United Aircraft Corp.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Aircraft Corporation (Pratt and Whitney Division) and Lodge # 1746, International Associa- tion,of'Machinists, AFL-CIO United Aircraft -Corporation , (Pratt and Whitney Division) and Award F. Rabowski United' Aircraft " Corporation (Pratt and Whitney Division-Connecticut Advanced Nuclear Engineer- ing Laboratory), and Lodge # 700, International Association of Machinists, AFL-CIO United Aircraft Corporation (Hamilton Standard Division)_and.pLodge #743, International Associa- tiowofoMachinists, AFL-CIO United Aircraft Corporation ('Hamilton 'Standard Division) 'aird Francis J. Karcz, and William A. T"Gr`ant. Cases -1-CA-3355 (1-3), 1-CA-3357, 1-CA-3359, 1-CA-3528, ° 1-CA-3532, I-CA-4201;' 1-CA-4492, 1-CA-3396, 1-CA-4802, I-CA-3358, 1-CA-3372, ,'I-,,CA-3435, 1-CA-3455, 1-CA-3571, 1-CA 3634, r, 1-CA-4202, l--CA-4491, I-CA-3434, and l-CA-3900. July'30, ^ 1971 DECISION AND ORDER OnJuly 25, 1969, Trial Examiner Lee J. Best issued his Decision in -the, above-entitled proceedings, finding that Respondent had engaged in certain, unfaii labor practices alleged in the 'complaint and had not engaged,in others, and reconmiending that it cease and desist from the unfair labor practices found and take certain affirmative action, all as set forth-in the attached Trial Examiner's Decision. Thereafter, the General Counsel, Charging Parties, and Respon- dent filed exceptions to the Trial Examiner's Decision and supporting briefs;' General Counsel and Charg- ing Parties also filed reply briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that, while some of the rulings may have been in error, they were not prejudicial. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases,2 and hereby adopts the findings, conclu- i Respondent has filed a "Motion to Strike Exceptions and Briefs in Support of Such Exceptions filed by Charging Parties and General Counsel" on the ground that they do not comply with Sec. 102.46 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. General Counsel and the Charging Parties filed opposition thereto. We find that the exceptions and briefs objected to are in substantial compliance with the Board's Rules and therefore deny Respondent's motion. Stop & Shop, Inc., 161 NLRB 75, 76. 2 The Charging Parties have requested oral argument . The request is denied as the exceptions and briefs adequately set forth the positions and arguments of the parties. sions, and recommendations of the Trial, Examiner, with, the ° additions and,, -,modifications indicated hereinafter.3 - 1. The General Counsel-and the Charging, Parties, complain that the Trial Examiner was, biased and prejudiced, and request the Board to make de nova resolutions, of the issues, at least where the, Trial Examiner's findings are adverse to them. The adver- saries blame each other, and the General Counsel and the Charging Parties also blame; the Trial; Examiner for. the unusual length of this, litigation. The trial of these cases has not been.a model of how litigation should be conducted, to put it charitably. The trial was accompanied at almost every stage by lack of cooperation, bickering, and,, discourtesy between counsel,,and between counsel for the.General Counsel and the Charging Parties and the Trial Examiner. There is fault enough for, every, body.4 It wouldbe profitless at this date to try, to fix the blame, for the protracted delay in disposing of these cases at the trial stage; we,shall not attempt to do so. As to the claim of bias and,prejudice on the of the Trial Examiner, we reject it. Most of the factual predicates for the Trial Examiner's conclusions are not in, serious dispute. Except as, indicated hereinafter, we agree with the, inferences and conclusions drawn, by the Trial Examiner from these facts., The principal evidence offered to support the prejudice argument is that in adjudicating, the independent violations,of Section 8(a)(1), the Trial Examiner on the basis, of demeanor "discredited every single one of ,General Counsel's_witnesses-unless their testimony was utter- ly unchallenged or uncontradicted by respondent" (Charging 'Parties' exceptions, p. 4.) However, total rejection of the credibility of the witnesses for one party and crediting of witnesses for another "cannot of itself impugn the integrity or competence of a trier of fact."5 The credited evidence does not carry "its own death wound," and the clear preponderance of all the relevant evidence does not establish that the Trial Examiner's credibility resolutions were incorrect .6 We therefore adopt them. 2. We find, in agreement with the Trial Examiner, that Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act because of conduct engaged in by Supervisors Leonard Welles, William Smith, Robert Sweeney, and 3 Subsequent to the issuance of the Trial Examiner 's Decision, the General Counsel filed two motions to reopen the record to receive further evidence bearing on the issues. The additional proffered evidence appears to relate to the issue of compliance. We therefore deny the motion at this time without prejudice to the General Counsel's right to renew his motion at the compliance stage of this proceeding. 4 United Aircraft Corporation v. McCulloch, 365 F.2d 960 (C.A.D.C.); Hoban v. United Aircraft Corporation, 264 F.Supp. 645 (D.C. Conn.). 5 N.L.R.B. v. Pittsburgh S.S Company, 337 U.S. 656, 659. 6 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 192 NLRB No. 62 UNITED AIRCRAFT CORP. Charles Lindsay. We further find, contrary to the Trial Examiner, that Supervisor Charles Hurd's statement to Mrs. Davis, 2 days before the strike, in the presence of two other employees, that "A lot of people are going to get hurt and a lot of people won't be coming back," if they went out on strike, constituted a threat of economic reprisal in violation of the Act. Respondent contends that, in view of the overall employee complement, the Board should consider the foregoing incidents as isolated and not issue a cease-and-desist order. We find no merit in this contention. In our opinion, the number of incidents found unlawful herein, which consisted of threats of economic reprisal, interrogation creating the impres- sion of - surveillance of employees' union activities, and offers of, benefits conditioned upon abandoning the strike, warrants the issuance of a remedial order. 3. In addition to the General Counsel's and Charging Parties' disagreement with the Trial Exam- iner's credibility resolutions involved in his discussion of the alleged independent violations of Section 8(a)(1), they argue that he did not consider certain other testimony relating to the 8(a)(1) violations. In this regard, after ,numerous amendments to the initial complaint were granted ,by the Trial Examiner, the General Counsel 'filed a consolidated amended complaint which included `_"all amendments made and motions granted by the Trial Examiner up to and including March 19, 1965," the date on which the General Counsel rested his presentation of the case. Approximately 60 named supervisors are alleged in the final amended complaint to have engaged in 8(a)(1) violations. However, testimony adduced by the General Counsel attributed unlawful conduct only to 40 of these supervisors, all of which testimony is duly discussed in the Trial, Examiner's Decision, except for certain omissions noted below. In view of the General Counsel's concession on the record that if a supervisor is; "not alleged as committing a specific violation of 8(a)(I), obviously [the Trial Examiner] cannot find it as, a matter of law," the Trial Examiner dismissed the complaint as to 20 of the supervisors.' He did not discuss testimony concerning conduct of supervisors not named in the last amended complaint as having committed 8(a)(l) violations. This testimo- ny was introduced to support the allegation of antiunion motivation in the failure to reemploy all strikers, and not as evidence of independent 8(a)(1) conduct. In view of the concession of the General Counsel, the Trial Examiner was justified in limiting his consideration of 8(a)(1) violations to the conduct specified as such in the amended complaint. 4. As the result of the misspelling of the names of several supervisors in the amended complaint, the T The Trial Examiner's Decision states that Pelletier died in 1966. This is an error, the correct date is as stated above. 383 Trial Examiner dismissed allegations of 8(a)(1) violations as to them, on the ground that he could find no evidence in the record concerning them. Thus, he dismissed allegations involving Supervisors Willis, Postum, and Slaffenhoffer. The correct names of these three supervisors are Welles, Postal, and Schladenhaufen, respectively. The Trial Examiner did discuss the conduct of these three individuals under their correct names. The Trial Examiner also dis- missed allegations involving Supervisor Hurd on the same ground-lack of evidence in the record. This seems to have been an oversight on the Trial Examiner's part, as he did discuss Hurd's conduct and disposed of it on the merits. The Trial Examiner's Decision is amended accordingly. The Trial Examiner also failed to discuss the alleged unlawful conduct of Supervisor Lawrence, who is named in the amended complaint as having violated Section 8(a)(1). According to the uncontradicted testimony of employee Patricia Hoar, near the end of May 1960, which was before the strike started, Lawrence said to her that "he should like to see me think for myself and not listen to the union but listen to what is best for myself . . . that my loyalty was to the company since they were the ones paying me. I told him that money didn't buy loyalty, that you just did the best work you could." We find that this statement by Lawrence was not violative of Section 8(a)(1). 