starner described their second encounter : ... I approached Mr. Dill and asked him if he felt it would be advantageous for me to join the union because I had been approached in that matter. He still said it didn't matter to him, and the company's position was you didn't have to be a union member to gain a promotion. I didn't want to be coerced into joining any union and this is [how] I left it with ... Dill.2 Like the Trial Examiner, we think the Company thus was put on notice of the Union's remarks to Goularte and Starner linking mem- bership with obtaining a promotion. On February 11, the Company and the Union conferred on the proposed promotion list, prepared by Foremen Dill and Reed, 3 nam- 1 The bargaining agreement contained a maintenance-of-membership provision under which union members had to remain in the Union but nonmembers did not have to join. 2 At the hearing, Dill was not called as a witness ; these conversations , accordingly, are undisputed. We note the Trial Examiner, referring to Foreman Reed's testimony, mis- takenly attributed it to Dill . ( See Trial Examiner's Decision , first paragraph under sec- tion III, B.) 3At one point, the Trial Examiner inadvertently states (footnote 24) that Super- intendent Fornaca compiled the promotion list. In fact , as the Trial Examiner states elsewhere in his Decision , it was prepared by Foremen Dill and Reed. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Starner, Goularte, and 11 others. At the Union's request, the Company added to the list Nikka and Racey, both union members. When the Union next sought to add to the list two more union members, Rollins and Roden, the Company said the quota for pro- motions had been filled and no other names would be accepted. On February 15, with the Company still adhering to this limit, Good- man admittedly proposed striking Starner and Goularte and replac- ing them with Rollins and Roden. Superintendent Fornaca agreed. Upon learning that their names had been stricken from the list, Starner and Goularte inquired but failed to discover why the Com- pany had taken this action. When Starner questioned Personnel Manager Allen as well as other company spokesmen, he was merely told both Goularte and he had been supplanted by two union mem- bers. Foreman Dill remarked to Starner that had the decision been his, he would have given Starner a two-step promotion. Similarly, when questioned by Goularte, Dill asserted that so far as he and Foreman Reed were concerned, Goularte's work and attendance were fine. "It is just that . . . your names were taken off," Dill remarked, "and ... a couple [of] other [s]" were added. After Rollins and Roden were added to the list, Starner told Personnel Manager Allen of how he had been solicited by Union Steward Goodman before being stricken from the list. Starner mentioned 'particularly Goodman's assertion that he would repre- sent only members, as opposed to nonmembers, in conferring with the Company on promotions. Starner's uncontradicted testimony is that Allen replied, "Let's not make any waves; we enjoy agood relationship with the union ... just sit tight and this will bear out." In his discussion with Fornaca on the proposed promotion list, Goodman gave specific reasons for, replacing nonunion men Starner and Goularte with union members Rollins and Roden. Rollins, he said, had more seniority that Starner and had held a higher (i.e., master machinist's) classification before being transferred to his present position. Roden was senior to Goularte, Goodman stated, and was assigned to the same job another man performed at a higher rate of classification. At the hearing, the Union and the Company explained that seniority and ability were the critical fac- tors favoring Rollins and Roden. As to ability, Goularte, in Superintendent Fornaca's words, was "among the top men" in the department, and the promotion list ;included men less skilled', than Stariler,,4 whom Fornaca' rated, as average. The list, moreover, as originally drawn, was based on abil- &As Foreman Reed recalled, Starner was,better than at least three other men on^'the proposed promotion list. HUGHES AIRCRAFT COMPANY 1083 ity and production, and judged by these standards Starner and Goularte had been picked over Rollins and Roden.5 In terms of seniority, Rollins was tied for fifth place (there were 22 men in the department), with Starner (Number 14), Roden (Number 18) and Goularte (tied for Number 19) following at inter- vals behind. Among those promoted were two union members at the very bottom of the seniority list; six employees, all junior to Starner, also were awarded promotions. 2. Though conceding that Respondents' motives were not alto- gether free from doubt, the Trial Examiner concluded that the pro- motion of Rollins and Roden over Starner and. Goularte was "as consistent with a legitimate purpose, such as superior qualifications, or seniority, as with preferment based on union" considerations. In so concluding, however, the Trial Examiner overlooked the signifi- cance of Union Steward Goodman's clear warnings that Starner and Goularte might lose their promotions unless they enrolled in the Union. The Trial Examiner also missed the full sweep of the dis- crimination by comparing Starner and Goularte just to Rollins and Roden without also, assessing them against all the other employees allowed to remain on the list. . Contrary to the Trial Examiner, we conclude that the record leaves no doubt that Starner and Goularte were denied promotions because they refused to join the Union. Both were stricken from the proposed promotion list at Union Steward Goodman's request after consistently spurning Goodman's attempts to enroll them as members of the Union. In causing their replacement by Rollins and Roden, both of whom were union members, Goodman did no more than fulfill his threat, made somewhat earlier to Starner, that he would favor union over nonunion men in assisting them to obtain promotions. That union considerations prompted Respondents in this matter is confirmed by the transparent excuses they gave for Rollins' and Roden's advancement. Neither skill nor' seniority, the two grounds asserted, justify either's 'preferment for promotion. The foremen initially nominated Starner and Goularte precisely because of their skills, and at the same time passed over Rollins and Roden as lacking in these qualifications., Goularte, Superintendent Fornaca 5 Superintendent Fornaca contradicted himself at the hearing about whether he con- sidered Starner's shortcomings in agreeing to remove him from the , list. First he said Goodman "gave we a pretty sound argument [on Rollins ] and knowing about some of Starner's . . . problems . . . I agreed that . . . I had no defense. . . Later, how- ever, Fornaca asserted that in April 1965, 2 months after the promotions , "I did not know about Mr Starner's . . . problems." Foremen Dill and Reed, of course , recommended Starner for promotion notwithstand- ing that, as with almost any employee , there were occasional problems with his work. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted, was one of the ablest men in the department. And though Starner was but average in Fornaca's view, a number of others less skilled than he were proposed for and awarded promotions. As for seniority, two union members junior to Starner and Goularte had no trouble obtaining promotions. It follows that if, as Respondents maintain, skill and seniority guided their choice, they would not have removed either Starner or Goularte from the foremen's pro- posed promotion list while at the same time retaining union employ- ees junior to and less able than they. The Company's silence when Starner and Goularte inquired why they had been stricken from the list further evidences that the rea- sons advanced at the hearing were no more than post hoc rational- izations. The Company gave no indication whatever that skill or seniority was involved and Foreman Dill, in addition to praising Goularte's work, said Starner merited a double promotion. Nor did Personnel Manager Allen seek to explain why the Company acted as it did beyond telling Starner "not [to] make any waves; we enjoy a good relationship with the union." To be sure, two, nonunion employees, Dobbins and Geiger, were promoted along with the others. Dobbins, however, unlike Starner and Goularte, was not on Union Steward Goodman's shift. And in any event, to paraphrase Nachman Corp. v. N.L.B.B., 337 F.2d 421, 424 (C.A. 7), discrimination is not nullified by showing that not everyone was caught in its sweep. Nor is it significant that Goularte received a promotion some 6 months after Rollins and Roden. This action, we note, did not come about until after the formal complaint had been served on the parties to the present proceeding. In sum, for the reasons stated above, we find that the Union vio- lated Section 8(b) (2) and (1) (A) by causing the Company to deny Starner and Goularte a promotion because they were not union mem- bers. We further find that the Company, in knowingly acceding to this demand, violated Section 8(a) (3) and (1) .6 3. As noted, Goodman told Starner and Goularte that he would assist union members to the neglect of nonmembers when conferring with the Company on promotions. The General Counsel contends, and we agree, that by this statement the Union independently vio- lated Section 8(b) (1) (A) of the Act.7 e Local 450, International Union of Operating Engineers ( Tellepsen Construction Com- pany), 122 NLRB 564, enfd. In relevant part 281 F 2d 313 , 316 (C A. 5 ), 'cert denied 366 U.S 909; Joseph Brodsky and Herman Brodsky , Co-partners docng business under the trade name and style of J. Brodsky & Son, 114 NLRB 819. 