United Aircraft Corp.

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Aircraft Corporation (Pratt& Whitney Divi- sion) and Local Lodge #1746, International As- sociation of Machinists and Aerospace Workers, AFL-CIO United Aircraft Corporation (Hamilton Standard Division) and Local Lodge #743, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 1-CA-5245 and 1-CA-5372 Corporation (Hamilton Standard Division), Wind- sor Locks and Broad Brook, Connecticut, their of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order.3 ' Delete from par 2(b) that part which reads to be furnished" and sub- stitute "on forms provided " TRIAL EXAMINER'S DECISION November 27, 1967 DECISION AND ORDER On October 17, 1966, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 Decision. Thereafter, the General Counsel, the Charging Par- ty, and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs; the Respondent filed an answering brief and the Charg- ing Party filed a reply brief. I 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 the case, and hereby adopts the findings,2 conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondents, United Aircraft Cor- poration (Pratt & Whitney Division), East Hartford and Manchester, Connecticut, and United Aircraft The Charging Party filed a motion to reopen the record to submit evidence relating to certain contract negotiations between the parties which occurred subsequent to the date of the hearing The Charging Party offered the proposed evidence as proof that, but for the violative conduct found herein, the Respondent would have accepted the last contract offer Thus, the Charging Party attempts tojustify the remedy it seeks, namely, an order reinstituting the then existing contracts retroactively The Respondent filed a response in opposition to the Charging Party's motion The motion is denied, as the evidence which the Charging Party offers is deemed irrelevant to a determination of whether the Respondent would have accepted the Charging Party's last contract offer The Charging Party also requested oral argument The request is hereby denied, as the record, the exceptions, and the briefs adequately reflect the issues and positions of the parties 2 While we find that the General Counsel has alleged certain conduct to be independent violations of Sec 8(a)(5) rather than "cumulative evidence of underlying bad faith" as found by the Trial Examiner, we believe, con- sidering the entire record and the Order we are issuing, that it is adequate here to adopt the Trial Examiner's 8(a)(5) finding based upon Respond- ent's withdrawal of recognition and refusal to bargain thereafter STATEMENT OF THE CASE THOMAS A. Ricci , Trial Examiner : A hearing in the above-entitled proceeding was held between July I 1 and 21, 1966, at Hartford , Connecticut. The complaint rests on separate charges, Case 1-CA-5245 against United Aircraft Corporation (Pratt & Whitney Division), and Case 1-CA-5372 against United Aircraft Corporation (Hamilton Standard Division), the two divisions here together called the Respondent , or the Company. The charges were filed by Local Lodge # 1746 and Local Lodge #743 of the International Association of Machin- ists and Aerospace Workers, AFL-CIO. The principal issue litigated is whether the Respondent illegally refused to bargain with both of the above -named local unions. Briefs were received after the close of the hearing from all parties. By agreement of all parties there was received-in evidence the entire transcript of testimony taken at a hearing in the United States District Court for the Dis- trict of Connecticut on June 20, 24, and 28, 1966. This was a proceeding wherein the General Counsel petitioned the court for a temporary injunction against the Respond- ent pursuant to Section 10(j) of the National Labor Relations Act , as amended. The parties stipulated that that testimony is to be considered here as though those witnesses had offered the same testimony before the Trial Examiner. The -General Counsel filed motions; after the close of the hearing requesting that the Trial Ex- aminer take official notice of certain documents related solely to the injunction proceeding , and that they be received in evidence here The motions are all denied; there must be an end to litigation of any one case. A motion by the Respondent to correct the record, unopposed by any party, is hereby granted and the mo- tion document hereby received in evidence as Trial Ex- aminer's Exhibit 3 Upon the entire record and from my observation of the witnesses , I make the following. FINDINGS OF FACT 1 THE BUSINESS OF THE RESPONDENT United Aircraft Corporation, a Delaware corporation, is engaged in the manufacture, sale, and distribution of aircraft engines, helicopters, aircraft, and related parts, with plants in a number of cities in the State of Connec- ticut. During the past year it has purchased and received from points located outside that State goods and materials valued in excess of $1 million for use in Connecticut, and shipped from those plants to points located outside the State goods and materials valued in excess of $1 million. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the poli- cies of the Act to exercise jurisdiction herein 168 NLRB No. 66 UNITED AIRCRAFT CORPORATION 481 11. THE LABOR ORGANIZATIONS INVOLVED Lodges 1746 and 743, International Association of Machinists and Aerospace Workers, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Principal Question This is a refusal-to-bargain case, in which the fact of refusal, conceded, serves as starting point for considera- tion of the evidence said to prove a violation of Section 8(a)(5) of the statute. Four bargaining units are involved, in each of which collective-bargaining relations date back to original Board certification In the Pratt & Whitney Division, certification of IAM Local 1746 followed an election among the East Hartford plant employees in 1945 and an election among the Manchester plant em- ployees in 1957. In the Hamilton Standard Division, cer- tification of Local 743 followed similar elections among the employees of the Windsor Locks plant in 1941 and the Broad Brooks plant in 1954. Except for rare and short interruptions, all four bargaining units have over these many years been covered by contracts between the Respondent and the two local lodges. The most recent long-term agreements expired on November 30, 1965 (Lodge 1746), and April 21, 1966 (Lodge 743). A short- term contract with Lodge 1746 was terminated by proper notice as of March 18, 1966. After more than 5 months of continuous bargaining-October through March-to agree upon further 3-year agreements, in March 1966 the Respondent unequivocally withdrew recognition from both local unions and filed petitions with the National Labor Relations Board requesting elections in each of the bargaining units The essential allegation of the complaint is that this was bad-faith rejection of the principle of collective bargain- ing, without reasonable basis to justify the Respondent's action, and therefore a violation of the basic statutory mandate compelling recognition of, and bargaining with, "the representative of his employees." The Respondent does not effectively deny the further and more precise complaint allegations of asserted affirm- ative reasons for its withdrawal of recognition, none re- lated to the authority of these local lodges to represent the employees in the bargaining units. It defends primarily on the ground that in the spring of 1966 neither local represented a majority of the employees on whose behalf it sought to speak, indeed that neither had enjoyed such agency status for several years. Based on this contention, the Respondent argues that it was not obligated to recog- nize the Unions at all, even during what period it may have carried on negotiations looking to contract renewals, and that therefore in no event can there be a finding of il- legal refusal to bargain within the intendment of Section 8(a)(5) of the Act. There is no meaningful dispute as to the basic facts upon which both the complaint and the answer rest. The more significant events are established by docu- ments-contracts, letters, papers, proposals, minutes of meetings, etc. - whose authenticity was stipulated. As to what the parties said to one another- speaking through various agents-the conflicts in testimony are variances of shading, emphasis, the use of one word instead of another, and not disagreements of substance. The critical statements, here subject to attack, were the withdrawals of recognition , and they were articulated clearly enough in letters from the Company. Subordinate to this is the further allegation that while discussing the terms of new contracts , in the give-and-take talk about proposals and counterproposals , the Respondent 's negotiators took "adamant" positions, "insisted" too strenuously , and bar- gained too "hard." Ralph Oehler, Grand Lodge representative sent to Hartford by International IAM President Roy Siemiller to act as chief negotiator, gave one version of the lan- guage used ; Personnel Director Morgan Mooney, one of the two principal spokesmen for the Company , gave a dif- ferent recital . Understandably each colored his story to fit his purpose. There were also received in evidence, however, fairly comprehensive notes written shortly after most of the meetings, one set by a company team member and another by a union committeeman . These, plus docu- ments changed between the two groups at the time, show quite clearly what the negotiations were about , and the heckling and irritating descriptive phrases, however colorful, used by the negotiators either at the conferences or on the witness stand, cannot obscure the verities. There is a background situation affecting these parties that must be considered in this case because its very ex- istence was discussed as an integral part of their bargain- ing negotiations and influenced the actions taken by both sides. In 1960 these two local lodges called a strike at all four plants involved in this proceeding (East Hartford, Manchester , Broad Brook , and Windsor Locks); in con- sequence of the strike and of a strike settlement agree- ment made in 1960 , unfair labor practice charges were filed by the Unions and complaint issued by the General Counsel (Case 1-CA-3355). A hearing before a Trial Ex- aminer in that proceeding started in 1963 and was still in progress - temporarily in adjournment-when , in the fall of 1965, negotiations between the Company and the local lodges began. In general Case 1-CA-3355 involves al- leged illegal discrimination in employment , said to have violated Section 8(a)(3) of the Act, against upwards of 3,000 strikers in 1960, and a claim for backpay reaching into a very large figure. Out of the same labor dispute of 1960 there also emerged, and were still very much alive late in 1965, two private lawsuits, one in the Federal dis- trict court by the Union against the Company claiming heavy money damages for alleged violations of the strike settlement agreement , and one by the Company in retalia- tion against the Union in the State court seeking $15 mil- lion compensation for claimed damages to its business caused by misconduct on the picket line. B. The Critical Events in Sequence The contracts of Local 1746, executed on November 1, 1962, for the Manchester plant, and on December 1, 1962, for East Hartford, were by their terms due to