5. We agree with the Trial Examiner's conclusion that no finding of an 8(a)(1) violation should be based upon the alleged statements made to several striking employees by Supervisor Pelletier inviting strikers to return to work so that he could "terminate" them. Pelletier died in 1962„7 before the initial complaint was issued in 1963 and before testimony of the General Counsel's witnesses. In agreeing with the Trial Examiner's conclusion, however, we do not adopt his principal rationale therefor. He stated that the principal reason for his finding of no violation was the rule of evidence that testimony concerning conversations and transactions with a dead man are not admissible. The Board's rule in this regard is not as stated by the Trial Examiner. The Board will consider such evidence, but will subject it to the closest scrutiny before deciding what weight should be given to it.8 As an alternate ground for not crediting the testimony of the employee witnesses as to what Pelletier said to them, the Trial Examiner characterized such testimony as "suspect" and "ambiguous." We have the same suspicion as to this testimony. During the strike, the Respondent contin- ued to operate and welcomed the return of strikers to their jobs. It seems improbable that a foreman would 8 West Texas Utilities Company, Inc., 94 NLRB 1638, 1639, enfd. 195 F.2d 519 (C.A. 5). 384 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD invite strikers to cross the picket line and return to work so that he could terminate them. If Pelletier wanted to terminate them, he could have done so without inviting them to cross the picket line. Accordingly;. we adopt the Trial Examiner's finding that the Respondent did not violate Section 8(a)(1) by the alleged statements of Pelletier. 6. The Trial Examiner found that Personnel Manager Wilhide's statement to employee Desrius- seaux on the picket line, "Come on in. It's your last chance," was not violative ofSection-8(a)(1) and that, in any event, Wilhide was not a supervisor. We agree that the statement was not unlawful, but we find that Wilhide was a supervisor. - 7. The Trial Examiner found that Respondent had not violated Section 8(a)(1) by threatening to bring a civil suit against the Charging Parties as a result of certain union conduct during the 1960 strike unless the Unions withdrew their unfair labor practice charges, or by actually bringing such suit because the Unions had refused to withdraw their charges. Respondent filed suits against the Charging Parties in Connecticut Superior Court seeking damages for alleged - tortious` acts committed by the Unions' members during the course of the 1960 strike and secured judgments against the Unions in excess of $1 million.9 In the Clyde Taylor case,'0 the Board held that, while "the making of a threat by an employer to resort to the civil courts as a tactic calculated to restrain employees in the exercise of rights guaranteed by the Act" was a' violation of Section 8(a)(1), an actual suit was not similarly unlawful. In justification of the latter position the Board majority reasoned that "the' Board should accommodate its enforcement of the Act to the right of all persons to-litigate their claims in court, rather than condemn the exercise of such right as an unfair labor practice."11 Since the Taylor case, the Board has consistently held that the filing of a civil suit cannot be found to be an unfair labor piactice.12 Moreover, Respondent's threat to file such a suit unless an overall settlement agreement was reached was not the kind of "tactic calculated to restrain employees in the exercise ofrights'guaranteed by the Act" envisaged, by Taylor. Respondent be- lieved, as events proved correctly, that it had good grounds for a civil damage suit against the Charging Parties which it was willing to forgo if the Charging 9 United Aircraft Corp. v. IAM, 68 LRRM 2488, 70 LRRM 2577 (Conn. Superior Ct Hartford County, Nos. 133884 and 133885). The Connecticut Supreme Court affirmed the Superior Court's fording' of liability, ^ but directed a new trial with respect to the amount of compensatory damages. United Aircraft Corp. V. Machinists, issued April 27, 1971. 10 Clyde Taylor Company, 127 NLRB 103. 11 Id' at '109. In Raking this position, the Board majority overruled W. T. Carter and Brother, 90 NLRB 2020, and adopted,the view expressed by former Chairman Herzog in his dissent in that case. 12 Smith Steel Workers, 174 ,NLRB No. 41, enfd. in relevant part sub nom. Smith Steel Workers v. A O. Smith"Corporation, 420 F.2d 9 (C.A. 7); Parties in turn would withdraw, their unfair labor practice charges. Under such circumstances, a threat to proceed withF the civil suit cannot be considered as of a "harassing nature." Rather, it appears to be part of a good-faith attempt to negotiate a settlement of the numerous claims arising out of the bitter. 1960 strike, with each party giving up its claims against the other.13 We find nothing unlawful in such a proposal. 8. The Trial Examinerfound that during the period from the termination of the strike to January 1; 1967, except in the categories of transfers and promotions, Respondent did not discriminate against strikers in the process of returning to full production. In so concluding, the Trial Examiner adopted the findings of United States District Judge Clarie in, the Section- 301 suit initiated by the Charging Parties against Respondent.14 The General Counsel and the Charg- ing Parties have excepted to virtually all the findings of the Trial'Examiner relating to this issue, including the findings of Judge Clarie in the 301 suit, which were adopted by the Trial Examiner. We find no merit in these exceptions. The General Counsel and the Charging Parties introduced the record in the 301 suit as an exhibit' in the present case to prove discrimination. Indeed, the evidence as to discrimination in this case consists of little more than the record in the 301 suit. We have reviewed the record and exhibits in that case in the course of our review of the Trial Examiner's Decision. We'concur in the Trial Examiner's characterization of Judge* ,Clarie's opinion as being "a masterly analysis of all the facts and circumstances of the situation." Following extensive pretrial' discovery, the 301 `suit was tried before Judge 'Clarie during an extended recess of the hearing before the Trial Examiner.When the hearing was resumed before the Trial Examiner, the 301 record was, by agreement of the parties, made part of the ' record in this case. At that time Judge Clarie had,not yet rendered his decision in the' 301 suit. Judge Clarie found that while the Plaintiffs (Charging Parties here) had made out a prima facie case of breach''of the Strike Settlement Agreements, the' Defendant (Respondent here) " assumed its burden of going forward, and advanced proof which staisfied the Court, that it had acted in good faith and was motivated by legitimate and substantial business justification in the performance of its obligations G. C Murphy Company, 171 NLRB No. 45; DC International, 1w_162 NLRB 1383, '1394; Fashion Fair Inc., 159 NLRB 1435, 1449; Local 283 United Automobile, Aircraft and Agricultural Implement Workers of America. 145 NLRB 1097, 1121. 13 In the Connecticut suit, the' court found that Respondent, did not "use these lawsuits for bargaining purposes to induce the defendants to withdraw their claims in their action in the United States District , Court." 70 LRRM 2577,2580. 14 Lodge 743, IAM v. United Aircraft Corp., 299 F. Supp. 877 (D.C. Conn.). - UNITED AIRCRAFT CORP. under the Strike Settlement Agreements." In his decision, Judge Clarie set forth at length the argu- ments of the Plaintiffs, especially regarding the central theory of complement depression, and fol- lowed this by an equally extended analysis of the Defendant's evidence in rebuttal. Having relied mainly on the 301 record to support the case for discrimination the Charging Parties now find it necessary to except not only to the adverse findings of the Trial Examiner, but also to those of the similar adverse findings of Judge Clarie. We adopt the findings of the Trial Examiner as well as those of Judge Clarie. In so doing, we find it unnecessary to answer specifically all-the exceptions of the General Counsel and the Charging Parties. However, some brief comments are-appropriate. In their exceptions the General Counsel and the Charging Parties contend that the Respondent de- pressed the complement of employees during the life of the settlement agreements in order to undermine the Union. They contend, in effect, that, if the Respondent had returned all strikers to work at the conclusion of the strike, normal- production could have been resumed immediately. This contention is without merit. As the record reveals, and Judge Clarie found, the Respondent had taken numerous precautions in anticipation of the strike in order to ensure that it could continue production, including the stockpiling of some parts and subcontracting for the manufacture of other parts. As a result, an immediate return to normal production at the conclusion of the strike was impossible, because of the imbalance in the flow of production. If the Respondenthad returned all strikers to work immediately, either the imbalance would have been perpetuated, or there would have been nothing for many of the employees to do while other employees manufactured needed parts. The Respon- dent was not required by the Act to follow such a course of action in order- to reinstate economic strikers. It was required to recall the strikers as jobs became available, and this the Respondent did, with certain exceptions noted, infra, where employees were transferred or promoted. The evidence of the General Counsel and the Charging Parties regarding the depression of the employee complement, provided at most a prima facie showing of a violation, which the Respondent answered by evidence of the production imbalance. The contention of the Charging Parties that the Respondent was required to show which parts were in short, supply, and how production was 15 The recall agreement is denominated "STRIKE SETTLEMENT AGREEMENT," but the term `recall agreement" is more descriptive of its contents. 