7 See e g. N.L R.B. v. Die and Tool Makers Lodge No . 113 and Peerless Tools and Engi- neering Co., 231 F 2d 298, 302 ( C.A. 7), cert. denied 352 U S 833. HUGHES AIRCRAFT COMPANY 1085 ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondent Hughes Aircraft Company, Culver City, Califor- nia, its officers, agents, successor, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Electronic & Space Technicians Local 1553, AFL-CIO, or any other labor organization, by discrim- inatorily refusing nonmembers promotions, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act. (b) In any other manner interfering with, restraining, or coerc- ing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer H. Charles Starner and Frank Goularte immediate and full reinstatement in the positions to which they were denied a pro- motion in February 1965, or in substantially equivalent positions, without prejudice to their seniority and other rights and privileges.,, (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards,, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 8 Though Goularte was promoted in August 1965, we mention him in our Order to eliminate whatever prejudice may have resulted to his seniority and other rights and privileges. Since we find Starner was unlawfully denied a promotion , we do not accept the Trial Examiner's characterization that he resigned "voluntarily" to accept `another job in late June 1965. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its plant in Culver City, California, copies of the attached notice marked "Appendix A." 9 Copies of said notice, to be furnished by the Regional Director for Region 31, shall, after being duly signed by the Company's representative, be posted by the Com- pany immediately upon receipt thereof, and be maintained by it for ,60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (e) At the same places and under the same conditions as set forth above, as soon as forwarded by the Regional Director, post copies of the attached notice marked "Appendix B." (f) Mail to the Regional Director for Region 31 signed copies of the attached notice marked "Appendix A" for posting by Respond- ent Union. (g) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. B. Respondent Electronic & Space Technicians Local 1553, AFL- CIO, its officers, agents, and representatives, shall: 1. Cease and desist from : (a) Causing or attempting to cause Respondent Hughes Aircraft Company to discriminate against employees in violation of Section 8(a) (3) of the Act. (b) Threatening H. Charles Starner, Frank Goularte, or any other employee in the bargaining unit that it will not represent them if they are not union members. (c) In any other manner restraining or coercing employees of Respondent Company in the exercise of rights guaranteed in Section 7 of the Act, except to the extent authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Respondent Company, H. Charles 'Starner, and Frank Goularte, in writing, that it has no objection to the employment of Starner and Goularte in the positions to which they were denied a promotion in February 1965, without prejudice to their seniority and other rights and privileges. (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B." 10 Copies of, said notice, to 9In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." 11 See footnote 9, supra. HUGHES AIRCRAFT COMPANY 1087 be furnished by the Regional Director for Region 31, shall, after being duly signed by the Union's representative, be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same conditions, as soon as they are forwarded by the Regional- Director,- copies of the attached notice marked "Appendix A." (d) Mail to the Regional Director for Regional 31 signed copies of the attached notice marked - "Appendix B" for posting by Respondent Company. (e) Notify the Regional Director for Region 31, in writing, within 10 days of the date of this Order, what steps have been taken to comply herewith. C. Respondent Hughes Aircraft Company and Respondent Elec- tronic & Space Technicians Local 1553, AFL-CIO shall jointly and severally make whole H. Charles Starner and Frank Goularte for any loss of earnings they may have suffered as a result of the dis- crimination against them, by paying them a sum of money equal to the amount they would normally have earned as wages from the date of the discrimination to the date of Respondent Company's offer of promotion, or, in the case of Respondent Union, to 5 days after its notice to Respondent Company, Starner, and Goularte as pro- vided above, if that is earlier, less their net earnings during such periods, with backpay and interest to be computed in the customary manner." - - u See F. W. Woolworta Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT encourage membership in Electronic & Space Technicians Local 1553 , AFL-CIO, or any other labor organiza- tion, by discriminatorily refusing nonmembers promotions, or in any other manner discriminating in regard to hire or tenure 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment or any terms and conditions of employment, except to the extent permitted by Section 8(a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8(a) (3) of the Act, as amended. WE WILL offer H. Charles Starner and Frank Goularte imme- diate and full reinstatement in the positions to which they were denied a promotion in February 1965, without prejudice to their seniority and other rights and privileges, and jointly with the Union make them whole for any loss of earnings which they may have suffered because of the discrimination against them. All of our employees are free to become,, remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. HUGHES AIRCRAFT COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. Employees may communicate directly with the Board's Regional Office, Tenth Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850, if they have any questions concerning this notice or compliance with its provisions. HUGHES AIRCRAFT COMPANY APPENDIX B 1089 NOTICE TO ALL MEMBERS OF ELECTRONIC & SPACE TECHNICIANS LOCAL 1553, AFL-CIO, AND TO ALL EMPLOYEES OF HUGHES AIRCRAFT COMPANY. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause Hughes Aircraft Company to discriminate against employees in violation of Sec- tion 8(a) (3) of the Act. WE WILL NOT threaten H. Charles Starner, Frank Goularte, or any other employee in the collective-bargaining unit that we will not represent them if they are not union members. WE WILL NOT in any other manner restrain or coerce employ- ees of Hughes Aircraft Company in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent author- ized in Section 8(a) (3) of the Act. WE WILL notify Hughes Aircraft Company, in writing, and furnish copies of such notification to H. Charles Starner and Frank Goularte, that we have no objection to their employment in the positions to which they were denied a promotion in Feb- ruary 1965, without prejudice to their seniority and other priv- ileges and rights. WE WILL jointly with the Company make whole H. Charles Starner and Frank Goularte for any loss of pay they may have suffered because of the discrimination against them. ELECTRONIC & SPACE TECHNICIANS LOCAL 1553,_ AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States that we have no objection to their employment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. 243-084-67-vol. 159-70 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Members may communicate directly with the Board's Regional Office, Tenth Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850, if they have any questions concerning this notice or compliance with its provisions. DECISION OF TRIAL EXAMINER STATEMENT OF THE CASE This proceeding is based upon a consolidated complaint, issued July 27, 1965, alleging that-Hughes Aircraft Company, herein called Respondent Company or the Company, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3), and that Electronic & Space Technicians Local 1553, AFL-CIO,' herein called Respondent Union or the Union, has engaged in unfair labor prac- tices within the meaning of Seclions 8 (b)(1)(A) and (2) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq., herein called the Act.2 Specifically, the consolidated complaint, hereinafter referred to as the complaint, alleges that Respondent Company, on or about February 11, 1965, complying with Respondent Union's demand, removed the names of two employees, H. Charles Starner and Frank Goularte, from a promotion list, and has since failed and refused to promote said employees because they were not members of Respondent Union, in violation of the applicable sections of the Act. Both Respondents admit generally the jurisdictional allegations of the complaint; Respondent Company admits the substantive allegations of the complaint but denies generally that its conduct was violative of the Act, alleges that the action taken was in accordance with the provisions of the existing collective-bargaining ' agreement with Respondent Union, and further alleges that Starner voluntarily terminated his employment, effective June 28, 1965. Respondent Union denies generally the remaining substantive allegations of the