General Dynamics Corp.

CONVAIR DIV. OF GENERAL DYNAMICS CORP. 131 Convair Division of General Dynamics Corporation and Engineers & Architects Association, San Diego Chapter, Professional Division (Salaried). Case 21-CA-7227 January 12, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 15, 1967, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's unfair labor practice findings, and the Charging Party filed exceptions to the adequacy of the Trial Examiner's recom- mended remedial order. Each of these parties respectively filed briefs in support of its exceptions and, in addition, each filed an answering brief to the other's exceptions. The General Counsel filed an answering brief to the exceptions of Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, briefs, and the entire record in the case and finds merit in the Respondent's exceptions. I The Board therefore adopts the findings and conclusions of the Trial Ex- aminer only to the extent consistent with the Deci- sion herein. The complaint alleged, and the Trial Examiner found, that Respondent violated Section 8(a)(5) and (1) of the Act by:', (1) notifying the Union, on May 3, 1966, that because of doubt of its current majori- ty status, it would no longer recognize the Union as the representative of the unit employees described below when the contract then in effect between the parties reached its August 24, 1966, terminal date; and (2) refusing, at all times after the May 3, 1966, notification, to meet with the Union for purposes of negotiating any new agreement, unless and until the Union proved its majority through the Board's election processes. For reasons explicated below, we find, contrary to the Trial Examiner, that the Respondent entertained a good-faith belief that the Union had lost its majority status by May 1966, and that its refusal to bargain for that reason was not, therefore, unlawful. THE RELEVANT FACTS A proper understanding of the issues depends in part upon occurrences preceding the particular events covered by the allegations of the complaint. We therefore first set forth the relevant background facts. The unit involved is composed of all professional employees at the Respondent's Lindbergh Field operations in San Diego County, California. The Union has represented these employees for a number of years and has negotiated bargaining con- tracts with Respondent on their behalf since about 1957.2 In June 1963, following a petition filed by the Employer, the Board conducted an election among these professional employees, and the Union won by a vote of 282 to 260.3 Accordingly, on July 1, 1963, the Board certified the Union as the representative of these employees. Thereafter, the Respondent and the Union executed two suc- cessive contracts, the last of which was for a 2-year term beginning August 24, 1964. At the same time that the Board conducted the 1963 election in the certified unit, it also conducted an election in a unit composed of about 4,200 professional employees who were employed at the Respondent's Kearney-Mesa Field facility, also located in San Diego County, California. The Union lost that election by a vote of 2,149 to 1,388. On the dates of the above elections, and for about 2 years thereafter, Respondent maintained its Lind- bergh Field facility and its Kearney-Mesa Field facility as two separate corporate divisions, the former being titled "Convair Division," and the latter, "Astronautics Division." The Board's July 1, 1963, certification of the Union based on the election held at the Lindbergh Field facility there- fore defined the unit as extending, in scope, to all professional employees in the "Convair Division." The contracts thereafter executed by the parties, in- cluding that executed August 24, 1964, defined the covered unit in the same terms. In the spring of 1965, Respondent placed into ef- fect an administrative reorganization plan designed, in part, to effect certain economies in the use of per- 1 Respondent's request for oral argument is hereby denied, as the record and the briefs adequately present the issues and contentions of the parties 2 The history of bargaining on behalf of these employees dates back to 1947. From that date until 1957 the operations involved were owned by Consolidated Vultee Corporation. In 1957, the Respondent acquired 169 NLRB No. 26 Consolidated as a result of merger. The Union and other unions also represent separate units of employees of the Respondent at this and other facilities who are in nonprofessional classifications. 8 There were 629 eligible voters then in the unit, but only 542 cast valid ballots. There were five void ballots and one challenged ballot. 350-212 0-70-10 132 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonnel. Pursuant to this plan it eliminated the "As- tronautics Division" as an organizational division; joined the Kearney-Mesa Field facility with the Lindbergh Field facility to make it also part of the "Convair Division"; began a reduction of personnel for a new "Convair Division"; and instituted per- sonnel policies looking to the use of similarly oriented personnel at each of the two facilities in- terchangeably and/or the same work teams for re- lated work projects and study proposals. Respond- ent then adopted and pursued a labor relations pol- icy aimed at combining into one single unit , for pur- pose of bargaining, any similarly classified groups of employees who, just prior to the reorganization, had been represented by the same union representa- tive at each location, but under separate contracts. Thus, it appears that at times geared to periods when such bargaining contracts came up for renegotiation the Respondent sought - and in most instances obtained- the agreement of the unions in- volved to a restructuring of the bargaining relations so as to obtain the merger of all the similarly represented employees in the new two-field division under one bargaining contract.4 The Union appears to have favored this employer policy, and it sought to employ it to obtain the Respondent's agreement to a merger of the Kear- ney-Mesa professional employees in the certified unit. Thus, shortly after the Respondent had reor- ganized the "Convair Division," the Union asked the Employer to extend the August 24, 1964, con- tract, then covering the Lindbergh Field profes- sionals, to the unrepresented professional em- ployees at the Kearney-Mesa facility. It claimed that such employees now constituted an "accre- tion" to the unit for which it had obtained the Board certification in 1963. Respondent resisted this de- mand on the ground, among others , that the Kear- ney-Mesa complement of professionals far ex- ceeded in size the complement of the represented professionals at the Lindbergh Field facility, and noted that the former had voted overwhelmingly against the Union in the 1963 elections. Ac- cordingly, in August 1965, Respondent instituted a unit clarification proceeding with the Board in which it urged that the Union's "accretion" claim was unjustified. The Board sustained Respondent's position and on October 29, 1965, clarified its 1963 certification to redescribe the certified unit as one confined to the professionals of the Lindbergh Field facility and as expressly excluding those at the Kearney-Mesa facility.5 Following the Board's determination in the unit- clarification case, the Union began an organization campaign among the Kearney-Mesa professional employees and, on April 8, 1966, it filed with the Board a petition for an election in a unit confined to those employees. (Case 21-RC-10023.) Respond- ent thereafter received notice that a Board hearing on this petition would be held May 24, 1966. Because it believed that, in the circumstances, a combined two-facility unit could now appropriately be established, and because it also believed that the Union no longer enjoyed a majority among the professionals then employed at the Lindbergh Field facility, Respondent decided it would oppose the Union's petition for the