16 This is the provision in the recall agreementbetween Lodge 1746 and Respondent covering the East Hartford and Manchester, Connecticut, 385 affected, etc., is incorrect. The Respondent answered the prima facie case of the Charging Parties and the General Counsel, and it then became their burden to overcome this answer. This the General Counsel and the Charging Parties failed to do. Based upon uncontradicted evidence before him, the Trial Examiner also concurred in the ruling of Judge Clarie in respect to the settlement agreement violations by the Respondent regarding transfers and promotions of junior employees, and found this conduct also constituted violations of Section 8(a)(3). He suggested either accepting the court's identifica- tion of those discriminatees or holding a later hearing for that purpose. In agreeing with the Trial Examin- er's finding of violations of Section 8(a)(3), we also find that it would avoid duplication of remedies if we adopted the identification of those discriminatees by the court. 9. In June 1960, the Charging Parties began an economic strike against Respondent. As found by the Trial, Examiner, the strike was "accompanied by extreme violence, disorderly conduct, and mass picketing . . . ." With the aid of Governor Ribicoff of Connecticut, high officials of the IAM, including its General Counsel, negotiated, with Respondent terms for the settlement of the issues arising out of the strike. The settlement comprised three parts: (1) procedure for the recall of strikers to work; (2) terms of a new collective-bargaining contract; and (3) submission to arbitration of the cases of 50 strikers whose right to recall was challenged by Respondent on the ground that they had engaged in serious misconduct during the strike. The terms of settlement were approved by the memberships of Lodges 743 and 1746, and thereafter were embodied in three separate documents and signed by authorized repre- sentatives of all parties. The recall agreement 15 provided that strikers who wished to return to work would register for such return in a 3-day period and thereafter would be returned to work in the following manner: (a) if the striker's prestrike job was available, he would be returned to that job; (b) if that job was not available, the striker would be recalled to other available jobs in his occupational group and seniority area in accord- ance with seniority under the newly signed collective- bargaining, contract;16 and (c) if no job was available for the striker under (a) and (b) above, he would be placed on a preferred hiring list and would be recalled to job openings in his occupational group and seniority area 'which developed at any time prior to plants of ,the Pratt and Whitney Aircraft Division. In the recall agreement between Lodge 743 and Respondent pertaining to the Hamilton Standard Division this provision was somewhat different. The difference is not relevant to the issue under discussion. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 1, 1961. It was understood that the preferred employment status of a striker who was not recalled to work by December 31, 1960, would expire on that date.17 The Trial Examiner found, as did Judge Clarie in the 301 suit,"-' that Respondent administered the recall agreement in good faith, except as to minor infringements with respect to certain transfers and promotions. He also,found that the General Counsel had not proved that Respondent had discriminated against strikers either on an individual or group basis prior to December 31, 1960. However, he did find, on the authority of the Laidlaw decision,19 that Respon- dent had, on and after January 1, 1961, discriminated against employees on the preferred list by abondoning that list and hiring strikers only as, new employees without credit for the seniority and other privileges they previously had enjoyed. Respondent has except- ed to this finding of discrimination. We find merit in the exception. In Laidlaw, the Board held, relying on the principles enunciated by the Supreme Court in the Fleetwood Trailer case,20 that after the termination of a' strike economic strikers retain4heir status as employees and may not be terminated even though no jobs are available for them at the time they make application for reinstatement, unless they have found regular and substantially equivalent employmentelsewhere or the employer can show legitimate and substantial busi- ness justification for such termination or failure to 17 Our dissenting colleagues dispute the statement that, according to the understanding of the parties as to the meaning of the recall agreement, the preferred employment status of strikers on the preferred listwas' to expire on December 31, 1960. In the dissenting members' view of the agreement "all strikers who had registered for reinstatement would be recalled until the Respondent reached its prestrike complement, which occurred on April 30,1961." Not only is this view unsupported by the language of the recall agreement, it is contrary to the parties' understanding of the meaning of the preferred hiring list, as found by Judge Clarie in the 301 suit. Lodge 743, JAM v. United Aircraft Corp., supra at 883, 889, 908, 926. Thus, as Judge Clarie described the events leading up to execution of the settlement agreement: At the August 6, 1970 meeting with Thurer, Main and Fraser, when the local union officers were reviewing what had been agreed to the previous day in New York, Burke advised them that after December 31, 1960, the procedure applicable to the preferred list would not be followed; (TR 3006) this point was clearly understood and agreed to before the union called the membership ratification meeting. ( Supra at 926.) Elsewhere, Judge Clarie concluded (at,908) that: The defendant did not even promise to restore all registered strikers prior to January 1, 1961. On the contrary, it was mutually contemplated that all registered stokers would not be restored, because the agreement estanlished the cutoff date of December 31, 1960, for those entitled to receive vacation pay; and it established that date as a limitation on contractual preferential hiring rights. the point was so obvious that, as Judge Glare observed, the Union did not even contend that the recall agreement gave registered strikers any rights after January 1, 1961. ( Supra at 889.) We see no justification for reaching a different interpretation of the parties ' agreement in this proceeding, an interpretation not urged by the Union in the contract suit, when such a claim would have been to its obvious advantage. is Lodge 743, International Association of Machinists, AFL-CIO v. United Aircraft Corporation, 299 F. Supp. 877 (D.C. Conn.). reemploy. However, in Fleetwood; the Supreme Court specifically reserved the question of whether a union could waive the right of strikers to reinstatement ahead of new applicants.21 The Board is charged with the exclusive responsibil- ity of vindicating the public policy as defined by, Section 1 of the Act.22 It follows that the, Board is not bound by any private adjustment of rights guaranteed by the Act 23 But it does not also follow that because the Board is not required to place its,imprimatur upon private adjustments of statutory rights, it may not in the exercise of its discretion accept a particular, private adjustment as conforming to the policy of the, Act and therefore deserving of approval by the Board. For example, the Board has held that it will recognize a union waiver of certain statutory rights, including, the Section 13 right to strike.24 The Board has gone even further and has decided, that in appropriate cases, it will defer to the parties' arbitration agreement and refrain from adjudicating unfair labor practices even though the statute states explicitly that the Board's power to prevent any person from engaging, in, unfair labor practices "shall. not be affected by any other means of adjustment or prevention, that -has been or may be- established by agreement,` law; or otherwise . . . ." (Section 10(l).) All this is founded' upon the interest of encouraging the "practice and procedure of collective bargaining." 25 In Fleetwood itself, the Supreme Court aeknowl-' edged that an economic striker's - right to, reinstate- 19 The Laidlaw Corp, 17 1 NLRB No. 175, enfd. 414 F.2d 99 (C.A. 7), cert. denied 397 U.S 920. 20 N L.R.B. v. Fleetwood Trailer Co, Inc., 389 U.S. 375. 21 Id., at fn. 8, where, the Court said- The respondent contends that -the Union agreed,to a nonpreferential hiring list and thereby waived the rights of 'the strikers to reinstatement ahead of the new applicants The-Board found that the Union, having lost the,strike, merely "bowed to the [respondent's] decision." The Court of Appeals did not rule on this point or on the effect, if any, that its resolution might have upon the outcome of this 'case: Upon remand, the, issue will be, open for such consideration as may be appropriate. 22 Sec. I provides-- It is hereby declared to be the ' policy of the United States' to eliminate the causes of !certain obstructions to the free now, of commerce by,, encouraging the practice and, procedure of collective bargaining and by protecting the exercise by workers of full freedom. of association, self-organisation, and `d'esignation- of representatives of,tbeir own chpb'sing, for the purpose of negotiating the terms and conditions of their employment,or other mutual aid or protection. " ' - u 23 International Union of Electrical, Radio and Machine Workers, Local 613, AFL-CIO v. )V.LR.B,., 328 F.2d 723 (C.A. 3); N.L RB._,v. Threads Inc., 308 F.2d 1 (C.A.4), N.L.RB. v. E.A. Laboratories, Inc., 188 F.2d 885 (C.A. 2); Gale Products, Div.,' of, Outboard Marine Corp., 142 NLRB 1246, enforcement denied 337 F.2d 390 (C.A. 7). 