complaint, including the commission of any unfair labor practices, and further denies that Herman Goodman acted as shop steward or as an agent of Respondent Union, within the meaning of Section 2(13) and 8(b) of the Act, as alleged in the complaint. Hearing was held before Trial Examiner Irving Rogosin on October 12 and 13, 1965, at Los Angeles, California. All parties were represented; the General Counsel, by counsel; Respondent Company and Respondent Union, by their respective attor- neys; the Charging Party, appearing in pro per.3 All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce oral and documentary evidence relevant and mate- rial to the issues, to argue orally, and file briefs and proposed findings of fact and conclusions of law. The parties declined to argue orally but Respondent Company, the General Counsel, and Respondent Union filed briefs, on November 15, 18, and 19, 1965, respectively, all of which have been carefully considered. No proposed findings of fact or conclusions of law have been filed. Upon the entire record in the case, including an appraisal of the credibility of the witnesses, based, in part, upon their attitude and demeanor on the witness stand, and a consideration of the briefs, the following findings are made: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Hughes Aircraft Company, Respondent Company herein, is a corporation engaged in the research, development, engineering, and manufacturing of electronic, air- home, and aerospace equipment. In the conduct of its business, Respondent Com- pany sells goods and performs services for the Armed Forces of the United States valued in excess of $50,000, which has a substantial impact on the national defense, and ships from its Culver City, California plant, goods valued in excess of $50,000 annually directly to points outside the State of California. 1 As amended at the hearing. The charge in each of these cases was filed and served on March 26, 1965. s The Charging Party, who had terminated his employment with the Company, did not attend the second day of the hearing, having previously indicated that he could not afford the loss of wages which his attendance would entail. HUGHES AIRCRAFT COMPANY 1091 The complaint alleges, Respondents' answers admit, and it is hereby found that Respondent Company is now, and, at all times material herein, has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Electronic & Space Technicians Local 1553, AFL-CIO, Respondent Union herein, is now, and, at all times material herein, has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR. PRACTICES . The issues (1) Did Respondent Union cause or attempt to cause ' Respondent Company to remove the names of employees Starner and Goularte from the promotion list because they were not members of the Union? (2) Did Respondent Company remove the names of these employees, and there- after fail and refuse to promote them, in compliance with Respondent Union's demand, because the employees were not members of the Union? A. Introduction Effective January 31, 1965, Respondent Company 'entered into a 'collective- bargaining agreement with Respondent Union superseding an earlier contract, which expired January 30, 1965. The new contract expires December 1, 1967, subject to amendment, modification, renewal, or termination on 60 days' written notice prior to any anniversary date. The contract provides for union security in the form of maintenance of membership and dues deduction (checkoff) upon appropriate author- ization and assignment in the form prescribed in the contract. By the terms of the contract, the Union is required to furnish the Company with a list of union mem- bers subject to the contract. B. Discrimination in regard to hire and tenure of employment; causing or attempting to cause such discrimination Since the facts on which the General Counsel relies to establish the allegations of the complaint are common to both Respondents, no attempt will be made to deal with them separately as to each of the Respondents. The underlying facts are not in substantial dispute; only the conclusions and inferences to be drawn from the facts are in conflict. Herman Charles Starner, the Charging Party, was hired on May 6, 1964, in the job classification of machinist precision A. He was employed on the swing shift, on which Herman Goodman was the union steward.4 Soon after Starner's three-month probationary' period was completed, .Goodman approached him to join the Union. Starner declined, stating that since he was so recent an employee he would prefer to learn more about the Company, as well as the Union, before joining. The solicitation was repeated several times after- ward, and each time Starner replied in similar fashion. Late in December, or early in January, while negotiations for the new contract were in progress, Good- man repeated his efforts to recruit Starner. Starner said that he was still "unde- cided," that he did not want to join them, but would consider the possibility when the contract was "finalized" and he became familiar with its contents. Goodman mentioned that the contract negotiations would result in promotions and upgrading, that he knew that Starner's name was on the promotion list, adding that if Starner joined the Union, he would be in a position to help him obtain the promotion and corresponding pay increase. Starner worked under the supervision of Foremen William Dills and Robert Reed, usually receiving his assignments directly from Dill. Upon completion of Starner's probationary period, and a review of his work, he was told by Dill that Although the Union denied in Ifs answer that Goodman was a shop steward or agent of Respondent Union at all times material, it was stipulated at the hearing that he was, in fact, at such times, shop steward, and an agent of Respondent Union within the meaning of Section 2 (3) and S (b) of the Act. 5 According to Dill's undisputed testimony , he was senior foreman 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his work was satisfactory and that his name would be submitted on the promotion list. Dill told him, however, that he would have to await completion of the con- tract negotiations, and advised him to "sit tight" until that was accomplished. This promotion would have placed Starner in the next classification, that of machinist, laboratory, Labor Grade 20. Subsequently, when Goodman solicited Starner to join the Union, Starner ques- tioned Dill about the advisability of joining., Dill told him that it did not matter to him whether he joined the Union or not. On one occasion, Goodman told Starner that it would be advantageous to him to join the Union because Goodman could then advocate his promotion. Starner rejoined that membership in the Union was no criterion of whether he was entitled to the promotion, and since he had been practically promised the promotion irre- spective of whether he was a union member, he saw no reason to join. According to Starner, Goodman told him that in that case Goodman would make no effort to "bargain for [him] during the negotiations," that he would only "bargain" for union members. Starner said that that was Goodman's prerogative, but that union membership could not be a factor because, under company rules and the union contract, his promotion would be governed by seniority and ability, so long as he was recommended by his supervisor.6 Starner again reported to Foreman Dill that he had been approached to join the Union, and asked him if he felt it would be to his advantage to do so. Dill reiterated that it was a matter of indifference to him, and that the Company took the position that it was not necessary to be a union member to attain a promotion. During the period of the contract negotiations, Primo Fornaca, superintendent of Departments 73, 76, and 77, instructed his foremen to prepare a promotion list for Department 76, comprising the prototype model and machine shop, which employed, machinist precision A personnel. On about February 6, 1965, Foremen Dill and Reed prepared and submitted a list of the 22 employees in that depart- ment, with recommendations for promotions of 13 employees, including Starner and Goularte, to the classification of machinist laboratory, Labor Grade 20.7 For- naca called a meeting of the union stewards, including Goodman, on February 11, a Thursday. O'Conner and Fornaca represented the Company; Goodman and other union stewards, the Union. At this meeting, O'Conner and Fornaca submitted the list of 13 employees, including Starner and Goularte, whom they had selected for promotion.8 The union stewards requested that the names of two employees to be added to the list.9 During a recess, O'Conner and Fornaca discussed the Union's request, and com- municated with the manager of the industrial relations department. He authorized them to grant the Union's request for the two additional promotions but cautioned that this was the extent to which the Company would go. Consequently, Nikka and Racey were added to the promotion list. 8 These findings are based upon Starner 's credited testimony. Although Goodman admitted that he solicited Starner on more than one occasion to join the Union, he denied the other statements attributed to him by Starner . Goodman was not an impressive witness. His testimony was frequently both discursive and evasive, particularly with reference to his alleged lack of knowledge of nonmembership status of Starner and Goularte at the time he urged removal of their names from the promotion list, as discussed later. Due allowance has been made for his difficulties in diction, which sometimes rendered it taxing to comprehend his testimony , in rejecting his denials. 