General Electric Co.

GENERAL ELECTRIC CO. 289 General Electric Co., Circuit Protective Devices Department, Caribe Plant Operations; General Electric Power Products, Inc., General Electric Circuit Breakers, Inc. and International Association of Machinists and Aerospace Workers. Case 24-CA-2820 October 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 24, 1970, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled case, finding that the Respondents had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommend- ing that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respon- dents filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, the Recommended Order of the Trial Examiner, and orders that the Respondents, as the Single Employer of the employees of its component corporations, General Electric Co., Circuit Protective Devices Department, Caribe Plant Operations; General Elec- tric Power Products, Inc., and General Electric Circuit Breakers, Inc., their officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Trial Examiner: The Union herein won a long hard uphill 3-year battle to obtain certification as of January 22, 1970, by the National Labor Relations Board as the exclusive collective-bargaining agent of an appropriate unit of employees consisting of the combined production and maintenance employee force of the three above-named Companies at their plants at Palmer, Puerto Rico. The three Companies under the pleadings constitute a single employer hereinafter referred to as the Respondent. The principal issue in the case is whether the Respondent is in violation of Section 8(a)(5) of the National Labor Relations Act by its refusal to recognize and bargain with the Union as the duly designated agent of its said employees pursuant to the Union's telegraphic request of February 24, 1970, for a meeting on February 26, 1970, with the Respondent to commence negotiations for a collective-bargaining contract to cover wages, hours, and work conditions of the employees in the unit. Respondent admits its failure to reply and bargain with the Union, but in defense pleads "mitigating circumstances," including the defense that it has commenced bargaining with the Union since the issuance of the complaint here. The second issue herein is the location of the principal office and place of business of General Electric Power Products, Inc., one of the three corporations here involved as part of the admitted single Employer or Respondent. The complaint alleges and the answer denies that the said Company's principal office and place of business is at Palmer, Puerto Rico. Respondent's denial is tied in with a motion it makes in its brief for an amendment of the Board certification of the Union as the exclusive bargaining representative for the aforementioned appropriate unit. Respondent's motion is for an amendment of the appropriate unit so "as to eliminate the name of General Electric Power Products, Inc., from the certification" on the ground that that Company had moved from its Palmer location to an entirely different location prior to the date of the Board's certification of the Union. The objective of Respondent's motion appears to be to obtain a ruling that the removal of the principal office and place of business of General Electric Power Products, Inc., prior to the issuance of the Union's certification relieved that Company of the legal duty to recognize and bargain with the Union, thereby providing it with a defense against the charges of the complaint that it is in violation of Section 8(a)(5) of the Act for failure to recognize and bargain with the Union. The third and final issue in the case is whether Respondent's said motion for a modification of the Board defined appropriate unit should be granted. The case was tried before the Examiner on April 10, 1970, at Hato Rey, Puerto Rico. Briefs filed by counsel for General Counsel and for the Respondent have been carefully reviewed and considered. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The three Companies here involved, to wit-General Electric Co., Circuit Protective Devices Department, 186 NLRB No. 46 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Caribe Plant Operations ; General Electric Power Products, Inc., and General Electric Circuit Breakers , Inc.-are corporations of the Commonwealth of Puerto Rico with their principal offices and places of business at Palmer, Puerto Rico.' The three corporations are part of a single integrated manufacturing enterprise engaged in the manu- facture of electrical products . The labor relations policies for all three corporations are centrally formulated, controlled, and enforced . All three corporations constitute a single employer for the purposes of this proceeding2 and are accordingly referred to hereafter collectively as the Respondent. The Respondent by its admission in its answer is an employer engaged in operations affecting commerce as provided in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, hereinafter called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES-THE REFUSAL OF THE RESPONDENT TO MEET WITH THE UNION FOR COLLECTIVE BARGAINING PURSUANT TO REQUESTS By action of the Board in the related representation proceeding in Case 24-RC-2922, the Union was certified3 on January 22, 1970, as the exclusive bargaining agent of the appropriate unit4 consisting of all the production and maintenance employees employed by the Respondent at its plants at Palmer, Puerto Rico, as a result of a third runoff election held on June 5, 1969. The certification was the culmination of more than 3 years of effort by the Union to organize the Respondent's Palmer plants. The Board conducted four separate elections before issuing the certification to the Union. There were no winners at the first election conducted on July 14, 1966, as a result of which a runoff election was ordered. The Union lost the first runoff election held on August 4, 1966, but won the second and third runoff elections held on August 15, 1967, and June 5, 1969, respectively. A more detailed history of the representation proceedings leading to the certification of the Union is set forth in Appendix A hereto based on the allegations of the complaint as admitted by Respondent's answer. Respondent on February 2, 1970, filed a motion for reconsideration of the Board's certification of the Union as the exclusive bargaining agent of the unit. The Board denied the motion on February 13, 1970.5 Commencing with October 28, 1969, Respondent's operations of its Palmer plants were closed completely for a period of time by a strike of its employees. Some 1,200 employees were affected by the strike which occurred about 1 The three Respondent corporations named above are the same or successor corporations of the Respondent corporations mentioned in the related Board certification in Case 24-RC-2922. 2 The above findings are admitted by the pleadings. 3 As reflected in the Board's "Second Supplemental Decision and Certification of Representative" in G.C. Exh. 2. 