24 See, e.g., Local 174,, Teams , ters, Chauffeurs, Warehousemen &.H.elpers of America v. Lucas Flour Co., 369 U.S. 95; International News Service Division of the Hearst Corporation, ' 113' NLRB 1067 ; Tide Water Associated Oil Company, 85 NLRB 1096, 1098; Shell Oil Company, 93 NLRB 161, 164. 28 International Harvester Cornpany, 138 NLRB 923, eiifdt' sub no'm. Ramsey 'v. N.L.RB., 327 F.2d 784 (C.A. 7), cert. denied 377`U.S.' 1003; Spielberg Manufacturing Company,, 112 NLRB 1080. Member Jenkins does not'rely on International Harvester here. UNITED AIRCRAFT CORP. 387 ment following a strike is not absolute. If, for example, the employer can show that his refusal to reinstate a striker was due to "legitimate and substantial business, justifications," his refusal to reinstate is not an unfair labor practice. And the Court also noted that it is the primary responsibility of the Board and not -of the courts to strike the proper balance, between the asserted business justifications and the invasion of employee rights in the light of the Act and its policy.26 The policy of the Act is not only to protect the Section 7 rights of employees, but also to encourage the "practice and procedure of collective bargaining" as a means of resolving labor disputes.27 This encouragement of the procedure of collective bar- gaining extends to the negotiation of strike settlement agreements.28 In holding that strike settlement agree- ments -are enforceable under Sections 301(a) of the Act, although not collective;-bargaining contracts, the Supreme Court has said (369 U.S. at 27): If this kind of strike settlement,, agreement were not enforceable under § 301(a), responsible and stable labor relations would suffer, and the attainment of the labor policy objective of minimizing disruption of interstate commerce would be made more difficult. There is therefore a public,policy embodied in the Act which favors enforcement of voluntary agreements settling strikes. The strike in this, case was caused by disagreement over terms of a new collective-bargaining agreement. As the strike continued, settlement was complicated by, the violence which accompanied the strike and by Respondent's attempts-to continue operating with the aid of various expedients, including the hiring of new employees, transfers, promotions, overtime, and subcontracting. Respondent insisted, as it had ' a lawful right to do, that it would not reemploy strikers who had engaged in serious misconduct during the 26 N.L.R,B. v. Fleetwood Trailer Co., 389 U.S. 375, 378; The Laidlaw Corp., 171 NLRB No. 175.- 27 "But the rights recognized in § 7 may be affected by a valid collective bargaining agreement ; to deny this would be to ignore not only the exclusive-representation principle of § 9(a) but the whole policy of Congress, set 'forth in § 1, of 'encouraging the practice and procedure of collective bargaining' and relying on such agreements for the maintenance of industrial peace." N,-E.R.B. v. Lundy Manufacturing Corp., 316 F.2d, 921, 925 (C.A. 2). 28 Retail Clerks, International Association, Local Unions, Nos. 128,and 633 v, Lion Dry Goods, 369 U.S. 17. Judge Clarie found (299 F. Supp. at 908): II ]t was, mutually contemplated that all registered strikers would not be restored, because the agreement established the cut off date of December 31, 1960, for those entitled to receive vacation' pay; and it established that date"as a limitation on contractual preferential hiring rights: - - 30 Judge Clarie found (299 F. Supp. at 912): The Court finds after considering the totality of the circumstances, that the plaintiffs have failed to prove , their allegations that the defendant ... deliberately and in bad faith ,depressed the bargaining unit during the life of the Settlement Agreements through December strike, and that it would not discharge striker replacements to make way for the return of strikers. Eventually, the points of disagreement between the parties were resolved by the strike settlement agree- ments described and the strike terminated. In considering whether to modify Respondent's obligation as defined in the recall agreement in view of Laidlaw, we have considered the following factors. The recall agreement was one of three agreements negotiated by the parties in order to settle the issues arising from the strike. The strike was an economic strike. On behalf of the employees and the Unions, the agreements were negotiated by top officials of the Charging Parties who were experienced, competent, and knowledgeable. In order to reach agreement on - disputed issues, Respondent made concessions which it might not have been willing to make if it knew that the Charging -Parties would repudiate part of the recall agreement. The Charging Parties have accepted the benefits of the agreements; in fact, they have sued Respondent for breach of the recall agreement. The recall agreement was entered into by Respondent in good faith; 29 it has also been performed in good faith by, Respondent 30 The recall agreement did not represent an attempt by Respondent to undermine-the Union.. By contemporaneously signing a new collec- tive-bargaining contract with the Unions, Respon- dent guaranteed the continued representative status of the Unions for the life of the new contract without regard to the number of strikers who might not be reinstated. Moreover, Laidlaw was not decided until 1968. At the -time- the recall agreement was- signed in 1960, the prevalent rule could reasonably have been regarded as having ,been that an economic striker's right to full reinstatement-was determined as of, the time that he made his -application for reinstatement, and if no vacancy then existed, the-employer was not required to place his name ©n a preferred hiring list 31 Thus in agreeing to give strikers for whom jobs were 31, 1960 or that it failed to exercise good faith in the performance of the Strike Settlement Agreements to avoid its-contractual obligations. While the plaintiffs placed this question in issue by a prima facie showing, the defendant assumed its burden of going forward and advanced proof which staisfied the Court, that it -had` acted in good faith and was motivated by legitimate and substantial, business justification in the performance of its obligations under .the Strike., Settlement Agreements. , - 31 Brown and Root, Inc., 132 NLRB 486 (1961), enfd. 311 F.2d 447 (C.A. 8); Atlas. Storage Division, 112 NLRB 1175, 1180 (1955), enfd. sub nom. Chauffeurs, Teamsters, and Helpers "General" Local No. 200 AFL, 223, F.2d 233 (C.A. 7); Bartlett-Collins Company, 110 NLRB 395, 397-398 (1954), enfd. sub nom. American Flint Glass Workers' Union v. N.LR.B., 230 F.2d 212 (C.A.D.C.), cert. denied 351 U.S. 988 . These cases were specifically overruled in Laidlaw. The Charging Parties argue in their-reply brief that Respondent is wrong in, stating that the ,rule in 1960 was that if an economic striker , was replaced or if his job was not available at the time he made application for reinstatement , the employer could terminate such employee and its only obligation thereafter to such employee was not to discriminate against him as an = applicant for new employment That this was substantially the holding in the above-cited cases is a tenable conclusion from the fact that in Laidlaw they were overruled to the extent (Continued) 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not immediately available perferred hiring status for approximately 4-1/2 months after termination of the strike, Respondent gave them reinstatement rights which exceeded the requirements,of the law as it was then understood. If, as the Supreme Court has held, an employer can unilaterally terminate the reinstatement rights , of economic strikers for legitimate' and, substantial business reasons, it would seem that such rights should also be terminable by agreement between the employer and the bargaining representative of the strikers. They are in the most favored position to know, the business- needs of the employer and the- prospects. of, substantially equivalent 'employment elsewhere. A union may also by agreement obtain other, benefits-for employees in return for a concession as to-a reinstatement cutoffdate. So long, therefore, as, the period fixed by agreement for the reinstatement of economic strikers is not unreasonably short, is' not intended to be discriminatory, or misused by either party with the object of accomplishing a, discriminato- ry objective,, was not insisted upon by the employer in order to- undermine the status of the bargaining representative,, and was the result of good-faith collective bargaining, the Board- ought to accept the agreement of the parties as effectuating the policies of the Act which, as we have previously stated, includes as a principal objective encouragement of the practice and procedure of collective bargaining as a means of settling labor disputes. In the-present case, the defined reinstatement period was one2,term in a series of agreementssettlingmany issues arising out-of a difficult strike. The agreements reached resulted from good-faith bargaining, with concessions made by both parties. The Charging Parties 'and the employees have received the benefits of other terms of the settlement agreements and do not propose to surrender these' benefits. ' Finally, the economic strikers were given employment' preference rights for 4-1/2 months, a not unreasonably short period, in these circumstances, we believe that it will best effectuate' the policies of the Act to, adopt the agreement ofrthe,parties as determining' the reinstate- ment rights of the economic strikers. Accordingly, we inconsistent with what the Charging Parties now argue was the rule then. Moreover, there was specific precedent for `the validity of the recall agreement in another case decided, in 1958-Wooster Division of Borg- Warner Corporation, 