7 According to a compilation prepared for the hearing by James J. O'Conner, labor rela- tions and wage and salary representative at Respondent Company's El Segundo Division, of the employees on the list, four employees, Starner and Goularte, and R. L. Dobbins, Jr. and K. E. Geiger, were not members of the Union. Both Respondents contend, how- ever, that they were not aware of the union membership status of these four employees at the time the Company proposed their promotion. 8 According to Goodman, a similar promotion list was furnished at this meeting up- grading employees to machinist prototype, Labor Grade 22 (not directly involved in this proceeding), and the Union prevailed upon the Company to add three employees, two on the day shift, and one on the swing shift, to that list. 0 These were A. Nikka, whose hiring date was October 9, 1951, and whose relative up- grade seniority (according to the compilation entitled "PROMOTION AND UNION IuEM- BERSHIP STATUS," referred to elsewhere), was Nof 1, and L. E. Racey, whose hiring date was May 16, 1961, and whose relative upgrade seniority was No. 9, out of the total list of 22 employees. According to Goodman, he had approached Fornaca long before this list was issued with regard to upgrading these two employees. HUGHES AIRCRAFT COMPANY 1093 Later, Goodman and the other stewards notified Fornaca that they wanted two more men promoted, in addition to those as to whom the Company had agreed.'° Fornaca told them that this was impossible, in view of what he had been told by the industrial relations manager, that the promotions would increase the total num- ber to 17, two more than the limit imposed by the Company. The meeting adjourned without agreement The following Monday, February 15, during the swing shift, Goodman again requested Fornaca to promote Rollins and Roden, eliminating two other employees from the promotion list, if necessary, and assigning reasons for the requested sub- stitution.ii After hearing the Union's arguments, Fornaca sent for Foreman Reed to verify the Union's position and confirm his own views. It does not affirmatively appear from Fornaca's testimony whether Goodman told him that he would not approve the list of proposed promotions unless Rollins and Roden were added or substituted for Starner and Goularte on the list, but manifestly Goodman left no doubt that unless the Company acceded to the Union's demands that Rollins and Roden be included in the promotions, Goodman would not approve the list.12 Fornaca later phoned Director of Labor Relations Chandler and informed him that he had reached agreement with the Union and prevailed upon it to "sign off" on the proposed list. Chandler asked him how he had accomplished this in view of the Company's limitation on the number of promotions to 15. Fornaca replied that the Union had "discussed the individuals, and agreed to take two names off and add two others " Foreman Dill later notified Starner that his name and Goularte's had been removed from the promotion list. Starner asked Dill what he intended to do about it. Dill said there was nothing that could be done then, but that he would submit their names on a "special request," which, according to Starner, he understood was done. When Starner discovered that the promotion list had been "finalized," he again took the matter up with Dill, and was told that, although Dill had submitted Starner's name on "special request," his recommendation had not been accepted. According to Starner, when he asked Dill, Allen, and a supervisor, whom he referred to as "Red" Kannarian, the reason his name had been removed from the promotion list, he was merely told that he and Goularte had been replaced by two union employees. Asked at the hearing whether any of these or other management representatives had given him a reason for the removal of his name from the pro- motion list, Starner replied, "Emphatically, no," adding that Dill had, in fact, told him the day he left the Company that "if it had been up to him as supervisor [Starner] would not [only] have received the lab machinist rating, but also the prototype machinist rating, which at the time was top level," in effect, what amounted to a double promotion.13 Starner asked Dill whether he would have any objection if Starner took the matter up with the Board. Dill said that he had no objection because he had neither agreed with nor signed the promotion list and considered himself "off the hook." Starner decided, however, to take the matter up with Personnel Manager Douglas Allen, before resorting to the Board. In Dill's presence, Starner recounted 10 These two were C R Rollins, hired July 7, 1952, relative upgrade seniority No 5-6-7, and H. F. Roden, hired September 30, 1964, relative upgrade seniority No. 18, both union members. 11 The reasons advanced by the Union are discussed later in a consideration of the con- tentions of the parties. 12 In his pretrial statement to a Board agent, Fornaca is alleged to have said ( the state- ment was not offered in evidence, though Fornaca was cross-examined about it), "The following night Goodman came to my office and said he had a few men to add, and the only way he could sign the list would be to add these and take off Starner and Goularte " Fornaca, while testifying that he was not sure that he made this statement to the Board agent, admitted that he might have done so. He conceded , however, that*he asked Goodman at the time, "Well, who do you want taken off the list , if we add these two men [Rollins and Roden.]" Since the Company was adamant about the total number of promotions, it is evident that in order to comply with the Union 's request it would have been neces- sary to drop two men from the list. Whether this would necessarily have . entailed dropping Starner and Goularte is one of the issues to be determined . Also, whether under the exist- ing collective-bargaining agreement Respondent was required to obtain the Union 's consent to the promotion list is also considered in the analysis of Respondents ' contentions 13 Dill was not questioned about this statement , and Starner's testimony as to this con- versation is undenied. In referring to the union employees who replaced him and Goularte, Starner mistakenly named Louis Bailey instead of Rollins. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the events which had culminated in the Company's action. Allen told him that there would be a review of the promotion list in 4 months, and that other employ- ees might then be considered for promotion. Starner countered by saying that, since his immediate supervisor regarded him qualified for the promotion, he was at a loss to understand "how the union could override it," in the absence of a rea- sonable grievance based on seniority, ability, or some other valid reason.14 Starner also recounted to Allen his conversations with Goodman, stating that he had told him that he was unwilling to join the Union until he was certain of the contract provisions and had worked long enough to enjoy the union benefits. Starner also said that Goodman had offered to help him obtain the "pay raise" if he joined the Union but said that if Starner did not join he would not "fight for" him but would instead exert his efforts on behalf of the union members. Allen remarked, "Let's not make any waves; we enjoy a good relationship with the union right now, and during the contract negotiations just sit light and this will bear out." Several days after the promotion list was settled, Starner approached Goodman and told him that he understood his name had been removed from the promotion list. Goodman said that there had been "nothing official about that list, because it wasn't signed yet," adding, "You were just being considered [for] a raise and you. weren't given [one] " Goodman testified that he also told Starner, "We had a 12-year man there [Rollins] that used to be a master machinist, and we wanted to get him on the list, and we put him on there in your place." Starner asked Allen to arrange a meeting between Goodman, Allen, and himself to discuss the matter. It was suggested that R. J. Robles, the union president, be included in such a meeting. The meeting was held but Starner was not notified and did not attend. When Starner called Allen to inquire about the meeting, Allen told him that he had talked to Robles, who in turn, had taken the matter up with Goodman, said that Robles was of the opinion that the Union had a "clean bill of health," that the action taken was in conformity with the agreement, presumably referring to the collective-bargaining agreement 15 Starner continued working in the same job classification, machinist precision A, Labor Grade 18, until after his vacation, June 28, when he resigned voluntarily to accept other employment. Frank Goularte was hired on October 5, 1964, as a machinist precision A employee. He continued in this job classification until August 15, 1965, when he was promoted to the job of machinist, laboratory, for which the Company had originally proposed him on February 6, 1965. Goularte had been working several days when Goodman solicited him to join the Union. Goularte told him that he preferred to wait a while. Goodman per- sisted