expire on November 30, 1965, and provided for automatic renewal thereafter absent written notice of intent to ter- minate. On September 23, that Union sent written notice of intent to terminate both agreements and requested a bargaining conference. A meeting was set for October 1. In anticipation, Siemiller, IAM president, and Brunner, an International IAM vice president in charge of the Northeastern States, sent Ralph Oehler, a Grand Lodge representative whose office is in New York City, to take charge of the negotiations. He was also authorized by these high officers to act as the chief negotiator in all respects in the bargaining which was contemplated for 482 DECISIONS OF NATIONAL Local Lodge 743, whose current contract for the Broad Brook and Windsor Locks plants extended through April 21, 1966, and in the bargaining, also imminent, fora third IAM lodge-1746A. Lodge 1746A is the bargaining agent for the employees of the Company's Southington, Connecticut, plant, and its then contract was due to ex- pire on December 6, 1965. The bargaining unit at Southington was not concerned with the 1959-60 strike and is not involved in any substantial sense in Case 1-CA-3355, or at all in this proceeding. Siemiller also as- signed Richard Thurer, another Grand Lodge representa- tive stationed in New York, to act together with Oehler in Hartford. Concomitant but separate negotiations took place for the two locals, generally on alternate dates, between Oc- tober 1 and December 3, 1965. When bargaining for Local 1746 Oehler and Thurer were assisted by the of- ficers of that lodge and by a negotiating committee of em- ployees; when discussing proposals for Local 1746A (Southington) they were always accompanied by its of- ficers and its employee committee. For the Company it was always the same group of spokesmen, led by Martin Burke, vice president in charge of industrial relations, and by Morgan Mooney, the personnel director. Seven meetings were held with Local 1746 and eleven with Local 1746A. On the union side the written proposals advanced were virtually the same-as to economic matters and union- security aspects-for each group. And when, about November 24, the Company presented its proposals - in- cluding both economic matters and union-security details of procedure-it made exactly the same offer to both Local 1746 and 1746A. Because the contract of Local 743 (Broad Brook and Windsor Locks) continued until April of the next year, there were no separate discussions directly applicable to that situation in this early period; nevertheless, when the Company made its offer of November, the principal negotiators-Burke, Mooney, Oehler, and Thurer-agreed it should apply also to the employees represented by Local 743, and that the benefits so offered should be brought to the attention of the officers of Local 743, so that they could in some way at least be kept abreast of the negotiations that in effect were going on in their behalf also. Apace with these successive meetings, where the local officers and committees carried on the usual form of bar- gaining, and which Oehler called the "official" negotia- tions, he and Thurer, the other Grand Lodge representa- tive, were meeting regularly with Burke and Mooney, the same company officers who were dealing with the com- mittees, and with Joseph Wells, the company lawyer. Wells is the principal attorney who has been representing the Respondent in all of the litigation detailed above these past years. In these meetings, in Wells' hotel suite or in another hotel room, two subjects were discussed at length: settlement and final resolution without further litigation of all the pending lawsuits, including Case 1-CA-3355 before the Board, and the substantive provi- sions of contracts to be signed with the various IAM lo- cals. On this latter subject of their talks-proposed clauses for contract renewal - the great emphasis appears to have been placed on matters relating to the functioning of the Union as bargaining agent, such as union security, checkoff, grievance procedures, and steward participa- tion and privileges in the shops. As noted below, there were at the time close to 18,000 employees at East Hartford, and only about 150 at Manchester LABOR RELATIONS BOARD Oehler insisted at the hearing that all of this collateral bargaining was "off the record," and, as will be explained below, the General Counsel would have it that all of these meetings have nothing to do with the case. In fact, these face-to-face conferences, and uncounted telephone con- versations which supplemented them, interspersed from time to time between the regular roundtable meetings with the local committees, were arranged in the Washing- ton office of the president of the IAM, where Burke was invited to consider the mutual advisability of such at- tempts to reach amicable accommodation of all issues between the contending parties. Apart from any vague knowledge of these simultaneous communications between company and union central of- fice agents, the local bargaining committees were kept in the dark of what was going on there. Oehler admitted he honored the understanding among the central figures that their high-level talks should remain secret Without question the attempts to settle the pending litigation were made behind the backs of IAM general counsel, Plato Papps, and of Mozart Ratner, the special counsel for the suits in progress. The final fillip in this cloak-and-dagger drama came when, in the middle of the duplex negotia- tions, Siemiller and Brunner conferred with Burke and Mooney in New York City to check on what progress was being made, with Siemiller requesting the company officers to say nothing to Oehler and Thurer of his private consultation with them. Agreement was reached on all economic issues at the beginning of December. With the 1962 contract of Local 1746 due to expire on November 30, 1965, on that very day this local and the Company executed an extension agreement for the old East Hartford plant contract, con- tinuing all of the terms of the old agreement to midnight of December 6.1 On December 6 they agreed upon a further extension of that contract, this time to January 7, 1966, with provision for continuous automatic 2-week further extensions thereafter indefinitely in the absence of 3 days' notice to terminate the agreement by either par- ty This contract reaffirmed all of the old agreement ex- cept for the economic terms, as to those the contract was modified with 27 pages detailing an 8- to 14-cent hourly increase in wage rate for each of 3 years, paid sick leave, and increased benefits in vacations, insurance, pension, and retirement. This agreement also specified that, in consideration of these economic concessions, from that day to November 30, 1968, the Union would suspend "meetings in collective-bargaining negotiation with the Company" on any economic subjects, and that: It is further understood and agreed between the com- pany and the union that the purpose of this extension of the December 1, 1962, agreement is to enable the parties thereto to enter into a new agreement to become effective as of December 1, 1965, for a period of at least three (3) years until midnight November 30, 1968, which shall reflect therein agreement already reached between the company and the union on (1) wages; (2) vacations; (3) holidays; (4) paid sick leave and funeral leave; (5) group insurance; and (6) retirement for all employees now covered by the aforesaid agreement dated December 1, 1962.... As also called for in the agreement itself, the supple- ment was submitted to a ratification vote of the member- ship of Local 1746 (a separate meeting for each of the UNITED AIRCRAFT CORPORATION 483 three shifts), approved by a majority and then signed. The parties having agreed that they were bargaining for the Windsor Locks and Broad Brook plants as well as East Hartford and Manchester, Oehler, with the consent of the Company, went to the officers of Local 743 during a workday on December 8, told them of the economic package agreement made for Local 1746, and explained that what bargaining was going on was intended by both sides to apply equally to the employees represented by Local 743. The officers of that local approved what was going on. On December 8 a new 3-year contract was also made with Local 1746A for the Southington plant. It contained the same economic improvements won by the other lo- cals; in all other respects-among which the union func- tion matters are significant here-the new contract simply continued all the provisions of the old. And there was an understanding, admitted at the hearing by all parties, that in the event the bargaining which they intended to con- tinue should produce agreement to alter the union con- tractual participation in grievances, arbitration, and mat- ters of that type-presumably improvements-such things would later be added to the contract of Local 1746A also. The economic issues thus finally resolved in all areas, Oehler and Thurer continued, between the first week of December and March 2, 1966, their "off the record" con- ferences with the company officers and their lawyer. Now the real subjects were settlement of pending litiga- tion and the union-security clauses of the contracts. Ap- parently no records were kept of the discussions at these conferences-at least none was offered into evidence; the record in general, however, shows that concessions came grudgingly from each side, and that in essence the more salient bones of contention which persisted to the end were a union demand for a union-shop provision of some sort, largely resisted by the Company, and some accepta- ble arrangement for reinstatement, reemployment, or possible seniority rearrangement for strikers with respect to the old 1960 strike. In any event, the parties were una- ble to come to terms, and at their final meeting Oehler showed Burke a list of 21 items sought by the Union, most of them far in excess of what he had up to that mo- ment indicated might satisfy him. One critical demand was for some form of compulsory union membership Another was for quick payment of $22-1/2 million in set- tlement of Board Case 1-CA-3355. Oehler knew the Company would not compromise on that basis, and the negotiators admitted to one another no useful purpose would be served by discussing those proposals any further. Although once again the local bargaining commit- tees knew little, if anything, of what the Grand Lodge representatives were saying to the company officials dur- ing this period, they did know the effort at an overall set- tlement was being made. After his final talk with Burke and Mooney, Oehler reported to the two locals that there would be no agreement. The next day, March 3, Herman Muise, president of Local 1746, sent the following tele- gram, reiterated verbatim by letter the same day, to the Company: Since settlement negotiations have collapsed, it is necessary that the parties agree upon contract terms to govern their current relationship until the Board and the Courts have resolved the legal issues on which the parties are divided, supplying the con- trolling guide line. We, therefore, propose that the current economic package accepted by Lodge 1746 on December 6, 1965, be substituted for the economic terms of the expiring agreement and that, with this modification the whole contract be renewed for a period of 3 years, subject to any final ruling of the N.L.R.B. and