4 The full description of the unit as determined by the Board in said Case 24-RC-2922 and as admitted in the pleadings herein is set forth below under "Conclusions of Law." 5 G.C. Exh. 3. halfway between the third runoff election won by the Union and the date of the Union's certification as the exclusive bargaining agent of the unit. Since some time in January 1970 the Respondent has been operating its Palmer plants intermittingly with a labor force of 400 to 500 nonstrikers. The strike was still in progress at the time of the trial of the instant case. In other proceedings the Respondent has charged acts of intimidation and violence against the nonstriking employees by the Union in violation of Section 8(b)(1)(A) 6 During the course of the strike the Respondent has discharged approximately 40 of the strikers for alleged acts of violence against nonstriking employees. Following the Union's certification of January 22, the Union sent a wire to the Respondent in which it requested, based on the certification, the "reinstatement of all and each and every one of said employees [in the appropriate unit)" and offered the unconditional "return to work of all and each and every employee, in the same and/or substantially similar job or classification as previously had." (Resp. Exh. 2.) Carl Kauffman, president of one of the corporations here involved and spokesman for the Respondent, testified that he believed that on the basis of the aforementioned telegram that the Union in its subsequent requests for collective-bargaining negotiations was conditioning such negotiations on Respondent's reinstatement of the aforementioned 40 discharged strikers whom it deemed guilty of strike misconduct. However, the record shows, and Kauffman under cross-examination admits, that the Union in its subsequent telegraphic requests to Respondent for the commencement of contract bargaining negotiations did not demand or impose any condition of any kind as a condition precedent to the opening of collective-bargaining negotiations. These re- quests as will appear from their descriptions below were simple, straight-forward requests for meetings with man- agement for the purpose of commencing negotiations for a collective-bargaining agreement on rates of pay, wages, hours of employment, and other conditions of employment. Shortly after the Board certified the Union as the exclusive bargaining agent for the unit Respondent sent the Union a copy of its motion to the Board for a reconsideration of the certification. The motion for reconsideration, as heretofore, was denied on February 13, 1970. Four days later, on February 17, 1970, the Union's grand lodge representative, Juan L. Maldonado, sent a telegram to the Respondent. The telegram requested a meeting the next day, February 18, at 9:30 a.m., with Respondent's representatives at the offices of the Puerto Rico Depart- ment of Labor for the purpose of commencing negotiations for a collective-bargaining agreement with respect to rates of pay, wages, hours of employment, and other conditions of employment. The concluding sentence of the telegram 6 Respondent's charges in Case 24-CB-718 resulted in a decision by Trial Examiner Vose on April 7, 1970, after a hearing, against the Union which as of June 26, 1970, was adopted by the Board in 183 NLRB No. 126. Respondent's charges against the Union in Case 24-CB-728 are pending before the present Trial Examiner as a result of a lengthy hearing therein in April 1970. That case was heard by the present Trial Examiner in Puerto Rico immediately after the trial of the instant case was concluded and awaits decision, pending the receipt of the complete transcript of the testimony therein and the briefs thereon by the parties. GENERAL ELECTRIC CO. requests the Respondent to "confirm your availability on the date and hour above mentioned or suggest an alternative date and hour." Respondent admits that it made no reply to Maldonado's wire of February 17. Testimony by a spokesman for Respondent that he was unable to reply due to the closing of the Government-controlled telegraph service in Puerto Rico because of an intervening holiday is credited but does not serve as a valid alibi for failure to reply. Respondent could have replied by sending an agent to the proposed meeting of February 18, but did not. Respondent's subsequent conduct as outlined below shows that it had no intention of meeting with the Union for contract negotia- tions as requested by the Union. On February 24, 1970, Maldonado sent the Respondent a second telegram requesting a meeting to commence negotiations for a collective-bargaining agreement. The wire requested the meeting to take place on February 26 at 9 a.m. at the offices of the Puerto Rico Department of Labor. Respondent likewise admits that it made no reply to Maldonado's wire of February 24 and did not meet with the union representative as requested on February 26, 1970. On February 24, the same day that Maldonado had sent his telegram to the Respondent, the director of the Bureau of Conciliation and Arbitration, Puerto Rico, Department of Labor, sent Maldonado a telegram inviting him "to initiate conversations relative to collective bargaining agreement on Wednesday February 25 9 a.m. in our Conciliation offices Department of Labor 414 Barbosa Avenue Hato Rey." (G.C. Exh. 8(b).) The testimony of Carl K. Kauffman president of General Electric Circuit Breakers, Inc., shows that Respondent also received a telegram from the director dated February 24 inviting the initiation of contract negotiations. It is inferred from the record as a whole that the director's letter to Respondent was identical in text with the telegram he sent to Maldonado.7 In response to this request, agents of the Union, headed by Maldonado, and representatives of management, headed by Kauffman, met at the conciliation offices on February 25 at 9 a.m., but as the management group declined to meet in a same room with the union representatives, the two groups were placed in separate rooms, with the director of the conciliation office meeting first with one group and then with the other. The conciliation director met with the management group first at their insistence for an extended period of time before he met with the union representatives. It appears from the record that Respondent's agents before agreeing to discuss anything exacted a letters from the director reading as follows: My telegram to you on February 24, 1970 concerning a meeting to be held today February 25 at the Concilia- 7 Kauffman's testimony that "there was some wording in there [the director's telegram ] that left some leeway as to the purpose of the meeting" is not credited. It would be most unusual for a public official desiring to assist in initiating collective-bargaining negotiations between union officials and management representatives to send invitations to the parties of varying texts. Normally the texts of such telegrams or letters would be identical. It is noteworthy that Respondent did not produce at the trial the 291 tion and Arbitration Office is with the purpose of considering the letter sent to me by John C. Howe on February 6, 1970 and all other matters that the parties decide to express on the situation. Cordially yours, Jorge L. Otero Director The "John C. Howe" mentioned in Director Otero's letter is Respondent's stateside attorney stationed at Bridgeport, Connecticut. Howe had sent the letter to Otero in reply to Otero's earlier telegraphic and letter requests of February 5, 1970, for the initiation of negotiations for a collective- bargaining agreement with the Union. In his letter, Howe, notwithstanding the Board's certifica- tion of the Union, flatly denies "that any union represents any employees at Palmer, Puerto Rico to which your [Otero's] letter is addressed," but expresses willingness to discuss with Mr. Otero only the following matters: 1. Ending the strike at Palmer. 