in his efforts to recruit Goularte, but the latter kept putting him off. After Goularte had been working several months, he asked Foreman Dill about his chances for advancement. Dill told him that the union contract would be reopened for negotiations about the first of the year, that a reevaluation would then be made of the employees with a view to increases, at which time his name would be substituted on the list of employees eligible for the "next pay scale." About the first of the year, as Goularte was reporting for woik on the_ swing shift, Goodman approached him in, the parking lot with a list in his hand Good- man, according to Goularte, -told him, "Well; we got your name on the list, and I think you better join the union." Goularte made some noncommittal reply. On several subsequent occasions, Goodman attempted'tb recruit Goularte as a union member. Goularte told him that he was still undecided, remarking that when he got around to it, he would ask him for the forms.ls Goodman persevered in his efforts, and told Goularte that he would "keep pushing for [him] on this list." Goularte countered that he failed to see how Goodman had anything to do 1 14 By way of illustration , Starner testified , "Infact,,I think I even made a little joke. I said even if the union representative's daughter is going out with [the Company] president's-son,. that would be probably good enough reason for me to back. off . . . ... is Allen did not testify, and Starner's testimony concerning his discussions with Allen are unrefuted. 28 Goularte explained at the hearing that he had been furnished with a "set of forms," an apparent reference to the membership application and dues deduction authorization forms reproduced in the collective-bargaining agreement, but that he discarded them. HUGHES AIRCRAFT COMPANY 1095 with the list since Dill had already recommended him for promotion,17 and, as far as Goularte was concerned, Goodman was no more than a union mmeber, and the Union had no "control" over his raise. Goodman reminded him that the list "wasn't final" and that the Union would be required to approve the list During this interval, Goularte questioned Dill as to whether his increase depended on his joining the Union. Dill replied that the foreman had no means of knowing which employees belonged to the Union unless they took the trouble to look at the employees' pay check stubs is Dill observed that he "could [n'tl care less." About two weeks before the final decision became known, Dill called Goularte aside, and told him, "Don't get alarmed, but when the new increases come out you are not going to get one." Goularte asked him the reason, inquiring whether his work was at fault, and venturing that absenteeism could not be the reason since he had only been absent 2 days during the entire period of his employment Dill said he did not know the reason, adding that as fan as he was concerned, and speaking for Foreman Reed as well, Goularte's work and attendance were "fine," that when the list of names was submitted to the Union for its approval, his name (and Starner's) were removed, and, according to his understanding, replaced with two other names. Goularte approached Goodman a few days after the Union had "signed off" the promotion list," and demanded to know why his name had been removed. Good- man told him that the man who had been substituted in his place had been working "opposite a Grade 22 man [presumably on the day shift], and he was only an 18, and he [Roden] was doing the same work, and he was more entitled to be on the list than [Goularte] was.,, 20 Understandably irate, Goularte asked Goodman how much time he would have to join the Union. Goodman, apparently sensing the implication, replied, "Well, as far as we aie concerned, you can join the union any time from now on, but at this time this will not affect your new increase." After an acrimonious exchange the discussion ended.21 Goularte was, however, subsequently promoted on August 15, 1965, to the job of machinist laboratory, the same classification to which the others had been pro- moted as of February 27, 1965. Respondents' Contentions Baldly stated, the Company contends that it removed the names of Starner and Goularte from the promotion list, albeit at the behest of the Union, in conformity with the provisions of the collective-bargaining agreement, without regard to consid- erations of union membership, because the employees with whom the Company replaced them were better qualified and more satisfactory employees. The Union, for its part, maintains that, although the two employees with whom the Company replaced the two nonunion employees , were union members, this was not the controlling factor in its demand upon the Company. The Union maintains that it was motivated solely by the fact that the two union members were better qualified and had greater seniority than the two employees whom the Company had selected. 17 Although Goularte , and sometimes Starner , referred to the promotions as pay increases, the reclassifications are more accurately denoted promotions . Both these employees were at the top of the grade in their job classifications as machinist precision A, Labor Grade 18. The reclassification was to the job of machinist laboratory , Labor Grade 20 , the next highest grade, involving an increase of 7 cents an hour. 19 Which would presumably show any dues deductions where properly authorized 19 Shortly before Starner approached him the same day. 10 Goodman could not recall whether he mentioned Roden by name , in this conversation, as the man who replaced Goularte. a According to Goularte , when he asked Goodman why he had his name removed from the promotion list, Goodman replied that there were union members with as much ability and seniority as Goularte and that he had an obligation to sponsor them ahead of Goularte Goularte's version of Goodman's statement appears to be a more generalized conclusion which Goularte reached on the basis of Goodman 's remarks . The latter's version seems more logical and consistent with the objective evidence , and is , therefore, credited despite the fact that Goodman's testimony has been discredited In other particulars. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Underlying the positions of both Respondents are contractual provisions of the new contract, which continued similar provisions in the previous contract: ARTICLE XVII UPGRADING AND PROMOTION Section A. Procedure 1. In connection with upgrading to openings in higher hourly paid Job Clas- sifications within a Department, present active employees with the longest actual service* in the Job Classifications from which the promotion will be made, first by Section or Cost Center where these are used, then in other Sections or Cost Centers within the same Department, and finally in other Departments within the same Division, shall receive first consideration when promotional opportu- nities arise; provided they possess the qualifications and ability to perform the the job, and their production, conduct and attendance records are satisfactory. Sections and Cost Centers are defined as segments of a Department, and De- partments are segments of a Division. 2. Examples of promotional upgrading from the lower to the higher Job Classification, in the same class of work, are as follows: From To Tech. Elec. Units-Test "C" Tech. Elec. Units-Test "B" Stock Clerk "B" Stock Clerk "A" Solderer Production "A" Silver Solderer "A" *An employee who has completed two (2) or more years in the Job Classification, from which the promotion will be made, shall be given credit for all continuous employment. Since the list of promotions involved here was not prepared on the basis of se- niority, resort must be had to other sections of the contract dealing with exceptions to the seniority provisions, which, while relating primarily to layoffs and retention rights, and preferential reemployment, appear sufficiently broad to cover upgrading and promotions: ARTICLE XVI SENIORITY * * * * * * * Section K. General 1. Exceptions to the seniority provisions herein may be made by mutual agree- ment between the Divisional Labor Relations Representative and the Union President or Vice President or their designated representative. The Employer shall in any event always have the right to maintain in each classification within each Division a sufficient number of qualified employees to maintain work sched- ules and operations, and shall also have the right to retain an employee who possesses a particular skill or special training. Respondents contend that by the terms of the contract, whenever the Company undertakes to promote or upgrade an employee without regard to his seniority, it is required to notify the union steward, and procure his consent. This requirement is purportedly based on the following article: ARTICLE XXII GRIEVANCE PROCEDURE - Section B. Grievance Procedure 4. A grievance filed under the provisions of the "Upgrading and Promotion" Article must be filed into Step One of Section B of this Article within fifteen (15) working days from the effective date of the upgrade. a. Verbal notification by the Labor Relations Representative to the Se- nior Steward will be made within five (5) working days after the effective date of such upgrade.' i Labor Relations Representative O'Conner testified that he construed this provision to mean that in instances in which the Company made promotions according to