the reviewing courts in the cases now pending before the Board. The new contract should incorporate specific lan- guage indicating its purpose and effect. We propose the following: "It is recognized that the parties are in disagreement concerning their legal rights in many areas covered or affected by this agreement, which differences are being litigated before the Board and the Federal courts. Provisions in the areas so covered or affected shall remain in effect pending final disposition of N.L.R.B. cases 1-CA-3355 and 1-CA-5245." We are prepared and hereby offer to execute such a new agreement instantly, before the extension of the current contract expires. We would appreciate the favor of your immediate written reply. By letter of March 4 the Respondent acknowledged receipt of the message and suggested a meeting for March 10 "for the purpose of discussing these matters." On the same day the Company also wrote to Local 743. Local 743 on February 14 had given notice to modify its con- tract-due to expire on April 21 -with an invitation to contract negotiation. The Company's letter to this local on March 4 suggested a meeting on March 11 with its representativies "for the purpose of discussing your proposals." The suggested meetings took place, with Local 1746 on March 10 and with Local 743 the next day. At each the Company handed to the union officials virtually identical copies of a six-page letter setting forth in detail the Respondent's version of the history of its relations with the two locals reaching back to 1960. The document can fairly be called a white paper; starting with the strike of 6 years before, it relates how misconduct, broken promises, and deliberate obstructionist tactics by union agents caused the employees to turn against the Union, how the Company, in contrast, in successive con- tracts agreed to mounting benefits for the employees in the sea'ch for harmonious coexistence with the locals, that it would withdraw all recognition from each of them, and closes with an invitation to the Unions to request Board-conducted elections to prove their right to represent the employees at all four plants. Simultaneously the Company served written notice upon the Local 1746 committee terminating the contract then in effect. This was the requisite 3 days' notice whereby the successive 2-week automatic extensions of the December 6 contract would cease. The union committees accepted the letters but said they would not file representation petitions. The following facts were stipulated. Early in March there were 18,000 production and maintenance em- ployees at the East Hartford plant and 150 at Manchester; of these-both groups were represented by Local 1746-about 2,500 paid dues during December, January, and February, almost all by checkoff. In April there were 4,150 employees at the Windsor Locks plant and 350 at Broad Brook, all covered by Local 743 con- tract, of which approximately 1,000 paid dues, again al- most all by checkoff, from December through April of 1966. No employees of the Respondent have been required by collective-bargaining contract in recent years to join or remain a member of a union , or to pay union dues as a condition of employment. Immediately upon withdrawal of recognition the Company wrote a letter to 336-845 0 - 70 - 32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD everyone of the many employees in the four plants advis- ing them of the fact. The letter in the Hamilton Standard Division said that Local 743 had terminated its contract, that the local represented very few employees, and that the Company would file its own petitions with the Board to give the employees an opportunity to vote. On the 15th every employee of the Pratt and Whitney Division received a letter saying the Company had already filed petitions for elections, stressing the fact only 13 percent of the 19,000 employees were paying dues anyway, invit- ing approval of the Company's action, and adding "an ef- fective procedure for resolving employee complaints will be placed in operation following the expiration of the present union agreement at midnight, March 18, 1966. Details of this procedure will be announced in the next few days." An enclosure with all the letters was a copy of the comprehensive white paper letter delivered to the union officers a few days earlier The Respondent filed its separate representation peti- tions with the Regional Director for each of the four plants represented by Local 1746 and 743 (Cases 1-RM-571 and 574). The Regional Director dismissed the petitions and issued the complaint herein. The Com- pany never responded to the letter from the president of Local 1746 dated March 3, 1966, proposing immediate execution of a 3-year agreement incorporating the changes in working conditions already agreed upon and placed in effect, and in all other respects continuing the provisions of the old agreement. C. A Threshold Theory of Illegality The heart of the case rests squarely in the announced decision by the Respondent, on March 10 and 1 1 , to withdraw recognition from these two locals and to refuse to bargain further with either of them until such time as they could again prove their majority representative status in Board elections. Was such refusal a violation of Section 8(a)(5) of the Act? For an affirmative answer the General Counsel argues that the objective and un- disputed facts may be viewed in more than one light, any one of which suffices to support an unfair labor practice finding and an order against the Respondent to bargain forthwith. The General Counsel contends, as a matter of funda- mental law, that merely because there was pending against this Employer an unfair labor practice charge, the Company "had no standing" to question the Union's majority status in March 1966, and may not now, in defense against this complaint, claim or attempt to prove otherwise. On this theory the General Counsel moved at the start of the hearing to strike from the answer the al- legation that at the time of the withdrawal of recognition the locals were not authorized to speak on behalf of a majority of the employees. Because I find no merit in this contention, I denied the motion to strike that portion of the answer. The earlier charge, of which the General Counsel speaks, is the one filed sometime in 1960 and which resulted in the complaint (Case 1-CA-3355) on which testimony was still being heard by a Trial Examiner at the time of the events giving rise to this proceeding. No reliance is placed on the merits of that first complaint in this theory of law, as indeed there can be none, first, because no decision of any kind has yet been reached in Case 1-CA-3355, and second, because the General Counsel successfully opposed the Respondent's motion here to consolidate that proceeding with this one. It is the sole fact that the Company has previously been charged with unfair labor practices, charges as yet totally un- resolved, that, according to the General Counsel, today dictates an order for immediate bargaining in this case without regard to whatever may have occurred in 1965 or 1966. Consistent with this position, the statement is then made that the entire question of whether or not the Unions-either Local 1746 or 743-in fact represented a majority in the bargaining units in March 1966 is "ir- relevant," or "immaterial" to the issues of this case. And it is also adherence to this theory of law that prompted the General Counsel to concede, in the district court hearing on petition for injunction, that the Unions did not represent a majority. What he meant, of course, as he quickly specified, was that "the Union does not have a majority of members of employees. We, of course, assert that they do represent a majority." Apart from passing descriptive decisional phrases taken out of context, the Board and court cases cited in support of this broad contention are inapposite The Board's Regional Director dismissed the Respondent's RM petitions because of pending charges and this does mean that in the Board's opinion no reliable inquiry could be made at this time into the question concerning representation. It does not follow from that rule, how- ever, that the Board does, will, or necessarily must also order the employer to bargain with the claiming union off- hand, in the complete absence of any finding that unfair labor practices have been committed. Where the leader of an organizational campaign is discharged and a charge en- sues, the Board refuses to poll the employees at the em- ployer's request, but it will hardly order him to bargain simply because of the possibility there may have been an illegal discharge. To rule here as the General Counsel de- mands would be tantamount to automatic prejudgment of guilt by the Respondent in the contemporaneous, but as yet uncompleted, prosecution of an unrelated case. There is an error in reasoning that is fatal to the entire theory.2 The bargaining orders issued on the basis of the cited decisions rest upon determinative factors that are foreign to the situation here. In Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, the Supreme Court ordered a respondent employer to bargain immediately with a union despite ad- mission that at that moment the labor organization did not represent any of the employees in the bargaining unit. What the Court was doing, however, was enforcing a Board order based upon an earlier finding that the em- ployer had sometime previously illegally refused to bar- gain with the union at a time when it in fact did represent a majority of the employees. The distinction between the two situations -one involving a final order of the Board following an unfair labor practice finding, and one barren of any such facts-also so clearly remove from this case the other asserted precedents set out in the General L The following proposition stated in one of the General Counsel's briefs is the base premise said to support the whole superstructure of ideas The necessary corrolary of power to decline to conduct an election until pending unfair labor practice charges are resolved is power to compel the employer to honor an outstanding certification and main- tam the bargaining relationship pendente tie The suggested equation significantly blurs the very real distinction between doing nothing and doing something Refusal to conduct elections means "hold", affirmative bargaining orders mean "hit "The negative and the positive are not one and the same UNITED AIRCRAFT CORPORATION 485 Counsel's brief, that they require no further discussion. D. Bad-Faith Refusal to Bargain The clearest fact emerging from this record as a whole is that when the Respondent severed its relations with the Unions and filed representation petitions, its reason for doing so was not any concern with how many employees were paying dues or how many desired to have the local unions continue representing them in collective bargain- ing. If the essence of any refusal-to-bargain case under this statute is, as the Supreme Court has repeatedly said, the question of good or bad faith in the employer's at- titude towards the union and towards the very principle of collective bargaining, there is no escape from the con- clusion that in telling the local committees it doubted their majority status, and in saying to all the employees this was the Company's true motivation in rejecting their established representatives, this Respondent acted in bad