General Electric Co.

GENERAL ELECTRIC CO. General Electric Company and International Union of Electrical Radio and Machine Workers, AFL-CIO. Case 2-CA- 10991 October 23, 1968 DECISION AND ORDER On June 6, 1967, Trial Examiner David London issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs.' The General Counsel submitted to the Board the memo- randum he had previously submitted to the Trial Examiner. The Respondent and the Charging Party also filed answering briefs The National Labor Relations 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 excep- tions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the additions set forth below. This case arises out of the 1965-66 negotiations between General Electric Company, hereinafter re- ferred to as Respondent or GE, and International Union of Electrical, Radio and Machine Workers, AFL-CIO, hereinafter referred to as the Union or IUE. Through the years, Respondent has negotiated collective agreements with more than 80 unions. Although it has conducted most of these negotiations at the local level, it has also negotiated national agreements with several unions, including the IUE. The IUE has conducted its national negotiations with GE through its IUE-GE Conference Board, consisting of delegates from its local unions representing GE employees. The Conference Board in turn has elected a Negotiating Committee which actually conducted the negotiations. In 1965, a number of different international unions that have bargaining relationships with Respondent joined together to form the Committee on Collective Bargaining (CCB), which, in turn, established a Steering Committee with responsibility for imple- menting the initial policy determinations of the CCB. The avowed purpose of the CCB was to formulate a 1 Respondent 's request for oral argument is denied as the record, including the exceptions and briefs , adequately presents the issues and the positions of the parties. 2 On August 18, Judge Marvin Frankel granted the Regional 173 NLRB No. 46 253 set of common goals and to seek to achieve these objectives through a "coordinated approach" to bargain with Respondent. Beginning in November 1965, the Steering Committee offered to meet with Respondent on several occasions, but Respondent rejected the offers, asserting that the Steering Com- mittee was an instrument through which the partici- pating unions hoped to engage in coalition bargaining. In a letter dated April 13, 1966, the chairman of the IUE-GE Conference Board informed Respondent that the Union was abandoning its request for joint discussions. Respondent then agreed to meet with the IUE on May 4, 1966. In preparation for that meeting, the Union added to its Negotiating Committee as nonvoting members, one representative from each of the other seven international unions which, with the IUE, had com- prised the Committee on Collective Bargaining. As the Trial Examiner found, the presence of representatives of other unions on the Negotiating Committee would supply adequate interunion communication as a means of avoiding the "whipsawing" Respon- dent was thought to have accomplished in the past. It was not intended, by adding these members, to bargain for any unions other than IUE. Nor did the additions reflect any understanding that a pro- posed agreement between IUE and Respondent would be subject to approval, disapproval, or adoption by any other union. Respondent did not learn about the addition of the nonvoting members until the IUE Negotiating Com- mittee arrived at the conference room on the morning of May 4. After discovering the presence of the seven "outsiders," Respondent's representatives refused to engage in any discussions with the Committee and left the room. Until August 18, Respondent remained steadfast in its position that it would negotiate only with a committee that consisted exclusively of IUE members. On that date, pursuant to court order,2 Respondent agreed to meet with the Negotiating Committee as constituted by the IUE. The collective-bargaining contract which was then in effect had been executed by the parties in 1963 and contained an October 2, 1966, terminal date. It provided that if either party wished to modify or terminate the contract, that party had to give appropriate written notices to the other not more than 60 and not less than 30 days prior to the October 2 expiration date. It also provided that negotiations for a new contract would begin within 15 days from the date the notice was received. On August 2, in accordance with these provisions, John Callahan, chairman of the IUE-GE Conference Board, wrote to Philip Moore, GE's chief negotiator, to Director's motion for a temporary restraining order pursuant to Section 10(1) of the Act. McLeod v. General Electric Co.,, 257 F.Supp. 690 (D.C.N.Y.), reversed 366 F.2d 847 (C A. 2), reversed and remanded 385 U S 533. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "serve notice" that IUE intended to terminate the pending collective-bargaining contract. Callahan also requested a meeting of the parties on August 15, 16, or 17 to consider several IUE proposals which were enclosed with the August 2 letter. In his reply of August 9, Moore agreed to meet with IUE "provided there will be no representatives of other unions present." As noted above, Respondent did not alter this stand until August 18, when Judge Frankel's opinion was filed. On that day, Respondent, being advised of the opinion, agreed to meet immediately, but made clear that it intended to appeal Judge Frankel's order and, therefore, that it was meeting "under protest." Meetings began on August 23 and continued until October 14, when an agreement was reached to expire in 1969. On September 20, how- ever, Judge Frankel's order was vacated by the court of appeals. On that date, Moore informed the Union's Negotiating Committee that if the "outside represen- tatives" remained at the negotiating sessions, their presence would be ignored. Respondent did, in fact, ignore the "outsiders" until the following afternoon, when it learned that Mr. Justice Harlan had reinstated the order of the district court. The Trial Examiner found that Respondent vio- lated Section 8(a) (5) of the Act by refusing to meet with the Union both before and after bargaining was required by the collective-bargaining contract of the parties. Respondent contends that: (1) at all times, it was justified in refusing to meet with the IUE Negotiating Committee because of the presence on that committee of seven nonvoting members who normally represent unions other than the IUE; and (2) in any case, even if the presence of these representatives did not privilege a refusal to bargain, Respondent cannot be found to have violated Section 8(a)(5) prior to August 18, because, under the terms of its collective-bargaining contract with the IUE it was not obligated to bargain at all before that date. A. The Composition of the Negotiating Committee The issue presented by Respondent's first conten- tion is a narrow one. Crucial to our analysis of this question is the fact that Respondent left the nego- tiating table before negotiations began, and, there- fore, before it had any opportunity to determine whether the IUE Committee had, as it professed, come to negotiate an agreement only for the IUE. As noted above, the Union, in its letter of April 13, specifically disclaimed any intent to engage in coali- tion bargaining. Under these circumstances, as Judge Frankel pointed out, What the IUE was bent upon could only be determined with respondent's professed certainty by doing what respondent chose not to do-by staying and bargaining and seeing whether the IUE had lied when it said it had come to negotiate only for its own agreement.' For this reason, we need not decide whether Respon- dent's refusal to bargain might have been justified if, in fact, the participating unions had been "locked in" to a conspiratorial understanding. By walking out of the May 4 meeting, Respondent precluded our consid- eration of this issue. Nor need we decide whether Respondent could lawfully have suspended negotia- tions if, during the course of the discussions, it became apparent that the non-IUE representatives were seeking to bargain for their own unions, rather than for the IUE. These situations raise questions which are not presented by the instant case. In this case, we are only called upon to decide whether the mere presence on the IUE Negotiating Committee of representatives from unions other than the IUE justified Respondent's refusal to bargain, there being no evidence that these representatives bargained in bad faith or for employees other than those repre- sented by the IUE. Our dissenting colleague would hold that the mere presence of these "outsiders" did privilege a refusal to bargain, even absent a specific finding of bad faith, because their presence was inherently disruptive of the bargaining process. We disagree. Our starting point is Section 7 of the Act. That section provides that "employees shall have the right to ... bargain collectively through representatives of their own choosing."4 Included in the right to select representatives is the derivative right of the duly elected bargaining agent to select the bargaining team which will represent it at the negotiating table.5 It is true that these rights, like most, are not absolute6 and have been held subject to limitation in unusual situations where the chosen representative is so tainted with conflict or so patently obnoxious7 as to negate the possibility of good-faith bargaining. Such a case is Bausch & Lomb Optical Co.,8 where the Board held that an employer could refuse to bargain with a union which had established a competing enterprise in the same locality. The Board's decision in that case rested explicitly on the fact that the union stood in the position of a business competitor, which, unlike the employees it represented, stood to benefit if the 3 257 F.Supp at 706. 4 See , N.L.R.B v Jones & Laughlin Steel Corp., 301 U.S. 1, 33. 5 American Radiator & Standard Sanitary Corp., 155 NLRB 736, enforcement denied on other grounds 381 F.2d 632 (C.A . 6), Standard Oil Co., 137 NLRB 690, 710 (and cases cited), enfd. 322 F.2d 40 (C. A. 6). 6 N.L.R.B. v International Ladies' Garment Workers Union, 274 F 2d 376, 378 (C.A. 3). 7N.L.R.B. v. Kentucky Utilities Co., 182 F.2d 810, 813 (C.A. 6). 8 108 NLRB 1555. GENERAL ELECTRIC CO. 255 employer could be forced out of business after being compelled to yield to mordmate demands.9 Kenne- cott Copper Corporations 0 and Douglas Aircraft Co,'' both cited by our dissenting colleague, are similar to Bausch & Lomb In these decisions, the Board held that supervisors may not represent em- ployees for purposes of collective bargaining, notwith- standing the preference of the employees. All of these cases, however, involved situations which were funda- mentally different from the one presented here because in each of the cited cases, the Board concluded that the allegiance of the representatives involved was so seriously compromised as to make good-faith bargaining "inherently impossible "' 2 We do not believe that such a conclusion is warranted here There is no precedent for the position taken by Respondent. In fact, the precedents are the other way In Standard Oil Co v. N L R.B,' 3 the Respon- dent Company objected to the presence of temporary International representatives as part of the Union's negotiating team because it believed that the appoint- ment of such representatives and their participation in bargaining was part of a subtle plot to bring about companywide bargaining. The court rejected the company's contention that it could refuse to meet with the Union's negotiating committee because of the presence of outsiders thereon and held that "absent any finding of bad faith or ulterior motive on the part of unions, we conclude that it was the duty of the Company to negotiate with the bargaining committees of the Unions ... even though the tempo- rary representatives were present."' 4 Recently the same court reiterated that "a union has the right to select outsiders to sit and assist a local bargaining committee."' S It is true that some representatives might, under certain circumstances, attempt to misuse their posi- tion on another union's negotiating committee As Member Jenkins points out, such representatives could attempt to bargain for their own unions while serving on the negotiating committee of another, or they might claim to be bargaining for one union 9Id. at 1560-61. 10 98 NLRB 75 11 53 NLRB 486 12 Bausch & Lomb Optical Co , supra, in . 9 at 1562. 13 322 F 2d 40 (C.A. 6). 14 Id at 44 15 American Radiator & Standard Sanitary Corp. v. N L.R.B., 381 F.2d 632, 634 (C.A. 6), reversing on other grounds American Radiator Corp., 155 NLRB 736 . See also N.L R.B. v. Deena Artware, 198 F.2d 645, 651 (C.A. 6), cert. denied 345 U.S. 906 (holding that the Act does not require that the bargaining representative be employed by the Com- pany with which the Union is bargaining ), McLeod v. General Electric Co , supra, in. 2 at 703-706. 16 See N. L R.B v. Truitt, 351 U.S 149 , 153-154, American National Insurance Co, 343 U.S 395 , 401, where the Supreme Court cautioned against reliance on such per se assumptions and admonished the Board to resolve controversies involving refusals to bargain, not by invoking mechanical rules, but rather by closely analyzing the facts presented by each case t7 N L R B v Atkins, & Co., 331 U.S. 398, 405. when, in fact, they were locked into an understanding that no union would sign an agreement unless all unions did. But to recognize the possibility of abuse is quite different from concluding, as does our dis- senting colleague, that abuse is inherent in any attempt at coordinated bargaining.' 6 We do not believe that the mere possibility of such abuse, without substantial evidence of ulterior motive or bad faith, justifies qualification of a union's right to select the persons who will represent it at the negotiating table.' 7 Our dissenting colleague's assumption that the inclusion of non-IUE representatives would "by ne- cessity encumber and disrupt the bargaining process" seems particularly unjustifiable when applied to the facts of this case. First, there is no evidence that the presence of the "outsiders" actually disrupted negoti- ations once they began in August. Respondent does not even make such a contention. It is difficult to reconcile this fact with the assertion that the presence of outside representatives would "by necessity" en- cumber the negotiating process. Moreover, although, as noted above, Respondent bargains with more than RO unions, the offers made to many of these unions are substantially identical. Since most of the contracts negotiated by Respondent have common expiration dates, the majority of unions receive these offers at the same time. Uniformity in the past has extended not merely to the offers made but also to the substantive terms of the agreements actually exe- cuted. In this case, it is highly significant that the Unions which have joined together to form the CCB have traditionally received similar offers and, addi- tionally, have executed similar agreements with Re- spondent. This history suggests common objectives rather than conflicts of interest between representa- tives of unions which are bargaining for many of the same contractual benefits from an employer which has traditionally refused to treat one union more favorably than another.' 8 In any event, we find no justification for the presumption of our dissenting colleague that conflicts must invariably arise between the representatives of unions which are so situated.' 18 General Electric Co., 150 NLRB 192, 209-2 10. 