seniority within the job classification , the Company was not required to notify or confer with the Union, but that if it promoted an employee in the job classification without regard to seniority, the Company was required to notify the Union so as to afford it an opportunity to file a grievance. Although the contract does not explicitly require that the Union consent to such a promotion or "sign off" on any list of such promotions, the parties evidently considered this implicit as an adjunct to the procedure to establish compliance therewith. HUGHES AIRCRAFT COMPANY 1097 According to Superintendent Fornaca, at the meeting on February 15, Goodman advanced the argument that Rollins had previously held the Labor Grade 20 job classification involved in the promotion and that he had greater seniority than Star- ner. Having been aware of "some of Starner's inspection problems on his work, and some of his absenteeism," despite his opinion that he regarded Starner as "a good mechanic," he acquiesced in Goodman's demand that Rollins be substituted for Starner on the job promotion list. When Reed arrived, Fornaca reviewed Rollins' personnel history with him, Rol- lins' seniority dating back to 1951 or 1952, the fact that he had previously held the master machinist grade in Department 71 before transferring to Department 76 in a reduction in force, and that Rollins was breaking in on the number 3 jig board, a critical operation. Consequently, Fornaca acquiesced in the Union's demand. Goodman, who, as a machinist in the department, claimed to be familiar with the caliber of Starner's workmanship, was highly critical, in his testimony, of Starner's work. Starner vehemently denied that his workmanship had been defective during the latter part of 1964 and early 1965, denying as well, that Foreman Reed had dis- cussed the problem with him, and contending that if this were true, Reed would not have recommended him for promotion. A compilation of quality control his- tory records for employees in that department for the period covering October 1, 1964, to February 15, 1965, however, reveals that Starner had a total of 8 occur- rences of defective workmanship involving 21 defects during this period. Of the four employees directly affected, the next highest number of defects during the cor- responding period, five occurrences, involving eight defects, related to Roden. For the same period, Goularte showed three occurrences, for three defects, and Rollins, two occurrences for eight defects, six on one day, and two on the other.22 In the face of the unchallenged quality control records, Starner's denial that he had per- formed defective work, for which he had been criticized during this period, can scarcely be credited. Reed also testified, contrary to Starner's denial, that he had occasion to complain about his workmanship on a number of occasions , beginning in the latter part of September 1964, concerning discrepancies resulting from carelessness or inattention. This necessitated reinspection by the material review board , and, in some instances, rejection of parts. Reed cautioned Starner about the high tolerances which the work entailed in connection with the Surveyor vehicle intended for the "soft moon landing." 23 With regard to absences or tardiness , Starner initially denied any recollection of such derelictions. Confronted with his attendance records, however, which disclosed a total of 24 occurrences of absence or tardiness for the period between June 15, 1964, and February 24, 1965, he conceded the accuracy of those records. Although there was no showing whether any of these absences or tardinesses were excused or unexcused, Reed, senior foreman, testified that he had no recollection that Starner had obtained permission or been excused. Further, Reed testified, he was the only foreman authorized to grant such permission, and any request made to Dill would have been referred to Reed. Under these circumstances, it is also difficult to credit Starner's denial of Reed's testimony that he discussed his attendance record with Starner on several occasions. On one of these occasions, Reed testified; Starner did not report for work on Mon- day without calling in., When he appeared the following day, and was questioned by Reed as to the reason for his absence, Starner told him that he had had personal business out of town which had taken longer than he had anticipated. Reed admon- ished him about the necessity for notifying the Company under such circumstances so that it would know whether he would merely be late or absent altogether. Starner told him that he had not considered that his absence would be "detrimental" to the job. In February 1965, when Starner was absent the first 4 days of the month, Reed reminded him of the urgency of the jobs on which he was working, 27 Nikka, one of the two employees added initially to the promotion list at the request of the Union , showed no occurrences , and Racey , the other, showed 4 occurrences, with a total of 20 defects , during the same period 72 Fornaca, too, testified that the Company was also engaged at the time in the TFX control and missile systems , and on parts of the Concept, a communications satellite, which involved the most difficult type of work in the machine trade, testifying, with pardonable pride, that the Company's machinists are probably the finest in the country. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointing out that unless the Company could maintain its schedules, delivery dates would be adversely affected. Starner indicated to Reed that his absences were due to personal business and domestic problems. As far as Goularte was concerned, Fornaca conceded that he was rated "among the top men" in the department, while Starner was rated as "average." Fornaca also conceded that in "some phases of the work," without specifying which, Gou- larte had more ability than Rollins, who replaced him on the promotion list. In explanation, Fornaca testified that Goularte was an "all-around man," while Rollins specialized in precision jig-barring. What influenced him, however, in favor of Rol- lins was his high seniority. As to Starner, Fornaca testified, he was unable to state whether he had more ability than Rollins.24 Goodman argued that Roden was operating the same machine as an employee on the day shift, and that that employee held Labor Grade 22, whereas Roden was classified as Labor Grade 18 Goodman contended that "this was too much of a spread for a Labor Grade 18 man doing Labor Grade 22 work." Impressed with this argument, but realizing that this would entail removing Goularte from the list, Fornaca told Goodman that he was satisfied with Goularte's work, and that he was "doing a real good job." When Goodman urged that Roden had greater seniority than Goularte, Fornaca testified that since he needed Roden on that machine and could not dispense with him, he agreed to withdraw Goularte's name and substi- tute Roden's. Reed testified, however, that he and Dill did not review Starner's and Goularte's quality control history records, nor, in Starner's case, consider his unsatisfactory attendance record, before making their recommendations to Fornaca, "because we weren't judging them for any sequence of defects," and, inferentially, for Starner's absenteeism, but on the basis of their potential worth to the Company. Further- more, Reed conceded in his testimony that if the Union had not protested the selec- tion of Starner and Goularte for promotion, their names would have remained on the promotion list. Respondent Company also contends, in effect, that Superintendent Fornaca, who made the decision, based upon the recommendation of Foremen Reed and Dill, was not actually aware of the union membership status of any of the employees, includ- ing Starner and Goularte, either at the time the initial promotion list was compiled or when Rollins and Roden's names were added.25 According to the Company's witnesses, no investigation was made before the ini- tial promotion list was compiled to ascertain which, if any, of those on the list were union members. And, although the contract expressly requires the Union to' furnish the Company with a list of members employed by the Company, the first such list after the signing of the current contract was not supplied until March 3, 1965, after the promotions were definitely settled. Admittedly, this information would, how- ever, have been available to management representatives upon examination of pay- check stubs showing deductions for union dues, at least, in instances in which check- offs had been authorized. This, however, was not done according to the Company. Actually, of the list of 22 men, it was subsequently established that only four, including Starner and Goularte, were not union members at the time the list was prepared. With regard to Foreman Dill, at least, it can scarcely be maintained that he had not known that Starner and Goularte were not union members when the promotion list was submitted. Both had informed. him that they had been approached to join the Union, and had sought his opinion as to whether they were required to join to be eligible for the promotion. Moreover, when Starner learned that his name had been removed from the list, he related to Personnel Manager Allen that he had resisted Goodman's importunities to join the Union even after Goodman had prom- ised him help in obtaining the promotion if he joined. Allen responded by urging 21 In his pretrial statement to the Board agent, Fornaca had said, "Goularte was in the top five on the night shift, and Starner was about in the middle, according to ability. Both had more ability than Rollins." Reed testified that on the original handwritten promotion list which he had furnished Fornaca, on the basis of which the typewritten list was prepared, he had rated Goularte 5 or 6 in order of preference, and Starner, 8 or 9. Rollins was not on the initial list, and Roden ranked about 10 on the initial list prepared by Fornaca. 