faith.3 With Local 1746 the Company has had regularly negotiated contracts for about 10 years; with Local 743 for more than 20. With each, contracts had been executed 3 years previously, and for 3 months-October through February last-company agents made continued efforts to settle all terms of employment for the employees through the Unions' officials. When, at the hearing in July of this year, the Respondent offered to prove that it had reasonable grounds to question, and in fact had doubted the majority status of the locals in the yeai s preceding 1962, the offer was rejected. Against the compelling sig- nificance of its more current conduct, those ancient facts revived are too remote and nebulous to bear upon this question now. To consider such evidence might lead to a charge of hypocrisy against the Company, and this would be unfair 4 Were there no affirmative evidence of motivation, it would be difficult enough to support the defense of good faith based upon a suggested inference to be drawn from the limited number of employees who were paying dues to the Union., The fact of concurrent bargaining alone might well suffice to offset the implication. Moreover, with pertinent circumstances concededly unchanged within the last year or two, the Respondent raised no issue of majority status at moments when such an honest doubt would normally have been expressed. But the most significant fact of all is, and the Respond- ent does not even claim otherwise, that had the Unions agreed to whatever terms Burke or Mooney were de- manding-at any time between December 6 and March 2-the Company would have signed regular 3-year con- tracts with each local. That this was the Company' s inten- tion appears in writing on the very first page of the interim agreement of December 6 with Local 1746, in express language awaiting only final details before being made ef- fective until 1968. And the • substance of the accord reached on all economic matters early in December was understood by all parties without question to apply equally to the employees represented by Local 743. In- deed, the Company took pains at the time to have Thurer and Oehler go to the Hamilton Standard plants to keep the officers and committee of Local 743 advised of the negotiations and agreements reached, even though its contract still had over 3 months to run. If there be any remaining doubt on this score, it is dispelled entirely by the Company's letters of March 10 and I I to the locals and placed in the hands of each and every employee The history of bargaining related there depicts the Union as advancing its interest as a concern apart from the welfare of the employees, and the actions of the Employer instead as directed towards their economic interest and inde- pendence. The point of the letter is driven home by special emphasis on the Union's refusal, characterized as unfair by the Company, to agree with the Respondent's final offer, which is detailed in six specified enumerated proposals for settling all pending litigation and the remaining contract issues. Thus, in effect, the Company was asking the employees to agree with its position that the Unions ought not have disagreed with management, and that it was just and proper for the employer to discon- tinue bargaining for that reason. It will be recalled that about a week before the Com- pany's white paper letters of March 10 and 11, and only I day after the final meeting of Oehler and Thurer with Burke and Mooney, Local 1746 proposed continuation of the entire contract of December 6 for 3 years, with all legal questions in litigation to await the outcome of offi- cial court decisions. But the Respondent never deigned to answer the proposal which, at the very least, removed any real obstacle to contract renewal and certainly broke any temporary impasse that may have been reached. Respondent's brief to the district court in the injunction proceeding literally stated why recognition was withdrawn "Respondent replied to this proposal by ter- minating the extension of the old contract with Local 1746 ... and informed Lodge 1746 and Lodge 743 ... that it would not bargain further with either of them." The details of the extended discussions on just how the competing parties wished to dispose of the court litiga- tion, or of their opposing concepts of appropriate grievance procedures or other forms of union security, were many, and no doubt all entered in the decision finally reached by the Company. Clearly, however, among them two of the more unpalatable musts which the union representatives threw at the Company at the beginning of March were positive insistence upon a union shop and $22-1/2 million now to settle pending litigation. The causal relationship between these unacceptable de- mands and the Company's "reply" on March 10 is clear and has nothing to do with majority representative status or dues checkoffs. The law is clear The duty to bargain is not dependent upon the Union's position on lawful bargaining issues, and no employer may condition continued recognition of a majority representative upon its yielding to one point or another. The real substance of the defense to the entire complaint rests upon the assertion that at the moment of the refusal to bargain, now called illegal, neither of the two locals in fact represented a majority of the employees in the bargaining units, or at least that the Respondent had reasonable cause to believe this was so. With stale facts relating to the strike of 6 years before having nothing to do with the Respondent's 1966 state of mind-what with all the intervening bargaining and the successive regular contracts-the only record evidence said to require a finding of minority authorization to bar- gain is the fact only 13 percent of the employees for whom Local 1746 spoke were paying dues, and about 22 percent of those represented by Local 743. The Re- spondent would have the Board consider the question of majority status with reference to this fact, and only this IN L R B v American National Insurance Co 343 US 395 4 Shamrock Dairy, Inc , I i9 NLRB 998 N L R B v Gulfmont Hotel Company, 362 F 2d 588 (C A 5) 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact, without regard to any of the other equally pertinent factors appearing in the record as a whole. On why it recognized the locals back in 1960, the Company at- tempted to explain its position on grounds other than the Unions' right to speak for employees, although its offer was rejected as untimely. Nothing was offered to picture the 1962 agreements, the 1965-66 negotiations, or the new December 6 contract with Local 1746, as anything other than pure admission that the Unions did represent a majority of the employees throughout the period. The Respondent argues as though none of these contracts had ever been made, as though they had been kept secret from the employees, or as though the progressive wage rate in- creases and other improved economic benefits had been concealed from them. It is not without reason, or in the absence of expert ex- perience in this field, that the Board, with court approval, has repeatedly emphasized that stabilization in industrial relations, the ultimate objective of all the provisions of this statute, is best achieved by final execution of the col- lective-bargaining agreement. And stablization in this sense means not only amicable adjustment of the relation- ship between union and employer, but also peaceful resolution of the question concerning representation, or of the continuing doubt, with its concomitant disturbances to employer-employee relations, in the question whether or not the employees in fact desire to be represented by a union The rule of Ray Brooks v. N.L.R.B., 348 U.S. 96, deals with the presumption of continuing majority flowing from the fact of certification by the Board, conclusive for a period, rebuttable thereafter. But the entire purpose of the certification, and, indeed, of all the representation proceeding before the Board preliminary to the certification, is to encourage col- lective bargaining, and, when the parties so decide, to bring into being the collective-bargaining contract. Once this has been achieved, the importance of the certificate wanes, and it becomes the contract which stabilizes in- dustrial relations, and quiets both the frinction between employer and union and the question of representation or authority of the union as exclusive agent of the em- ployees.6 The Board's contract-bar rule, precluding elec- tions during the life of an effective, valid agreement, is no different in purpose from the rationale that precludes elections during the first year of the original certification. So long as the contract is in effect, the presumption of continuing majority is virtually conclusive; thereafter it becomes rebuttable. Has it been rebutted in this case? I think not. Of prime importance is the fact that evidence of dissatisfaction with a collective-bargaining agent duly selected and long accepted and utilized as the means for obtaining successive improvements in conditions of em- ployment must properly come from the employees them- selves, if it is to carry any weight, and not from the em- ployer on their behalf.7 There has not been and there is no such evidence in this case. Lukewarm with their pocket- books they may have been, but there is not the slightest indication of any dissident group, or of any move, how- ever limited, to unseat the exclusive bargaining represent- atives. Two thousand copies of its last 3-year contract Fay v Douds, 172 F 2d 720, 24 (C A 2) N L R B v Sanson Hosiery Mills, Inc, 195 F 2d 350 (C A 5) International Telephone & Telegraph Corp , 159 NLRB 1757, 1764 at fn 15 Congress could not have intended the 9(b)(I) requirement to be were printed by Local 1746 and all distributed among the employees. There were 40 Local 1746 stewards operat- ing in the Pratt and Whitney Division; 110 separate grievances were filed and processed there through these stewards during the calendar year 1964, and 219 during 1965. That 181 of this last number involved a single issue does not detract from the significant fact that that many individual workmen consciously joined with the Union in their grievance against the Employer. In the Hamilton Standard Division, where Local 743 functioned, there were 154 grievances in 1964 and 149 in 1965. That the employees were at least tacitly in agreement with the lodges that the locals should continue bargaining for them is the minimum that must be said in these circumstances. They also knew-and there certainly is no evidence to gainsay the fact-that a ratification meeting of the mem- bers of Local 1746 was a prerequisite to all the improve- ments in their pay and the fringe benefits which came to them in December. Not many went to union meetings and only a percentage paid union dues. In view of the direct effect which the representation activities had upon the employees' working conditions, it can hardly be said that the widespread inertia bespoke rejection of the locals as their spokesmen. With the successive contracts imposing no obligation upon them to join the Union at all, a more persuasive inference is that the employees found matters to their liking, and were perfectly willing to remain free riders, having the Union as their agent without cost. There is no requirement, in this statute, that employees in fact be members of a union , or contribute at all to its ex- penses, before