Kearney-Mesa employees, and would request the Board at the representation hearing to conduct a single election among the professional employees at both its fields. The course of action it initiated in pursuit of that objec- tive forms the immediate backdrop of this com- plaint. As indicated above, Respondent advised the Union that it entertained doubt of the Union's present majority status in the unit covered by the contract, by a letter dated May 3, 1966. On May 23, Respondent received from the Union a letter dated May 20, in which the Union offered to submit to a third party, for check against Respondent's payroll lists, a petition form which, according to the Union, had recently been circulated among the unit employees and had been signed by a majority in the unit. The Union represented this petition as affirm- ing the employees' desire to have the Union con- tinue as their bargaining representative, and as proving, therefore, that Respondent's claimed doubt of the Union's majority status had no founda- tion in fact. On May 24, the day after the Respondent received the Union's May 20 letter, Respondent met with the Union as a party-litigant, first at a prehearing conference, and then at the hearing in the representation case initiated by the Union's petition for the Kearney-Mesa employees. Although Respondent apparently made no specific reference to the Union's above described May 20 signature check proposal, Respondent did make ap- parent to the Union in the course of the proceeding its unwillingness to accept the Union's proposal and its reasons therefor. Specifically, Respondent dis- closed to the Union its belief that a two-facility unit of its professional employees at both the Kearney- Mesa and Lindbergh Fields should now be established. It also made evident that certain of the considerations which impelled that belief had also 4 In some instances , consent elections were conducted on a single-unit basis among employees who had theretofore been represented by the in- terested union under two separate contracts respectively covering each of the two operations involved. In others, the interested union and the Respondent effected the merger in the course of bargaining and without the conduct of Board elections , by executing a single contract covering the employees in a unit coextensive with the new division. The Union here in- volved was one of the several unions which agreed to and did negotiate a single contract for an overall unit . This agreement, however, covered a group of nonprofessional employees not involved in this case. ' Case 21-UC-6. The Board also found that the evidence of integration of the two facilities it then had before it was not sufficient to destroy the separate identity of the Lindbergh Field employees as a separate unit. CONVAIR DIV. OF GENERAL DYNAMICS CORP. 133 led it, in part, to question the Union's majority status among the Lindbergh Field professional em- ployees. Respondent gave the Union advanced notice of the formal position it later maintained at the hear- ing, when, at the prehearing conference , it advised the Union , inter alia, that it proposed to file a pe- tition under Section 9(c) of the Act for the purpose of obtaining an election in a combined two-facility unit. It also plainly invited thereby an expression of the Union's views on the matter. The Union opposed the Respondent's single-unit election proposal. Accordingly , when the hearing opened, Respondent formally presented its position to the Board and sought to file a petition for a two- facility unit. The Hearing Officer pointed out, how- ever, that to the extent that the Respondent 's peti- tion sought to raise a question concerning represen- tation among the Lindbergh Field employees, it was premature under the Board's contract bar rules, as the existing contract admittedly covered such em- ployees and the 90th day before that contract's ex- piration date would not arrive until 2 days later, on May 26.6 Respondent then announced its intent to present its petition at the appropriate time , and the Union thereupon asserted it would "break" any such , petition by the filing of 8(a)(5) charges. Nevertheless , the Respondent did file the petition on May 26 (Case 21-RM-1254) in which it for- mally requested the establishment of a two-facility unit, and this petition was then consolidated for pur- poses of the hearing with the Union's representa- tion petition for the single-facility unit of the Kear- ney-Mesa Field employees. On May 27, the Union filed the 8(a)(5) charges in this proceeding. 7 On Au- gust 17 , the Regional Director issued the complaint herein, and on August 19, he issued a decision in the consolidated representation proceeding in which he dismissed the Respondent's petition in Case 21-RM-1254, and directed an election in a unit confined to the professional employees at the Kearney-Mesa facility in Case 21-RC-10023. Thereafter, in September and October , the Union continued to seek the Respondent 's agreement to bargain with it fora new contract for the Lindbergh Field employees . While Respondent willingly met with the Union whenever requested , it continued to assert a belief that the Union did not have the sup- port of a majority of those then employed in that unit, and it refused for that reason to negotiate for a new contract. Respondent offered , however, to cooperate With the Union in invoking the Board's aid in resolving the doubt through the election processes. It proposed that the parties enter into a consent-election agreement; but the Union refused, insisting that it was entitled to rely on the Board's July 1, 1963, certificate as proof of its present right to recognition and had no obligation otherwise to establish its majority status. In this context, on Oc- tober 12, 1966, Respondent again attempted to in- voke the Board's representation processes by filing a petition (Case 21-RM-1268) for an election in the certified unit. a Because of the pendency of this complaint, and in accord with established Board practice, that petition was not entertained. At the hearing in this case, the Respondent ad- duced specific evidence to show what caused it to believe that, by May 1966, a majority of the Lind- bergh Field employees then within the certified unit were not union supporters. This evidence showed that Respondent considered the following facts, among others: (1) The Union had won the 1963 election in the certified unit - then containing about 629 em- ployees - by a slim margain of 22 votes. Ac- cordingly, and in the absence of any contractual requirements for union membership at any time after such election, the Union's majority status could be adversely affected by a shift in sentiment of only a very small number of employees. (2) There were in fact no bargaining contracts thereafter consummated which required employees to become union members ; and the sole evidence readily available to the Respondent as a reliable measure of union support was that provided by the employees' checkoff authorizations. By May 1966, the number of unit employees who supported the Union through the voluntary checkoff arrangments had decreased to only about 26 percent of the complement in the certified unit. The maximum number of unit employees who had at any one time in the 3-year period after the 1963 election authorized the voluntary checkoff had not exceeded 36 percent of the certified unit's compl- ement.9 (3) The composition of the certified unit's com- plement had undergone drastic changes in the 3- year period since the last election, not only because of ordinary turnover factors, but also because of the personnel reduction and interchange measures Respondent instituted under its 1965 reorganiza- tion plan to effect the planned economies in the use of the related personnel of the two operations it had consolidated into a single division. Thus, as a result of these reorganization measures, the complement in the certified unit had been reduced, by May 6 As set out in Leonard Wholesale Meats, 136 NLRB 1000, modifying Deluxe Metal Furniture Co., 121 NLRB 995, a petition filed before the 90th day of an existing contract's expiration date will be dismissed on grounds of contract bar. As the Union's bargaining contract herein bore a termination date of August 24, the earliest date on which a petition could be filed under these rules was May 26. 