19 Member Jenkins also states that "during collective-bargaining negotiations for a multiunit company, such as the Respondent herein, a company may be willing during the give and take of collective bargaining to surrender certain rights or accord greater benefits to a particular unit containing what the company considered its key employees in hopes of recapturing a few benefits or giving less to what it considered a unit of less importance " He concludes that such a practice would be impossible if several unions are represented at the negotiations because "the unit to be deprived of benefits would certainly object " We do not believe, however, that the possibility of such an objection being interposed is a valid reason for proscribing the kind of bargaining which is here involved. First, this kind of objection is not likely to occur where an employer , like Respondent herein, extends the same basic offer to all employees and usually tries not to trade benefits between units . Moreover , the significant, and we believe the determinative fact is that there is no evidence in this case that Respondent actually attempted to engage in such a practice and, therefore , there is no evidence of the kind of objection to which Member Jenkins alludes 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, a holding that the mere presence of "outsiders" is so inherently disruptive of the bargain- ing process as to privilege an employer's refusal to bargain would substantially limit the opportunity for collaboration and cooperation between unions. It would, for example, prevent an expert employed by one union from assisting another union at the negotiating table, even though the negotiating union might be seeking nothing more than technical advice from the "outside" representative. We do not believe that this kind of collaboration is inconsistent with the statutory objectives. We find no basis, therefore, for a rule of law which would impose a blanket prohibition on this kind of interunion cooperation, regardless of whether such collaboration can actually be shown to have obstructed negotiations to any substantial degree. Such a restriction on the right of a union to determine the composition of its own bargaining committee would be lacking both in precedent and justification.' ° B. Refusal To Bargain Prior to August 18 The Trial Examiner found that Respondent had unlawfully refused to bargain not only on and after August 18, but also on May 4, and for the same reason-Respondent's refusal to meet with the Union's negotiating team because of the presence thereon of "outsiders." Respondent contends that, whatever the legality of its asserted reason for refusing to meet with IUE representatives, no refusal to bargain can be found on May 4, because Respond- ent could not be required to bargain with the IUE on that date in view of contract provisions for modifica- tion or termination2 1 and Section 8(d)12 of the Act. We agree, of course, that under the statute Re- spondent could not be required to bargain before the Union had served notice of contract termination and had requested agreement on a date for bargaining But Section 8(d) exists for the benefit of the contracting parties; there is nothing to prevent them from mutually agreeing to reopen the contract in whole or in part to permit the start of negotiations for a new contract prior to the permissible contract date. If they do agree on an early reopening, they are subject to the same standards of good-faith bargaining as if the contract expressly provided for such opening As set forth more fully in the Trial Examiner's Decision, correspondence exploring the possibility of an early meeting between the parties began in November 1965. On November 24, Philip Moore, manager of Respondent's Employee Relations Ser- vice, wrote a letter to John Callahan, chairman of the IUE-GE Conference Board, confirming an earlier proposal by GE for the establishment of subcommit- tees to deal with such subjects as grievance procedure, contract language, etc. On December 21, Callahan, replying to Moore's letter, agreed to the use of three subcommittees.2 3 After several other communications between Callahan and Moore, the Committee on Collective Bargaining wrote to Moore It noted in this letter that the eight unions had "joined together in preparation for these meetings" and suggested that Since our eight unions have a jointly developed approach on how to create the most successful type of meetings and since your management has a national policy on this matter, the simplest and most effective solution is a conference between us The request for a joint meeting was repeated in a letter from the Steering Committee to Moore on February 15. On February 24, Moore wrote three letters. In a letter to Joseph Swire, IUE's pension and benefit consultant, Moore stated It would be most inappropriate for us to respond to the Steering Committee as they requested in their recent letter since this would only serve to create an illusion that national negotiations on benefits are now in process. . . In his other letters, Moore outlined his objections to coalition bargaining and stated that Respondent would not recognize the Committee on Collective Bargaining as a "merged negotiating body." Following several other communications, Callahan, on April 13, 1966, announced a significant change in the Union's position. After noting that Respondent was unwilling to hold a joint meeting, Callahan stated that the IUE-GE Conference Board "will not pursue that matter any further and will abandon any suggestions for any such joint meeting or for 20 Obviously, the same right to determine the composition of its own bargaining committee exists for employers as well . A company's choice of negotiators , including experts from other companies, would be subject only to the kind of limitation already placed on unions. See, e.g., Bausch & Lomb, supra , Kennecott Copper, supra 21 Article XXX of the 1963 collective -bargaining contract between Respondent and the Union provides, Either the Company or the Union may terminate this National Agreement by written notice to the other not more than sixty days and not less than thirty days prior to October 2, 1966, or prior to October 2 of any subsequent year. Not more than 15 days following receipt of such notice , collective bargaining negotiations shall commence between the parties for the purpose of considering the terms of a new agreement , and a proposal for a revision of wages which may be submitted by either the Company or the Union. On August 3, 1966, the Union served notice of its intention to terminate the National Agreement on its terminal date and proposed a meeting between the parties for either August 15, 16, or 17 to consider its contract proposals. 22 Section 8(d) of the Act provides that the duty to bargain "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period , if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract." 23 It thus appears that at an early date , the parties had agreed that subcommittees should be established The failure to meet prior to August 23 , therefore , resulted not from disagreement as to whether subcommittees should be convened , but, rather , from IUE's plan to include "outside" representatives on its Negotiating Committee. GENERAL ELECTRIC CO. joint discussions." Callahan then requested a meeting between the IUE-GE Negotiating Committee and Respondent to discuss "all of the problems I have mentioned including the agenda of subject matters for, the number of, and the scheduling of, the proposed subcommittee meetings.." Moore replied on April 20, proposing that a meeting be held on May 4 when GE would "be prepared to move ahead on establishing any necessary ground rules, subject matter and schedules." Callahan responded by telegram on April 25, agreeing to meet as proposed by Moore. 2 4 As we analyze the facts of this case, we conclude that the parties agreed upon a limited modification of the reopener clause. It is not necessary to decide whether, as the Trial Examiner found, the parties agreed to abrogate the reopener provision in its entirety and commence negotiations for a new con- tract on May 4. It is sufficient that they did agree to modification to the extent of permitting considera- tion of certain preliminary matters relating to the execution of a new agreement. Having voluntarily agreed to early modification of the contract for these purposes, Respondent was obligated to conform with the good-faith bargaining requirements of Section 8(d) .25 It is true that the early meetings were agreed upon to establish the ground work for the more formal negotiations which would follow after the official reopening date of the entire contract, and that the parties agreed that no contractual commitments would be made. But such preliminary matters are just as much part of the process of collective bargaining as the negotiation over wages, hours, etc. In many 24 The convening of such a meeting was fully in keeping with the usual practice of the parties Respondent itself concedes that by mutual agreement , the parties , in 1955, 1960, and 1963 agreed to meet for certain limited purposes prior to the mandatory bargaining date. In 1960, for example , the parties began to bargain on July 19 , even though the contract did not require that bargaining begin until August 17. In 1963, subcommittees similar to those contemplated here, were meeting throughout May and June although the earliest mandatoiy bargaining date was August 15 25 Our dissenting colleague would hold that , even if such an agreement were reached , one of the conditions of the agreement was that the Union would bargain through its traditional negotiating committee We do not believe that such a condition can be read into the understanding of the parties It is clear that Respondent refused to meet with the Union for several months because it believed that the Union was attempting to engage in coalition bargaining . Callahan's letter of April 13, however , proposing an early meeting , clearly states that the Union was abandoning its request for such discussions . There is nothing in Moore's acceptance letter of April 20 which can be read as imposing a condition on Respondent 's acceptance Although Moore refers to the Union's change of position , several paragraphs before his formal acceptance , we do not believe that such a casual reference is sufficient to convert an otherwise unambiguous acceptance into a conditional one. Moreover , even if we assume , arguendo, that Respondent 's agreement to meet on May 4 was conditional, we do not believe that it was conditioned on the Union 's being represented by its traditional committee . Respondent 's concern at that time was not with the composition of the union committee but solely with the Union's attempt to engage in coalition bargaining . Thus, if Respondent's agreement to meet on May 4 was conditional , as our dissenting colleague suggests , the preliminary correspondence between the parties 257 industries, it has become the general practice of negotiators to meet for "preliminary" discussions well before bargaining is required by the contract. As stated by one commentator, Although the bargain itself may continue to be the product of a deadline (this may be unavoidable) there is far greater acceptance of the notion that there is no good reason why the bargaining need be limited to the sixty days prior to contract termination.' 6 In complicated, multiunit negotiations, such as are here involved, "preliminary" discussions have proven particularly valuable. Such discussions provide a forum in which tentative proposals can be exchanged, procedural ground rules established, and routine issues resolved. Through the informal give-and-take of such discussions, the parties may be able to isolate and define the pivotal issues, identify areas of agreement, and narrow areas of disagreement.2 7 Respondent itself has recognized that preliminary meetings "served a very useful purpose in bringing about a sound and peaceful settlement in 1963," and it anticipated similar usefulness for the 1966 meet- ing.2 8 In a report to its employees on August 6, 1963, Respondent described the function of the subcommittee as "this years important way of imple- menting the company's basic year-round `fact finding' approach to bargaining." In a letter to the Union dated November 25, 1965, Respondent proposed that the subcommittees be convened immediately in order to "avoid crisis bargaining next fall." These communi- cations indicate rather clearly that Respondent itself recognized the importance of preliminary discussions and regarded such discussions as an intrinsic phase in the negotiating process.2 9 would indicate that the agreement was conditioned on the Union's willingness to forego coalition bargaining , rather than on its being represented by its traditional committee 26 Friedin , New Collective Bargaining, 50 Va L. Rev. 1034, 1046 (1964) See also Kelly, The Application of "Pre-Activity" in the Guidance of Crisis Bargaining, 18 Lab L.J 47 (1947) 27 Indeed , if, as the Trial Examiner pointed out , bargaining had begun after the full scale reopening of the contract and the parties undertook initially to establish subcommittee and prescribe ground rules for their operation , it could hardly have been argued that during such preliminary discussions the parties were not engaged in the process of collective bargaining. 28 In a letter to Callahan dated January 20, 1966, Moore wrote Surely you must remember the many enthusiastic comments on the work of the 1963 subcommittees-statements not only from members of the management negotiating team but from members of your own negotiating team as well . In fact , one of your international representatives recalled the success of the 1963 subcommittees during our informal meeting with your people in August. While you may now suggest that they were not 'an unqualified success' I continue to feel that they served a very useful purpose in bringing about a sound and peaceful settlement in 1963 and I would hope that we can look forward to using a similar avenue to again reach a sound and peaceful settlement this year 29 The significance of these preliminary meetings is further indi- cated by the fact that the full negotiating committees of both parties were present at the May 4 meeting It is also significant that when the parties first met on August 23, one of their first acts was to establish the same subcommittees which were to have been the subject of discussion on May 4. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that by walking out of the scheduled May 4 meeting because of the presence of "outsiders" on the Union's negotiating Committee, Respondent violated Section 8(a)(5) and (1) of the Act;3 ° and that this violation continued until August 23, the date when Respondent first began bargaining with the Union, and recurred briefly on September 20 and 21 when Respondent, while continuing to bar- gain, refused to recognize or deal with the non-IUE representatives. 3 1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, General Electric Co., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER ZAGORIA, concurring and dissenting in part In all the circumstances of this case, I am not persuaded that Respondent General Electric violated the Act on May 4, 1966, because in my view the preliminary discussions did not involve substantive collective bargaining, but were merely exploratory and ground-rule setting meetings conducted on a wholly voluntary basis. However, it is plain that Respondent's refusal to meet with the I.U.E.'s desig- nated committee on May 4 continued to be Respon- dent's position when true bargaining began, for on September 13, the Company reiterated its position that a "mixed committee" was not appropriate, "that its earlier meetings with such a committee had been held under protest against the mixture and subject to appeal," and on September 20 and 21, the Company completely ignored the "outsiders," until it received word that the Supreme Court had stayed the action of the Court of Appeals in vacating the District Court injunction. I therefore concur with my colleagues' conclusion that Respondent General Electric violated Section 8(a)(5), and would date the violation from August 18, 1966, the date bargaining pursuant to the contractual commitment began. 