a labor organization may be authorized to act as exclusive bargaining agent. The statutory authori- ty, or, as customarily alleged in refusal-to-bargain com- plaints, the majority representative status of the claiming union, may be shown in any number of ways. Here, it is proved by the fact of the successive contracts regularly executed and implemented, by the presumption of majori- ty status of the locals flowing from the stable contractual relationships, by the collective-bargaining negotiations uninterrupted for months up to the very moment of sud- den cutoff by the Respondent, and by the total absence of any indication of dissatisfaction emanating from the em- ployees themselves.8 The rule in point was clearly articulated by the Board only recently in United States Gypsum Company, 157 NLRB 652, 655, 656, where an employer's representa- tion petition, filed when a contract ceased having effect, was dismissed. The case stands for the principle that when, at such a moment, an employer attempts to place the union's majority status in issue, it "must demonstrate by objective considerations that it has some reasonable grounds for believing that the union has lost its majority status since its certification." And the test is the same whether the employer files a representation petition, or refuses to bargain, for the Board also said "the relation of an incumbent certified union to an employer that . declines to bargain without a good-faith doubt of the union's majority status may turn on whether the employer refuses to bargain and thereby subjects itself to an 8(a)(5) charge or chooses to file a petition and forces the union to an election ... in either case the rights of the employees applied in such a manner as to provide a shield behind which one par- ty, after having benefited from the bargaining relationship for so many years, may with impunity in mid-negotiations, for whatever tactical advantage it hopes to secure, seek to shatter the bargaining structure it has itselfjoined to create UNITED AIRCRAFT CORPORATION ` 487 to be represented are jeopardized, and the union is put to the choice of utilizing the time-consuming unfair labor practice route or submitting to the employer's use of the petition and being compelled to engage inendless election campaigning...." Implicit in this language is the thought that the Board will apply the same rule in an unfair labor practice proceeding when the identical issue is presented in the posture of a refusal to bargain as distinguished from an employer petition. The only "objective consideration" advanced by the Respondent here as "a reasonable grounds" for its as- serted good-faith doubt is the fact that only a minority of the employees were paying union dues, a situation that has been unchanged for several years. Alone, particularly in the total picture revealed here, it cannot constitute a sufficient affirmative defense.9 What the Respondent re- lies upon more heavily in its brief-a ground which in reality is neither an "objective consideration" nor evidence-is a statement made by the General Counsel during the injunction proceeding 4 months after the refusal to bargain, during discussion of his theory of law, that the Union did not "represent" a majority in March. In the context of the record as a whole, of course, what the General Counsel admitted was that less than half of the employees were union "members," and in this sense the Union only represented a minority. He also made quite clear, consistent with the basic complaint allegation, that each lodge was indeed the exclusive majority representative. I find that by withdrawing recognition from Lodges 1746 and 743 on March 10 and 11, 1966,10 respectively, and in refusing thenceforth to bargain with these lodges with respect to the employees up to that moment represented by them in all four of the plants here in- volved, the Respondent violated Section 8(a)(5) of the statute, as alleged in the complaint.I I E. Further Contentions: The Remedial Order The conclusionary finding here made that the Com- pany's complete rejection of both locals and its unqualified refusal to bargain after March on any subject whatever, constituted a direct violation of Section 8(a)(5), means, of course, that it must be ordered to recognize the Unions again as the exclusive bargaining agents, and, upon request, bargain with them in good faith. The affirmative injunction is necessarily as broad as the full scope of Section 8(d) of the Act.12 If, as the complaint further alleges, anything that the Company's agents said or did during the negotiating sessions which preceded the final severance of the bargaining relationship , also evi- dence the Respondent's breach of faith, a finding to that effect adds nothing to the concluding finding nor gives any added vitality or significance to the affirmative remedial order. The whole includes the sum of its parts. And this is equally true of unilateral action, such as processing of grievances directly with employees without union representatives, taken after exclusion of the locals from the picture. Unqualified recognition of the locals hereafter-and nothing less will satisfy the order-in- cludes, among other things, participation, consistent with Board law, in the continuing bargaining process by union agents, and an end to unilateral dealing with employees behind the back of their exclusive representatives. Despite the fact the essential burden of the complaint, fairly read in its entirety, is that the ultimate and unequivocal refusal to bargain further with the two locals in March was a pure act of bad faith and therefore an un- fair labor practice , the complaint also lists a number of things the Company is alleged to have said or done, and then avers that "by each of the activities" so enumerated the Respondent "refused to accord full statutory recogni- tion." Among these specific charges are such things as refusing to agree to contract language obligating the Com- pany to furnish certain wage data or merit ratings, refus- ing to agree that it had the burden of disproving the merits of a grievance filed, refusing to agree that there should be so many stewards, or that they should be paid so much by the Company for time devoted to investigating grievances, or that there should be a full arbitration clause. These are essentially allegations of evidentiary matters, and could as well have been omitted from the pleadings. Indeed the overall charge of bad faith could be proved, as in fact, the General Counsel argues he has proved, by conduct other than precisely set out in the complaint. That these pinpointed factual assertions in the pleadings were intended as cumulative evidence of under- lying bad faith , and not as independent allegations of specific violations of the statute, was admitted by the General Counsel at the hearing . He made clear this is not a case of wrongdoing in refusing to furnish data, or in refusing to sign a contract already agreed upon . It is sole- ly in the fact that the Respondent resisted the union de- mands "too adamantly " that the fault is to be seen. In his brief, however, the General Counsel asks that "the Respondent should be ordered to grant the Union 's statu- tory rights, including the rights to information." The request is carried further in greater detail by the Union in its brief; it requests that the Respondent be ordered to sign a new contract setting out substantially the very con- tract proposals advanced by Local 1746 during the 1965-66 negotiations. Attention is also focused upon another precise allega- tion of the complaint by the stress placed upon the question of checkoff in the remedial orders suggested. They both argue extensively and persuasively that the Respondent must be directed to resume the checkoff ar- rangement which ended with termination of the contract with Local 1746 on March 18 and with Local 743 on April 21. The Complaint alleges that the Respondent ° See Gulfmont Hotel, supra 10 This is the date of the effective violation of the Act, of the literal refusal to discuss contract terms with the Unions, and of publication to the employees of the Respondent 's attitude It is of no moment in this case that a unilateral grievance procedure was not placed in effect until the con- tracts with the locals had expired, or even that the Company continued to check off dues in favor of Local 743 into April 11 There is no dispute with respect to the composition of the, appropnate bargaining units for any one of the four plants involved - East Hartford, Manchester, Windsor Locks, and Broad Brook Accordingly, it is found that those bargaining units as precisely set forth in the complaint are ap- propriate for purposes of collective bargaining 12 Sec 8(d) reads (d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages , hours, and other terms and conditions of employment , or the negotiation of an agreement, or any question arising thereunder , and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "unlawfully terminated the contract" with Local 1746, and "unlawfully terminated the contract" with Local 743.13 If this language, at least with respect to the Local 1746 contract, be read together with the many other evidentiary factual allegations, it stands as but further as- serted "evidence" of overall bad faith. A confusion arises from the fact that in asking that the Company be com- pelled to restore the checkoff provided for in the contract, the General Counsel says that "in contemplation of law" the company notice was "ineffective to terminate the con- tracts ... in legal contemplation, the contracts were never terminated and remain in effect." And counsel for the Union claims that the situation "requires artificial ex- tension" and that the contracts must be treated "as if they had never expired." Clearly, however, neither brief in- tended that this language be taken literally, for they also request simultaneously that the Respondent must be or- dered to abandon its insistence that the grievance procedure, and other clauses relating to union activities in the plant (those that are set out in the terminated agree- ment) remain as in the past, but instead sign now, in a new agreement, quite different clauses to replace them. Whatever may have been intended by all this-be it to make additional unfair labor practice findings, or order restoration of old agreements, or simply to fashion a spe- cial and unconventional remedy here on the basis of the out-and-out unlawful refusal to bargain in March - it does not seem appropriate on this record to do other than order the Respondent to bargain in good faith now, as the statute commands. Throughout the argument advanced in support of the request for extraordinary positive directives in this remedial order, two pervasive stories are pressed, one that must fall in the face of the evidence, the other inter- woven with a history of the parties' relationship that has been removed from consideration in this case at the request of the government. The first is that the Respond- ent conditioned sincere bargaining with either local upon withdrawal, or settlement on the Company's terms, of all pending litigation - particularly Board Case 1-CA-3355. The other is that the "hard" position taken by the Com- pany in the bargaining sessions must be appraised in the light of its past conduct-including illegal violations of Section 8(a)(3) of the Act in the thousands, and a cam- paign of antiunion