4 The filing of these charges had the effect of blocking the conduct of any election in a unit including any employees at the Respondent's Lind- bergh Field facility unless and until an official determination was made that such charges had no merit 8 Meanwhile, on September 23, 1966, a Board-conducted election in a unit confined to the Kearney-Mesa facility had been held, in which a majority of such employees had voted against the Union 9 Sometime after May 3, 1966, the Union advised the Employer that apart from the 141 employees who paid dues through the checkoff system another 20 paid dues directly to the Union. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1966, to about 539 employees, as compared to the 629 employees who had been part of the same com- plement when the election was conducted in 1963; and the complement in the unrepresented Kearney- Mesa operation had also been reduced to about 2,000 employees, as compared to the, more than 4,000 who had been part of that unit's complement when the election was there conducted in 1963. Replacements for departing personnel at each loca- tion had been recruited, where possible, from the other, with the result that of the 539 employees in the certified unit as of May 1966, 118 were em- ployees who had been transferred there from the nereby Kearney-Mesa Field, where, as above noted, the Union had been overwhelmingly de- feated in 1963. In addition, about 60 of those ini- tially employed to work at the facility containing the certified unit had been permanently transferred to the unrepresented Kearney-Mesa unit. Conclusions The precise question we are called upon to answer, in light of all the foregoing record facts, can be phrased as follows: Was the Respondent's as- serted doubt of the Union's majority status as of May 3, 1966, in the face of the Board's outstanding certificate a "good-faith" doubt supported by objec- tive considerations? For Respondent here defends its refusal to bargain on that ground. Because of their special relevance to our con- sideration of Respondent's defense, we deem it ap- propriate at the outset here to restate certain guidelines we have customarily employed in cases such as this. Such guidelines are, perhaps, best described in the following quotations from Celanese Corporation of America, 95 NLRB 664, 671-673: In the interest of industrial stability, this Board has long held that, absent unusual circum- stances, the majority status of a certified union is presumed to continue for 1 year from the date of certification. In practical effect this means two things: (1) That the fact of the union's majority during the certification year is established by the certificate, without more, and can be rebutted only by a showing of unusual circumstances; and (2) that during the certification year an employer cannot, absent unusual circumstances, lawfully predicate a refusal to bargain upon a doubt as to the union's majority, even though that doubt is raised in good faith. However, after the first year of the certificate has elapsed, though the certificate still creates a presumption as to the fact of majority status by the union, the pre- sumption is at that point rebuttable even in the absence of unusual circumstances. Competent evidence may be introduced to demonstrate that, in fact, the union did not represent a majority of the employees at the time of the al- leged refusal to bargain. A direct corollary of this proposition is that after the certificate is a year old, as in cases where there is no cer- tificate, the employer can, without violating the Act, refuse to bargain with a union on the ground that it doubts the union's majority, provided that the doubt is in good faith. By its very nature, the issue of whether an employer has questioned a union's majority in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of the totality of all the circumstances in- volved in a particular case. But among such cir- cumstances, two factors would seem to be es- sential prerequisites to any finding that the em- ployer raised the majority issue in good faith in cases in which a union had been certified. There must, first of all, have been some reasonable grounds for believing that the union lost its majority status since its certification. And, secondly, the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seek- ing to gain time in which to undermine the union. In examining all of the factors disclosed by the record before us in light of these two considera- tions, we find no warrant for the Trial Examiner's conclusion that, in questioning the Union's majority as it did, on May 3, 1966, and thereafter, the Respondent was not acting in good faith. In com- bination, all the objective facts before the Respond- ent, as outlined above, do, we believe, establish that it had a reasonable basis for doubting that the Union still represented a majority of the employees on May 3, 1966. We must, however, emphasize that, in reaching this conclusion, we do not rely to any significant extent on the fact standing alone that less than a majority of the employees supported the Union through the checkoff arrangments. For we are aware of the fact that individual employees may not authorize checkoffs for wholly personal reasons unrelated to their interests in supporting a union as their bargaining representative. However, we can- not say that, when considered together with such other circumstances as are here also present, Respondent could not have reasonably interpreted the decrease in the number of unit employees on the checkoff list as reflecting also a proportionate decrease in the extent of the Union's overall sup- port within the unit. As noted above, as a result of the Respondent's 1965 economic reorganization plan, the overall complement of the unit employees CONVAIR DIV. OF GENERAL DYNAMICS CORP. 135 had not only been substantially reduced, but there had been placed within the unit, in substantial num- bers, and as replacements for departing unit person- nel, employees from the similarly constituted but unrepresented unit in the nearby Kearney-Mesa operation, where the same union had been overwhelmingly rejected in an election conducted simultaneously with that conducted in the certified unit.10 Moreover, according to information which the Union furnished the Respondent sometime after it received the Respondent's May 3 letter, only 161 of the 539 unit employees - but 20 more than those on the Respondent's checkoff lists - were in fact union members ; plainly, 378 were not. All of these circumstances were sufficient, in our opinion, to have given rise to a reasonable doubt concerning the Union's continued majority status. It follows, from the above, that Respondent was within its legal rights when it sought on May 24 and thereafter to invoke the machinery provided by the Act to determine the Union's status," unless it en- gaged in conduct either before or after Respondent raised the majority issue which is inconsistent with its assertion that it raised that issue in "good faith." Respondent, however, has a record of consistent adherence to the principles of collective bargaining; and there is here no independent evidence that Respondent was opposed to the Union or that it en- gaged in any other unfair labor practices reflecting adversely upon the reasons it has given for refusing to bargain with the Union. It is true that Respond- ent failed to accept the Union's May 20 letter- proposal that its representative status be ascer- tained through check by a third party against the Respondent's payroll lists of the signatures on a pe- tition form which, according to the Union, affirmed the Union's claim that a majority desired the Union to continue as the bargaining representative.12 However, as the record also shows that by the date Respondent received that notice, Respondent had already decided to exercise its legal right to in- voke the Board's machinery, we cannot say that the Respondent's refusal to accept this union signature 10 Contrary to the Trial Examiner's view, these facts do not depict a turnover situation like that in cases where we have held that mere turn- over in a unit's personnel does not justify an employer's questioning a cer- tified union's majority status. As the Trial Examiner noted, the cases holding that ordinary turnover factors will not normally affect a union's majority are based on a presumption that a union can usually attract the support of new employees in the same ratio as of those who have de- parted But here Respondent had a very substantial number of the "new" unit employees coming in from an unrepresented complement of its own employees at another location, where the Union had been affirmatively rejected. 