30 We do not believe that this holding will, as argued by Respon- dent , and also in the dissent , discourage parties from the desirable practice of starting collective-bargaining contract negotiations before the formal contract reopening date . Our holding is a narrow one It is merely that if the parties agree to the early start of negotiations, they must conform to the same standards of good -faith bargaining required of parties after the formal contract reopening date Just as GE on August 18, could not exercise a veto power on the Union 's selection of a bargaining committee , so our present holding is only that GE could not exercise such a veto power during the agreed upon early preliminary bargaining negotiations . We are not holding that GE must consent to contract negotiations before the contract reopening date, nor are we deciding that GE must agree to put into effect immediately any agreements reached during these preliminary negotiations. MEMBER JENKINS, dissenting: In adopting the Trial Examiner's Decision in toto, my colleagues have found that the Respondent was under a duty to bargain with the Union on May 4, 1966, several months prior to the reopening date contained in the then existing contract. I disagree.3 2 The majority decision also concludes that the Charging Union had the right to choose, as its representatives for purposes of collective bargaining, representatives of other unions with whom Respon- dent had statutory obligations to bargain in other units. I disagree. Prior to the 1947 amendments to the Act, the Board construed Section 8(a)(5) of the Act as requiring either party, notwithstanding the existence of a bona fide collective-bargaining agreement, to consider and bargain in good faith upon the proposals of the other. In 1947, Congress, recognizing that the aforementioned policy of the Board was not condu- cive to industrial peace and harmony, amended the Act to include Section 8(d) which specifically pro- vides that the bargaining obligations imposed by the Act "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract". Thus, unless the Respondent's offer to meet with the Union constituted an early reopener of the existing agree- ment, the Respondent's actions on May 4, 1966, can not be the basis of an unfair labor practice charge. I do not think that the facts justify such a finding. Pursuant to a successful past experience, the Respondent on November 24, 1965, proposed the establishment of three subcommittees for purposes of informally delineating and defining the subject matter to be considered at a subsequent appropriate time by the full negotiating committees of the respective parties. Both parties made it clear that while the subcommittees were free to analyze their respective subject areas, exchange ideas, and discuss alternate courses of action, they were to have no power to commit their respective principals for whom they were merely exploring areas of possible agreement or 31 Respondent acknowledges that it was obligated to bargain on and after August 18. Its only defense to the charge that it refused to bargain after that date is based on the presence of "outsiders " on the Union's Negotiating Committee Since we have rejected this defense, we would find that Respondent violated the Act on and after August 18, even if we were to hold that it had no duty to bargain prior to that date. 32I am also in disagreement with the position of concurring Member Zagoria who would date the violation from August 18, 1966, the date on which bargaining was required to begin under the contract, for the reason that there is no evidence to indicate that subsequent to August 18 the Respondent failed to bargain with the Union in any manner other than the alleged breach found by the majority to have occurred on May 4, 1966. GENERAL ELECTRIC CO. disagreement in hopes of preventing what the parties later characterized as "crisis bargaining" by their respective negotiating committees. In subsequent cor- respondence, the Union expressed a willingness to participate in the proposed informal conferences between duly appointed subcommittees, but pro- posed various changes in the ground rules and the establishment of two new subcommittees. Addition- ally, the IUE, whose International officers had recent- ly become affiliated with the Committee on Collec- tive Bargaining, requested the inclusion of such group in the proposed exploratory subcommittee meetings. The Respondent vigorously objected to meeting with the merged group constituting the Committee on Collective Bargaining and made it clear that it had no intention of engaging in group bargaining or meeting with the IUE (or any of the seven other unions with whom it had compulsory bargaining obligations) on other than an individual basis as it had done in the past. Thereafter, following further exchanges between the parties and after the IUE had communicated its intention to abandon its request for a joint meeting, the parties agreed to hold their first meeting relative to the subcommittees on May 4, 1966. When the IUE subsequently appeared at the May 4, meeting accom- panied by personnel from other unions which were contractual representatives for other GE bargaining units, the Respondent refused to proceed with the meeting and left the room. Based upon the foregoing facts my colleagues would find an 8(a)(5) violation. In so doing they overlook the exploratory nature of the proposed subcommittees and the proscription contained in Section 8(d) Contrary to my colleagues, I can find no language in the Respondent's proposals and subsequent com- munications with the Union indicating even an intent to modify Section XXX of the existing contract with regard to reopening same for immediate negotiation of a contract to succeed the one then in effect. In the absence of such language, Section 8(d) makes it clear that the Respondent was under no obligation to commence negotiations. Inasmuch as it was under no obligation, I can not see how its refusal, in all the circumstances herein, to continue meeting with the Union could constitute an act in derogation of the bargaining obligations imposed by Section 8(a)(5). Moreover, even assuming, as found by the majority, that a voluntary agreement had been reached to commence negotiations for a new contract, it is clear that one of the conditions underlying such voluntary agreement was that the IUE was to be represented by its traditional committee. Accordingly, when the IUE appeared at the meeting with representatives of other units it vitiated the voluntary agreement and the Respondent was then free to discontinue the negotia- tions. To reach a different conclusion would have the effect of ignoring Section 8(d) and would dissuade 259 any party to a contract from entering into early exploratory discussions or talks relative to successor contracts since they aught well run the risk of having the statutory obligations contained in Section 8(a)(5) and 8(d) of the Act imposed upon them. In any event, as noted above, it is my opinion that the Union had no right to insist upon the inclusion on its bargaining committee of representatives from other unions having contractual commitments in other independent units of the Respondent. The Board has, of course, recognized that the right of employees to bargain collectively through "represen- tatives of their own choosing" includes the derivative right of the duly elected bargaining agent to in turn select the individuals who will act in its behalf in negotiations with the employer free from control by the latter. However, the Board has on occasion seen fit to temper or restrict such right where it appeared that the unfettered exercise of such right could possibly be detrimental to the employer and the collective-bargaining process. Bausch & Lomb Optical Co, 108 NLRB 1555. On the other hand the Board has refused to qualify the use of the right when the objections thereto were predicated solely on animosi- ty and distrust. Ladies Garment Workers Union, 122 NLRB 1390; Kentucky Utilities Co, 76 NLRB 845. 1 feel that the inclusion of representatives of other units herein shall fall in the former category. Aside from any multiunion or multiunit considerations, the inclusion of representatives from other unions, having separate contracts or certifications with the Respon- dent in other units, in negotiations for employees of a different and independent bargaining unit must by necessity encumber and disrupt the bargaining pro- cess. While, as contended herein, those who represent other units may claim and honestly intend to devote their particular skills solely to bargaining in behalf of the employees currently under consideration, it is virtually impossible for them to separate their own ultimate goals and problems from those of the unit for which they are currently bargaining. Additionally, experience has revealed that during collective bargain- ing negotiations for a multiunit company, such as the Respondent herein, a company may be willing during the give and take of collective bargaining to surrender certain rights or accord greater benefits to a particular unit containing what the company considers its key employees in hopes of recapturing a few benefits or giving less to what it considers a unit of lesser impor- tance. With representatives present from all units at the negotiations, it would be virtually impossible for the company to achieve its aims and possibly amicably settle one phase of its negotiations and obtain a cer- tain measure of industrial peace since the unit to be deprived of benefits would certainly object and most likely prolong the instant negotiations. It is simply a matter of allegiance. In fact the Board in the past has recognized the dangers inherent in conflicts of 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegiance and the possible disruptive effect they could have on truly good-faith bargaining negotiations. Thus, on this ground the Board has refused to allow a supervisor to represent employees for purposes of collective bargaining regardless of the employees' wishes to the contrary and despite the rights accorded the employees in Section 7 to bargain collectively through the representatives of their own choosing. Kennecott Copper Corporation, 98 NLRB 75; Doug- las Aircraft Co., Inc., 53 NLRB 486. Ultimately, to allow representatives of other units to attend and participate in negotiations for a unit which they do not represent may have the effect of broadening or narrowing, at the pleasure of the unions concerned, the numbers, types and locations of the employees covered or affected by the bargain- ing. This in turn would conflict with the responsibili- ty of the Board to determine the scope of the appropriate unit under Section 9 of the Act, and would curtail the Board's power to enforce the good-faith bargaining requirement of Sections 8(a)(5) and 8(b)(3). We do not now permit such alterations of the reach of bargaining except by mutual consent, cf Evening News Association, 154 NLRB 1494, enfd. 372 F.2d 569 (C.A. 6), or through the medium of a UC petition which is particularly designed for this purpose and enables the Board to discharge its responsibilities as to determination of units and enforcement of the bargaining obligations. Accordingly, inasmuch as the 8(a)(5) violations herein were predicated solely upon the Respondent's refusal to bargain with the Union while those repre- senting other units were on its committee, and since I would find that such conduct by the Respondent was not under the circumstances here, violative of the Act I would dismiss the complaint TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID LONDON, Trial Examiner: Upon a charge filed May 9, 1966, by International Union of Electrical, Radio and Machine Workers, AFL-CIO, hereinafter called IUE or the Union, the General Counsel of the Board, on July 13, 1966, issued a complaint against General Electric Company, herein- after referred to as Respondent, the Company, or GE , alleging that Respondent had engaged in conduct violative of Section 8(a)(5) and 8(a)(1) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. The complaint, as thereafter amended,' alleges, in substance, that on and since May 4, 1966, during which time Respondent and the Union, including certain of the latter's constituent locals, were parties to a collective-bargaining agreement expiring on October 2, 1966, Respondent refused to meet and confer with the Union "for the purpose of discussing and negotiating various [proce- dural] issues pertinent to, and in aid of, collective bargaining negotiations for a new collective bargaining agreement to i An amended charge was filed and served on August 17, 1966. succeed the [expiring] agreement" because, among the persons designated by the Union to represent it at such negotiations were persons who also represented other labor organizations which engaged in collective bargaining with Respondent The amended complaint also alleges that on and after August 9, 1966, Respondent refused to meet or confer with the Union for the purpose of negotiating the substantive terms of a collective-bargaining agreement to succeed the expiring con- tract and that Respondent refused to do so for the same reason alleged immediately above for Respondent's refusal to meet and confer with the Union on the previous May 4. With respect to the alleged refusal to meet on May 4, 1966, Respondent's amended answer denied that it refused to negotiate with the Union for the reasons alleged in the complaint and affirmatively pleaded, in substance, that (a) this demand was not made during the period for bargaining prescribed by the then current collective-bargaining agreement, and (b) the subject of prenegotiation procedural matters was not a mandatory subject for collective bargaining With respect to the allegations of the amended complaint that Respondent refused on and after August 9, 1966, to meet or confer with the Union for the purpose of negotiating a collective- bargaining agreement to succeed the current contract, Respondent affirmatively pleaded that commencing in the latter part of 1965, and continuing thereafter, the Union, together with seven other International unions with whom, or their locals, Respondent maintained collective-bargaining agreements covenng employees other than those represented by the Union herein, had proclaimed themselves as a coalition "pledged to confront the Company with uniform demands in collective bargaining, pledged to maintain a unanimous and uniform front with respect to said demands throughout negotiations, and pledged that no one of them would consummate a contract covenng any bargaining unit with Respondent until all should do so." As a further defense, the amended answer pleads that the instant proceeding is now moot and should be dismissed because the Union and Respondent, on October 28, 1966, executed a collective- bargaining agreement effective until October 26, 1969. Pursuant to due notice, a hearing was held before me at New York, New York, and Washington, D.C., on various dates beginning October 31, 1966, and concluding on December 20, 1966 At that hearing, both parties hereto and the General Counsel were represented by counsel, were afforded full opportunity to examine and cross-examine witnesses, intro- duce relevant evidence, to argue orally, and to file briefs. After several extensions of time in which to file such briefs, extensions which were granted by agreement or consent of all parties to the proceeding, the General Counsel, Respondent, and the Union, on or about April 3, 1967, filed briefs which have been fully considered. At the hearing before me, the parties stipulated, in substance, that the record of testimony given, exhibits received, admissions, stipulations and concessions of fact made during the course of a hearing conducted July 25-29, 1966, before the Honorable Marvin E. Frankel, a judge of the United States District Court for the Southern District of New York, in a proceeding by the Board's Regional Director seeking tempo- rary injunctive relief against Respondent pursuant to Section 10(1) of the Act and arising out of the Company's failure to bargain with the Union on May 4, 1966, shall be considered by me as though originally given, received, or made in the instant proceeding. GENERAL ELECTRIC CO. 261 Upon the entire record, and my observation of the witnesses who appeared before me, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times material herein, Respondent has maintained its principal office at 570 Lexing- ton Avenue, New York, New York, and various other plants and places of business in the State of New York and other States of the United States of America, where it is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of electrical equipment and related products During the year 1965, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations, manufactured, sold and distributed at its various plants and places of business, products valued in excess of $10,000,000, of which products valued in excess of $5,000,000 were shipped directly from its various plants and places of business to points outside the States in which the respective plants and places of business are located. Respondent admits, and I find, that at all times material herein it was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act It THE LABOR ORGANIZATION INVOLVED The Union and its constituent locals listed in appendix A to the complaint, as amended by appendix I of Respondent's amended Answer, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Relationship Between the Parties Respondent is engaged in the manufacture, sale, and servicing of a variety of products including basic electrical and electronic equipment, jet engines , chemicals and plastics. It employs approximately 290,000 employees engaged in over 60 plants in 30 States and over 400 other locations such as service shops, appliance repair shops, warehouses, etc., located in all 50 States of the United States About half of these employees are represented by more than 80 unions, and are members of approximately 150 bargaining units. About 80,000 employees in approximately 90 of these units are represented for purposes of collective bargaining by the Union and/or its constituent locals IUE is an international labor union having 600 affiliated local unions with a dues-paying membership of about 314,000 It is the certified bargaining representative for some of the 90 units described above and various of its locals are individually certified as the representatives for the remaining units. Notwithstanding the individual unit certifications and the varying designations of the Union or its locals as their certified representative, Respondent and the Union, through the years, have customarily bargained on a national basis for a national contract covering basic terms and conditions of employment of all the units, such as general wage increases, employee benefits, arbitrations, etc. This national agreement is supple- mented by local agreements which cover other terms and 2 See also General Electric Company , 150 NLRB 192 , 210, 213. conditions of employment such as local working conditions, layoff procedures, individual job rates, etc., not covered in the national agreement. These local agreements are additions to, not variations of, the national agreement Thus, the preamble and article XXX of the national agreement