2. Cessation of the violence to which the aforesaid companies and its employees have been subjected at Palmer and elsewhere. 3. Consent by the International Association of Machinists (AFL-CIO) and its agents and representatives to an injunction permanently enjoining the union and its agents from the performance of all unlawful acts at any place or time affecting or in any way relating to the places of business of the aforesaid companies in Palmer or elsewhere in Puerto Rico, or to any employees of said companies, or to real or personal property of said employees or to the families of such employees. At the meeting of February 25 in Otero's office at which Respondent's agents refused to meet with Maldonado and his committee face-to-face, Maldonado requested Otero to inform Respondent's agents that his committee was there to initiate contract negotiations as requested by Otero. Otero transmitted this message to Respondent's agents and by way of their reply and at their request handed to Maldonado a copy of the Howe letter. Otero brought back the further reply to Maldonado's committee that Respon- dent's agents would meet with them only on the three matters stated in the Howe letter as set forth above. Otero also conveyed to Maldonado the refusal of Respondent to meet with his committee on February 26, the next day, as requested by Maldonado in his telegram to the Respondent of February 24. The events described in this paragraph occurred some 12 days after the Board had denied Respondent's request for a reconsideration of its January 22, 1970, certification of the Union as the exclusive bargaining agent for the appropriate unit. Kauffman admits that he knew at the time under consideration that telegram it had received from the director. 9 Although the letter (Resp. Exh.^I) is addressed to General Electric Company, it is obvious that it was intended for the three corporations herein referred to collectively as the Respondent. From the record as a whole it is inferred that the three corporations are subsidiaries or affiliates of General Electric Company of Schenectady, New York. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's certification was final as of the date of its issuance on January 22. Kauffman testified that his committee declined to enter into contract negotiations with the Union on February 25 pursuant to Otero's invitation for fear of jeopardizing Respondent's legal contention that the Union was not the legal representative of the involved unit as at that time Respondent's top management at Bridgeport, Connecticut, was still considering the advisability of testing the Board's final certification of the Union as the exclusive bargaining agent of the unit, despite the fact that its motion for reconsideration had been denied. Presumably such "testing," if pursued, would have involved an appeal to the courts. No testimony was offered by Respondent as to why it did not ask the Union for a reasonable deferment of negotiations until it had reached a definite decision on whether or not to test the Board's certification. Subsequently, in the first part of March 1970, meetings did take place between representatives of the Respondent and the Union at the request and intercession of the Governor of Puerto Rico to higher echelon officers of the parties. There were three such meetings between top officers of the Union and Respondent, two in San Juan, Puerto Rico, on March 4 and 5, and one in Washington, D.C., on March 11. These meetings were not bargaining sessions on rates of pay, wages, and other conditions of employment, but were preliminary meetings to pave the way for subsequent collective-bargaining negotiations on these subjects. At the March 11 meeting in Washington, the top officers of the Respondent and the Union reached an agreement for the commencement of such contract negotiations in San Juan on March 24. Seven such meetings took place between the opening meeting of March 24 and the opening of the trial herein on April 10, 1970. However, at such meetings Respondent declined to engage in any negotiations on behalf of General Electric Products, Inc., for reasons hereinafter stated, and thus limited the negotiations at such meetings to discussions relating solely to the employees of the other two Companies here involved. It is found from the texts of the Union's two requests for bargaining sessions, and from the record as a whole, that the Union at no time conditioned its requests to the Respondent for the commencement of contract negotia- tions on the Respondent's agreement to reinstate the 40 strikers it discharged for alleged strike misconduct. After the contract negotiation meetings started on March 24, the management representatives took the position that they had no authority to negotiate for one of the three corporations here involved, General Electric Power Prod- ucts, Inc., on the ground that "as of January 30, 1970" that Company and its employees 9 were no longer at Palmer but were thereafter located in a new plant at Rio Piedras, Puerto Rico, a suburb of San Juan.to As a result of this 9 Respondent in its brief gives this date "as January 15, 1970," but the page record cited by counsel for Respondent shows the date to be January 30, 1970. (Tr. 103-104) 10 In an affidavit attached to the Respondent's brief an effort is made to show that as of January 15, 1970, all of the employees of General Electric Power Products, Inc., were transferred to the other two Companies located at Palmer and that the operations of General Electric Power Products, Inc., were transferred to another location in Puerto Rico at some undisclosed contention, the management representatives at the afore- mentioned contract negotiation meetings have steadfastly refused to engage in negotiations in behalf of General Electric Power Products, Inc. The Union, on the other hand, takes the position that under its certification it is entitled to represent the employees of General Electric Power Products, Inc., as part of the appropriate unit regardless of where they may be employed. The issue posed by the pleadings as to the principal office and place of business of General Electric Power Products, Inc., as of the date of the Union's certification by Board on January 22, 1970, was litigated in this proceeding. General Counsel relies on the documentation in the representation proceeding in the aforementioned Case 24-RC-2922 of which official notice is taken pursuant to request and on certain documentation herein (G.C. Exh. 2, 