25 The promotion and union membership status list introduced in evidence , containing the names of the 22 employees in the department, with the dates of their hire, relative senior- ity, and union membership status, was not actually prepared until shortly before, the hearing. HUGHES AIRCRAFT COMPANY 1099 -him not to "make waves." It is, therefore, futile to deny that the Company was aware that Starner and Goularte were not union members. Having been placed on notice of these circumstances and Goodman's attitude, the Company was under a duty to scrutinize the Union's motives in recommending the promotion of Rollins and Roden, both union members, in preference to Starner and Goularte, who were not members.26 It is entirely understandable that the Company was concerned primarily with promoting only the most highly competent machinists. The Company was engaged in projects of most critical importance, involving, as they did, the "Surveyor" vehicle designed for the "soft moon landing," TFX control and missile system, and parts for the "Concept," a communications satellite. These projects require the highest degree of skill and competence, including ability to maintain the closest tolerances, where minutest discrepancies could result in catastrophic consequences. These considerations, therefore, make it all the more difficult to understand how the supervisors making the recommendations for promotion could have failed as they, in effect, conceded, to review the records of the employees who were being considered for promotion, particularly with regard to quality control history and attendance records (since the Company purportedly attached such importance to attendance), before making their selections. Moreover, since Foreman Reed admitted that he had been aware of Starner's incidence of defective work and absenteeism at the time he and Dill included him on the initial promotion list, it can only be assumed either that these supervisors did not regard his shortcomings so serious as to disqualify him for promotion or that they were willing to recom- mend him despite his deficiencies. As to Goularte, there is no contention that his workmanship or attendance were in any respect deficient. The Company did subsequently promote Goularte, on August 15, 1965, coincidentally, after the filing of the charge and the com- plaint, to the same position for which he had initially been recommended. This in itself, however, does not absolve the Company or the Union from the consequence of their unlawful conduct if the initial denial of the promotion was motivated by considerations of union membership. On the other hand, Goularte's subsequent promotion cannot be entirely disregarded in determining whether Respondents were, in fact, motivated by union considerations. Similarly, the fact that the only other nonunion employees in the department as of the date the final selection for promotion was made, were actually promoted, does not establish the absence of discriminatory motive with regard to Starner and Goularte 27 Conversely, the fact that two of the four nonunion employees were promoted at the same time as the union members, cannot be entirely disregarded.28 The issue still remains, however, whether in demanding that the Company remove the names of the two nonunion employees from the promotion list and substitute the names of two union employees, and whether, in acceding to the Union's demand, both the Company and the Union were motivated by considera- tions of union membership. It would be unrealistic to assume that Union Steward Goodman did not make a determined effort to recruit Starner and Goularte as union members. It would be equally unrealistic to believe that, to persuade these employees to become union members, Goodman did not hold out to them assurances of assistance in securing their promotions, and tell them that if they did not become members, he would exert his efforts only on behalf of members. The existence of grievance machinery in the contract to protest promotion and upgrading without regard to seniority ° Although Goodman testified that lie did not initially specify which names he wanted eliminated to make room for the two additional union members , he later conceded that when Fornaca asked him which names he wanted removed, he gave the names of Starner and Goularte Goodman's equivocation and evasion as to whether he knew at the time he urged the replacement of Starner and Goularte by Rollins and Roden that the former two employees were not union members, makes it difficult to accept. It is characteristic of his reluctance, if not outright refusal, to admit the obvious . Goodman admitted that 95 to 98 percent of the employees in his department were union members, while the ratio of union to nonunion members in the unit represented by the Union was 50 percent 27 Cf. Nachman Corp. v. N.L.R.B., 337 F.2d 421, 423-424 (C.A. 7) ; and cases cited. It may be noted, in passing that of the two nonunion employees on the original list, who were actually promoted on February 27, Dobbins, who was on another shift, later joined the Union. According to Goodman, Geiger, the other, resigned afterward. 28 See Big Bear Stores Company, 155 NLRB 75, 60 LRRM 1241-42; Missoula Hotel Association, 148 NLRB 1477, 1480. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bespeaks the recognition by the parties of the Union's right to represent the inter- ests of its members in the subject matter.29 Such action would not necessarily be unlawful, provided the Union's demands were based on considerations other than union membership, as where the Union advocates the promotion of union mem- bers possessing greater qualifications or seniority than nonunion employees whom the Company has selected for promotion. Here, after receiving the Company's proposed list of promotions, the Union immediately sought, and persuaded the Company to add the names of two union employees to the promotion list. Nikka, the first of these, ranked number one in seniority and had had no record of defective workmanship for the period covered by the compilation. Racey, the second, who ranked ninth among the total of the 22 employees in the department (as compared with 14, for Starner, and between 19 and 20, for Goularte), showed 4 occurrences for a total of 20 defect over the same period. As for Rollins and Roden, who replaced Starner and Goularte on the proration list, Rollins ranked 5-6-7 in seniority, (higher than both Starner and Goularte), and Roden ranked 18, below Starner, but above Goularte. As has been noted elsewhere, Rollins' quality control history record reflected 2 occurrences covering 8 defects, Roden, 5 occurrences with 8 defects, as compared with Goularte's, 3 occurrences for 3 defects, and Starner's 8 occurrences for 21 defects. But in Roden's case, the Company advanced cogent reasons, previously discussed, for deciding to promote Roden in preference to Goularte. The fact that Superintendent Fornaca had admittedly rated Goularte as "among the top men" in the department, in certain respects superior to Rollins and 5 or 6 in order of preference, and, Starner, 8 or 9, compared with Roden, whom he had ranked 10, does, however, give pause. Furthermore, although Fornaca furnished a plausible explanation at the hearing, based on 15 years of previous employment with the Company, and employment at the highest classification with 4 years' serv- ice as foreman, with regard to D. S. Netherly, and natural aptitude and pro- ficiency-"one of our best people,"-in the case of L. A. Bailey, both union mem- bers, hired after Starner and Goularte, there was no showing that these factors were taken into consideration at the time the substitution was made. In fact, so far as the record discloses, Starner and Goularte were the only employees con- sidered for removal from the promotion list when the Union insisted that two men be dropped to make room for Rollins and Roden. Manifestly the Union, in the exercise of the right granted in the contract under- took to persuade the Company to promote two of its members in preference to the two nonunion employees. To this extent the Union attempted to cause, and, when it succeeded in achieving its purpose, did cause the Company to discriminate, in the colloquial sense, at least, in favor of union members and against nonunion employees. But such discrimination, when not motivated by a purpose to encourage or discourage membership in the Union, is not unlawful. As the Court has held in analagous situations: The union does not commit an unfair labor practice merely because it causes or attempts to cause an employer to promote or demote an employee or to discriminate for or against him. In Ford Motor Co. v. Huffman, 345 U S. 330, . . . discrimination in seniority which was adopted at the behest of the union was found unexceptionable.2 In Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521, . . . the Court gave its approval to superseniority for union officials which was, of course, a practice proposed by the union. Local 357 International Brotherhood of Teamsters, etc. V. N.L.R.B., 365 U.S. 667, . . . held that it was not an unfair labor practice for a union to cause the discharge of an employee because he was hired ahead of other men to whom the union had assigned preference. See also Alvado v. General Motors Corp., 303 F.2d 718 (2d Cir.), cert. denied 371 U.S. 925... . 