121 NLRB 1492,1495. In that case, the union and the employer executed an agreement at the time a 'strike was settled which provided that a "specified-number of available jobs were to be offered [to strikers ] ,on, the basis of seniority, first, to certain named employees whose jobs-had" not been filled or for whom there ' were jobs. As for those who were not so reinstated, the agreement provided that they would be offered `work' as jobs became available. This preferential-luring, however, was not to extend beyond July 31, 1953 [less than 3 months `after the date of execution of the , agreement ], after, which time reemployment - of 'former strikers would apparently be as new employees." Of the validity of this agreement, the'Board said: ' In its original decision, the Board, found that the strikers were find, contrary to the Trial Examiner, that Respondent did not discriminate against such strikers in violation of Section 8(a)(3) and (1) of the Act by terminating their' employment preference rights as of December 31, 1960, and thereafter treating them as if they were new applicants for employment. - 10. In agreement with the Trial Examiner, and for the reasons stated, by him, we deem the arbitration awards dispositive of the reinstatement rights of those strikers whose cases were by agreement of the Unions and Respondent submitted to arbitration.32 11. Although we are in general agreement with the Trial Examiner's findings and recommendations with regard to the 8(a)(5) allegations of the complaint and are in the main adopting them, we deem it necessary to make certain clarifications, modifications, and additions to those findings. Thus, we note- that 'the Trial Examiner correctly found that the, allegations of the complaint with respect to certain bargaining positions taken by the Respondent in the negotiations prior to the strike in the area of steward representation, recommendation of Respondent's contractual offer to the rank-and-file union membership, and management prerogative as to the removal of work, personnel- and trainees from the unit, were barred by Section 10(b) of the Act' since such proposals were made and the discussions thereon occurred prior to May 21, 1960, more than 6 months prior to the filing of the initial unfair labor practice charges. In this connection, we further find that, while these-, subjects may again have been referred to subsequent to May 21, 1960, in the negotiations leading up to the Strike Settlement' Agreement, the evidence in any event is insufficient to establish that Respondent insisted on the subjects in dispute to point of impasse. With' respect to the subject of steward representa- tion, the evidence established that on several occa- sions ,Responde'nt's foremen refused the request of individual employees for the immediate services of a union steward when a dispute arose over such issues as overtime, assignment of work and absences. In most cases, however, the ' affected employees did, shortly thereafter, on their own or through the -economic strikers. As such, they were entitled to reinstatement unless they had been replaced or their jobs had been eliminated . As'the agreement conformed with Board policies, the Board saw no reason to disturb the parties' settlement agreement. [113 NLRB 1288; 1296.] However, as we now find on remand that the strikers were unfair labor practice strikers, this agreement is in derogation of the strikers' rights and contravenes Board policies. As the strike in the instant case was an economic rather than an unfair labor practice strike, we find it unnecessary to pass on the effect of,a recall agreement on the rights of unfair labor practice strikers , and we do,not do so. 32 See Lodge 743, International Association of Machinists, AFL-CIO v. United Aircraft Corporation, 337 F.2d 5, 11 (C.A. 2), cert. denied 380 U.S. 908. UNITED AIRCRAFT CORP. medium of their respective supervisors, achieve steward representation prior to any disciplinary or other adverse action. In other instances, where the foreman determined that his action with respect to the employee involved did not constitute a violation of the existing contract, the employee, in accordance with the contract in effect, subjected his complaint to the grievance procedure. In these circumstances, we deem the evidence insufficient to warrant a finding of violation of Section 8(a)(5).33 The record further reveals that in September 1963, Respondent determined that five employees in the blueprint crib had been duplicating work performed in other departments and that a layoff was in order: Rather than lay off any of the five employees who had declined offers of other jobs in the bargaining unit, Respondent unilaterally, assigned the affected em- ployees the additional duties of keypunch operator, a salaried position, which resulted-in their removal from the unit. Despite the absence of complaint from the affected employees, the Union, upon discovering Respondent's action, filed a third-step grievance which it later dropped. The 1962 collective-bargaining agreement then in effect gave Respondent the sole right and responsibility for directing operations and for determining the assignment of work to employees and other persons. The contract also contained a union waiver clause applicable to any further collec- tive bargaining with respect to working conditions, "except as, may be dealt with as a greivance under Article V hereof," Inasmuch as the contract gave Respondent the right to assign work to employees subject to, a grievance,- we find insufficient basis for finding that by the aforesaid conduct Respondent violated Section 8(a)(5). 12. The Charging Parties have excepted to the Trial Examiner's failure "to come to grips with the merit rating information issues," and with the alleged failure of Respondent to furnish certain relevant information requested in late 1963 and early 1964. They have also excepted to the Trial Examiner's failure to determine whether the Unions or Respon- dent must bear the costs of preparing copies of the requested information, and -whether Respondent's refusals to furnish "Functional Capacity Records," except in connection with a grievance, ar id the addresses of new employees in the unit were lawful. As to the "merit rating information," we find that, inasmuch as Respondent's refusal to make this information available occurred more than 6 months prior to the filing of the intial unfair labor "practice charge, no unfair labor practice can be based thereon in view of Section 10(b) of the Act. Moreover, we reject the contention of the General Counsel and the 3 See Chevron Oil Company, 168 NLRB 574; Jacobe-Pearson Fort Inc., 172 NLRB No. 84. 389 Charging Parties that Respondent had fraudelently concealed the information requested and that Section 10(b) therefore is not applicable. As more fully set forth in the Trial Examiner's Decision, between the fall of 1-963 and the spring of 1964, the Unions made numerous demands upon the Respondent for information which appear to be relevant and necessary for intelligent bargaining and for 'administration of the existing collective-bargain- ing contracts. Respondent replies to these requests in substance, except as to the "Functional Capacity Records" (separately discussed hereinafter), that it would not expend its own' funds to prepare the reports and information desired, but that it would permit Unions' representatives to examine the underlying relevant records to analyze or treat them, in the manner suitable to its needs. The -Union rejected this offer. Thereafter, in settlement of a proceeding under Section 10(j) of the Act instituted by, the General Counsel to compel production of records, ,the parties stipulated that Respondent at its own expense would give the Unions copies of the information requested with certain deletions,- and that the Unions would furnish a bond to cover -Respondent's costs=in the event that the Board should ultimately rule that Respondent was not legally obligated-to bear or share the costs of preparing and furnishing such copies. Pursuant to such stipulation, Respondent furnished the Unions with copies of the requested records. According to the record, for the period August -17, 1964, through the first quarter of 1968, Respondent expended more than $50,000 in complying with the Unions' requests for information. An employer, if it is to fulfill its bargaining obligation under Section 8(a)(5), is required to furnish relevant information requested by " the employee representative. But it does not follow that the union is entitled to' such information in the exact form,or on the exact terms requested. "It is sufficient if the information is made available in a manner not so burdensome or time-consuming as to impede the process, of bargaining."34 "Good-faith bargaining requires only that such information be made available, at a reasonable time and- in a reasonable placer and with an opportunity for the Union to make a copy of such information if it so desires." 35 These are -the terms upon which Respondent generally offered to make available the information requested by the Unions.` Respondent was not required to duplicate or conform its records, at its won cost, for the conven- ience of the' Unions. 34 The Cincinnati Steel Castings Company, 86 NLRB 592, 593. " Lasko Metal Products, Inc., 148 NLRB 976, 979. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By the stipulation, Respondent agreed to furnish the Unions with copies of "put-on" 36 and "termination" 37 records for unit employees, but deleting therefrom the addresses of such employees. In another proceeding involving the same parties the Board has held, with court approval,, that respondent is obligated,to furnish the union with the names and addresses of employees in, the unit.38 Under. these circumstances, Respondent improperly insisted upon the deletion of addresses from these records and must bear the cost of such deletions.39 By the stipulation, Respondent also agreed to furnish the Unions with copies of the "Employee Service Record" for employees in the East Hartford, Southington, and Middletown, Connecticut,' plants, and with the "Personnel' Data Listing" 40 for employ- ees in the Windsor Locks and Broad Brook, Connecti- cut, plants, excluding from each list data concerning employees not' included in - the bargaining units represented, by the Unions. These service records, compiled at regular intervals for company purposes, contain data concerning employees who are not in the bargaining unit represented by the Unions, as well as those 'who are so represented. In response-,to the demands of the Unions, Respondent had offered to make copies of the compilations available to the Unions provided the Unions would pay, the cost of deleting the-data concerning nonunit employees. In the alternative, Respondent offered to make availa- ble to the Unions', representatives the basic materials underlying the compilations, so that the Unions could prepare their own "lists. The Unions rejected both offers insisting that, as the requested compilations were in existence, they were entitled to copies of them, and that if Respondent desired to delete ngnrelevant information Respondent should bear the cost of such deletions. Respondent was thus prepared to make available to the Unions relevant data; it was within its rights in refusing' to make' available concededly nonrelevant data. As we have stated,' an employer is not required to' make available information in the exact form- or the exact terms requested by the bargaining representative. Inasmuch as the compila- tions 'requested contained irrelevain't- as well as relevant data, Respondent was not required to furnish copies of them in' uncorrected form. Respondent could' lawfully, as it did, offer the Unions access to the 36 When a new employee commences work a "put-on-slip" is filled out. sr A "termination" form is filled ' out each time an employee is terminated. 38 United Aircraft Corporation, 181 NLRB No. 150,, enfd. 434 F.2d 1198 (C.A. 2). -39 In' view of the outstanding order requiring Respondent to furnish names and addresses of employees in the unit, an additional finding or order herein is unnecessary. 440 The "Employee Service Record" and the "Personnel Data Listing" are reports containing data concerning ,plants, departments, and individual employees not necessarily represented by the 'Unions. Such reports list all original records from which relevant data could be drawn, or the compilations, with . the irrelevant, data deleted. But since Respondent was not required to furnish uncorrected copies of ',the complications, it had the right to insist as a condition to furnishing such copies that the Unions pay the cost of deleting therefrom information Respondent was not required to furnish. In response to the Unions' requests for copies of the "Physical Demands Record"' for each job, and "the "Functional Capacity Record" for-every,employee in the bargaining unit, Respondent : refused to `make copies of the former at its expense,,, but, offered to make, them available for copying by the Unions at reasonable times. We, find that,, by, this offer, Respondent complied with its obligation under Section 8(a)(5). 'As to the "Functional Capacity Record" which, is, a'record of physicaldisabilities and infortnities of employees discovered by a physician in a physical. xexamination, Respondent's position was that such records should not be publicized;without' the employee's permission unless and until that individu- al's, physical capacities-'become relevant- to some particular problem. In view of the generally recogniz- ed confidential nature of a physician's report, we find that Respondent's position with respect to furnishing copies of such reports was reasonable„onc and did not violate Section 8(a)(5) of the Act. In summary, we find that, except for the costs of deleting addresses of unit employees frorti relevant records, Respondent was not required to defray, the costs incurred in furnishing copies of -such 'records-to the -Unions; and that Respondent did not violate Section 8(a)(5) in the positions it took on'furnishing information to the Unions.41 AMENDED CONCLUSIONS. OF LAW - " 1. Delete the Trial Examiner's Conclusions of Law 5 and 6, insert the following as Conclusion of Law 5, and renumber the following conclusions consecutive- ly:, 5. By the foregoing conduct, and by threats r of economic reprisal for engaging in .union or protected activities, interrogation, creating the impression of surveillance of union activities, and.offers of benefit conditioned upon ; ceasing to engage, in union activi- ties, and, offers of benefit conditioned upon ceasing to hourly paid ebnployees who work in the 'respective divisions of the Respondent irrespective of their union affiliation or, representation. The employees are listed by name, clock number, plant, department, shift, job code, seniority date, weeks of service', rate, position, and rating group.'The employees are 'further divided in order of seniority by department or area, orjob rating group. 41 We expect the Respondent to produce all relevant information in the least expensive-manner consistent with reasdnable dispatch; the assessment of costs is not to be used as a weapon of harassment Any 'dispute concerning alleged ' excessive costs will 'be treated during the compliance stage of the proceeding. UNITED AIRCRAFT CORP. 391 engage in union or other protected activities, Respon- dent interfered with, restrained, or coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, inviolation of Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Aircraft Corporation, East Hartford, Con- necticut, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with economic reprisals for engaging in union or other protected activities; interrogating its - employees concerning union 'activities in a manner constituting restraint or coercion in violation of Section 8(a)(1); and promis- ing benefits to employees conditioned upon ceasing to' engage in union- or other protected concerted activi- ties. (b) Discouraging membership in Lodge # 1746, Lodge, # 743, and Lodge # 700, International Associ- ation of Machinists, AFL-CIO, or any other labor organization - of its employees, by transferring or promoting employees to positions in violation of the Strike Settlement Agreements. (c) In any like or'related manner interfering with, restraining, or coercing its employees in violation of Section 7of theAct. '- 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: _(a) Identify and offer, according to seniority, to registered strikers on the -preferred' hiring list estab- lished` by the Strike Settlement Agreements, all prestrike positions filled prior to January 1, 1961, by transfers and promotions within the operating organi- zation of Respondent, discharging if necessary the present occupants'-of such positions, unless such strikers were reinstated prior to that ' date to their prestrike or substantially equivalent positions without prejudice to their seniority or vacation or other rights and privileges, and,make each of them whole for any loss of earnings he may have suffered by reason of the discrimination-against him in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Preserve and, •upon request, make available to the Board, for examination- and reproduction,, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine rights to reinstatement and backpay due. (c) Notify immediately the employees involved, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge fromthe Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (d) Post at. -the plants of the Pratt and Whitney Division at East Hartford and Manchester, Connecti- cut, plants of the Hamilton Standard Division at Broad Brook and Windsor Locks, Connecticut, and at its Canel plant, copies of the attached notice marked "Appendix."42 - Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized repre- sentative, shall be posted by it, immediately upon receipt thereof, and- be maintained by it for 60' consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional- Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent - has ' taken to comply herewith. IT Is ALSO ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found.- • MEMBERS FANNING AND BROWN, dissenting-in part: Our disagreement with the majority's opinion is confined to its reversal of the Trial Examiner's conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by requiring al_l' remaining strikers who had registered, to return to work after the strike was settled in August 1960, but were not recalled by December 31, 1960, to apply .as new employees thereby, depriving them of the rights which the Act affords economic strikers 43 42 In the`eventthat this- Order is enforced by a Judgment of a United States Court of Appeals, the words in- the notice reading "POSTED BY ORDER OF THE-NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF, APPEALS ENFORCING AN ORDER OF THE-NATIONAL LABOR RELATIONS BOARD." 