11 Cf Frito-Lay, Inc 151 NLRB 28, at 30; and Celanese Corporation ofAmerica, supra at 674. 12 The record contains testimony that such a petition form was circu- lated among the employees and a copy of the form in blank was received in evidence However, neither the General Counsel nor the Charging Party offered the signed petition form in evidence, and there is thus no proof that the petition was, in fact, signed by a majority as was asserted by the Union to Respondent - check proposal, standing alone, demonstrated that it had not raised the issue of the Union's majority status in good faith. In light of all the foregoing circumstances, and as we are persuaded that Respondent's asserted doubt was reasonably premised and was advanced in good faith, we shall dismiss the complaint. ORDER Pursuant to the provisions of Section 10(c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S. SAHM, Trial Examiner: Upon a charge filed by Engineers & Architects Association, San Diego Chapter, Professional Division (Salaried), on May 27, 1966, the General Counsel for the National Labor Rela- tions Board, by the Regional Director for Region 21, is- sued a complaint dated August 17, 1966, against Convair Division of General Dynamics Corporation, herein called the Respondent, alleging that the Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the com- plaint alleges, in substance, that on February 17, 1947, the Union was duly certified by the Board as the exclu- sive bargaining representative of Respondent's em- ployees in the unit found appropriate by the Board and that, since on or about May 3, 1966, Respondent has refused to bargain with the Union as such exclusive bar- gaining representative, although the Union has requested it to do so. On or about August 27, 1966, Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint. All parties were represented and afforded full oppor- tunity to be heard, and to introduce relevant evidence, to present oral argument, and to file briefs. General Counsel and Respondent filed excellent briefs on December 30, 1966, which have been fully considered. Upon the entire record, in the case and from observa- tion of the witnesses, there are made the following: FINDINGS OF FACT2 1. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been , a division of a Delaware corporation engaged in research development and manufacturing of aerospace 1 Respondent's unopposed motion to correct the transcript is hereby granted, and the record is corrected as moved 2 Official notice has been taken of the record in the case of Convair Division of General Dynamics Corporation, 21-RC-10023 (May-June 1966). 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other products. In the course and conduct of its busi- ness operations, Respondent annually ships products valued in excess of $50,000 from its San Diego, Califor- nia, plants directly to customers outside the State of California. Respondent admits, and it is found, that at all times material herein it has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Engineers & Architects Association, San Diego Chapter,. Professional Division (Salaried), is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent Corporation maintains two plants in San Diego: its Kearny-Mesa plant and its Lindbergh Field plant which is 8 miles distance from Kearny-Mesa. In 1947, the Lindbergh Field plant was operated by Con- solidated Vultee Aircraft Corporation, a predecessor in title to Respondent. Subsequent to 1947, Consolidated Vultee Aircraft was merged into General Dynamics Cor- poration. In March 1957, General Dynamics established at the Lindbergh Field plant a division, which was sub- sequently given the name General Dynamics/Astronau- tics. In March of 1958, General Dynamics opened the Kearny-Mesa plant and moved Astronautics to the Kear- ny-Mesa plant. On Febeuary 15, 1965, Respondent General Dynamics underwent a administrative reor- ganization whereby it recombined Astronautics and Con- vair into a single division named the Convair Division of General Dynamics, in order to eliminate overhead costs and effect a more effective, efficient, and competitive operation.3 B. Sequence of Events On January 7, 1947, the Board issued a Decision and Direction of Election, in Case 21-R-3252, directing an election in a unit of professional and nonprofessional em- ployees at Consolidated Vultee Aircraft Corporation's Lindbergh Field Plant (San Diego Division).4 On Februa- ry 17, 1947, the Union herein was certified, in Case 21-R-3252, as the exclusive bargaining representative of certain classes of professional and nonprofessional em- ployees.5 Thereafter, Consolidated Vultee was merged into General Dynamics Corporation and, by 1963, there were in existence four General Dynamics facilities at which employees, who fell within the classifications listed in the 1947 certification, were employed and represented by the Union. These four facilities were: General Dynam-. ics/Pomona, General Dynamics/Electronics, General Dynamics/Astronautics, and General Dynamics/Con- vair. General Dynamics/Convair was the successor of 8 See G . C. Exh. 2(e). 4 G. C. Exh. 2(a). S Consolidated Vultee Aircraft Corporation, 71 NLRB 1350. 6 Case 21-RM-926. 7 At this time, there were approximately 542 employees in the Lind-. bergh Field unit and approximately 4200 in the Kearny-Mesa unit. The unit employees at both plants perform essentially the same duties. a Case 2l-UE-6. Cse 21-RM-926. lu Article I states the Union shall represent all Convair employees in Consolidated Vultee, and General Dynamics/Astronau- tics was established in. 1956 at Lindbergh Field, and in 1957 new facilities were opened at Kearny-Mesa, 8 miles distance from Lindbergh Field, and the Astronautics Division was moved to Kearney-Mesa. Separate collective-bargaining contracts were executed by the Respondent and Union for General Dynam- ics/Convair, General Dynamics/Astronautics units, and also the Pomona and Electronics units which are not in- volved in this proceeding. On May 1, 1963, Convair filed a petition in Case 21-RM-925, seeking an election among the professional employees at the Lindbergh Field plant in San Diego represented by the Union. Pursuant to an Agreement for Consent Election, Convair and the Union agreed upon a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. On June 21, 1963, a majority of the employees, by a secret-ballot election conducted under the supervision of the Regional Director for Region 21 of the Board, elected to retain the Union and designated and selected said labor organization as their collective-bargaining representative in negotiations with Convair. On July 1, 1963, the Union was certified by the Board as the bargaining representa- tive of the employees in the agreed upon unit.6 On May 1, 1963, General Dynamics/Astronautics filed a petition seeking an election in the bargaining unit of professional employees then represented by the Union at the Kearny-Mesa plant in San Diego. On June 21, 1963, the employees at Kearny-Mesa voted to reject the Union as their representative.7 On August 24, 1964, General Dynamics/Convair and the Union entered into a 2-year collective-bargaining agreement which was to expire on August 24, 1966, with a provision for automatic renewal for 1 year unless either party gives written notice of desire to terminate or amend the agreement. On August 26, 1965, Respondent filed a petition" seeking to clarify the certified bargaining unit , which peti- tion alleged the Union was demanding under an accretion theory to represent certain classes of professional em- ployees who were permanently assigned to the Kearny- Mesa plant, and who had voted in the June 21, 1963, election which the Union won, supra. 