which expired on October 2, 1966, provide, in substance, that the agreement is between Respondent and the IUE acting on its own behalf and on behalf of its various named locals. B. The Mandatory Bargaining Period, the Prematurity Issue In 1955, 1960, and 1963, Respondent and the Union entered into collective-bargaining agreements covering the employees in the units described above. All three of these contracts, the last having a terminable date of October 2, 1966, contained a provision continuing each of said contracts from year to year after the fixed terminal date therein unless either party gave written notice to the other not more than 60 days and not less than 30 days, prior to the expiration date thereof, and that not more than 15 days following the receipt of such notice "collective-bargaining negotiations shall com- mence between the parties for the purpose of considering the terms of a new agreement, and a proposal for a revision of wages which may be submitted by either the Company or the Union." The threshold issue in the proceeding is whether Respondent was required to bargain with the Union on May 4, 1966, when it admittedly refused to do so. In 1955, 1960, and 1963, notwithstanding the contractual provisions just referred to, the parties met on numerous occasions during a period several months prior to the dates fixed by the expiring agreement in order to give consideration to a successor contract.2 The practice was summarized in Respondent's "Employee Relations News, Special Report For All Employees," dated August 6, 1963, as follows- In 1955, for example, the Company met in advance of negotiations with the full union committee to discuss medical insurance. In 1960, General Electric began formal negotiations a month early to fully explore the employment security issue. (Emphasis supplied ) In 1955, with a contract terminating September 15, the parties met on June 22 to discuss medical insurance , and commenced full negotiations on July 19, all well in advance of the mandatory date. In 1960, as noted in the Employee Relations News described above, the parties met a month before the manda- tory bargaining date because, as stated by GE's chief negotia- tor, Philip D. Moore, when testifying in General Electric Company, supra, "we wanted to negotiate on the subject of employment security and reach an agreement on it so that it wouldn't spill out over into our other matters of negotiation." The parties stipulated that in 1963 they commenced their formal negotiations on August 5, approximately 10 days in advance of the earliest mandatory date. Prior to these sessions, and commencing early in May 1963, the parties held numerous meetings of three joint subcommittee, respectively set up to discuss the subjects of arbitration, contract language, and employee benefits. These three subcommittees held a total of over 25 meetings before August 5, 1963. The function of the 1963 subcommittees as defined by Moore in a letter dated April 29, 1963, to IUE negotiator John Callahan, was to engage in "joint studies and discussion of the pertinent subjects, in an effort to identify general areas of agreement or 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disagreement in preparation for formal negotiations " The accomplishment of the 1963 subcommittees was described in GE's Employee Relations News of August 6, 1963, as follows General Electric believes the subcommittees made a signifi- cant contribution in advance of this year's formal negotia- tions by providing a sort of listening-post for both the Company and the unions to express serious concerns, discuss them and more clearly understand them. The defining of areas of agreement and disagreement on both sides cannot help but clear aside a mass of detail that might otherwise have unnecessarily bogged down the actual negotiations. On November 24, 1965, Moore, Respondent's manager, Employee Relations Service, wrote to Callahan, chairman of the Union's Conference Board, confirming Respondent's pro- posal made at a meeting on the preceding November 16 "to consider certain matters that will be open for negotiation in August 1966." The letter suggested the immediate appoint- ment of three committees, one on grievance procedure to convene in December 1965, one on contract language to convene in February or March 1966, and the third on employment security to convene in March or April 1966. The letter concluded with an observation by Moore "that the subcommittees, in 1963, served an extremely useful purpose and [Respondent was] looking forward to similarly construc- tive results this time." On December 21, 1965, Callahan replied agreeing to the use of the three committees Following a further exchange of correspondence between the two men in which Moore emphasized "the benefit of this early and constructive ground work," Moore, on April 20, 1966, wrote Callahan expressing "complete agreement" with the latter's request for an "early meeting" and suggesting May 4 as an appropriate time for that meeting. Respondent's Employee Relations News of July 20, 1966, prepared for circulation among "General Electric Management," proclaims that "seven times since last November-11 months before the expiration of our union contracts-the company has invited the [Union] to come forward to join with the company in prenegotiating meetings to pave the way for a sound, construc- tive result in the 1966 bargaining sessions." The letter attributes the failure of the parties to negotiate during that 8-month period to the alleged purpose of the Union and seven other unions to bargain collectively with Respondent, only "as a coalition," the principal issue involved in this proceeding as will hereafter appear At the hearing before me, Respondent, in accordance with its Answer, contended that by reason of the limitation clause of the 1963 contract heretofore summarized, May 4, 1966, when Respondent admittedly refused to bargain with the Union, or indeed any time before August 18 of that year, was not "a period of mandatory bargaining" and that Respondent could not therefore be found guilty of a refusal to bargain at any time prior to August 18, 1966. I do not agree and accordingly reject this contention as a defense to the amended complaint herein. Instead, on the entire record I find that long before May 4, 1966, in accordance with the prior practice of the parties as heretofore found, Respondent proposed and the Union agreed to commence negotiations on May 4, 1966, for a contract to become effective October 3, 1966.3 Although Respondent contends that meetings designed to discuss ground rules, subject matter and procedure are not part of, but preliminary to, actual bargaining concerning wages, terms and conditions of employment, I conclude that discus- sions designed to prescribe a modus operandi for bargaining sessions, and to narrow the areas of disagreement, are as much a part of the collective bargaining required by the Act, as the give and take on a particular subject of the desired ultimate agreement Had the parties awaited the contractual reopening date, and had the Company at the first session suggested that this first session, and as many others as were necessary, be devoted to ground rules, subject matter and procedure, the Company would not, and certainly could not, take the position that it was not then bargaining concerning a manda- tory subject of bargaining. It is abundantly established by the record herein that Respondent's usual practice was to hold meetings with the Union for a successor contract well in advance of the bargaining dates prescribed by their agreements. The value of that practice in furthering the basic purposes of the collective- bargaining process was acknowledged by Moore in his letter to Callahan on January 20, 1966, in which he characterized the early subcommittee meetings in 1963 as serving "a very useful purpose in bringing about a sound and peaceful settlement in 1963." And, on May 9, 1966, after the Company had refused to meet with the committee designated by the Union, Moore nevertheless acknowledged that it was desirable and important to immediately "get to subcommittee work to develop ideas that will be responsive to the concerns of IUE members and thus avoid crisis bargaining next fall " (Emphasis supplied.) The parties stipulated that between August 23 and October 2, 1966, when they were engaged in bargaining pursuant to district court order, there were five subcommittees selected by the Company and the Union to negotiate the following five subject matters. (1) Grievances and Arbitration Procedures, (2) Contract Language, (3) Employee Security Benefits, (4) Service Shops, (5) Committee on Ways and Means. Of critical significance is that the bargaining use of the subcommittees between August 23 and October 2 is in part the very same work contemplated by the discussions which were scheduled to commence May 4, 1966. The bargaining that occurred between August 23 and October 2 which eventually produced the agreement between the parties was therefore contemplated by the subcommittees which were scheduled to begin working May 4, were it not for Respondent's objection to the composition of the Union's bargaining committee There is no merit to Respondent's contention that the "language of Section 8(d) [of the Act] and the clear import of the contractual language adopted by the parties for the purpose of providing stability during the term of the agree- ment made manifest that the Company, prior to August 18, 1966, was not required to meet with the IUE." Section 8(d) of the Act imposes upon both parties the duty "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder ...... While the section further provides that the duty so imposed " . shall not be construed as requiring either 3 By agreement of the parties of the district court hearing, this so-called prematurity issue was not litigated in that proceeding GENERAL ELECTRIC CO. 263 party to discuss or agree to any modification of the term and conditions contained in a contract for a fixed period, if such modification is to become effective before some terms and conditions can be reopened under the provisions of the contract ...... the proviso has no application to the issue under consideration . Here, there is no contention, not even a suggestion , that the parties were seeking a modification of the substantive terms and conditions of employment contained in the then current contract "to become effective before such terms and conditions can be reopened under the provisions of the contract." Here, the parties were manifestly seeking to negotiate a new contract, to become effective only upon the expiration of the current agreement 4 Though Respondent now pleads its "prematurity " defense that there was no duty to bargain on May 4, 1966, or indeed at any time prior to August 18, 1966, the testimony is undisputed that on May 4, when the parties met pursuant to their agreement , Respondent 's full bargaining committee ap- peared at that meeting , willing and apparently prepared to commence negotiations for a successor contract . Not a word was uttered to the union committee that the time had not yet arrived for negotiations That fateful meeting floundered, as will hereafter appear, only because Respondent refused to negotiate with a IUE committee which included some who were not members of the IUE. Respondent continued that refusal until August 23 , 1966, when it was required, by order of the District Court, to commence negotiations with the designated IUE comnuttee . By reason of all the foregoing, I reject Respondent's defense that notwithstanding its prior agreement to do so, it was under no obligation to bargain with the Union prior to August 18, 1966. C. The History ofNegotiations To conduct the negotiations with the Company, the Union traditionally established a General Electric Locals' Conference Board, consisting of delegates from various locals, which in turn elects a Negotiating Committee. The function of the Conference Board is to elect the Negotiating Committee, to submit to it the Union's proposals for contract terms and, when the Negotiation Committee reports back the results or status of the bargaining, to accept or reject the contract or particular recommendations of the Negotiation Committee. As its name implies, however, the Negotiation Committee is the body which actually sits and bargains with the Company. In addition to the members of the Negotiation Committee elected by the Conference Board, this Committee has normally included the Union's general counsel, its research director, and other technicians who participate in the discussions both at and away from the bargaining table. However, although all the members of this Committee may participate in the negotiation discussions, only those members who are elected by the Conference Board to be members of the Committee may vote on whether or not to recommend acceptance or rejection, or take any action with respect to a proposal or counterproposal. i- 4 C. & S. Industries, Inc., 158 NLRB 454, on which Respondent relies, is inapposite . All that the Board held in that case was that a wage incentive system, unilaterally imposed by the employer during the term of a collective-bargaining agreement , was violative of the Act. It was held to be of no avail to the employer that the union had refused to bargain with respect thereto though given an opportunity to do so. 5 In addition to the IUE, Respondent bargains on a national basis with the United Electrical , Radio and Machine Workers (UE), and the Pattern Makers ' League. The nonelected members of the Committee may participate in discussions, but they do not have the right to vote upon contract terms or on the ultimate determination of the Committee, including whether or not it should recommend that the Conference Board accept or reject a contract or any of the terms thereof. The Conference Board alone is charged with the responsibility of ultimately and finally determining any given questions, including whether or not to accept or reject any proposal or ultimate contract. The Company's practice is to centralize and coordinate all of its national and local bargaining activities It does so by formulating and submitting to IUE and UE a set of proposals for a national contract. 5 At about the same time, according to the testimony of its labor relations counsel, the Company submits its proposals to substantially all the other unions with which it maintains a collective-bargaining relationship, which proposals "turn out to be substantially similar to the one that [is] initially made to IUE." Before these proposals are presented, the various field employee relations managers are called to New York for a meeting at which copies of the proposals are distributed and explained to them. There is a constant flow of communications respecting labor relations between Respondent's national office and its field employee relations managers. Shortly after the national office of the Company presents to the Union its proposals, upon "signals" from Respondent's national office, substantially these same proposals are presented by Respondent's various local em- ployee relations representatives to the various other unions with which the Company deals on a local basis as, for example, locals of the International Associations of Machinists (IAM) Sheet Metal Workers, and of the International Brotherhood of Electrical Workers (IBEW). Generally also, Respondent's con- tract proposals are announced to the employees themselves throughout the country before the Union has advised Respon- dent of its position thereon. D. Events Preceding the 1966 Negotiation 6 For some years before the events giving rise to this proceeding, the IUE and other unions representing Respond- ent's employees were growing increasingly restive and self- critical over the results of their separate, mutually isolated efforts to cope with the Company's centralized bargaining strategy. They believed that they had repeatedly been outmaneuvered when the Company announced that one or more unions had accepted a proposal and used this as leverage to wrest agreement from a more obstinate representative. They believed that the Company's technique had tended to divide and conquer them, so that the terms and conditions of employment for General Electric employees had fallen behind others in comparable industries. They concluded that a program of mutually agreed "national goals" was needed to meet the Company's offering of identical national proposals. It was thought moreover, that there should be a means and a program for communication between the interested unions, 6 After a careful and painstaking review and independent analysis of the entire record herein, I find myself in agreement with a portion of the exhaustive factual findings contained in the excellent and scholarly opinion of Judge Frankel , rendered after the conclusion of the district court hearing mentioned in Statement of the Case, supra By reason thereof, and because I find no substantial probative evidence in the record made at the following Board hearing to cause me to deviate from those findings , I have, to the extent found in the text, taken the liberty and privilege of adopting a portion of those succinct factual findings. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mutual research assistance , coordinated publicity-in short, a substantial measure of "unity" with respect to their bargain- ing activities. Acting on such views, the AFL-CIO, through George Meany, its president, convened a meeting at Washington, D. C., in October 1965, of a group of presidents or other repre- sentatives of international unions which, or locals of which, had bargaining relationships with Respondent. Christened the Committee on Collective Bargaining (CCB), the group at its initial meeting contained officials of the IUE, IBEW, Inter- national Association of Machinists (IAM), United Automobile Workers (UAW), Allied Industrial Workers (AIW), and Ameri- can Federation of Technical Engineers (AFTE) 7 It was determined at the meeting that there should be a "coordinated approach" to the forthcoming 1966 negotiations with Respon- dent A Steering Committee, including representatives of the six unions named above was named, with responsibility for implementing the initial policy determinations, and the struc- ture of some other committees was outlined. It was agreed that there should be a cooperative program of research, education, and publicity, and an effort to evolve a set of "national goals" on wages and other working conditions. Although each of the member unions of the CCB and its Steering Committee were to cooperate and support each other in such matters as education, research and publicity, they were to continue to function individually "as autonomous" umons, just as they had in the past, making their own bargaining decisions and controlling their own destinies, the IUE, and each of the other unions, continued to retain the right to individually control its own bargaining and to decide for itself what agreement it would make with the Company. Although it was felt that in the interest common to all of the unions, and in the interest of courtesy, the various unions should consult with each other and exchange views, if any one of them should decide to take less than any common goal, each of the unions was free at any time to deviate from, or take less than, any of the common goals, or abandon any or all of the common goals in its bargaining with the Company. Following the formation of the CCB, and mainly under the leadership of its Steering Committee, a number of steps were taken to implement the "coordinated approach" to bargaining with Respondent. At the AFL-CIO convention in December 1965, a resolution was adopted reciting that the unions represented on the CCB had "joined together to form a collective bargaining front for the negotiations * * * in 1966" with Respondent and Westinghouse Electric Corporation. The group, the resolution continued, "plan to develop national goals which they will jointly support and prevent the corpo- rations from playing one off against the other." Reciting the view that Respondent (and Westinghouse) had lagged behind other major industries in granting employee benefits, the resolution said: The seven umons have expressed their determination, through an insistence upon genuine collective bargaining, to not only secure action in 1966 on pension and insurance problems, but also to assure their membership the benefits of the breakthroughs being made in recent labor- management agreements on other contractual matters. Experience has shown that in industries in which a number of unions operate, such coordination of collective bargaining is the only way large corporations can be made to face up to their responsibilities. * * * Therefore, be it Resolved. We pledge the full support and resources of the AFL-CIO to the efforts of the Committee on Collective Bargaining, representing the seven unions, to secure justice for their membership in these negotiations, and call upon all affiliated unions to join us in this pledge. Speaking in support of that resolution, IUE President Paul Jennings said As these corporations grow larger and more diversified, it becomes more and more difficult for individual inter- national unions to deal effectively with the corporation's technique of attempting to settle with one union, and then come to the others with an accomplished fact. What we have done, therefore, is recognize the basic fact that we have the responsibility to deal with each other as autono- mous umons. On March 15, 1966, the cooperating unions, now totalling eight, published a document entitled "Program for Progress." On its cover it bore a symbol consisting of a circle of links connecting boxes showing the initials by which the eight Internationals are known Within the circle appeared the legend. "We unite for a greater measure of justice." The text of the paper was preceded by a heading announcing "Joint Union Collective Bargaining Demands for GE-Westinghouse 1966 Negotiations," further characterized by a subheading that said. "National goals adopted by over 300 delegates from the eight International unions at the Conference on National Collective Bargaining Goals in Washington, D.C., on March 15, 1966." The document then proceeded to list, and later to elaborate upon, a series of three "economic issues"' and six "non-economic contract clauses"9 the unions proposed to press in the forthcoming negotiations. The paper concluded with a "Resolution on Unity" which said, inter alia It is now time for us to convey the details of this program to the membership of our local unions At the same time we must communicate with the public in a manner which will create sympathetic understanding of our program and of our objectives. * * * We have developed a sound basis for coordinated negotiations as the result of the spirit of mutual respect and confidence which has been developed to new levels during recent months. *** While we come together as representative of eight different unions accustomed to negotiating with the GE and Westinghouse Corporations on a union by union basis, the companies' representatives have dealt with us and will continue to attempt to deal with us, either locally or nationally, under a centrally controlled program. The fact is that even though the companies have opposed company- wide bargaining on any issue they have, in fact, insisted upon the implementation of company-wide policies during contract negotiations. By the action we have taken here today we intend to confront company-wide policies with a union-wide program. 7 The Committee was later enlarged to include the Sheet Metal 9 (a) A full arbitration clause with no restrictions , (b) the full union Workers (SMW) and the American Flint Glass Workers (AFGW). shop, (c) provisions dealing with automation , (d) continuity of service, 8 (a) Wages (b) holidays and vacations , (c) income and employment (e) antidiscrimination clause, (f) pensions and insurance program. security GENERAL ELECTRIC CO. 265 Our members will know and the companies will know that all bargaining units will be directing their energies toward the same national goals. Of course, in addition, each union will have an oppor- tunity to pursue additional goals necessary to meeting its own problems.*** In the light of these simple and common-sense principles, it is a matter of deep regret, that at least twice in recent weeks, General Electric officials have launched bitter, yet totally unfounded, attacks upon our efforts. They accuse us of wanting to carry on meetings with the company "in secrecy" and of wanting to take away the rights of bargaining units to carry on their negotiations, the company charges that our activities will lead to "industry-wide bargaining" with "strikes and unsound settlements" and "economic strangulation," which, of course, is not true.'** Not only do we reject this obvious attempt to confuse and divide us, but we pledge to each other our mutual cooperation, our mutual understanding and our mutual support. At the meeting in which the foregoing Program and Resolution were adopted, IUE President Jennings observed that the cooperative effort gave the he to those who had deemed such a thing inconceivable because of interunion jealousies, rivalries, suspicion, and mistrust. He rejected as misleading propaganda, the management view that the joint effort would impair the power of individual unions to bargain for themselves. He said: "What concerns these corporations, is that each group as it bargains will have the confidence that all other bargaining groups are going to be asking for the same national goals." Implementing the decision to publicize the joint program and educate the memberships of the several unions, the CCB created a publication called "Unity," the first issue of which (dated March 1966) announced that it would "be distributed to all GE and Westinghouse workers from time to time during the eight-union drive." To the same end, a series of so-called "grass roots meetings" was scheduled and held for the companies' workers in various places around the country, with one or another of the cooperating unions acting as "host" on each occasion. It is the issues of "Unity," the contents of more than 40 other leaflets, newspapers, statements, etc. received in evidence at Respondent's request, and the statements attributed to stewards of union locals at the "grass roots" meetings upon which the Company places its greatest reliance to establish its amended defense, that the IUE, and the other seven unions who had representatives on the CCB and its negotiating committee, had "pledged [themselves] to confront the Com- pany with uniform demands in collective bargaining, pledged to maintain a unanimous and uniform front with respect to said demands throughout negotiations, and pledged that no one of them would consummate a contract covering any -bargaining unit with Respondent until all should do so." Despite what is found above, on the entire record and my observation of the witnesses that testified before me, I find that there was never any conspiracy, agreement, express or implied, among the cooperating unions that none would sign with Respondent unless all signed. Instead, I find there was a mere tacit understanding that before any of them varied or abandoned any of the agreed "national goals," they would inform and consult with each other. The cooperative arrange- ments were instinct with the objective of approaching, as nearly as possible, the kind of unitary stance Respondent regularly took vis-a-vis the several unions. Nevertheless, each union retained the "autonomous" status affirmed in the AFL-CIO resolution of December 1965, so that each was free at all times to sign with Respondent on terms it deemed acceptable for its members. E. The Refusal To Bargain on May 4, 1966 On November 16, 1965, in a telegram to Moore signed by its seven members, including David Lasser as its chairman, the Steering Committee of the CCB invited early negotiations with the Company concerning pension and insurance problems By his telegraphic reply on the following day , addressed only to Lasser as assistant to the president of IUE, after stating that the subject of pensions and insurance "is closed to negotiations until 1968," Moore noted that the Steering Committee's telegram "listed the names of several representatives of other unions." With reference thereto, Moore implied that the other individual signatories to the Committee 's telegram would be ignored because Respondent does "not bargain with their unions at the national level." On November 24, 1965, Moore, in a letter to Callahan, confirmed a proposal Respondent had made for the creation of subcommittees to explore preliminarily the subjects of griev- ance procedure , contract language, and employment security, beginning in December 1965, as groundwork for the 1966 negotiations . Answering for IUE on December 21, Callahan objected to some of the substantive and procedural thoughts Moore had expressed , and made some counterproposals for the subcommittee procedure . Moore treated of these views in another letter dated January 20 , 1966. In answer to this, on February 7, 1966, the CCB wrote to Moore, observed that the subcommittee problem had been "the subject of considerable discussion" between the Company and the several unions, and said Since the matter is common to the eight AFL-CIO unions which are joined together in preparation for these negotiations, and we have given it considerable thought, we are offering you our joint thinking. After outlining the promised "joint thinking," this letter said Since our eight unions have a jointly developed approach on how to create the most successful type of meetings, and since your management has a national policy on this matter, the simplest and most effective solution is a conference between us. On February 15, the Steering Committee wrote again to Moore, this time on one of the pension problems mentioned earlier herein. Among other things, the Committee wrote: Since your offer to each of the unions is the same and we have considered this matter jointly, we believe it would be to the best advantage to all considered that we have a joint meeting in order to discuss your proposals. On February 24, Moore wrote three letters . The first, to Joseph Swire, IUE's Pension and Benefit Consultant, referring to claimed misconceptions in the Steering Committee's Feb- ruary 15, letter, said: It would be most inappropriate for us to respond to the Steering Committee as they requested in their recent letter since this would only serve to create an illusion that national negotiations on benefits are now in process and that locally negotiated contract agreements are subject to alteration at the national level. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You can help to clarify this matter by advising your associates in the other unions that no arrangements have been made between IUE and General Electric which would require or facilitate multi-union negotiations or discussions in that direction Moore's second letter, to David Lasser, as assistant to the president of IUE, protested the proposed "coalition" approach by the unions, observing inter alia. * * * It now appears that [there] * * * is a bid for General Electric to recognize this group as a merged negotiating body. Apparently this new group is seeking to take over negotiations that historically have been earned on by the IUE here in New York, and independently by the seven other unions at the Company locations where they are certified. We realize that it is not our place to advise you and your associates on internal union affairs and that arrange- ments for coalitions and mergers for negotiations purposes have been publicized before as indications of mtra-union cooperation. We also realize that officials of the unions involved may actually have some organizational authority to give up their independence at the bargaining table for tactical reasons. We are not responding to your Steering Committee's two recent letters because by doing so it might create the mistaken impression that national bargaining with local bargaining units is in effect; this is clearly not the case nor do we believe it should be. * * * The letter went on to portray the dangers and defects of "industry-wide bargaining," expressed fears of "experimenting with techniques that go in the direction of unnecessary strikes and unsound settlements," and concluded that such evils could "be the long-term hazard of any coalition in our industry." Moore's third letter of February 24 was to Callahan, congratulating him on his reelection as Chairman of the Conference Board, urging that the parties move forward on the subcommittee problem, and enclosing a copy of the preceding letter to Lasser. Repeating his objections to "coalition bar- gaining," Moore wrote in this letter "... I want to assure you now that there is no likelihood that we will obstruct negotiations with your union nationally or with the other seven unions locally (where they are certified to negotiate) by engaging in coalition bargaining." In a reply of March 10, 1967, among other points of disagreement, Callahan eluded Moore for "choos[ing] to ignore the suggestions of the eight unions completely and, instead, propos[ing] that [the parties] start subcommittee meetings on [Respondent's] unilaterally determined basis." On March 20, 1966, the then eight-union CCB pressed its efforts toward joint sessions in a telegram to Respondent's president, Fred J. Borch, reiterating such points as the following- The contracts of our eight unions with GE on the major issues considered by the [Union] Conference are the same and we naturally have developed a common program to improve our agreements. * * * In order to canvass this whole problem [of a peaceful settlement] facing us jointly as an attempt to lay the groundwork for such collective bargaining, we propose an early meeting with you and your representatives. iO This position was arrived at upon advice of the Union 's general counsel that it "would have to abndon the [iointl approach and go it alone." Such a meeting would be informal and would involve no commitments as to future action by either group Borch telegraphed a rejection of this proposal on March 25. On the same day, Moore wrote again to Callahan, enclosing a copy of the Botch wire, referring to his letter of March 22 on the subcommittee problem, and repeating that the Company remained "receptive to appropriate pre-negotiation discussions with IUE, but ... [did] not intend to participate in any eight-union coalition discussions or in any other steps in the direction of industry-wide bargaining " In his reply to Moore dated April 13, 1966, Callahan unequivocally announced a significant change of position-that the Union was abandoning any request for joint discussions. He said that the Committee on Collective Bargaining and IUE's membership "were truly disappointed that the officials of General Electric did not find it possible to accept the request of the eight union presidents for an informal meeting" to discuss a joint approach "However," he continued, it is clear that General Electric is not willing to hold any such joint meeting, even though it may be informal. The IUE did not intend by its telegram any formal request for joint negotiations. Speaking for the IUE-GE Conference Board, we will not pursue that matter any further and will abandon any suggestions for any such joint meeting or for joint discussions. 