43 Member Brown separately dissents , from that portion of the majority's opinion -dealing with the assessment of the costs. For the first time, the majority overrules a, long-accepted custom of the Board not to assess costs against a union, where an employer is required to furnish it information. The. Respondent compiles at regular intervals for its own purposes two lists of records-"Employee Service Record " and "Personnel Data Listing"-for all of its employees. It conditioned the Union's request for copies of these lists, if the latter paid for the expense of eliminating from each list the data concerning employees who are not included within the bargaining units. The majority finds that the Respondent did not violate Section -8(aX5) in requiring the-Unions to defray the costs of obtaining this information. I disagree. To maintain records in the operation of its business, which employs over 20,000 workers, the Respondent utilizes the latest in automatic office equipment, including a computer-printer system. This system is used in the Respondent's preparation of the two lists for its own use. Thus, I can not perceive any undue burdens in supplying the (Continued) 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We agree 'with the majority that the. recall' agreement was entered into in good faith by the parties, but our version as to what they agreed to differs from that--of the majority. They hold that it, was, understood that the preferred employment status of a striker who was not, recalled -by December 31 was terminated on that'-date; and that thereafter the Respondent was free to treat them as any other new applicant for employment. Our view of the agreement is that all strikers who had registered for reinstatement would be recalled until the Respondent reached its prestrike complement, which occurred on April 30, 1961. The recall agreement,is silent as to the status of the striker who would not be recalled by December 31; it merely states that after that -date the Respondent would be free to hire new- employees.44 Certain- implied conditions to the agreement must therefore be considered to ascertain the true understanding of the parties.45 The record shows that during the crucial settlement negotiations conducted on August 5, 1960, by top echelon representatives of both parties, with the Governor of Connecticut in attendance, Martin, F. Burke, Respondent's vice president and chief negotia- tor, made it plain that all of the strikers (except for 50 who had allegedly engaged in misconduct and whose, cases were to be separately arbitrated) would register to return to work and that, although all of them could not be immediately reinstated, the remaining strikers would he, placed on a preferential hiring,list and recalled from that list until the Respondent expected to - reach its prestrike _ complement. The parties then agreed to the December 31 date.46 Burke further explained that, there would be a sufficient turnover among the permanent replacements hired, during the - strike and that these vacancies would also be filled by, the strikers, on the, preferential list by the end of, requested information, especially 'since' there is testimony by a' computer programmer employed by the Respondent which indicates that the- information requested herein by the Unions (i.e., the two lists containing the names'of'employees only in the,bargaining units) could be supplied with minimal cost and'effort. Moreover, if the information . sought is relevant to intelligent bargaining, as conceded herein, I do not believe that, the Board should get involved with the matter of costs, which would open, the door to probable harassment and dilatory conduct during the critical' period, of-collective-bargaining negotiations. Accordingly, I'would find-that the Unions are entitled to the information without any assessment of costs and that the Respondent violated Section 8(aX5) and (1) of the Act by, insisting on such costs as a 'condition of furnishing the,, information requested by the Unions. 44 TXD, Strike Settlement Agreement, 14(c): "Strikers . on a Preferred Hiring List .' . will be recalled ... at any time prior to January 1, 1961 before new employees ire hired." Clearly, the parties agreed- under this section that the Employer would not hire any new employees without recalling ' strikers before Januay 1, 1961. There is nothing in this 'provision,' however, to suggest that the parties further agreed that subsequent to January I ' those strikers who had not been recalled would lose' their statutory employment status under Section 2 (3) of the Act. The Employer's right to lii`re new employees after January I does not carry with it the'right to insist, approved as lawful by the majority, that the striker-employees, when 'recalled after that date, could only-return to their jobs as new employees. October 1960, according to the estimated figures he presented.47 Thus, the December 31 date was to, allow some; leeway in -accomplishing the reinstatement of the strikers under normal business conditions; and all of the strikers would have been recalled by that date, at the latest, but for the serious economic setback experienced by the Respondent during the August- December 1960 reinstatement period. ; That all of the remaining strikers not recalled by December 31 could have been- recalled by April 30., 1961, the date that Respondent achieved its prestrike complement, is clearly established by the fact Res- pondent hired more than 2,000 new employees during the January-April period, when business conditions improved, in addition to the 450 strikers who were also hired as new employees during, the same period; and there still remained approximately 730 strikers who had also been forced to apply'as new employees and had not yet been recalled by April 30 48 As we, see the agreement, the Respondent's inability to recallall, of the strikers by December 31 due to its unforeseen economic problems amounted to a mere temporary impossibility to comply, therewith, but did not suspend its duty to recall all remaining.strikers until it reached the prestrike complement.49 Accordingly, we would find that the Respondent reneged in, its agreement and unlawfully discriminated, against all remaining strikers who should have been recalled by April 30, 1961;, and to whom we would grant full reinstatement and backpay. Assuming that the recall agreement, as found by the majority, provided that after December 31 the Respondent had no obligation whatever to the striking, employees who had not been reinstated, by that date, we would be compelled to hold that such a result was repugnant to the,,purposes and policies-of the Act. The effect of the majority's interpretation of 45 Judge Clarie's opinion, in the Section 301 suit; which resolved the issues herein is they relate to Respondent's good faith :in racalling strikers only up to December 31, 1960, and which conclusion,was adopted by-the majority and in which we concur, also resorts to then plied conditions of the agreement for a better understanding of the parties ' intent: See 299 F.Supp. 877, 903. 1 _ ' 46 At the hearing before Judge Clarie, Burke testified as follows as to his version of the settlement with, respect to returning strikers : "well, we! told them we -could not employ all of them. We suggested th'a't they have them registered and if their jobs were available, and we had work for them in the shop, they would , be put back to work-I think we,said immediately„ as soon as we could possibly get through the job of signing them up, and getting the thing in operation . If the jobs had been filled and they were not available, they would be placed on a preferred hiring list;-and, would be hired-well, we would do our hiring and filling out of any, complement that we needed from that list. The. period agreed upon was until December, 31, 1960." [Emphasis supplied pp. 9516-17.1, 47 Id., pp. 9550-54: !See also TXD, p. 52, 11. where the 800 students referred to therein were considered by-Respondent as permanent replacements, who would leave after LaborDay 1960. 48 After January 1; 1961, the Respondent invited between 1,550 and 1,700 strikers who remained on the preferential hiring list to apply as a new employees; only about 1,180 of them did so. r. 49 Restatement of the Law, Contracts, Sec. 462`pp. 868-'869 (1932). UNITED AIRCRAFT CORP. 393 the agreement is to limit reinstatement rights of economic strikers to a 4-1/2 month period, even though it is conceded that they had not been permanently replaced. There remained over 1,500 striking employees who would lose all seniority rights by being treated as new employees without regard to any possible temporary economic setback of the Employer's business that may eventuate; and would create a serious conflict with Section 9(c)(3) of the Act which provides for the eligibility of economic strikers to vote in a representation election for a period of 12 months after the commencement of a strike. Because of the latter factor alone, it seems doubtful that the Board should honor any strike settlement with a terminal date of less ,than 1 year. Although we also encourage the voluntary settlement of labor disputes by 'the- parties involved, we would not honor a private agreement which purported to deny to so many employees so man y statutory rights guaranteed them by the Act.50 Moreover, the Respondent's good faith in entering into the agreement became suspect after December 31, as it ran newspaper ads for new employees and there is no. explanation for the hiring between January-April 1961 of such a larger number of new employees as compared to strikers with superior work experience. Such conduct is inherently destructive of important employee rights, without reference to employer intent.51 Even if there may.exist a limited area in which the parties could waive strikers' recall rights,52 this is not an appropriate case in which to approve such a waiver. As we would find that after December 31 the remaining strikers retained their status as employees who were entitled to full reinstatement, with noloss of seniority and other privileges, we need not reach the concern of the majority that the Trial Examiner's reliance on Laidlaw 53 constitutes an unwarranted retroactive application of certain asserted new princi-, pis enunciated by the Supreme Court in its Fleetwood decision. In our, opinion, a more precise precedent for the Trial Examiner's finding of an 8(a)(3) violation was Fleetwood, which did not make` new law with regard to the reinstatement rights of the economic strikers there involved and the ones in the instant case. In, both situations, the employer had not permanently replaced the strikers and had not reached its prestrike complement, when the