9 The Union was seeking in this regard to require the Respondent to ar- bitrate under articles 1 and 13 of the then current con- tract10 whether the agreement executed by the parties on August 24, 1964, should be extended to cover the em- ployees at the Kearny-Mesa installation. The Respondent insisted that the contract did not include the Kearny- Mesa employees. On October 29, 1965, the Regional Director issued an order clarifying the certification in Case 21-UC-61, reaf- firmed the appropriateness of the unit certified in Case 21-RM-925, but modified the description of this unit so that it included only employees at the Lindbergh Field plant and excluded employees at the Kearny-Mesa plant and offsite bases. tt the appropriate unit located in San Diego except those at offsite bases. Kearny-Mesa is in San Diego . Article 13 provides for a grievance and ar- bitration procedure. See G. C. Exh. 3. 11 The Regional Director found there was not sufficient geographical in- tegration to warrant the inclusion of both Lindbergh and Kearny-Mesa into a single unit. Moreover, he held that the Respondent 's reorganization of February 15, 1965, whereby Astronautics and Convair were merged into a single division did not alter the separateness of these two plants as they had formerly existed and that they should continue as separate units. See II , A, supra. CONVAIR DIV. OF GENERAL DYNAMICS CORP. 137 On May 3, 1966, Respondent acting through its director of personnel relations, Milton V. Wisdom, notified the Union that it was terminating the existing col- lective-bargaining agreement , due to expire on August 24, 1966, because "We cannot legally meet with representatives of your union for the purpose of negotiat- ing a collective bargaining agreement,' 112 . . . "in view of reasonable doubts on stated grounds that the Union represented a majority of the employees." This "reasona- ble doubt" that the Union represented a majority of the employees was based on Respondent's contention that only 26 percent of the unit employees at the Lindbergh Field plant had authorized dues checkoffs. 13 On May 17, 1966, the Union notified Respondent that it was under no duty to establish its majority and requested the Respondent again to begin contract negotiations with respect to its employees working at the Lindbergh Field plant at the above-described unit. 14 The Respondent did not reply to the Union's letter. On May 20, 1966, the Union again wrote a letter to Respondent stating that while it was under no legal obligation to do so, it was willing to demonstrate by sub- mitting employees' "written designations to an impartial third person to check against [Respondent's] payroll list of unit employees to dispel any doubts" that a majority of the employees in the Lindbergh Field unit by their signa- tures had reaffirmed their desire to have the Union con- tinue to represent them.15 No reply was made by Re- spondent to this letter. Respondent thereafter would neither assent to the Union's request to bargain nor would it accede or agree to the Union's offer to demonstrate by signatures of the employees at the Lindbergh Field unit desired to have the Union continue to represent them. The Respondent Cor- poration admits it has not bargained for a new contract to succeed the one which expired on August 24, 1966.16 On August 24, 1966, the date when the contract ex- pired, the parties met, at which time the Union requested the Respondent to begin negotiations for a new contract. The latter refused stating it would continue to doubt the Union represented majority of the Lindbergh Field Plant unit employees because only 26 percent of them had signed dues checkoff authorizations and that it would continue to refuse to recognize the Union until such time as the Union either consented to an election, or in the al- ternative, until such time as 51 percent of the employees in the unit had executed dues checkoff authorizations. The Union refused both proposals. On October 11, 1966, a month before the hearing in this case, the Respondent Employer again filed a petition in Case 21-RM-1268, seeking an election in a unit of professional engineering employees at the Respondent's San Diego, California, Lindbergh Field, plant. On Oc- tober 12, 1966, the Regional Director dismissed this peti- ti6n because of the issuance of a complaint in the instant proceeding. On October 24, 1966, the Respondent appealed from the Regional Director's decision contending that the com- plaint lacked merit and that the Employer's refusal to bar- gain and the filing of the petition was not in bad faith but in an effort to resolve the Respondent Employer's good- faith doubt as to the Union's majority status. The Respondent Employer stated that the complaint in this proceeding is based upon technical grounds and that there is a complete absence of any evidence that the Em- ployer's refusal to bargain with the Union was caused by a desire to gain time to undermine the Union or by a re- jection of the principle of collective bargaining or any other improper motive. The Board on November 4, 1966, 3 days before this hearing, concluded that, as there was an outstanding com- plaint alleging a violation of Section 8(a)(5) in the unit in- volved in the petition, the Regional Director's action in dismissing the petition was warranted.17 Contentions The General Counsel contends that inasmuch as the unit found by the Regional Director was appropriate and could not be relitigated, that when Respondent declined to have a signature check by a third person, withdrew recognition, and refused to bargain with the Union that such action was taken in bad faith and consequently was a violation of Section 8(a)(5) of the Act.18 Respondent, on the other hand, claims there was no refusal to bargain because not only was there no proof ad- duced of the Union's majority but also there was no de- mand to bargain. Furthermore, argues Respondent, its refusal to agree to a signature check by a third person cannot be equated with a violation of Section 8(a)(5), because the unit was not only inappropriate but it also had a good-faith doubt of the Union's majority status. Discussion and Conclusions It is a fundamental rule that an employer may refuse to bargain with a union only when such refusal is predicated upon a good-faith doubt of the union's majority status.19 Thus, the primary issue to be resolved in this case is whether or not the Respondent Employer had a predicate of those facts and circumstances upon which a good-faith doubt of the Union's majority status could be based. While the Board, itself, has noted the complexity of the problem of the determination of the presence or absence of a good-faith doubt, it has, with court approval, established several general principles which can be used to resolve the issue and which are applicable to the case at bar.20 12 See G, C. Exh. 7 attached hereto as Appendix B [Appendix B omitted from publication]. 13 See also paragraph 14 of Respondent's answer. G. C Exh 1(e). 14 G. C Exh. 8(a). is See G C. Exhs 8(b) and 10 16 See paragraph 18, of G. C. Exh 1 (e)- Respondent's answer. 17 Convair Division of General Dynamics Corp., Case 21-RM-1268. 