3, 4, and 5) to show that the principal office and place of business of the said Company on the date of the Union's certification was Palmer and not Rio Piedras as claimed by Respondent. The Trial Examiner finds that said documentation does show Palmer to be the Company's principal place of business and office as of January 22, 1970. The Trial Examiner further finds that there is a failure of proof by Respondent to show that the principal office and place of business of the Company in question had been moved from Palmer to another location as of or prior to the date of the Union's certification on January 22, 1970. No testimony was offered by any official of the involved Company that it had moved its principal place of business and office from Palmer to another location prior to January 22, 1970. The testimony of Kauffman, the aforementioned president of General Electric Circuit Breakers, that General Electric Power Products, Inc., has moved its operations from Palmer to Rio Piedras is credited, but his testimony lacks definiteness as to the precise date this change of locations occurred. Respondent recognizes this shortcoming in Kauffman's testimony and has sought to supply the deficiency by attaching the aforementioned affidavit to its brief by H. Earl Gray, vice president and manager of General Electric Power Products, Inc. Even that affidavit lacks certain essential detail, but as heretofore noted the affidavit cannot in any event serve as evidence herein. But even wholly apart from the factual issue as to the precise date on which the headquarters and operations of General Electric Power Products, Inc., were transferred from Palmer to Rio Piedras, there is a question as to whether the Trial Examiner has the authority to modify a Board certification made as requested by Respondent herein for the obvious purpose of relieving it from a finding of a violation of the Act for failure to bargain with the Union in behalf of General Electric Power Products, Inc. This will be discussed and determined below. From road maps of Puerto Rico of which official notice is taken, it is found that the towns of Palmer and Rio Piedras date and that the present operations of that Company are conducted with a set of entirely new employees. The affidavit is in support of Respondent's motion that General Electric Power Products, Inc., be stricken from the Union's certification as representative of said Company's employees. The affidavit is obviously unacceptable in this proceeding as findings herein may be made only on testimony subject to cross-examination and documents subject to objections. No findings are accordingly made on the statements made in the affidavit attached to Respondent 's brief. GENERAL ELECTRIC CO. 293 are approximately within 25 to 30 miles of each other. Rio Piedras is within the city of San Juan; Palmer (near Rio Grande) is east of San Juan. Respondent's spokesman Kauffman testified that at the time Respondent received the Union's request of February 17 for collective bargaining the parent company, General Electric Company, was involved with nationwide strikes of its plants in continental United States. The complaint, herein, however, does not charge a refusal to bargain as of February 17, but as of February 24 when the Union sent its second request to Respondent for the commencement of collective bargaining. The Trial Examiner takes official notice of news reports in newspapers and labor periodicals that the strikes at the stateside plants of General Electric Company were for all practical purposes ended and the employees at such plants back to work on or before February 24, 1970.11 Kauffman's testimony to the extent that it implies that General Electric was still involved with nationwide strikes at its plants in continental United States on February 24 is not credited. DISCUSSION AND CONCLUSIONS The complaint charges that Respondent "at all times since February 24, 1970" has failed and refused to recognize the Union as the collective-bargaining agent of its employees in the appropriate unit here involved and that it has "at all times" refused the Union's request that it meet and confer with representatives of the Union to negotiate the terms of a collective-bargaining contract to cover wages, hours, and work conditions of said employees. The Respondent admits that with respect to one of the trinity of corporations here involved, General Electric Power Products, Inc., the above allegations are wholly true. But Respondent's defense to these admitted allegations as it relates to General Electric Power Products, Inc., is that that Company has "not employ[ed] anyone at Palmer as of January 15, 1970" and that accordingly the Union's certification of January 22, 1970, should be amended to eliminate it from the certification, apparently under the theory that only the Companies with operations at Palmer at the time of the certification are under compulsion to bargain with the Union and that any of the involved Companies which has moved from Palmer to another location prior to the certification is legally relieved of the necessity to bargain with the Union despite the fact that the Company is named in the certification. Without accepting this thesis, it is evident from the record even under Respondent's theory, that General Electric Power Products, Inc., is subject to obligatory bargaining with the Union under the certification because the record shows that the Company was in actual operation at the plant at the date of the certification on January 22, 1970. Contrary to Respondent's statement in its brief that General Electric Power Products, Inc., has not employed anyone at Palmer "as of January 15, 1970," based on the asserted testimony of Kauffman, the pages of the transcript on which Respondent relies for this statement (tr. pp. 103 and 104) show that Kauffman testified that General Electric Power Products, Inc., was "no longer at Palmer as of January 30, 1970." This carries the inference here found that the said Company was in operation at Palmer prior to January 30, 1970. Thus under Respondent's own theory, General Electric Power Products, Inc., is subject to the certification herein involved because according to Kauff- man that Company was still operating out of the Palmer plant on January 22 when the certification was issued. However, Respondent's theory that a Board certification of a union as the bargaining agent of an appropriate unit is dependent on a continuance of the Employer's operations, with the same employees as of the date of the certification, at the address of its plant as shown in the certification is, in the opinion of the Trial Examiner, wholly without merit as it is evident that the naming of the location of an Employer's plant in a Board certification is merely for purposes of identification and that the personnel of the unit during the period of certification may change completely. If the obligation on the part of the Employer under a Board certification to bargain with a certificated union was dependent on the Employer's remaining at the plant location named in the certification with the original personnel of the unit, he would