10 Callahan went on to discuss still outstanding differences concerning the proposed subcommittee procedure, then said * * * We believe the only way to satisfactorily deal with all of these problems and attempt to resolve them is by a meeting between your representatives and our Negotiating Committee. The IUE-GE Negotiating Committee therefore request that your Company meet with it to discuss all ofthe problems I have mentioned, including the agenda of subject matters for, the number and the scheduling of the proposed subcommittee meetings. Replying on April 20, Moore expressed his satisfaction with the foregoing statement of IUE's position and acknowledged that Callahan had made it "clear that IUE was not supporting joint negotiation...." He suggested, and it was soon agreed, that the committee for the Company and the IUE should meet at 10 a.m. on May 4 in the usual Conference Room at the Company's offices. In preparation for that meeting, as stated in an IUE statement prepared for and delivered to Respondent on May 4, the Union had added to its Negotiating Committee, as nonvoting members, one representative from each of the other seven unions that had comprised, with IUE, the Committee on Collective Bargaining (CCB). The seven were needed, it was stated, to give IUE the benefit of their experience in negotiating with Respondent. Callahan testified, and I credit his testimony, that their presence on the Committee would supply adequate interunion communication as a means of avoiding the "whipsawing" Respondent was thought to have accomplished in the past. It was not intended, by adding these members, to bargain for any unions other than IUE. Nor did the additions reflect any understanding that a proposed agreement between IUE and Respondent would be subject to approval, disapproval, or adoption by any other union. The IUE Negotiation Committee, including the seven men from other unions, arrived at Respondent's offices at about 9:45 a.m. on May 4. A member of Respondent's staff, whose GENERAL ELECTRIC CO. duty it was to escort the Union's committee to the Conference Room, observed that some of the seven men were wearing lapel buttons reflecting their membership in unions other than that of the IUE and hastened to report it to Moore in his private office The latter made the report the subject of a speedy discussion of strategy with his committee and, upon advice of Thomas F. Hilbert, Jr , the Company's labor relations counsel, concluded that the inclusion of the seven in the group, ostensibly appearing for IUE, was a breach of faith, or, at the least, an attempt to use and apply the Board's recent decision in American Radiator & Standard Sanitary Corpora- tion, 155 NLRB 736, which upheld the propriety of such additions to a union negotiating team. Advised by its counsel that the Board'sAmencan Radiator decision should be deemed unsound, and that it should not be followed, Respondent's committee concluded that it would not meet with the IUE group while it included the seven "outsiders." It was decided that the Company's group would repair to the Conference Room, that Moore would state the Company's position, and that they would then depart without tarrying. The plan was executed Moore and his colleagues went to the Conference Room, filed around the table, and greeted the Union's Committee. With all, or substantially all, of the unwanted seven, there was a brief, approximately uniform conversation. As Moore and each of them exchanged intro- ductions, Moore, observing the button worn by the committee member, said "I see you're from [naming a union other than IUE] ," to which each replied that he was appearing this day as a member of the IUE Committee. Following the tour of the table, the Company's people took seats on their side. Callahan said he had a statement to make and handed copies thereof to Moore. The latter, however, said he had a statement to make first, and proceeded to do so Moore said he "must have come to the wrong meeting", that he would not be a party to "coalition bargaining", that he deemed the meeting recessed to 2 p.m. at which time those on the other side were invited to return, "but only with the IUE people." Callahan and Irving Abramson, IUE's general counsel, unavailingly requested an opportunity to explain, repeating their requests several times more shrilly as the Company's people prepared to leave. They managed to shout that their group was intended to be "an IUE Committee," but no more than that before Moore and his colleagues swept from the room. The whole episode took about 10 minutes Later in the morning, Callahan delivered to Moore, at the latter's office, a letter composed after the brief Conference Room encounter. The letter said the Union was "shocked at [Moore's] refusal to meet the IUE-Negotiating Committee and ... [his] intemperate and arbitrary refusal to permit the Committee to respond to [his] false enunciation of the purpose of our Committee." It announced IUE's readiness to resume the meeting at 2 p.m. only "on behalf of the JUE," but insisted that the Union had a "right to choose the represen- tatives of [its] own Committee," and rejected any suggestion that the Company could "designate the composition" of the committee. On May 9, Moore again informed Callahan that Respondent would negotiate with IUE only with "an IUE committee that consists [exclusively] of IUE people." The it Similar protection is provided for the employer by Section8(b) ( 1)(B) of the Act which makes it unlawful for a union "to restrain or 267 parties having adhered to their respective positions, the Union, on May 9, 1966, filed the charge which instituted this proceeding. The Company's contention on the ultimate issue herein, applicable to both its May 4 refusal to bargain and that of the following August, is that "the totality of the conduct engaged in by the IUE and its fellow members in the CCB so imposed on the collective-bargaining process as to privilege the Company's refusal to meet with the IUE's expanded com- mittee." In support thereof, it argues that (1) "the Company's action was privileged because the unions were seeking unlaw- fully to expand the Board's certified bargaining units" and (2) "the `choice of negotiators rule' is not an absolute one and in the context of the facts herein, the Company's action was privileged because the Union's conduct constituted an un- warranted imposition on the bargaining process." Considering these contentions in reverse order, any discus- sion concerning the "choice of negotiators" must begin with obedience to Section 7 of the Act which guarantees employees the right "to bargain collectively through representatives of their own choosing." That guarantee is implemented by Section 8(a)(1) of the Act which makes it unlawful for an employer "to interfere with, restrain or coerce employees in the exercise" of that right.] i To limit the scope of Section 7 merely to the right of employees to determine whether or not they desire represen- tation by a specified union, or indeed by any union as Respondent contends, would make a sham of that entire section. The Union, like the employer herein, can act and negotiate only through designated representatives. The effect of allowing an employer to control or determine who should negotiate for the Union would be not only to destroy the Section 7 right of employees "to bargain collectively through representatives of their own choosing," but would require the Union to bargain with the Company concerning the member- ship of that committee, a purely internal matter unrelated "to rates of pay, wages, hours of employment, or other conditions of employment," the only subjects concerning which either party is required to bargain.i 2 The Board has consistently held that the entire relationship between employees and their union stands apart from any proper concern of the employer in a refusal-to-bargain case. In Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, where an employer insisted upon conditioning the representative's right to act upon an employee vote of approval, the Board held that the employer has no right, once a majority representative has been established, to concern itself with the authority of the union officers designated to speak or act on behalf of the employees. In agreeing with the Board, the Supreme Court characterized the employer's unlawful insis- tence as a matter which "... relates only to the procedure to be followed by the employees among themselves ... It substantially modifies the collective system provided for in the statute by weakening the independence of the representative chosen by the employees." N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, see also Prudential Insurance Company ofAmerica, 124 NLRB 1390, 1397. Admittedly, the rule, like the right of free speech and coerce . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances 12 Section 9(a) of the Act. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assembly, is not absolute, nor must it be mechanically applied. But the rare occasions when it has not been given its full scope, reflected by cases on which Respondent relies, are far removed from that found here Thus, in Bausch & Lomb Optical Company, 108 NLRB 1555, the "precise issue" presented was whether the employer had violated Section 8(a)(5) and (1) of the Act "by refusing to deal with the duly certified representative of its employees because such represen- tative has established a business enterprise in the same locality and industry as that of the employer and has thus become one of its direct competitors." The Board concluded "that the particular circumstances of this case warrant exercise by the Board of its authority to determine that while the Union retains its dual status of bargaining agent and business competitor it is not a proper representative of the Respon- dent's employees for the purposes of invoking Section 8(a)(5) of the Act " The facts in N.L.R.B. v David Buttrick Company, 361 F.2d 300 (C.A. 1) are similar to, and its decision is founded on, the rationale of Bausch & Lomb, supra, the existence of a local union's possible disqualifying conflict of interest arising out of the contractual relationship of its International with a competitor of the employer involved. Both cases are clearly inapposite. 13 Instead, I deem controlling herein the Board decisions in Standard Oil Company, 137 NLRB 690, enfd. 322 F.2d 40 (C.A. 6), and American Radiator & Standard Sanitary Corpora- tion, 155 NLRB 736, presently under review in the Sixth Circuit Court of Appeals In Standard Oil, the respondent, as the Company herein, refused to bargain with the Union because of the presence of the latter's bargaining committee of persons described as "temporary International representatives" which organization the Board assumed, arguendo, "did not represent" the employees involved in the negotiations. The Board held that the refusal was violative of Section 8(a)(5) and (1) of the Act On review by the court of appeals, the court said "The Company's objection to the finding of the Board that it violated Section 8(a)(1) and (5) of the Act presents the question of whether the Company was obligated to meet and conduct bargaining negotiation in the presence of temporary International representatives. The Company objected to the presence of the temporary representives for the reason that they were neither employees of the particular refinery where negotiations were being conducted nor were they regular International representatives assigned to that refinery. The basic reasoning behind these objections was an apprehension that the presence or participation of the temporary employees in the bargaining at the separate refinery would amount to companywide bargaining or at least evidence an acquiescence in such bargaining. The officers of the Company believed that the appointment of the temporary representatives and their participation in the bargaining was part of a subtle plot to bring about companywide bargaining. The unions disclaimed any intention or purpose to try to force companywide bargaining." In affirming the Board's decision, the court of appeals added. "Absent any finding of bad faith or ulterior motive on the part of the unions we conclude that it was the duty of the Company to negotiate with the bargaining committee of the unions at the respective refinery plants even though the temporary representatives were present. " Here, there is no probative testimony that at any time between April 20, 1966, when Moore accepted Callahan's disavowal at "face value," and May 4, the Union, by its inclusion of the seven outsiders on its committee was acting in "bad faith or [with] ulterior motive." Instead of putting the Union Committee to a test of the continuing good faith of its April 17 disavowal by waiting to hear the scope of its demands, Respondent's committee bluntly refused to hear the Union Committee's protestations and arbitrarily walked out of the Conference Room. On the other hand, there is compelling testimony adduced from Respondent's own witnesses, which requires rejection of the Company's amended defense with respect to its May 4 refusal to bargain. Thus, Hilbert, the Company's labor relations counsel, testified that in Moore's private office during the morning of May 4, when the Company's committee was advised that the Union Committee which the Company was awaiting included men who apparently were members of unions other than IUE, he advised Respondent's committee that "the Union is, apparently, seeking to apply the rule of American Radiator and Standard case," adding that he believed that rule to be "novel" and predicting that it "would be upset by the Circuit Court of Appeals, the Sixth Circuit." He further testified that if "the seven representatives of other unions ... hadn't been present, [the Company] would have proceeded with the meeting on May 4 and have over- looked . . . the illegality of the [alleged] lock-in, ... that it was and still is the Company's position, whether it be with respect to pre-negotiating meeting or the [then] currently expected negotiation meetings, that it is not obligated under the disagreement with the American Radiator rule to sit down with the committee on which there are also individuals who, whatever may be their purpose there, happen to be also representatives of other unions." In the American Radiator case, the union involved, Standard Allied Trades Council (SATC) appeared at the bargaining table for negotiations in behalf of employees at that Respondent's Louisville, Kentucky plant. Included among those appearing for the SATC were a representative of the Industrial Union Department (IUD) of the AFL-CIO, two representatives of Local 254 of United Automobile Workers (UAW), and a representative of the International Brotherhood of Boiler Makers, (IBB), none of which organizations had been designated, certified or recognized by that employer as the bargaining agent for its Louisville employees, nor were any of these organizations members of the SAC. The Company objected to the presence of the aforesaid "outsiders" or "strangers" and stated that, so long as they were present, it would not negotiate. Squarely relying on the court of appeals' affirmance in Standard Oil Company, supra, the Board held that the employer had no veto power over the members of the SAC committee and that by refusing to negotiate with that committee it violated Section 8(a)(1) and (5) of the Act. There is not a word of testimony that during the Company's private conference on the morning of May 4, or at the brief session with the Union Committee which followed, that except for the prematurity issue heretofore considered, the Com- pany's unequivocal decision to refuse bargaining with the IUE Committee was based on any ground other than the mere 13 Compare also N.L.R.B. v. Kentucky Utilities Co., 182 F.2d 810, 813 (C.A. 6) with N.L.R.B. v. Roscoe Skipper, Inc., 213 F.2d 793 (C.A. 5) GENERAL ELECTRIC CO. presence of the seven men in question.' 