18 Section 8(a)(5) provides: It shall be an unfair labor practice for an employer- to refuse to bargain collectively with representatives of his em- ployees, subject to the provisions of Section 9(a). " Joy Silk Mills, Inc., 85 NLRB 1263 , 1264, enfd. 185 F.2d 732 (C.A.D.C.), cert, denied 341 U.S. 914. 20 In Celanese Corporation, 95 NLRB 664, 673, the Board stated that: By its very nature, the issue of whether an employer has questioned a union's majority in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of the totality of all the circumstances involved in a particular case. But among such circumstances , two factors would seem to be essential prerequisites to any finding that the employer raised the majority issue in good faith in cases in which a union had been certified. There must, first of all, have been some reasonable grounds for believing that the union had lost its majority status since its certification And, secondly, the majority issue must not have been raised by the employer in a context of illegal antiunion activities , or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union. 138 !DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, the Board, with the concurrence of the Supreme Court, has long held that absent unusual circumstances, there is an irrebuttable and conclusive presumption that a union's majority status continues for 1 year from the date of certification.21 After the year, the certificate still creates a presumption of majority status, which is nor- mally rebuttable by an affirmative showing that the union no longer commands a majority status.22 Furthermore, even if the employer does have a good-faith doubt as to the union's majority status, his right to refuse to bargain with the union is limited by the Supreme Court's holding in the Brooks case, supra.23 Applying these principles to the facts in the instant case, the Respondent not only resorted to "self-help" but has failed to demonstrate an objective basis for its refusal to recognize the Union. Respondent attempts to equate a decline in the Union's membership dues deduction authorizations from 28 percent in June 1963, when the certification election was held, to 26 percent in April 1966, as justification for its withdrawal of recognition and refusal to bargain on May 3, 1966. Such ratiocination is a non sequitur. Not only is this contention frivolous and the asserted predicate based on attentuated and fallacious reasoning, but also there is not a scintilla of evidence of the members' disenchantment with their Union. Respondent's alleged good-faith doubt of the Union's majority must fail because it is bottomed not only on an impuissant base, but also on the false assumption that there is any rational relationship between members' al- leged defections and their rescinding union dues deduc- tion authorizations. Respondent would thus seek to establish a consequent disinterest in the Union on the part of its members. If this proposition were given cre- dence, it might be argued that if employees elected not to sign dues checkoff authorizations, they would thereby incur the risk of being threatened with the employer withdrawing recognition from their Union merely because they exercised their legal right not to authorize such checkoffs.24 Moreover, there is no showing in this record, which would support a finding that any of the unit employees, if given a free choice, were desirous of revoking the Union's representative authority. Nor were any such employees produced by Respondent, to support such a conclusion.25 Respondent offered no probative evidence to rebut the presumption and reasonable inference of continued union authorization to represent. Consequently, Respondent's assertion of an alleged, reasonable good-faith doubt of the Union's majority because of the decline in dues authorizations must be rejected. Corroborative of this conclusion is the congent fact that Respondent refused to agree to a signature check by a third person and its withdrawal of recognition almost 4 months before the ter- mination of the then current contract. See III, B. Its refusal to agree to a signature check by a third party indicates that Respondent's actions, under the circum- stances herein disclosed, might leave much to be desired and warrants an inference that the Respondent's in- sistence on an election was not motivated by a good-faith doubt of the Union's majority.26 Finally, the Respondent contends that, due to em- ployees turnover, the presently constituted unit bears lit- tle resemblance to the unit which was certified originally in 1963. It is believed and found that the alleged turnover of Respondent's employees in the unit involved is per se insufficient to demonstrate that the Union lost its majori- ty status. The Board and courts have held that employee turnover, standing alone, does not prove a reasonable basis for believing that a union lost its majority since the last election. "New employees will be presumed to sup- port a union in the same ratio as those whom they have replaced."27 Consequently, Respondent has failed to substantiate its belief that the Union no longer enjoyed a majority status. A mere subjective doubt, even in good faith, without a demonstrable objective basis does not entitle Respondent to refuse to recognize its employees' certified bargaining representative, even assuming that the refusal occurred after the certification year. Absent such a reasonably based doubt of the Union's majority status, Respondent must continue to honor the certification until it is lawfully rescinded.28 Moreover, Respondent's failure to reply to the Union's written requests of May 17 and 20, 1966, to begin bar- gaining negotiations, thereby rebuffing these entreaties and refusing recognition, warrants the assumption that Respondent rejected the collective-bargaining principle and did not comport itself within the purview of Sections 8(a)(5) and 8(d) of the Act.29 See Owego Street Super- market, Inc., 159 NLRB 1735. In light of the findings explicated above, Respondent's contention that the General Counsel has the burden of proving the Respondent's lack of good faith in its refusal to bargain must also be rejected. While normally the General Counsel meets its burden by the showing that the employer engaged in unfair labor practices designed to dissipate the union's majority status, the Board has noted that an employer's bad faith may also be demonstrated by conduct independent of unfair labor practices. In H & W Construction Company, Inc., 161 NLRB 852, the Board stated: . good or bad faith must be tested by the standard of whether the refusal to bargain was, or was not, motivated by such a doubt. This essentially is the for- 21 Ray Brooks v. N.L.R.B., 348 U.S. 96; Celanese Corp., supra; J. A. Terteling & Sons, Inc., dibia Western Equipment Co., 149 NLRB 248. 22 Frito-Lay, Inc., 151 NLRB 28; Oneita Knitting Mills, Inc., 150 NLRB 689 , 700-701; Celanese Corp., supra. See also Respondent's con- tentions on this page, which mistakenly argues that the burden to prove the union's majority was upon the General ounsel. 23 In Brooks, the Supreme Court stated that when an employer con- tends that it is presented with evidence that his employees have deserted their certified union , he may not engage in self-help or judicial interven- tion . The employees may submit their own grievance to the Board, or an employer may petition the Board for relief. Meanwhile the employer must continue to bargain in good faith until the Board has given some indication that his claim has merit. The Court noted: The underlying purpose of this statute is industrial peace; to allow employers to rely on employee's right in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. See also N.L.R.B. v. Satilla Rural Electric Membership Corporation, 322 F.2d 251 (C.A. 5), enfg. 137 NLRB 387. 