have it within his power to vitiate the certification at will by moving his plant to another location and changing the personnel of the appropriate unit. Obviously such a circumvention is not within the intent of the Act. The certification here involved was issued by the Board. Only the Board has the authority to amend, modify, or revoke it. A Trial Examiner has no authority or jurisdiction to amend a Board certification. Accordingly, the Examiner denies Respondent's motion for an amendment of the certification "to eliminate the name of General Electric Power Products, Inc., from the certification." In summary, the Trial Examiner finds and concludes that Respondent out of its relationship to General Electric Power Products, Inc., has at all times since February 24, 1970, engaged in unfair labor practices in violation of Section 8(a)(5) of the Act by its refusal to recognize and bargain with the Union as the duly designated bargaining agent of the employees working at the plant of General Electric Power Products, Inc., who constitute part of the appropriate unit. Similarly, the Respondent, out of its relationship to the other two corporations here involved,12 is also found in violation of Section 8(a)(5) of the Act by reason of its refusal to recognize and bargain with the certified Union, for a period of a month from the Union's request of February 24 to March 24, 1970,13 when Respondent commenced its first bargaining negotiations with the Union but only in connection with the employees in the appropriate unit who worked at the plants of the said two other corporations. Respondent's overall defense for its failure to negotiate in behalf of these two corporations are what it terms 11 Appendix B is a sample of one such news report by the Bureau of all times since February 24, 1970, refused to recognize and bargain with the Labor Statistics. Union. The complaint charges that all three of the involved Employers, 12 General Electric Co., Circuit Protective Devices, Caribe Plant constituting a single employer for the purposes of. this proceeding, have "at Operations, and General Electric Circuit Breakers, Inc. all times since February 24, 1970," refused to recognize and bargain with 13 As compared to General Electric Power Products , Inc., which has at the Union. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "mitigating circumstances" for which it seeks "some [forgivable] reasonable delays" in meeting the Union's requests for negotiations, but cites no precedent or authority for such a defense. Its chief defense in mitigation is that it did begin bargaining negotiations with the Union on March 24, 1970, and has had a number of such bargaining sessions with the Union since then. Its defense for not beginning bargaining prior to March 24, 1970, is that the Union began a strike against its plants at Palmer on October 28, 1969, that the strike has been marred by numerous acts of violence as found in Trial Examiner Vose's Board-adopted decision, and that it was under "the belief . . . that the Union was conditioning negotiations or the reaching of a collective-bargaining agreement on the reinstatement of all the strikers." The mere existence of the strike is, of course, no excuse for the delay in meeting the Union's request for the commencement of bargaining as it is not uncommon for employees to strike for the very purpose of compelling recognition and bargaining. It appears from Trial Examiner Vose's Board-adopted decision that the strike of Respondent's employees did in fact result from Respondent's refusal to recognize and bargain with the Union. Similarly, Respondent's alleged belief that the Union was conditioning negotiations on the reinstatement of the 40 strikers accused of strike violence cannot be seriously urged as a mitigating circumstance for Respondent's failure to recognize and bargain with the Union. This is because there was nothing in the texts of Union's requests of February 17 and 24 which in any way sets up any advance conditions as conditions precedent for bargaining as was admitted at the trial by Kauffman, Respondent's bargaining spokesman. The requests were simple, straightforward requests for the initiation of collective bargaining without the attachment of any strings. Another mitigating circumstance urged by Respondent as a defense for its initial failure to recognize and bargain with the Union is that at the time of the Union's request for bargaining the parent Company, General Electric Compa- ny, was involved and preoccupied with strikes at its plants in continental United States. The record, however, shows that the strikes at General Electric Company's stateside plants were virtually over and the employees back at work at the time the Union herein made its February 24 request for the commencement of bargaining. The final justification offered by Respondent for its initial failure to respond to the Union's February 24, 1970, request for commencement of bargaining is that Respon- dent, "during those troubled days of February, had not had the opportunity to assess its position in order to establish the course of action to follow with respect to its numerous problems in Puerto Rico and in the continental United States." There can be no doubt that General Electric Company had troubled days in February, by reason of strikes at its numerous plants in the States, but as shown above these were for all practical purposes over on February 24, when the Union served its request on Respondent for the commencement of bargaining. Respon- dent's other contention that it had not had the opportunity "to assess its position" is likewise not entitled to credence. At the time of the Union's request, the Respondent had more than a month to consider its course of action with respect to the Board's certification of January 22, 1970, which Respondent's bargaining agent, Kauffman, admitted he knew to be "final." This was ample time for Respondent to assess its position. In a more practical sense, the Respondent had far more than a month to assess its position. This is because the Company knew as far back as August 15, 1967, and June 5, 1969, when the Union won the second and final runoff elections, respectively, that it would in all eventuality have to face up with dealing with the Union. Respondent in a sense bought this long period of time "to assess its position," as well as to defeat the Union, by filing objections to the two elections and, when these were overruled, by filing motions for reconsideration and exceptions to adverse orders. Thus it has had approximately 3 years to assess its position. Based on its aforementioned claimed mitigating circum- stances, the Respondent also claims a disavowal of bad faith in failing to meet with the Union in the indicated period for collective bargaining. However, the record, even aside from the claimed mitigating circumstances, reveals a complete absence of good faith on the part of the Respondent in failing to respond to the Union's request for collective bargaining. This is evidenced by Respondent's complete failure to reply to the Union's requests for the commencement of collective bargaining, by Respondent's