4 Indeed, Hilbert's testimony aforementioned, given on July 29, 1966, long after most of the circumstances upon which Respondent now relies, conclusively establishes that "this was and still is the Com- pany's position."15 That position, however, was and is untenable in light of the Court of Appeals' decision in Standard Oil Company, supra, and that of the Board in American Radiator. According to Hilbert's own testimony, in the private conference in Moore's office during the morning of May 4 he recognized and considered the presence of the "outsiders" on the Union's committee as the Union's exercise of, and reliance upon, the right proclaimed and vouched for by the Board in its American Radiator decision However, instead of obeying the mandate of that decision, resting as it does on the Court of Appeals' decision in Standard Oil, Moore and his committee accepted Hilbert's opinion and belief "that the rule of American Radiator was novel.... [predicted it] would be upset by a Circuit Court of Appeals," and should not be followed. Respondent, in its brief, continues to express its disagreement with that decision and contends that it was wrongly decided.16 Not only am I personally without doubt concerning the soundness of the Board's decision in American Radiator, as a Trial Examiner and arm of the Board it is not for me to speculate upon the fate of that case in the Circuit Court of Appeals For me it is enough that the facts therein are sufficiently indistinguishable from the record herein as to make the Board's rationale and decision binding upon me. I also reject Respondent's other contention that "the unions were seeking unlawfully to expand the Board's certified bargaining units." Whatever desires the CCB entertained for informal meetings with Respondent, that venture was effec- tively put aside by the Union and Callahan by the latter's letter of April 13, 1966, to the apparent satisfaction of Moore as appears by his letter of April 20. In any event, there was nothing unlawful in the early pursuit of that endeavor. With respect to such a proposal, the parties were "free to bargain or not to bargain, and to agree or not to agree." N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 349, N.L.R.B. v. American Compress Warehouse, 350 F.2d 365 (C.A. 5). A problem with respect thereto would arise only if the Union had adamantly insisted upon such broad negotiations to a point of impasse. Here, however, Moore acknowledged on April 20, 1966, that it was then "clear [to him] that IUE was not supporting Joint negotiations" and Hilbert testified that upon receiving Callahan's letter of April 13 the Company "understood that they had given up the coalition attempt, the joint bargaining attempt."i 7 Regardless, therefore, of all that happened before April 20, 1966, on that day, and at least until the morning of May 4, Respondent was convinced that the anticipated demands and negotiations were being proposed only in behalf of IUE. In that state the record, insofar as the Company's refusal to bargain on May 4 is concerned, the mass of evidence relied on by Respondent consisting of statements, circulars, teletypes, newspaper items, etc., issued prior to April 20 by, and pertaining to the aims and activities of the unions 269 represented on the CCB and its Steering Committee lose meaningful significance Nor am I persuaded by anything that occurred or was published between April 20 and May 4, 1966, that the Union together with the seven international unions who had represen- tatives on the CCB were on May 4, or at any time "pledged to maintain a unanimous and uniform front with respect to the [unions] demands throughout negotiations and pledged that no one of them would consummate the contract covering any bargaining unit with Respondent until all should do so." Insofar as reliance is placed on circulars issued by, or statements attributed to, any local union, either before, during, or after April 1966, I find such reliance to be unavailing. "The overwhelming weight of judicial authority, including the Supreme Court of the United States, is that a local union is a legal entity apart from its international .. not a mere branch or arm of the latter" so that, without more, and merely because of the relationship between the two organi- zations, liability is thereby not imposed on the international for the conduct of the local. LB.E.W. (Franklin Electric Construction Company), 121 NLRB 143, 146, citing Coronado Company v. United Mine Workers, 268 U.S. 295, 299, and United Mine Workers v. Coronado Company, 259 US. 344, 393. And though it is true that, in their zeal to achieve the goals announced by the CCB in November and December 1965, the president of the AFL-CIO and officials of one or more international unions represented on the CCB thereafter made exaggerated statements concerning those aims and hopes, I find that circumstance unavailing to Respondent. Whatever beliefs may have been engendered in the Company's mind by such statements, they were effectively dispelled and removed by the Union's renunciation and disavowal of April 13, 1966, and so recognized and acknowledged by Respondent on April 20. The May 4 refusal was not interposed because the Company believed that it was being confronted with a demand for multi-union bargaining. The behavior of IUE and its decision to include represen- tatives of seven other international unions on its Negotiation Committee can be reconciled only with the negation of the alleged pact rather than its existence. Had, in fact, such a secret pact or conspiracy existed on May 4, the designation of seven conspirators on the IUE Committee would be the last thing that IUE as a co-conspirator would do. Any discussion required for the carrying out of the "conspiracy" would obviously' be conducted outside of the bargaining sessions. Cautious conspirators would normally do nothing that would betray their plot, such as the unconcealed addition to the IUE Negotiation Committee of seven "conspirators." On the other hand, if Respondent sincerely believed on May 4 that the Union's letter of April 13 was a sham, that a conspiracy to enforce multi-union bargaining still prevailed, and that the appointment of the seven men to the IUE Committee was merely a "strategem or subterfuge after deliberate equivo- cation" as Respondent now urges, absence of the seven men from the conference table on May 4 could not assure Respondent that the alleged conspiracy or "lock-in" no longer existed. With all the means of communication available to the 14 Respondent , in its posthearing brief conceded that "the Company , controlling here because it is plainly distinguishable on the facts ," I find on April 20, accepted Mr. Callahan 's abandonment at face value " nothing referred to in its brief, or in the entire record , which alters my 15 At another point in his testimony on July 26, 1966, Hilbert conclusion that American Radiator is indistinguishable and controlling affirmed "that if the IUE was willing to come in now without the seven herein. newcomers.... [ the Company ] would sit down with the IUE and 17 In it brief, Respondent further conceded that "the Company, on negotiate with that organization." April 20, accepted Mr. Callahan 's abandonment at face value." 16 Though Respondent also argues that American Radiator "is not 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eight unions, exhaustively developed by Respondent during the hearing, mere absence from the negotiation table of representatives of the seven other unions would serve as no obstacle to effective enforcement of the alleged conspiracy or lock-in agreement. Respondent had within its power the right and opportunity to apply the acid test as to IUE's intentions. All it need have done on May 4 was to engage in discussions to determine whether the enlarged bargaining committee really sought to represent employees outside of IUE's bargaining unit Not only did it fail to do so, it did not even deign to ask Callahan or Abramson for what purpose the "outsiders" were appearing Finally, and assuming that Respondent on May 4 in good faith believed that the committee which it confronted on that day was there for the committed purpose of negotiating a multiunion contract in pursuance to the alleged pact described in Respondent's amended Answer, that belief, in light of my contrary finding heretofore recorded, is of no avail to Respondent in light of the decision of the Supreme Court in N.L.R.B. v. Katz, 369 U.S. 736 at 742. The Court there held The duty to "bargain collectively" enjoined by section 8(a)(5) is defined by section 8(d) as the duty to "meet ... and confer in good faith with respect to wages, hours, and other terms and conditions of employment." Clearly, the duty thus defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in fact-"to meet ... and confer"-about any of the mandatory subjects. A refusal to negotiate in fact as to any subject which is within section 8(d), and about which the union seeks to negotiate, violates section 8(a)(5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. (Emphasis in original text.)' 8 Only a few weeks ago, the Circuit Court of Appeals, in N.L.R.B. v. M & M Oldsmobile, Inc., 377 F.2d 712, (C.A. 2), also had occasion to consider whether or not an employer's good faith, but erroneous, belief that it was not legally obligated to bargain constituted a valid defense to an allegation that such refusal was violative of Section 8(a)(5) of the Act. The court of appeals there said Respondent also contends that its "good faith" allowed it to maintain "forever" its position that the contract had not come into existence. It is true that discussion of the duty of collective bargaining under the Act frequently emphasize the requirement of good faith .... But Respondent misconceives the statutory duty, which includes not only a state of mind but also objective acts. There are situations in which it is not enough that an employer is convinced he is right, in such circumstances, an employer's state of mind is irrelevant and he acts as his peril. See cases collected in Duvin, The Duty to Bargain Law in Search of Policy, 64 Colum. L. Rev. 248, 266-86,...N.L.R.B v Katz, supra, United Aircraft Corp. v. N.L.R.B, 33 F.2d 819, 822 (2d Cir. 1964), cert. denied 380 U.S. 910. [Emphasis supplied.] On the entire record, I find that on May 4, 1966, when Respondent refused to recognize and negotiate with the committee designated by the Union, the Company's refusal was based on one circumstance alone-that the Union had designated as members of its committee men who were not members of the IUE but who normally served as represen- tatives of other unions. By that refusal, Respondent violated Section 8(a)(5) and (1) of the Act. F. The Refusal To Bargain On and After August 15, 1966 As noted in Statement of the Case, supra, the hearing in the 100) injunction proceeding was conducted on July 25-29, 1966. On August 2, while the application for the injunction was pending in the District Court, but before the Court's decision thereon, Callahan wrote Moore that IUE "hereby serves notice" of its intention to terminate the current GE-IUE national agreement, and proposing a meeting of the parties on August 15, 16, and 17 to consider IUE proposals, which he enclosed, for contract changes On August 9, Moore replied agreeing to meet on August 15 "provided there will be no representatives of other unions present. We want to be absolutely clear about this .... To avoid any confusion about this, we would want specific assurances from you that we would not be confronted with a mixed group at any time unless the courts allow it." On August 15, in a telephone conversation between Abramson and Hilbert, the latter re- affirmed the Company's refusal as set forth in Moore's letter of August 9. On August 18, 1966, Judge Frankel's opinion, findings and conclusions were filed, followed by his order on August 23 granting the injunctive relief requested by the Regional Director described above and thereby requiring the Company to bargain with the committee designated by the Union. On August 18, upon being advised of Judge's Frankel's decision, Moore wired Callahan that, in view of the court's decision, the parties start meeting immediately. His telegram, however, contained the following caveat: You understand, of course, that we will promptly appeal the order. Therefore, this meeting and any further meetings between us on the same basis are being conducted under a protest on our part against the presence of a mixed union bargaining committee which includes representatives of other unions which do not bargain with us nationally. i 9 Under Moore's protest of August 18, meetings between the Company and the Union's mixed committee began on August 23 and continued for about 6 weeks without a settlement being reached. With the aid of a panel of Federal Mediators and Cabinet members invoked on October 2 at the request of the President of the United States in order to avoid a 18 See also Garment Workers v. N.L.R.B., 366 U.S. 731, 738-739, and N.L.R.B. v. Allison & Co., 165 F.2d 766 (C.A. 6). 19 On August 24, 1966, Respondent appealed Judge Frankel's decision to the Court of Appeals for the Second Circuit. On September 8, 1966, the district court decision was reversed , not on the merits of the issues involved herein, but exclusively on "the propriety of the Section 10 (j) temporary injunction issued against the General Electric Company " General Electric Co v. McLeod, 366 F.2d 847 (C.A. 2). On September 20, pursuant to the Company's motion for an immediate mandate, the court of appeals directed the district court to vacate its injunction . On September 21, on request of the Board 's Regional Director , a stay of the mandate of the court of appeals was entered by Mr. Justice Harlan of the Supreme Court (87 S.Ct . 5),pending action on the Regional Director 's petition for a writ of certiorari . The effect of this stay was to reinstate the injunction ordered by Judge Frankel. On January 16 , 1967, the Supreme Court granted certiorari and set aside the judgment of the court of appeals (385 U S. 533 , 87 S.Ct. 637). GENERAL ELECTRIC CO. 271 threatened strike,20 negotiations continued until October 14, 1966, when the parties reached agreement on a national contract to expire on October 26, 1969.21 For substantially the reasons explicated in section III, E, above, I also find and conclude that Respondent violated Section 8(a)(5) and (1) of the Act on August 9, 1966, when Moore declined Callahan's urgent request of August 2 to begin negotiations with the Union Committee on August 15, a date admittedly within the mandatory bargaining period. On that day, August 9, Moore wrote Callahan that Respondent was willing to meet with the Union Committee on August 15 provided only "there will be no representative of other unions present," a position reiterated by Hilbert to Abramson on August 15. The Company's willingness to negotiate on August 15, albeit with a Union Committee manned only as demanded by Respondent, is realistically inconsistent with and belies its position that it refused to bargain with the Union on that day only because the Union was still maintaining a coalition with the seven other international union members of the CCB "pledged to confront the Company" with uniform demands for multiuinon and companywide collective bargaining.22 Not only have I found that no such lock-in or pledge ever existed but, as previously pointed out, absence from the conference table on the part of representatives of the seven other International unions could not, as the Company's experienced and competent negotiators must have realized, serve as any assurance to Respondent that the IUE was not, in fact, locked-in or pledged as the Company still pleads. The familiar quotation that "the proof of the pudding is in the eating" may appropriately be invoked here, for there is not a scintilla of evidence that at anytime during the 24 meetings between the Company and the Union Committee which began on August 23 pursuant to the District Court order, that any member of the Union Committee which confronted the Company demanded, suggested, or intimated that the Committee was bargaining, or seeking to bargain, for any employees other than those represented by the IUE. The same absence of testimony is noted with respect to the 14 subcommittee meetings that were held during the same period. The significance of what appears immediately above is not lost or diminished by the activities of the CCB, IAM, SMW, AIW, the AFL-CIO and George Meany its president, and the Federal Mediators, which are exhaustively referred to in Respondent's brief. Insofar as the activities of the CCB are concerned, there is no evidence that the Company was ever aware of the committee's voluminous teletype activities or reports, now heavily relied upon, until they were produced pursuant to Respondent's subpena at the hearing before me in November and December 1966. In addition to the numerous teletypes just referred to, Respondent offered in evidence Respondent's