11 See Farmbest Inc., 154 NLRB 1421, where the Board held acollec- tive-bargaining contract clause which provided that all of the provisions of the contract will be terminated if the union loses its representative status is unlawful. The Board held that the intrinsic effect of this contract clause was to threaten employees with the loss of existing benefits and privileges if they exercise their right to change their bargaining agent. 25 N.L.R.B. v. Electric Furnace Co., 327 F.2d 373 (C.A. 6). 26 Aaron Bros., 158 NLRB 1077. 27 Schill Steel Products, Inc., 161 NLRB 939; National Plastic Products, 78 NLRB 699, 706, enfd. 175 F.2d 755 (C.A. 4); N.L.R.B. v. Small Tube Products Inc., 319 F.2d 561,563 (C.A. 3). 28 Ray rooks v. N.L.R.B., supra; N.L.R.B. v. Auto Ventshade Inc., 276 F.2d 303, 307 (C.A. 5); N.L.R.B. v. American Aggregate Co., 305 F.2d 559, 561 (C.A. 5). 23 See III, B, supra. CONVAIR DIV. OF GENERAL DYNAMICS CORP. 139 mulation of the controlling standard as it has uniformly been declared by the Courts of Appeals for many years . It is true that, with relatively few ex- ceptions , in cases where- a bad-faith refusal has been found, the Employer's lack of good-faith doubt has been inferred from independent unfair labor prac- tices aimed at dissipating union support. But as the Board was careful to note in Aaron Brothers, evidence of other unlawful conduct is not a sine qua non to such a finding. The determination of good faith , or bad - the Board stated - "of necessity must be made in the light of all relevant circumstances" of a given case. We agree in principle with the Serpa rule [155 NLRB 99], and with the policy considera- tions underlying it, as elaborated in Aaron Brothers. We believe , however, that under the applicable standard the General Counsel satisfied that rule in this case by his affirmative showing that the Re- spondent's refusal to bargain was not in fact pred- icated on a doubt of majority but upon an entirely independent, and unsupported, ground , as to which good faith is not available as a defense.30 Accordingly, in the case at bar, and, for the reasons delineated above and below, it is concluded and found that the General Counsel has sustained this burden. Therefore, from all the facts and circumstances including Respondent's asserted good-faith doubt of the Union's majority based on only 26 percent of the unit employees authorizing dues deductions , the presumption of the Union's continuing majority status , Respondent's refusal to agree to a signature check, and its claim that the present unit bears little resemblance to the unit originally certified in 1963, it is concluded that Respondent's vari- ous defenses are without merit and that it acted in bad faith in questioning the Union's majority.31 The Respondent also contends it had a good-faith and well-founded doubt with respect to the appropriateness of the unit here involved . However, it is well settled that in the absence of newly discovered or previously unavailable evidence, a respondent is not entitled to relitigation in a Section 8(a)(5) proceeding of issues which were or could have been raised in a related representation proceeding. 32 Here, the Respondent did not make a meri- torious offer to adduce at the hearing any newly discovered or previously unavailable evidence. Nor did the Respondent allege that any special circumstances exist herein which would require the Board to reexamine the decision it made in the representation proceeding. In- asmuch as the Respondent has already litigated the issues in the representation proceeding, it has not raised any issue which is properly triable in the instant unfair labor practice proceeding. Assuming, arguendo, that the appropriateness of the unit was asserted by Respondent in good faith, neverthe- less, the Board has long held and recently reaffirmed that a good-faith but erroneous doubt as to the appropriate- ness of the unit is not a defense to an otherwise meritori- ous charge of refusal to bargain.33 Respondent also argues that there was no duty to bar- gain on a new contract until at least June 10, 1966, 2 weeks after the filing of the charge, but cites no authority for this proposition. No demand, states Respondent, has ever been made by the Union that it commence bargain- ing prior to June 10, 1966. The Trial Examiner does not agree with either the Respondent's statement of the facts or law. No particular form of words is required to establish a demand to bargain. It is sufficient if the lan- guage or conduct employed, expressly or by implication, conveys with reasonable clarity a request by a bargaining representative to meet with the employer concerning bar- gaining negotiations or conditions of employment within the bargaining unit. As was said by the Circuit Court in Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 741 (C. A. D. C.), cert. denied 341 U.S. 914: . the request to bargain [need not] be in haec ver- ba, so long as there was one by clear implication. The Labor-Management Relations Act "is not a statute of frauds or an act prescribing the formalities of con- veyancing. No seal or writing is required by its terms. Nor is any special formula or form of words. "34 It is accordingly found that the record and the facts detailed above establish the Union's demand to bargain and the Respondent's refusal. As mentioned before, on May 3, 1966, Respondent wrote a letter to the Union notifying it that Respondent 31 In Jem Mfg. Co., 156 NLRB 643, the Board defines procedural ground rules for judging an employer's "good-faith doubt" defense in refusing to bargain on the basis of a union's showing of signed authoriza- tion cards. In the process, the Board finds that the employer violated the Act by refusing to recognize and bargain with the union. Jem received a recognition request from the union , inspected the authorization cards, and, relying on these cards, commenced bargaining with the union. How- ever, after changing attorneys, the company broke off bargaining and de- manded that the employees be allowed to express their union sentiments in an election. The Trial Examiner found a violation because the company failed to show that it had a good-faith doubt as to the majority status of the union when it refused recognition The Board agreed with the Examiner's ultimate conclusion, but rejected his chain of reasoning. Citing its ruling in John P Serpa, Inc, supra, the Board held it is up to the General Counsel to prove that the employer in bad faith decline recognition. Ordinarily, the General Counsel does this by showing that the employer engaged in unfair labor practices designed to dissipate the union's majority status. How- ever, the Board notes, an employer's bad faith may also be demonstrated by conduct independent of unfair labor practices. In this case, the Board states the General Counsel met his burden of proof by showing that the employer had checked the union's cards and began contract negotiations. Since the General Counsel established a prima facie case, the Board con- tinues, the burden of proof is shifted to the employer to show why the card check was erroneous and why on other grounds the employer in good faith believed' recognition was mistakenly granted. Merely asserting that authorization cards are unreliable as proof of employee desires is not enough to rebut a prima facie case, the Board concludes 31 Respondent, in arguing that it had reasonable grounds based on ob- jective considerations for believing that the Union had lost its majority status, relies heavily upon N L.R.B. v. Laystrom Manufacturing Com- pany, 359 F.2d 799 (C.A. 7), denying enforcement of 151 NLRB 1482 However, that case is clearly distinguishable from the instant situation There the union, relying exclusively upon the presumption of the con- tinuance of its majority status, made no effort to demonstrate its majority status. In marked contrast , here the Union offered to prove its majority by a signature check which Respondent refused to agree to accept. It is thus clear that the Respondent not only lacked reasonable grounds for believ- ing that the Union had lost its majority status , but refused to avail itself of convincing evidence that the Union enjoyed continued majority support in the bargaining unit. Accordingly, it is found that the General Counsel has affirmatively established facts showing that the Respondent could have had no real doubt about the Union's majority status; facts which the Seventh Circuit noted were absent in Laystrom (and which, that opinion seems to indicate, would have led the court to a different conclusion had they been present). 