refusal to meet with union representatives face-to-face in a meeting called by the Puerto Rico Director of Conciliation on February 25, 1970, and by its statement to the union representatives on that date, as transmitted by the director of Conciliation, that Respondent's position was still the same as stated in an earlier letter to the director by Respondent's stateside counsel, to wit, that Respondent "expressly" denies "that any union represents any employ- ee at Palmer...... Thus the record reveals that Respon- dent, some 2 weeks after the Board had denied its motion for a reconsideration of the Union's certification, was still denying that the Union was the representative of the appropriate unit named in the certification. These actions by Respondent spell out an entire absence of good faith in meeting the Union's request for contract negotiations. The only true mitigating circumstance for Respondent's failure to respond to the Union's request of February 24 is that Respondent did commence such bargaining on March 24, albeit nearly a month after the Union's requested date and at the intervention of the Governor of Puerto Rico and after the issuance of the complaint herein. However, even that beginning as aforenoted has been limited, on Respondent's adamant insistence, to negotiations in behalf of only two of the three corporations here involved. Respondent has consistently refused and still refuses to bargain in behalf of General Electric Power Products, Inc., notwithstanding the fact that the employees of that Company are part of the appropriate unit as determined by the Board in its certification of the Union as the exclusive bargaining agent for that unit. The record compels an order not only to require Respondent as a single Employer to commence bargaining with the Union in behalf of General Electric Power Products, Inc., but also to assure the continuation of Respondent's bargaining with the Union in behalf of the GENERAL ELECTRIC CO. 295 other two Companies here involved. Respondent's past conduct does not inspire confidence that it will continue the limited collective bargaining it has started with the Union without further order. In summary, the Trial Examiner finds and concludes that Respondent at all times since February 24, 1970, has been in violation of Section 8(a)(5) and (1) of the Act by its refusal to recognize and bargain with the Union as the collective-bargaining agent of all its employees in the appropriate unit as certificated by the Board . The Trial Examiner further finds and concludes that Respondent out of its relationship to two of the three corporations here involved has been in technical violation of Section 8(a)(5) and (1) of the Act for its failure during the period February 24 to March 24, 1970, to recognize and bargain with the Union pursuant to its request of February 24, 1970. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. General Electric Co., Circuit Protective Devices Department, Canbe Plant Operations; General Electric Power Products, Inc.; and General Electric Circuit Breakers, Inc., with principal offices and places of business at Palmer, Puerto Rico, constitute a single employer for purposes of this proceeding, referred to herein collectively as the Respondent. 2. The said Respondent is an employer engaged in commerce or in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Union is a labor organization within the meaning of Section 2(5) of the Act. 4. All production and maintenance employees em- ployed by the Respondent at its plants in Palmer , Puerto Rico, excluding all office clerical employees, professional personnel, laboratory technicians, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times on and after January 22, 1970, the Union has been and now is the exclusive representative, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act, of all of the employees in the above- described appropriate unit. 6. By refusing to recognize and bargain with the Union on and after January 22, 1970, with respect to all of its employees in the said appropriate unit, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By refusing to recognize and bargain with the Union for the period January 22 to March 24, 1970, with respect to the segment of its employees in the appropriate unit as work in the plants of General Electric Co., Circuit Protective Devices Department, Caribe Plant Operations, and Gener- al Electric Circuit Breakers , Inc., Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. By refusing to recognize and bargain with the Union at all times since January 22, 1970, with respect to that segment of its employees in the appropriate unit as work in the plant of General Electric Power Products, Inc., Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has refused at all times since January 22, 1970, to bargain collectively with the Union as the exclusive representative of such employees in the described appropriate unit as work in the plant or plants of General Electric Power Products, Inc., wherever they be located, it will be recommended that Respondent, upon request, bargain collectively with the Union as the exclusive representative of that part of the said unit employed in the plant or plants of General Electric Power Products, Inc., wherever they be located. Although the Respondent commenced bargaining with the Union on March 24, 1970, with respect to that segment of the unit employed at the plants of General Electric Co., Circuit Protective Devices Department, Caribe Plant Operations, and General Electric Circuit Breakers, Inc., Respondent's refusal to recognize and bargain with the Union with respect to that segment of the unit for a period of approximately 2 months after the Union was certificated was of such an aggravated character that the Trial Examiner deems it advisable to recommend an order requiring the Respondent to continue such bargaining negotiations with the Union. In order to insure that all of the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, it will be recommended that the initial year of certification shall be construed as beginning on the date the Respondent has commenced to bargain in good faith with the Union as the recognized bargaining representative of all the employees in the unit. Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). RECOMMENDED ORDER Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner recommends that Respondent as the single employer of the employees of its component corporations, General Electric Co., Circuit Protective Devices Department, Canbe Plant Operations; General Electric Power Products, Inc., and General Electric Circuit Breakers, Inc., together with all the officers, agents, successors, and assigns, of Respondent and each of the mentioned component corporations, shall: 1. Cease and desist from: 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively with the International Association of Machinists and Aerospace Workers as the exclusive bargaining representative of all employees of the Respondent in the appropriate unit as described in the Conclusions of Law above. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is appropriate to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with International Association of Machinists and Aerospace Workers as the exclusive representative of all the employees in the appropriate unit, including all such employees as are employed at the plant or plants of General Electric Power Products, Inc., wherever they may now be located, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, continue the collective bargaining on the above-mentioned subject matters with the aforemen- tioned Union which was commenced on March 24, 1970, in connection with that portion of employees in the described appropriate unit which consists of employees employed at the plants of General Electric Co., Circuit Protective Devices Department, Caribe Plant Operations, and Gener- al Electric Circuit Breakers, Inc., at Palmer, Puerto Rico, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Upon request, bargain collectively in good faith with the aforementioned Union on the above-mentioned subject matters with respect to that portion of the employees in the above-described appropriate unit who are employed at the plant of General Electric Power Products, Inc., wherever that plant may now be located, and, if an agreement is reached, embody such understanding in a signed agree- ment. (d) Post at its plants in English and Spanish copies of the attached notice marked "Appendix C." 14 Copies of said notice, on forms provided by the Regional Director for Region 24, after being duly signed by the Respondent's representative , shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 24, in writing, within 20 days from this Decision, what steps have been taken to comply herewith.15 IT IS FURTHER ORDERED that subparagraph 3 of paragraph VI of the complaint be dismissed upon consent of General Counsel to motion of Respondent. Respondent made the motion when counsel for General Counsel announced that he would offer no proof in substantiation of the indicated allegation of the complaint. 14 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 15 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 Respondent has taken to comply herewith." APPENDIX A HISTORY OF REPRESENTATION PROCEEDING IN CASE NO. 24-RC-2922 AS SET FORTH BY ALLEGA- TIONS OF THE COMPLAINT AND ADMITTED BY THE ANSWER. IV All production and maintenance employees employed by the Respondent at its plants in Palmer, P.R., excluding all office clerical employees, professional personnel, laborato- ry technicians, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. V 1. On June 28, 1966, the Respondent executed a Stipulation for Certification Upon Consent Election pursuant to which an election was to be held among the employees in the unit described above in paragraph IV under the direction and supervision of the Regional Director of the Board for the 24th Region, to determine whether they desired the Union herein involved or Union de Empleados de la General Electric, Inc., or no union, to represent them for collective bargaining purposes. At the election held on July 14, 1966 pursuant to the Stipulation for Consent Election mentioned above, none of the three choices on the ballot received a majority of the votes cast at said election. Thereafter a runoff election was conducted by the Regional Director on August 4, 1966 at which time the employees were given the choice between the Union or no union. At said runoff election, a majority of the employees voted in favor of no union to represent them. The Union thereupon filed timely objections to the conduct of said election. Thereafter the Regional Director filed a Report and Recommendation to the Board recommending that the election be set aside and that a second runoff election be conducted. Thereafter the Respondent filed exceptions to said Report. On August 15, 1967, the Board issued its Decision, Order and Direction of New Runoff Election adopting the Regional Director's Report and Recommendation that the election be set aside, and a second runoff election be conducted. 2. At the second runoff election which was held on September 21, 1967, pursuant to the Board's Order of August 15, 1967, a majority of the employees in the unit described above in paragraph IV voted in favor of the Union. Thereafter the Respondent filed timely objections to the conduct of the second runoff election. The Regional Director caused an investigation of said objections to be made and on February 26, 1968 he issued and served upon GENERAL ELECTRIC CO. 297 the parties his Report and Recommendation on Objections to the Second Runoff Election. On February 28, 1968 a corrected Report and Recommendation was issued. In his report, as corrected, the Regional Director found that all of the Respondent's objections to the second runoff election were without merit recommending to the Board that they be overruled and that a certification be issued to the Union. On March 18, 1968 the Respondent filed exceptions to the Regional Director's findings and recommendation with respect to its objections to the second runoff election. On May 24, 1968 the Board issued an order directing that a hearing be held on one of the Respondent's objections. The order stated that the Board was of the opinion that a hearing should be held on the factual issues raised by Respondent's Objection No. 2 because it presented a material issue of fact which could best be resolved by a record of testimony taken at a hearing. Accordingly, a hearing was directed for the purpose of taking testimony on the issues raised by Objection No. 2. Pursuant to said Order of the Board a hearing was held on July 1, 1968 before Hearing Officer Robert M. Ziskin. The Respondent and the Union appeared and participated at said hearing. They were afforded full opportunity to be heard, to examine and cross examine witnesses and to introduce evidence bearing on the issues. After said hearing briefs were filed by the parties. On November 14, 1968 Hearing Officer Ziskin filed and duly served on all the parties his Report and Recommendation, in which he recommended that Respon- dent's Objection No. 2 be overruled, and that the Union be certified as the collective bargaining representative of the employees in the unit mentioned above in paragraph IV. Thereafter the Respondent filed exceptions to the Hearing Officer's Report and Recommendation and a supporting brief. On April 30, 1969 the Board issued its Supplemental Decision, Order and Direction for Third Runoff Election in which it rejected the Hearing Officer's recommendation and ordered that a third runoff election be held among the employees in the unit mentioned above in paragraph IV. 3. Pursuant to the said Order of the Board, a third runoff election was conducted on June 5, 1969 among the employees in the unit mentioned above in paragraph IV. At said election a majority of the employees in said unit again indicated their desire to have the Union herein involved represent them for collective bargaining purposes. On June 12, 1969, the Respondent filed objections to the third runoff election. On October 17, 1969 the Regional Director issued his Report and Recommendation on objections to the