activities over many years. Comment is therefore required on certain aspects of activities oc- curring during the fall and winter of 1965-66. On its face, the story of the collateral "off the record" discussions belies any assertion that participation was forced upon the Union by the Respondent. The first "offi- cial" conference occurred on October 1, 1965, between the Company and representatives from Local 1746, several hours in the morning and several after lunch. The next bargaining meeting was with the committee and of- ficers of Local 1746A (Southington) on October 12. Grand Lodge Representative Oehler was present at both. When the parties adjourned for lunch at noon, on the 12th, he went to the hotel room of Wells, the company lawyer, and suggested they get together to talk settlement of pending cases. Wells said he was not authorized, and asked Oehler would he speak to Vice President Burke. Oehler said yes, Burke came, and for over an hour the three talked. It was agreed that an effort would be made, and the afternoon session with Local 1746A was called off. Here and there in his long recital Oehler suggested the Company wanted to keep these talks quiet; the fact is he made it a point to bind the others to secrecy. It was he who first used the phrase "off the record" in that room; he admitted having "requested" that the conversations be kept so, and that the talks were not "for general consump- tion." Did Burke and Mooney say to him that day they "were very reluctant to meet with you in an off-the- record discussion"? Oehler answered that they "could have said it." Burke and Mooney, his personnel director, were in the Washington office of IAM President Siemiller the next day. Brunner, IAM vice president, had that morning telephoned Burke in Hartford and asked as a favor that he fly Grand Lodge Representative Thurer down with him in the company plane. Oehler was on the witness stand for over 2 days during the hearing, and tried to create the impression that the Company's spokesman made him understand settlement of the pending litigation and negotiation of new contracts were intertwined and could not be separated. His testimony as a whole is unpersuasive on this score. Only two meetings had taken place before he made the over- ture himself. The second, with Southington Local 1746A, had nothing to do with the court cases, except for a very minor and tangential aspect. Oehler admitted no one told him plainly and directly that settlement talk must go hand in hand with bargaining. He said again and again he "in- ferred" this was the Company's position. "I said I got the feeling that the litigation in all these cases were involved in the negotiations." "My feeling was that settlement could be reached on all matters if we applied ourselves." In the course of the October 1 negotiating session, Burke and Mooney, and even other company agents, did refer to the pending Board case many times. Oehler's oral testimony, substantially consistent with a record of that meeting made by the Company, shows that reference to the subject may as well have been provoked by union proposals for a new contract, as by an independent pur- pose. There was very much discussion during the day of a new "witnesseth" clause which the Union wanted in a new contract; this was intended to replace the recognition clause of the old agreement. In pertinent part, it asked the Company to agree, in writing, that "it is the intent and purpose of the parties to this agreement, in accordance with the National Labor policy, to eliminate arbitrary management control over terms and conditions of em- ployment and to provide effective safeguards against ar- bitrary management decisions and actions thereby enhancing the dignity and security of employees ...", that the Company would act "subject to the terms of this agreement and all obligations imposed upon the Company by law," and that "the Company acknowledges the requirement for security inherent in the nature of the Union's operations and the need for a feeling of job security on the part of its maintenance and production employees which places a responsibility upon the Com- pany to avoid the assignment of presently established bar- gaining unit work to nonbargaining unit employees, which would have the direct result of undermining the bargain- " This last assertion is error On February 14, 1966, Local 743 wrote to the Company that in conformity with Article X11, Sections I and 4 of the contract," it gave "written notice of its intent to modify certain por- tions and terms" of the agreement The contract, by its terms, was to remain in effect until April 21, 1966, and provided for automatic annual renewal thereafter "unless either party hereto shall give written notice of its intent to modify any portion or any of the terms hereof " This contract was terminated by the local, not by the Respondent UNITED AIRCRAFT CORPORATION 489 ing agent, diluting the bargaining unit, and checking its natural growth." The Union also proposed unlimited binding arbitration on all matters involving application and construction of the contract. In the course of the discussion Thurer, for the Union, explained that by unlimited arbitration he meant final arbitration also on such questions as "management function" and other phrases appearing in the "witnesseth" clause. The negotiators that first day did speak of assignment to employees outside the bargaining unit, to contractors, to trainees who were excluded from the old contract. Generally, however, the discussion deteriorated into a hassle over what was "arbitrary," what was "legal," what "dignity" had to do with shop problems. Asked to sign a pledge of legality, Burke and Mooney spoke of Case 1-CA-3355, and charged the Union with having wrongfully accused the Company of illegality. And the suggested "witnesseth" language did carry an implication of past wrongdoing by the Company. This led to the question of arbitration, and the company spokesmen, reluctant to agree, justified their position on the ground the Union had reneged on a 1960 arbitration agreement and instituted litigation when dissatisfied with the outcome. With the tenor of the conversation set in this fashion by the Union's proposals, if the thought of settling the entire dispute then in the air-Board proceeding, private lawsuits, and contract disagreement-arose in Oehler's mind quite apart from what the Respondent may have wished, it would not be surprising. He could well have concluded that with the litigation out of the way he might do better at the bargaining table. More likely the thought simply occurred to Oehler after one and a half meetings, that with multilitigation of such magnitude en- veloping the parties, it was unlikely there could be fruit- ful, calm, and reflective collective bargaining at all. In any event, as a minimum it must be said that neither party was less desirous than the other to talk "off the record" about the pending suits, and to find an area of ad- justment. The best Oehler could offer at either the hear- ing before the Trial Examiner or before the district judge in the injunction proceeding, to support his position that he had been forced against his will into talking settlement of the litigation, was that when, during the talk about the "witnesseth" clause drafted by union counsel, Burke did say "We ought to let the lawyers negotiate," he [Oehler] "took it different," and "inferred" this was insistence that Case 1-CA-3355 must be withdrawn before there could be any bargaining. There is affirmative indication that Oehler and the Union did not feel coerced. The Union's lawyers knew nothing of what was going on; a client subjected to im- proper pressure by his opponent in law is not likely to conceal the fact from the very specialists hired to protect his interests. In Siemiller's office in Washington, on October 13, the question arose whether agreement reached by the Company with Oehler and Thurer would be agreeable to the local lodge officers and committeemen in Hartford. Thurer said openly that if necessary he and Oehler would "ram it down their throats." 14 There came a time when the "off the record" discus- sions could no longer be kept from Papps, the IAM General Counsel, or Ratner, the attorney who was prosecuting Case I-CA-3355 for the Union, because the hearing in that proceeding was scheduled to resume on November 30. Oehler agreed with Wells and Burke that the case should be postponed so that settlement talks could continue He asked Wells to advise Papps by telephone. When Papps learned of what had been going on, he objected to any postponement and filed a charge, accusing the Company of bargaining in bad faith. In a telegram to the Company at that time the lawyer said "Company is not negotiating in good faith or even accord- ing full statutory recognition to the Union. Yesterday Company conditioned so-called Southington `package' on withdrawal of Board and Court cases. Company refused to renew checkoff in order to break union in reprisal against continuation of these cases." Oehler tried to restrain the union lawyer. "I was trying to establish a settlement and that was my prime purpose. Mr Papps for whatever legal reasons he had was trying to stop me as far as trying to wipe out things without justification." At the district court hearing on injunction Oehler testified he first learned of the charges filed by Papps from Wells, and that he and Thurer were "embar- rassed by not knowing something that was going on in the structure of our organization. And we were quite per- turbed about it." THE COURT: But on that date you said that par- ticular charge embarrassed you; that you yourself weren't convinced that there was any bad faith at that point? THE WITNESS: I wasn't aware of it. I was con- cerned about trying to make a resolve of the whole is- sue. THE COURT: You were the chief negotiator? THE WITNESS: Yes THE COURT: You hadn't complained to anybody that there was any bad faith? THE WITNESS: No, I never complained to my side that there was bad faith bargaining. THE COURT: Wouldn't you be the source of such a complaint? You were the chief negotiator? THE WITNESS: I should have been. I'HE COURT: On what basis then was the com- plaint brought? THE WITNESS: I have no idea, sir. There is more in the record, especially from Oehler's own testimony, proving his and the Union's hope that an amicable settlement could be reached. No useful purpose would be served by repeating it all here. I find the Government contention that the Respondent made settle- ment or withdrawal of the charges in Case l-CA-3355, a condition precedent to bargaining negotiations, unsup- ported by the record as a whole. In the end meeting with the committee of Local 1746A, for the Southington group, the Company's economic offer to them was an hourly raise of 7 to 13 cents per hour, for each of 3 suc- cessive years, plus other benefits. At the same time, Burke had made known to Oehler, in the "off the record" talk, that he was really going to offer 8 to 14 cents instead, plus 5 days' paid sick leave, an innovation which the local a From the testimony before the Trial Examiner A Yes Q (By Mr Wells) Do you recall at this meeting of October 13, Q Do you remember Mr Thurer saying that, yes, you could, if Mr Oehler, Mr Burke inquiring whether if they worked out an agree- necessary you would ram it down their throats" ment with you and Mr Thurer, you would be able to sell it to the A Mr