32 Pittsburgh Plate Glass Co. v. N L R B , 313 U.S 146; Collins & Aikman Corp. 160 NLRB 1750 33 See Southland Paint Co , 156 NLRB 22, and cases cited therein. 34 See also Van De Kamp's Holland-Dutch Bakers, Inc., 56 NLRB 694, 707, 711, enfd. 152 F.2d 818 ,154 F.2d 828 (C A. 9) 140 DECISIONS OF NATIONAL was terminating the then existing agreement (the expira- tion date of which was August 24, 1966), because of a doubt,with respect to the Union's majority representa- tion. This letter stated in pertinent part as follows: 1. As of 2 May 1966, our examination of the dues checkoff authorization cards among the salaried em- ployees as defined in the Recognition clause of the current agreement between the Engineers and Architects Association and Convair shows only 26.2% of these employees are members of your Union. 2. You have never indicated that any substantial percentage of your membership pay dues in any other manner. In this regard , it is pertinent to note there was no union- security agreement in the then existing collective-bargain- ing agreement nor did any of the previous contracts ever require that unit employees become members of the unit. Moreover, the dues checkoff under the current contract (1964-66) was voluntary and none of the agreements had ever required union members to participate in dues checkoff. In fact, at no time was there a majority of the unit employees participating in dues checkoff. In an attempt to refute Respondent's allegations, the Union prepared a petition, signed by its members stating that they desired to be represented by the Union.35 The Union also offered to submit the list of signatures ap- pended to the said petition to an impartial third party in order to prove to Respondent the Union's majority status. No reply-was made by Respondent to this offer to submit the signatures to a third party. With this history, it is difficult to understand how Respondent could have entertained a reasonable doubt that the Union represented a majority of the employees in the appropriate bargaining unit so as to warrant its position in the present case . 36 By its silent rejection of the Union's offer to submit the signature petition to a third party, Respondent's lack of good faith is found in its failure to look into the Union's offer to demonstrate its majority. "Where, as here, the union had proof of its majority status readily available and [Respondent] chose not to learn the facts, it took the chance of what they might be."37 By such conduct and because it withdrew recognition of the Union, under the circumstances hereinabove detailed, Respondent rejected the collective- bargaining principle enunciated in the Act. Accordingly, it is found that the Union was duly cer- tified by the Board as the collective-bargaining represent- ative of the employees of the Respondent in the ap- propriate unit described below; that the Union at all times since June 21 , 1963, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act; and that Respondent has, since May 3, 1966, refused to bargain collectively with the Union as the ex- clusive bargaining representative of its employees in the appropriate unit. By such refusal, it is found the Respond- ent has engaged in, and is engaging in, unfair labor prac- 33 G. C. Exh. 10. 36 Cf. N.L.R.B. v. Economy Food Centers, Inc., 333 F.2d 468, 472 (C.A. 7); N.L.R.B. v. Elliott- Williams Co., 345 F.2d460 (C.A. 7). 37 Jas. H. Matthews & Co. v. N.L.R.B. 354 F.2d 432 (C.A. 8), cert. de- nied 384 U .S. 1002. 3e If not dispositive , at least highly persuasive is the Board 's decision in U.S. Gypsum Co., 90 NLRB 964, finding an 8(a)(5) violation, where the company claimed inter alia, it had a good-faith doubt of the union's LABOR RELATIONS BOARD tices within the meaning of Section 8(a)(5) and (1) of the ACt.38 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. V. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it is recommended that it cease and de- sist therefrom, and, upon request, bargain collectively with the Union as `the exclusive representative of all em- ployees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agree- ment. CONCLUSIONS OF LAW 1. Convair Division of General Dynamics Corpora- tion is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Engineers and Architects Association, San Diego Chapter, Professional Division (Salaried), is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All employees in the below job classifications em- ployed at the Lindbergh Field Plant of Convair Division of General Dynamics Corporation, as aerodynamics en- gineer-senior, aerodynamics engineer, architectual designer, associate engineer , chemist-senior, chemist, construction engineer A, construction engineer B, design engineer-senior, design engineer , dynamics engineer- senior, dynamics engineer, electrical engineer A, electri- cal engineer B, electronics engineer -senior, electronics engineer, engineering drawings checker , engineering illus- trator, engineering loft coordinator-senior, engineering loft coordinator, missile test engineer, operations en- gineer-senior, operations engineer, physicist-senior, physicist, process analyst, process engineer, publications editor-illustrations, publications editor-writing, publica- tions technical specialist, quality control engineer-senior, quality control engineer, reliability engineer-senior , relia- bility engineer, research engineer-senior, research en- gineer, engineering representative, engineering specifica- tions representative, engineering writer, flight test control engineer-senior, flight test control engineer, flight test en- gineer-senior, flight test engineer, flight test instrumenta- tion engineer-senior, flight test instrgmentation engineer, hydrodynamics , engineer-senior, hydrodynamics en- gineer, linesman-senior , linesman, mechanical design en- majority because on payday few employees stopped at the union's premises to pay their monthly union dues. Accord: Leisure Lads, Inc., 124 NLRB 431, 439-440; Gulfmont Hotel Co., 147 NLRB 997, where the company, as here, defended an 8(a)(5) charge on the ground that only a small percentage of the employees signed authorizations for dues checkoffs. The Board held this was not a sufficient basis for the Respond- ent believing the union had lost its majority. See also U.S. Gypsum Co., 143 NLRB 1122, 1126; Randolph Rubber Co., 152 NLRB 496,500. CONVAIR DIV. OF GENERAL DYNAMICS CORP. 141 gineer A, mechanical design engineer B, metallurgist senior, metallurigist, missle instrument analyst, missle test analyst, missle test conductor, research test engineer, service engineer-senior, service engineer, specifications analyst, standards engineer, structures engineer-senior, structures engineer, test engineer A, test engineer B, ther- modynamics engineer-senior, thermodynamics engineer, tool design analyst, tool engineer, tool planning analyst, weight engineer-senior, weight engineer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act excluding all other employees, including employees, in such classifi- cations employed at offsite bases, management, con- fidential, security employees and supervisors as defined in the Act, as amended. 4. On June 21, 1963, and at all times thereafter, the above-named labor organization has been and is the cer- tified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 3, 1966, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, 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. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order and Appendix omitted from publication. ]