2 Our decision interprets the statutory authority of a collective bargaining repre- sentative to have such breadth that it removes all ground for a substantial charge that [the union ], by exceeding its authority, committed an unfair labor practice 345 U.S. at 332, footnote 4. .. . 29 It is noted that the grievance procedure was never actually brought into play. The "[v]erbal notification" mentioned in article XXII, Section B, 4 a, is apparently a pre- requisite to the actual grievance procedure, which was obviated here by the Company's acquiescence in the Union's position. HUGHES AIRCRAFT COMPANY 1101 Decisions of the Board which hold that discrimination at the instance of the union is not per se an unfair labor practice include Matter of Yonkers Con- tracting Co., 135 NLRB 865 (1962), where the union induced the employer to hire one man rather than another 3; Matter of Wilputte Coke Oven Division, Allied Chemical Corp., 135 NLRB 323 (1962), and Matter of Plaza Builders, Inc., 134 NLRB 751 (1961), where the union prevailed upon the employers to lay-off employees because they were "out-of-town" men. 3 The question , therefore, is whether it was unlawful for the Respondent to request the Company to prefer an employee , such as Burrows , who was part of a crew which was about to be laid off, over an outside applicant , such as Backus. We think the answer is clear. It is a union's function to attempt to obtain benefits for the employees it represents . Here the Respondent was performing that function by in- ducing the employer to fill desirable new jobs from within the working force rather than by hiring from outside Although this might encourage union membership, it would be the type of encouragement the Supreme Court was referring to when it stated in Local 357, -International Brotherhood 'of Teamsters, etc. v. N L R B. (365 U.S. 667, 675-676 . . ) : "The truth is that, the union is a service agency that probably encourages membership whenever it does its job well." Finding a violation in this case would penalize the Respondent for attempting to preserve job op- portunities for the unit employees it represented . Such a finding would mean that a union could not attempt to improve general working conditions for the employees in the unit if, by such an attempt, a job applicant might be temporarily injured The Respondent here prevailed upon the Company not to hire an outside applicant, who was also a union member, when a present employee was about to be laid off. Clearly, this was an attempt by the Respondent to perform its obligation of representing the employees. We find that such action in this case does not involve unlawful encourage ment of union membership within the meaning of Section 8(a) (3) or 8 ( b) (2) of the Act. Cf Local 357, Teamsters, supra, 135 NLRB at 866. These authorities establish the principle that a union does not violate Sec- tion 8 (b)(2) unless the discrimination which the union seeks would constitute a violation of Section 8(a)(3) if the employer acted without union suggestion or compulsion. Section 8(b)(2) is violated only by causing or attempting to cause "an employer to discriminate against an employee in violation of [Section 8(a)(3)]". An employer who discriminates among employees does not violate Section 8 (a)(3) unless the discrimination is based upon union membership or other union-connected activities. It is obvious, for exam- ple, that the employer's promotion or the demotion of an employee who is a union official is not a violation of the Act unless the discrimination for or against him is based on his union activity. It seems to us to be equally obvious that the union's seeking such a promotion or demotion would not con- stitute an unfair labor practice if the union's action was based upon the em- ployee's merit or demerit and was unconnected with his union membership or activity. Since, if the employer had, sua sponte, reduced [the union employee's] priority on the ground of providing jobs for others , or on the ground that he was no good or a troublemaker, he would have committed no unfair labor practice by inducing that action. * * * * * * * The conclusion of the Board that an employer commits an unfair labor prac- tice if he changes an employee's conditions of employment at the instance of the union , is not only contrary to the letter and spirit of the Act and to the precedents, but is based on a view of labor-management policy which is cer- tain to have untoward consequences . There are countless situations in which the very concept of collective action demands that unions have the power to influence the employer to make changes in the job status of individual employees . To hold that unions cannot properly press upon an employer their demands for an employee's advancement or demotion would be to weaken greatly the union's effectiveness in representing all the employees in a unit. The policy of the Board is all the more mistaken if it is based upon dis- approval of the union's motives in the instant. case. Not only is the Board without authority to pass upon the wisdom or the desirability of a union's 1-102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action as long as those actions are not forbidden by the Act, but the principle applied by the Board would be equally applicable to actions which are clearly beneficial to the majority of the employees. See Ford Motor Co. v. Huffman, and Aeronautical Industrial District Lodge 727 v. Campbell, supla.30 While the Respondents' motives are not altogether free from doubt, the record fairly establishes that the Company's reasons for promoting Rollins and Roden in preference to Starner and Goularte are, at least, as consistent with a legitimate purpose, such as superior qualifications, or seniority, as with preferment based on union membership. Essentially, this is but another way of saying that the evidence is insufficient to sustain a finding that the allegations of the complaint have been sustained by the preponderance of the credible evidence. Moreover, as has been seen, in a case such as this it is essential to establish as a predicate for a finding that the Union caused or attempted to cause the Com- pany to discriminate against an employee, within the meaning of Section 8(b)(2), that the Company has discriminated in regard to hire or tenure of employment to encourage membership in a labor organization, in violation of Section 8(a)(3). Inasmuch as it has been found that the burden of proof that Respondent Company has discriminated against employees in violation of Section 8(a)(3), has not been sustained, it follows that it cannot be found that Respondent Union has caused or attempted to cause the Company to discriminate against employees in violation of Section 8(a)(3), thereby engaging in an unfair labor practice within the meaning of Section 8(b) (2) of the Act.31 Since the allegations of violation of Section 8(b) (1) (A) are merely derivative of the allegations of Section 8(b) (2), "the former must fall with the latter." 32 It is, therefore, found, upon the basis of the foregoing, and upon the entire record, that the allegations of the complaint have not been sustained by the pre- ponderance of the credible evidence as to both Respondents. CONCLUSIONS OF LAW 1. Hughes Aircraft Company, Respondent Company herein, is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(6) and(7) of the Act. 2. Electronic & Space Technicians Local 1553, AFL-CIO, Respondent Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. Respondent Union has not engaged in unfair labor practices within the mean- ing of Section 8 (b) (2) and (1) (A) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the complaint be dis- missed as to both Respondents in its entirety. iO N L.R.B. v. Local 394, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Valletta Motor Trucking Co., Inc.), 317 F.2d 746, 748-750, 751 (C.A. 2), denying enforcement 137 NLRB 1023. [See also Lummus Company v. N.L.R.B., 339 F.2d 728, 733-734 (C.A.D.C.) Wanner Dairy Co., 154 NLRB 782.] a It is unnecessary to pass on Respondents' further contention that Starner and Goularte failed to utilize the grievance procedure under the contract. It may be noted, in passing, however, that despite Goodman's protestations to the contrary, in view of his position that he would pursue the interests of union members only with the Company, that any attempt on the part of these employees to resort to the grievance procedure would have been an exercise in futility.' Although the employees could have filed a grievance on their own behalf, in view of the Company's resolution of the issue with the Union, this, too, would have been futile, considering the attitude of their supervisors when they pro- tested their removal from the promotion list. 83 N.L.R.B. v. Local 294, Teamsters, supra, 751, where the court added, "Moreover con- sidered as an independent finding its enforcement is prevented by N.L.R.B. v. Drivers, Local Union 639, 362 U.S. 274..' . (1960)."