Thurer made the statement, a statement similar to that committee, the local people9 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee had been demanding. It is Oehler's story that when the Company asked how he wished to handle this added offer, his answer was: "I said I don't want any part of it." But the record also shows clearly that there then followed an "official" meeting, with the lesser offer only placed before the committee by the Company, a caucus of the union people where they held firm to their demand for more, a private talk between Oehler, Burke and Mo- oney, and finally Oehler's return to the committee where he told them he had obtained this added raise plus the paid sick leave. I credit the testimony of Mooney, where he testified that when Oehler was asked how he wished to handle the extra pay and paid leave, he said "he could use it, himself." It is true that when the Respondent finally decided to stop all the negotiations, it did so because it seemed im- possible to reach agreement; and this meant a failure of accord on both the new contract terms and settlement of pending litigation. It is immaterial how the motivation be phrased, for either ground falls short of adequate defense, and the bad-faith finding remains the same.15 In view of the Union's uninhibited participation in the "off the record" discussions, enthusiastic at least, it cannot be said that the position taken by the Company at the bar- gaining table must be viewed with special suspicion because they were also attempting to solve a pending proceeding before the Board. The second element of proof assertedly showing a cal- culated and unlawful motive in the Respondent's election to terminate the December 6 agreement and in its entire attitude towards the Union's proposals is the way the parties discussed the various aspects of a revised grievance procedure and related matters. As explained above, it is the fact that the Union lost the checkoff benefit when the contract ended that constituted the greatest hurt to it, considering the total absence from that agreement of any substantial union-security provisions. In reality it is restoration of the checkoff that the General Counsel seeks as a pinpointed material remedy, and full reestablishment of the entire contract only as means for achieving the checkoff again. In fact, there was little talk of checkoff as such during the discussions, whether "official" or "off the record." The loggerhead on union security centered on compulso- ry union membership. Without variance the Respondent insisted it would not agree to a union shop or maintenance of membership, which, somewhat generally, was the starting point voiced by Siemiller back in October when it was first decided to have side talks. There were times when Oehler hinted, at least, to Burke that he might settle for maintenance of membership plus what he called the "Lockheed" letter, whereby newly hired employees would be advised by the Company that there is an exclu- sive bargaining agent and that they could "consider" join- ing it. And on March 2, when, as Oehler testified, he "blew the settlement" by presenting a list of 21 demands which he knew the Company must reject, the real bone of contention was the Union's insistence at that moment that there had to be some form of union security, some measure of membership requirement as a condition of employment. It does not appear that the question of checkoff was discussed between them at that time. A reading of the minutes of meetings placed in evidence, some made by the Company and some by union participants in the "official" negotiations, reveals very lit- tle discussion of the checkoff. There were very extensive, bitter, and inconclusive arguments over union proposals to modify the grievance procedure and to provide greater latitude for its stewards' activities in the plant during working hours. It sought more paid time for stewards and greater privilege for them to speak to employees at the in- vestigation stages, plus more information from the Com- pany when needed. The Company fought against inter- ruptions in production and added expense. Towards the end it agreed to a somewhat more generous 30-minute paid period for stewards' duty at the end of the work shift, and to a greater number of stewards provided the Union paid them. The briefs emphasize the Company's proposal to eliminate step 1 from the grievance procedure al- together. It also appears, however, that this suggestion was in response to the Union's initial proposal that there be no more step 2, because it seldom resolved grievances. A fair appraisal of what is reflected in the recorded minutes and of what the witnesses recalled of the conver- sations would be that the Company certainly bargained "very hard" about this entire matter of grievance processing. There is a subtlety in Oehler's testimony on this point. What he was really saying at the hearing is that the too firm position taken by Burke and Mooney in the official conferences with Local 1746 amounted to a threat to deny the checkoff in the future if pending litigation were not ended. And he may have smelled it correctly, for he is expert in bargaining. From the record evidence, how- ever, it is difficult to make the finding.16 This is especially so because Oehler admitted that while meeting privately with the Company he encouraged its officers to stand firm against the local committees in order to facilitate their later acceptance of what settlement he might ask them to ratify. The following is all from Oehler's testimony: "In the hotel ... we were talking about the court case and the checkoff and the union contract, and I believe I indicated to the Company that the committee didn't believe that the court cases and negotiations were a separate item, that they were intertwined as far as the negotiations were con- cerned. They didn't believe that the Company would remove the checkoff. Mr. Burke responded, `Well, they are out of their minds if they think that.' So I said to Mr. Burke he ought to tell this committee hard and fast, put it on the table and let them know. I thought they had a right to know." The least that must be said of this testimony is that Oehler encouraged the Respondent to resist the de- mands of the local committees. The phrase "they had a right to know," in the context of what Oehler later in- sisted was good-faith bargaining by the Company, is no different from an invitation to pressure the locals in the "official" negotiations. Oehler and Thurer were not passing observers of the negotiations, and if the company spokesmen were indeed being unfair to them their duty was to resist, not to egg the enemy forward. On two items there is merit in the General Counsel's contention that the Respondent thereby revealed union animus. The first was its very firm insistence that the ' Tulsa Sheet Metal Works, 149 NLRB 1487, N L R B v Wooster Division of Borg-Warner Corporation, 356 U S 342 16 Oehler testified as follows Q (By Mr Wells) The Company hadn't threatened to withdraw checkoff if you didn't settle these cases, had it, not in the discussion with you? A in answering in the light of your question, no UNITED AIRCRAFT CORPORATION Union agree grievances in certain areas could only be processed by the Union after individual signature of the employee involved . A majority representative has a statu- tory right to represent any employee in grievances without the requirement that it reestablish its authority to do so in a given instance." The Respondent also insisted throughout the negotiations that the Union agree to a blanket no-strike clause while at the same time refusing to concede an arbitration provision coextensive with the breadth of the no-strike proscription . The one is fairly the quid pro quo of the other , and the Company's arbitrary position on this point could only have been intended to preclude truly harmonious relationships. 18 Much of the argument that the Respondent should be ordered to agree now to contract provisions which it ada- mantly refused to concede before is based upon illegal conduct charged to it in the past. In successfully resisting the Respondent's motion to consolidate this case with the earlier proceeding in Case 1-CA-3355-the one in which the alleged past misconduct is still in issue -the General Counsel effectively removed all that history from con- sideration here. In any event , there is virtual admission in the briefs of the General Counsel and the Union that the Board cannot itself write the contract which the Respond- ent must sign to evidence its good faith in future bargain- ing. The General Counsel specifies that "the employer should be ordered to grant the Union 's statutory rights." The Union starts with : "It is incumbent upon the Board ... to establish guidelines for a relationship consistent with the statutory scheme," and then adds the Company must be prohibited "from inventing new excuses or justifications for rejecting proposals," ordered to agree to "a reasonable number of stewards," "a reasonable amount of working time" for stewards to process grievances , "reasonable access" to the plant , and told to articulate "intelligible" standards in place of "subjective evaluation" by rating foremen . But this is the very sub- stance of collective bargaining which the parties must be free to negotiate across the conference table.19 If there should come a day when the Respondent 's behavior in complying with the bargaining order below is subject to judicial review, it will be time enough to appraise its con- duct with respect to any insistence that employees must sign union grievances , or any refusal to yield an arbitra- tion clause while demanding a no-strike limitation upon the Union.20 There is a final reason, sufficient in itself, why the request that the Respondent be ordered to reactivate the December 6 agreement with Local 1746 must be denied. The Union had agreed , when the extension contract was made, that it would end in the event developments should lead to exactly what later came to pass. A first page clause reads : "It is further understood and agreed between the company and the union that the purpose of this extension of the December 1, 1962, agreement is to enable the parties thereto to enter into a new agree- ment...... Read together with the further literal arrange- ment for cancellation on 3 days' notice-the exact procedure later followed by the Company-this language can only mean all parties knew that failure to come to terms on the remaining issues meant no contract at all.21 And Oehler admitted this clear intent: "Bethlehem Steel Company, 133 NLRB 1347, 1364 18 Local 174, Teamsters v Lucas Flour Co, 369 U S 95, Cummer- Graham Co, 122 NLRB 1044, 1072 is See American National Ins 343 U S 395 Compare United Steelworkers of America [H K Porter Co ] v 491 TRIAL EXAMINER : Was that said that the reason for going 2 weeks at a time was so that in the event nothing was finally resolved about other matters, the parties could exercise the prerogatives stated in the contract? THE WITNESS : That's right. It was the Respondent which gave the written contract notice to forestall further automatic renewal of the December 6 agreement beyond March 18. In a real sense, it can also be said it was the Union which threw the gauntlet when Oehler asked for over $22 million in settle- ment and "blew the whole deal" on March 2. It will not do for the General Counsel to insist that the