Exhibits 52 and 62. These exhibits are Xerox copies of three additional teletypes, the original of which Respondent contends were submitted to its "community relations" specialist at Bridge- ville, Pennsylvania, by officials of IUE Local 640 for posting at Respondent's plant at that location, where Local 640 is the certified collective-bargaining representative They purport to be copies of teletypes sent by the CCB "to all CCB COORDS." The relevant portion of the two teletypes found on Exhibit 62, were dated October 2, 1966 and read as follows: "The IUE has agreed to the President's request and is postponing the strike for 2 weeks. The Union agreed after Chief Mediator Simpkins gave his word that the contract would remain in force during these 2 weeks. You are to instruct your locals not to go out on strike tonight-Repeat, not to go on strike." Exhibit 52, taped at 10 a.m., October 3, 1966, states that "news reports .. indicate" that IUE Local 301, UAW Local 771, and a third AFTE local had gone out on strike "over local issues " The results of strike vote by other locals of IAM, AFTE, the Teamsters, and Plumbers Union were also reported. The teletype added "While those who are out are legally on strike over unresolved grievances or local issues, and while we can understand their feelings, they are nevertheless breaking the discipline of the coalition effort." (Emphasis added.) Respondent, in its brief, contends that the offered exhibits "contain significant language relative to the actual role played by the CCB in the 1966 negotiations, an issue central to this proceeding." The General Counsel and the Union objected to their receipt in evidence on the ground that proper foundation concerning their authenticity had been laid Ruling on their admissibility was reserved. Though I have doubts concerning the sufficiency of the foundation laid, I have nevertheless concluded to overrule the objections and to admit the two exhibits in evidence as part of the record herein. Notwithstanding the ruling just announced, I find nothing in the two exhibits which causes me to deviate from or modify the conclusion arrived at in earlier portions of my decision pertaining to what Respondent has characterized as "the actual role played by the CCB in the 1966 negotiations." Were it not for what Respondent apparently believes to be the crucial statement in Exhibit 52, "breaking the coalition effort," neither exhibit would merit further individual consideration. That statement, however, is so ambiguous that one can only speculate as to its intended meaning and significance. Respon- dent speculates that it reflects the possession of power by the CCB to impose "discipline" on the constituent members of that Committee, a contention which has heretofore been rejected as groundless. A more reasonable speculation can be indulged in by considering the context in which the statement is found. The teletype under consideration expresses concern over the action of local unions by engaging in strikes "over local issues" and grievances, facts which are of no relevance to the issue before me. The reference to these strikes, however, sheds light and gives meaning to the ambiguous statement relied on by Respondent. These local strikes were imposed at almost the same time that the President interjected members of his cabinet and Federal mediators into the negotiations between the Union and Respondent thereby improving the prospects for early agreement on a national contract between the parties. Because it feared that strike action against Respondent by local unions over local issues would "rock the boat" and jeopardize the negotiations in which the parties and the 20 As previously noted, the Union had terminated the existing agreement between the parties, the termination to become effective October 2 , 1966. Because of "reasons related to national defense," the President requested the Union , and the latter agreed, to refrain from striking for a period of 2 weeks from October 2 21 During most of the time after the Presidential panel entered the negotiations until they were concluded 2 weeks later, the Company and the Union met separately with that panel Their face -to-face confron- tation totaled only 6 hours. 22 For the full scope of this alleged pledge see Statement of the Case, supra. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federal Government were then engaged, the CCB, having a limited, but nevertheless, legitimate interest in the success of those negotiations, sought to avoid all possible obstruction thereto. I adhere to my earlier finding that each member of the CCB retained complete autonomy over all its own activities and affairs and find that the CCB had no authority or power to impose "discipline" upon the Union or any other constituent member thereof. I have no doubt that all of the unions represented the CCB, their officials, and the president of the AFL-CIO, had and showed great interest in the GE-IUE negotiations then current. All the unions referred to had collective-bargaining agreements with Respondent. As previously pointed out, the Company, during negotiations with IUE in 1958, 1960, and 1963, informed that union that with respect to its offer to IUE it was submitting substantially the same offer to the other unions with which it maintained collective-bargaining relationship. Indeed, Hilbert so testified specifically, stating that the offer Respondent makes to "IBEW, AFTE, IAM, etcetera, turns out to be substantially similar to the one that [Respondent] initially made to IUE or UE." Among the most likely subjects for which common proposals to all the unions could be anticipated were holidays and vacations, arbitration, provisions dealing with automation, antidiscrimination clause, pensions and insurance program. There is no contention that it was wrong for the several unions dealing with a single enterprise to consult together, nor is it less permissible for unions so situated to share research and information. In light of that circumstance, and the frustration engendered among the unions represented on the CCB by the practice described in earlier portions of his Decision, it becomes readily apparent why the CCB continued to function and keep its constituent members advised of the status of the negotiations between Respondent and the IUE.2 3 Notwithstanding the utter absence of any testimony that the Union Committee after April 13 ever asked the Company to join with it in coordinated multiumon bargaining, the record establishes that on August 23, when negotiations between the parties began pursuant to the District Court order of that day requiring and obligating Respondent to bargain only with "IUE and its constituent locals," the Company apparently interjected the coalition or multi-union bargaining issue into the negotiations. Presumably because of that tactic, the Union's General Counsel, on August 25, wrote Moore as follows. Dear Mr. Moore I find it necessary to confirm by letter, statements made by me to you, and your Committee across the bargaining table, in response to some inquiries and statements you made yesterday (Wed. Aug. 24, 1966). On Tuesday morning, August 23, 1966, the IUE handed over to you and your Committee copies of a sixty-three page document entitled, "Proposals to the General Electric Company by the IUE-GE Negotiating Committee." On Wednesday morning, August 24th, you took the 23 The Company 's willingness on October i4, when settlement with the IUE was reached, to accept the request of the Federal Mediators that a portion of the agreement reached with IUE "apply to all the unions in the coordinated bargaining group" is, contrary to Respon- dent's, contention , of no significance . In view of the extent to which the Company was engaged in the production of jet engines for the Air Force, parts for helicopters destined for Viet Nam, etc., it is not surprising that the Federal Mediators sought and obtained the coopera- occasion, while referring to the proposals of the IUE, to ask whether the IUE Proposals were "solely an IUE document." I responded to that question then, that anything that you receive, or will receive, across the Negotiating table is, and will be, solely and exclusively, an IUE document. I asked you then whether you understood that statement clearly, to which you replied that you "understood the words." In response to this, John Stanley, a member of the IUE Negotiating Committee stated that "the Company better get to believe them." Later on, during the afternoon session, for reasons that only became clear to me now, you took the occasion to discuss the National Bargaining Goals of the Steering Committee and tried to provoke me into a discussion of what the other International Unions would do at their own bargaining table. I then stated, as I again say to you now, for the 100th time-that we are bargaining solely and exclusively for the IUE, even though we may be discussing some of the national bargaining goals. I asked you also to be sure to enter into your minutes this clear statement and position of the IUE. You have, with studied cunning and trickery attempted to provoke discussions about bargaining activity at other bargaining tables. At each such discussion I have had to remind you that such discussions have no place at this bargaining table. It apparently suits your purpose to cast doubt on our repeated insistence that IUE limit its proposals and discus- sions to the IUE bargaining unit. We therefore urge you to abandon your efforts to widen the scope of our discussions and follow our example of refusing to discuss the bargaining activities or proposals of other unions. Very truly yours, IRVING ABRAMSON, General Counsel On the entire record I find that Respondent's conduct referred to in Abramson's letter was part and parcel of a previously devised litigation posture designed by Respondent to conceal the true reason for its earlier refusal to negotiate with the Committee designated by the Union-the presence of the seven so-called "outsiders." The final chapter in the history of the controversy, enacted after settlement with IUE was reached, provides further evidence that the alleged lock-in pleaded as a defense in Respondent's amended answer never existed. Thus, several of the "co-conspirators" signed longer-term contracts containing settlement provisions which otherwise varied from those agreed to by IUE. Though the agreement with IUE was reached on October 14, 1966, strikes were still in progress by the AFTE and the Steamfitters during the hearing herein, months after the settlement with IUE IBEW, at Westinghouse, rejected the IUE settlement and struck for a period in excess of 4 weeks thereafter. tion of the Company in avoiding further negotiations with other unions pertaining to the final item then under consideration with IUE, retroactivity of the wage scale, a subject in which all of the unions with whom Respondent maintained a collective -bargaining relationship would soon bargain . In this connection , see fn. 18, supra In any event, there is no testimony or claim that this was insisted upon, or even proposed by the Union's Committee. GENERAL ELECTRIC CO. 273 By reason of all the foregoing I find and conclude that by refusing to meet and negotiate with the Committee designated by the Union on and after August 15, 1966, until it was required to do so by the District Court order, Respondent violated Section 8(a)(5) and (1) of the Act. G The Alleged Mootness of the Controversy Respondent, in its brief, urges that by reason of the execution of its contract with the Union on October 28, 1966, for a term ending October 26, 1969, "there is no longer an existing dispute" between the Union and the Company There is no merit to this contention. By its statements and conduct pertaining to the controversy between the parties, Respondent leaves no doubt that at this moment, and hereafter, absent the compulsion of a court decree enforcing a Board order, the Company persists and will continue to persist in its steadfast refusal to recognize any IUE committee which includes members of any other union. Indeed, in its brief herein filed on April 4, 1967, Respondent concedes that its refusal "to meet with the seven outsiders present . . continues to be [its] position to this moment." The thrust of the District court temporary injuncfron has admittedly spent itself In any event, limited as that injunction was to "final disposition of the matters involved pending before" this Board, the instant proceeding is, of necessity, not moot. Furthermore, it is needless for me to speculate on how many occasions will arise in the future when a confrontation between the parties will arise 24 Respondent leaves no doubt that, unless otherwise compelled by Board and court order, it will continue its refusal to face any committee that includes "outsiders." The promotion of industrial peace, the underlying objective of the Act, requires that Respondent be placed under the restraint and command of the Recommended Order that follows. See N.L.R.B. v. Mexia Textile Mills, Inc, 339 U S. 563; NL R.B v. General Motors Corporation, 179 F 2d 221, 222 (C A. 7), N.L.R.B. v. Heck's Inc., 369 F.2d 370 (C.A. 6) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section 11I, above, occurring in connection with Respondent's operations as set forth in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact, and upon the entire record in the proceeding, I make the following CONCLUSIONS OF LAW 1. General Electric Company is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO (IUE), and its constituent locals listed in appendix A of the complaint herein as corrected and amended in appendix I of the Respondent's amended answer are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 3. The various certified units of the Respondent's employ- ees referred to immediately above, constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the IUE and its constituent locals named above herein collectively referred to as the Union, have been, and are now, the exclusive bargaining representative of the employees in the units so referred to within the meaning of Section 9(a) of the Act. 5 By failing and refusing on and after May 4, 1966, to bargain collectively with the Committee designated by the IUE in national level negotiations, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, as provided in the Recommended Order below, which I find to be necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, pursuant to Section 10(c) of the Act, I hereby issue the following RECOMMENDED ORDER General Electric Company, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Refusing to bargain with the IUE by declining to meet with the selected negotiating committee of the IUE because of the presence of any representatives of other unions whom the IUE has invited or designated to attend the negotiations for the purpose of participating in the discussion and advising or consulting with IUE. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action* (a) Meet and bargain, upon request of the IUE, with the selected bargaining committee of the IUE, including any representatives of other unions whom the IUE has invited or designated to attend the negotiations for the purpose of participating in the discussion and advising and consulting with the IUE. (b) Post at all its plants, installations, and other places of business in the United States, at which bargaining units represented by the IUE or any of its constituent locals are 24 Moore's letter to Lasser on November 17, 1965, states that negotiation concerning "pension and pensioneers ' insurance items . . is closed until 1968." 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located, copies of the attached notice marked "Appendix."25 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith 26 25 If these Recommendations are adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommendations of a Trial Examiner " in the notice . If the Board's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." 26 If these Recommendations are adopted by the Board, this provision shall be modified to read "Notify the Regional Director for the Second Region, in writing within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL NOT refuse to bargain with International Union of Electrical, Radio and Machine Workers, AFL-CIO (IUE) by declining to meet with the selected negotiating committee of said union because of the presence of any representatives of other unions whom the IUE has invited to attend the negotiations for the purpose of participating in the discussion and advising or consulting with the TUE. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL meet and bargain upon request of the IUE with the selected bargaining committee of the IUE, in- cluding any representatives of other unions whom IUE has invited to attend the negotiations for the purpose of participating in the discussion and advising and consulting with the IUE GENERAL ELECTRIC COMPANY (Employer) Dated By (Representative) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 5th Floor, Squibb Building, 745 Fifth Avenue, New York, New York, 10022, Telephone 751-5500.