third runoff election recommending to the Board that the Respondent's objections to said election be overruled and that the Union be certified as the collective bargaining agent of the employees in the unit mentioned above in paragraph IV. On October 27, 1969 the Respondent filed a motion for reconsideration before the Regional Director. On October 30, 1969 the Regional Director overruled the Respondent's motion for reconsideration. On October 30, 1969 the Respondent filed exceptions to the Regional Director's report and recommendation on objections to the third runoff election. On January 22, 1970 the Board issued its Decision and Order overruling the exceptions of the Respondent to the Regional Director's Report and Recommendation on Respondent's objections to the third runoff election and certified the Union as the collective bargaining agent of the employees in the unit mentioned above in paragraph IV. Thereafter the Respondent made a motion for reconsideration before the Board which motion was overruled on February 13, 1970. APPENDIX B The following news item, entitled "Developments in Industrial Relations," is from the March 1970 issue of the Monthly Labor Review of the U.S. Department of Labor, Bureau of Labor Statistics: GE settlement After a strike that lasted more than 3 months, the General Electric Co., the International Union of Electrical Workers (IuE) , and the United Electrical Workers (uE) reached agreement on January 26. The fuE, representing 80,000 GE workers, and the UE, representing 16,000, ratified the 40- month contract. Four other unions among the 14 that bargained with GE accepted similar terms. The four unions were the Flint Glass Workers, the Plumbers and Pipefitters, the Sheet Metal Workers, and the Firemen and Oilers. (The other unions in the 147,000-worker coalition were the Auto Workers, International Brotherhood of Electrical Workers, Teamsters, Steelworkers, American Federation of Techni- cal Employees, Allied Industrial Workers, Carpenters, and the Machinists. These unions remained on strike.) The Machinists union labeled the settlement as "inadequate" and recommended that its 14,000 members at GE reject the package. Unlike the iuE and the uE, the Machinists and the other unions involved bargain with the company on a local basis. The accord was expected to influence bargaining between Westinghouse Electric Corp. and 9 unions for 80,000 workers. Contracts for some of these unions had expired in November 1969, but work continued under day- to-day extensions. In recent years, Westinghouse settle- ments have been patterned after those at GE . The GE pacts provided for an immediate general wage increase of 20 cents an hour, plus 5- to 25-cent increases for skilled employees, and for 15-cent general increases effective in February 1971 and April 1972. The escalator clause was revised to provide cost-of-living increases of up to 8 cents an hour on October 26, 1970, October 25, 1971, and October 30, 1972, calculated at 1 cent for each 0.3- percent rise in the Consumer Price Index during the year preceding each adjustment. Three cents of the 8-cent maximum increase in October 1970 was put into effect immediately to compensate for the cost-of-living rise since October 26, 1969, when the previous 3-year contracts expired and the walkout began. Under the previous contracts the workers received a total of 3.5 percent in escalator increases. Prepared by Leon Bornstein and other members of the staff of the Division of Trends in Employee Compensation, Bureau of Labor Statistics, and based on information from secondary sources available in January. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The minimum pension rates for employees retiring at age 65 was increased to $5-$7 .50 a month for each year of credited service, from a flat $4 .50, further increasing to $5.50-$7.50 on January 1, 1971, $6-$7.50 on January 1, 1972, and $6.50-$7.50 on January 1, 1973. Other pension changes included adoption of a $125 -a-month supplement for some disability retirees, and improvements in credits for service prior to January 1, 1961, and in the survivorship option. The company agreed to assume the full cost of insurance for employees effective January 1, 1971, increasing the employees take-home pay by about 1 percent, to provide for 100 percent of hospital room and board for up to 365 days, and to increase the sickness and accident benefit rate to 60 percent of normal straight-time earnings (from 50 percent) and the maximum benefit to $ 150 a week (from $100). The vacation schedule was revised to provide 4 weeks after 15 years of service (instead of 20 years) and for a fifth week after 30 years, effective January 1, 1971. Other contract terms included adoption of a sick leave-personal business plan providing for annual accrual ranging from 2 days after 5 years of service to 5 days after 25 years of service; and improvements in training programs , Income Extension Aid for laid-off employees, and paid funeral leave. The unions won a "uniform" expiration for their contracts, although they did not gain a union shop. APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively as a single employer in good faith with the International Association of Machinists and Aerospace Workers as the exclusive representative of all our employees collectively in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement . The appropriate bargaining unit is: All production and maintenance employees employed at our plants in Palmer, Puerto Rico, excluding office clerical employees, professional personnel, laboratory technicians, guards and supervisors as defined in the National Labor Relations Act. WE WILL, upon request, continue bargaining with the aforementioned Union with respect to rates of pay, wages, hours of employment , and other conditions of employment which was commenced on March 24, 1970, in connection with that portion of our employees in the above-described appropriate unit which consists of employees employed at the Palmer, Puerto Rico, plants of General Electric Co., Circuit Protective Devices Department, Caribe Plant Operations, and General Electric Circuit Breakers, Inc., and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL, upon request, bargain collectively with the aforementioned Union with respect to the rates of pay, wages, hours of employment , and other conditions of employment in connection with that portion of employees in the above-described appropriate unit who are employed at the plant of General Electric Power Products, Inc., wherever that plant may now be located, and, if an agreement is reached, embody such understanding in a signed agreement. GENERAL ELECTRIC CO., CIRCUIT PROTECTIVE DEVICES DEPARTMENT, CARIBE PLANT OPERATIONS; GENERAL ELECTRIC POWER PRODUCTS, INC. GENERAL ELECTRIC CIRCUIT BREAKERS, INC. (Employer) Dated By (Representative) (Title) THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE 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. Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, Seventh Floor, Pan Am Building , 255 Ponce de Leon Avenue, Box UU, Hato Rey, Puerto Rico 00919 , Telephone 809-765-0404.