Respond- ent's good faith be tested only in the setting of the "official meetings," and that all the negotiations which Oehler and Thurer carried on behind closed doors be ignored. If there is one thing justice demands where an employer or a union is accused of dishonest or sham conduct while ostensibly engaged in collective bargaining , it is that all the pertinent things said and done, particularly those shedding rational light on questionable facts, must be con- sidered. As to discontinuance of the checkoff after the two con- tracts - with Local 1746 and Local 743 - were by their terms terminated , the Board has ruled that with the sup- porting contracts no longer in effect , it is not an unfair labor practice for the employer to discontinue the prac- tice.22 It is also to be noted that the checkoff authorization cards signed by the employees expressly limited the deductions to what period collective bargaining might be in effect. Like other disputes that arose during the bargaining, there was much disagreement over what type of data con- cerning the work , rating, and shop status of employees, the Respondent should furnish to the Union during the life of the new contract , and to what extent. Here too the Company bargained hard and yielded very little to the Union's demands . The complaint says only that this miserly attitude is further indication of an intent in the Respondent to weaken the Union's capacity adequately to represent the employees, and therefore cumulative proof of its bad faith . The General Counsel expressly conceded there is no contention the Respondent violated the statute in the sense of having refused to produce data upon request . The Union's counsel nevertheless con- tends that the Respondent should be ordered affirmative- ly, as an integral part of the remedial provision of this Decision , either to furnish the disputed data which the Union demanded , or to agree , in the collective bargaining which must be ordered , to contract language obligating it to do so in the future. This is substantially one of the issues litigated in Case 1-CA-3355 now being heard before another Trial Ex- aminer, the very proceeding instituted in 1960 which the General Counsel insists has nothing to do with this case. Indeed, as a collateral aspect of Case 1-CA-3355, the Respondent has for some time been furnishing wage data, pursuant to an injunctive order of the United States Dis- trict Court , all pending the Board 's final decision on precisely what information the Respondent is legally bound to produce. In the light of the many relevant con- siderations in this complex situation, but particularly the N.L R B, 363 F 2d 272 (C A D C) 21 See Communication Workers ofAmerica v N L R B , 215 F 2d 835 (C A 2) 22 Industrial Union of Marine and Shipbuilding Workers of America [Bethlehem Steel Co ] v N L R B 320 F 2d 615 (C A 2) 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limited allegation of this complaint , there is little persua- sion in the Union's suggestion that two Trial Examiners should simultaneously pass on the same question , albeit on different records. F. Section 8(a)(4) Allegation Without explaining how the refusal to bargain also amounts to "discrimination" against employees so as to constitute a violation of Section 8(a)(4) of the Act, the complaint makes the specific allegation . Assuming, but without deciding, that this contention is correct, the remedial order would remain exactly the same on this record . I therefore see no reason to pass upon the question. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship 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. Upon the basis of the foregoing findings of fact, and upon the record in its entirety , I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. Local Lodge 1746 and Local Lodge 743 are labor organizations within the meaning of Section 2(5) of the Act. 3. Local Lodge 1746 was in March 1966 and at all times since has been the exclusive bargaining agent of all the Respondent's employees of its East Hartford and Manchester, Connecticut, plants, in the bargaining units as set out in the complaint , within the meaning of Section 9(a) of the Act. Local Lodge 743 was in March 1966 and at all times since has been the exclusive bargaining agent of all Respondent's employees at its Broad Brook and Windsor Locks, Connecticut, plants, in the bargaining units set out in the complaint , within the meaning of Sec- tion 9(a) of the Act. 4. By withdrawing recognition from Local 1746 and Local 743 in March 1966, and by refusing to bargain with them thereafter, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that United Aircraft Corporation, Hartford, Connecticut, its officers, agents, successors , and assigns, shall: 1. Cease and desist from- (a) Refusing to bargain collectively with Local Lodge # 1746 and Local Lodge #743, both affiliated with Inter- national Association of Machinists and Aerospace Work- ers, AFL-CIO, as the exclusive bargaining representa- tives of all employees in the bargaining units set out in the complaint. (b) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request , bargain collectively with Local Lodge # 1746 and Local Lodge #743, International As- sociation of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representatives of all employees in the appropriate units set out in the com- plaint , with respect to rates of pay, wages , hours of em- ployment, and other terms and conditions of employment and, if understandings are reached , embody such un- derstandings in signed agreements. (b) Post at its plants in East Hartford and Manchester, Connecticut , copies of the attached notice marked "Ap- pendix A."23 Post at its plants in Broad Brook and Wind- sor Locks , Connecticut, copies of the attached notice marked "Appendix B."24 Copies of said notices to be furnished by the Regional Director for Region 1, after being signed by the Respondent's representative , shall be posted by the Respondent 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. Reasonable steps shall be taken by the Respondent to in- sure that said notices are not altered , defaced , or covered by any other material. (c) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.25 23 In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 24 Seefn 23,2upra Lo In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of the National Labor Relations Board and in order to effectuate the poli- cies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Local Lodge #1746, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of employees in our East Hartford and Manchester, Connecticut , plants, in the bargaining units as described below. WE WILL NOT in any like or related manner inter- fere with , restrain , or coerce our employees in the ex- ercise of their rights guaranteed in Section 7 of the Act. WE WILL bargain collectively, upon request, with Local Lodge #1746, International Association of UNITED AIRCRAFT CORPORATION 493 Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all our employees in the bargaining units described below with respect to rates of pay , wages, hours of employment , and other terms and conditions of employment and, if un- derstandings are reached , embody such un- derstandings in signed agreements . The bargaining units are: All production and maintenance employees at Pratt & Whitney's East Hartford Plant (includ- ing the DE Lab and the Willgoos Lab) including inspectors , crib attendants , material handlers, factory clerks and working leaders, but exclud- ing the timekeepers , engineering and technical employees , laboratory technicians , foremen's clerks, salaried office and clerical employees, medical department employees , first-aid em- ployees, plant protection employees , executives, plant superintendents , division superintendents, general foremen , foremen , assistant foremen, group supervisors , watch engineers , and all other supervisory employees with authority to hire, promote , discharge , discipline, or other- wise effect change in the status of employees, or effectively recommend such action , and all other supervisors as defined in the Act. All production and maintenance employees at Pratt & Whitney's Manchester , Connecticut Plant (Cheney Mills Buildings 1, 2, 3, 19, the Finishing Mill and the Weaving Mill) including inspectors , crib attendants, material handlers, factory clerks and working leaders, but exclud- ing all timekeepers , professional employees, en- gineering and technical employees , laboratory technicians , foremen 's clerks, office and clerical employees , medical department employees, first-aid employees , plant protection employees, executives , plant superintendents , division su- perintendents , general foremen , foremen, assistant foremen , group supervisors , watch en- gineers, and all other supervisory employees as defined in the Act. UNITED AIRCRAFT COR- PORATION [PRATT & WHIT- NEY DIVISION] (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, 20th Floor, John F . Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3353. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to ef- fectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Local Lodge # 743, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of employees in our Broad Brook and Windsor Locks, Connecticut, plants, in the bargaining units described below. WE WILL NOT in any like or related manner inter- fere with , restrain , or coerce our employees in the ex- ercise of their rights guaranteed in Section 7 of the Act. WE WILL bargain collectively , upon request, with Local Lodge #743, as the exclusive representative of all our employees in the bargaining units described below with respect to rates of pay, wages , hours of employment , and other terms and conditions of em- ployment and, if understandings are reached, em- body such understandings in signed agreements. The bargaining units are: All production and maintenance employees at Hamilton Standard's Windsor Locks , Connec- ticut plant , including working leaders and all hourly-rated technicians in the Chemical, Rubber, Metallurgical , Vibration and Elec- tronics Laboratories , but excluding executives, professional employees , salaried technicians in the Engineering Department , foremen 's clerks who have access to confidential information, draftsmen , plant protection employees , medical department employees , salaried office and salaried clerical employees , outside servicemen, truckdrivers , watch engineers , group super- visors, and all other supervisors as defined in the Act. All production and maintenance employees at Hamilton Standard 's Broad Brook , Connecticut, plant , including working leaders and hourly- rated technicians in the Electronics Laboratory, but excluding executives , professional em- ployees, salaried technicians in the Engineering Department , foremen's clerks who have access to confidential information , draftsmen, plant protection employees , medical department em- ployees, salaried office and salaried factory cler- ical employees , timekeepers , outside ser- vicemen, truckdrivers, watch engineers, group supervisors and all other supervisory employees as defined in the Act. UNITED AIRCRAFT COR- PORATION [HAMILTON STANDARD DIVISION] (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 , 20th Floor, John F . Kennedy Federal Building , Cambridge and New Sudbury Streets, Boston , Massachusetts 02203, Telephone 223-3353.