strikers requested reinstatement after the strike ended. The 50 Erie Resistor Corp., 132 NLRB 621, 631, affd. 373 U.S. 221. The majority's reliance on the original Wooster Division case (113 NLRB 1288; 121 NLRB 1492, second decision after remand) to support its approval of the=recall agreement is not adequate precedent. That case was issued before the 1959" amendments to the Act which enacted the above-mentioned provision concerning a striker's eligibility to vote in an election. Moreover, a significant factor in -the,Wooster case was that substantially all of the striking employees were, reinstated. Concerning the instant proceeding, we cannot agree with the majority's view that the recall agreement gave superior rights to those strikers who had not been permanently replaced: Court in Fleetwood held that strikers in the foregoing status do not depend on job availability as of the day they abandon a strike and request to return to work. On the contrary, the status of a striker as an employee continues until he has obtained other substantially equivalent employment or the employer, can show some economic justification to defeat his status. In the words of the Court: Frequently a strike affects the level of production and the number of jobs. It is entirely normal for striking employees to - apply for reinstatement immediately after the end of the strike and before full production is resumed. If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the employer can show "legitimate and substantial business justi- fications." 54 The Court noted two types of situations where an employer may be justified, in' refusing to reinstate economic strikers, both of'which were considered by the Board long before Fleetwood The first is when all of the jobs claimed by the strikers are occupied by workers hired as permanent replacements during the strike in order to continue operations; 55 and the second basis is the elimination of a striker's job for legitimate economic reasons.56 In finding an 8(a)(3) violation in Fleetwood, the Court emphasized the fact that the employer, as the Respondent herein, intended to, achieve its prestrike complement ,after the strike ended, but hired new employees instead of strikers. In Laidlaw, The Board found that the employer violated Section 8(3) of the Act by,'terminating the employment status of strikers whose jobs were held by replacements on the date they applied to return to work, instead of recalling them as. ,vacancies arose. The Board's holding rested on alternate grounds. First, that the employer's action was motivated by animus against the strikers; second, even absent an unlawful motive, the employer's action in hiring new employees rather than recalling strikers as jobs opened was inherently discriminatory, as no substan- tial business justification was shown, citing Fleetwood Thus, one ground for finding a violation was the classic basis of unlawful dicrimination; the other was on the basis of the Fleetwood principle that a striker's status as an employee does not depend on availability as of the day he request to return to work. Although 51 See N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 380. 52 Id at 381, fa. 8. 53 The Laidlaw Corp., 171 NLRB No. '175, enfd. 414 F.2d 99 (C.A. 7), cert. denied 397 U.S. 920. 54 Fleetwood supra at 381. 55 Mackay Radio & Telegraph-Company, 1 ,NLRB 201, affd. 304 U.S. 333, 345-346 (1938); Brown and Root, Inc., 132 NLRB 486, 493.494 (1961). 55 Atlas Storage Division, 112 NLRB 1175, 1179-80 (1955), ,enfd. sub nom. Chauffeurs Local 200 v. N.L.R.B., 233 F.2d 233,238 (C.A. 7). 394 DECISIONS OF NATIONAL the Board in Laidlaw may have enhanced the striker's right to reinstatement on the basis of a , reasonable interpretation of the Fleetwoodrationale, and could-be considered as a retroactive application of a principle not in -existence when. the instant conduct herein occurred, it does,not,f®llow that such application is improper. The Board, in Laidlaw, balanced the mischief of producing a result that would completely ignore the statutory rights of the employees there involved against the employer's asserted reliance on a prior Board rule or , policy relating to economic strikers. Were it necessary for us to make a determina- tion of such issue herein, the equities would clearly favor the strikers. APPENDIX - NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United' States Government The National Labor, , Relations Board having found, after'-a trial, that we'violated Federal law by certain conduct, we hereby notify our employees that: WE WILL "NOT ` threaten 'our employees with reprisals because they engage'in union activities. WE WILL NOT question our' employees about their union 'activities so as to create the impression that we are unlawfully watching those activities. WE WILL NOT promise benefits to our employees in order to discourage then! from engaging in union activities. WE WILL NOT discourage membership in Lodge # 1746, Lodge # 743, and Lodge # 700, Interria- tional Association of Machinists, AFL-CIO, or any other labor organization of our employees, by transferring or promoting them to positions in violation of,the Strike Settlement Agreements. WE WILL reinstate and give backpayto those of our employees"' who were -not reinstated to their positions after the 1960 strike in violation of the Strike SettlementAgreements. WE WILL NOT unlawfully interfere with our employees' union activities. UNITED AIRCRAFT CORPORATION (Employer) Dated By (Representative) (Title) We will notify immediately the employees involved, if presently serving in the Armed Forces of the United States, of the right- to full reinstatement, upon application after discharge from the Armed forces, in LABOR RELATIONS BOARD accordance with the, Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This -notice must remain posted for 60 consecutive days from,the date of posting and must not be altered, defaced, or covered by any other material, , Any questions concerning this notice or compliance with its provisions may be directed to the. Board's Office; Bullfinch Building,. 15 New,Chardon Street, Boston, Massachusetts 02114; Telephone 617-223- 3300. TRIAL EXAMINER'S DECISION - STATEMENT OF THE CASE LEE J. BEST, Trial Examiner: These cases 'brought under Section 10(b) of the National Labor Relations Act (herein called the Act), and consolidated for the purpose, of hearing pursuant to Section 102.33, Rules and, Regulations of,the National Labor Relations Board, Series 8, as amended, were heard before' me at numerous intermittent sessions beginning, on" May 16, 1963, and closing on`June-11,1968; at which all parties were present and represented by counsel, afforded full opportunity to be-heard, to examine and, cross-examine witnesses, to introduce evidence perti- nent to -the issues involved, to present oral argument-on the record, and to file written briefs with the Trial Examiner. Pending charges and proceedings herein against the Pratt & Whitney Division,_United Aircraft Corporation, consist of the following: Case 1-CA 3355(!-3) in which the initial charge was filed on November 21, 1960, by Lodge # 1746, International Association of Machinists, AF 'L-C16` Case l-CA--3357 in which the initial charge was filed on November 23, 1960, by Lodge # 1746, and :thereafter` supplemented on successive dates by 14 amended charges up to-and including September 30, 1963; Case 1-CA-3359 in which the initial charge was filed on November 25, -1960 by Lodge „# 1746; Case 1-CA-3396, in which, the initial charge was filed on January, 25, 1961, by E4ward ' F. , Grabowski (an individual); Case 1-,CA-.3528, lin which the initial charge was filed--on July 13, 1961, by Lodge # 1746; Case 1-CA-3532 in which ' the initial charge was filed on July' 24; 1961, by Lodge # 1746; Case 1-CA=420-Fin-which the, initial charge was filed on -June 7,'1963, and a first amended charge on June 10, 1963, by Lodge # 1746;, Case, l-CA-4492 in which a the - initial charge was filed on. February 19, 1964, by Lodge # 1746; Case 1-CA-4802 ,in which 'the initial chargewas filed on November 18, -1964, by, Lodge #700, International Association of, Machinists,' AFL-CIO, against Connecticut Advanced Nuclear Engi- neering Laboratoy, Pratt & Whitney Division, United Aircraft Corporation (known as the Canel plant). Pending charges and proceedings herein - against the Hamilton Standard Division,United Aircraft Corporation, consist of the' following:'. Case l-CA =3358, `in-which, the' initial charge was filed on November 23, 1960, by Lodge #743, International, Association of Machinists, AFL-CIO, and thereafter on successive - dates supplemented by 14 amended charges up; to and-includingSepteniber""30, 1963; UNITED AIRCRAFT CORP. 395 Case 1-CA 3372 in which the initial charge was filed on December 12, 1960, by Lodge #743; Case 1-CA-3434 in which the initial charge was filed on March 17, 1961, by Francis `J. Karcz (an individual); Case 1-CA-3435 in which the initial charge was filed on March 20, 1961, by Lodge #743; Case 1-CA-3455 in which the initial charge was filed on April 24,1961, by Lodge #743; Case 1-CA-3571 in which the initial charge was filed on September 6, 1961, by Lodge #743; Case I-CA-3634 in which the initial charge- was filed on November 7, 1961, by Lodge #743; Case 1-CA-3900 in which the initial charge was filed on August 23,1962, by William A. Grant (an individual); Case 1-CA-4202 in which the initial charge was filed on June 6, 1963, by Lodge #743, and thereafter supplemented by a first amended charge filed on June 10, 1963; Case 1-CA-4491 in which the initial charge was filed on February 19, 1964, by Lodge # 743. Based upon the foregoing charges, the General Counsel of the National Labor Relations Board issued a consolidat- ed complaint against United Aircraft Corporation, Pratt & Whitney Division and Hamilton Standard Division, jointly referred to as the Respondent, alleging that by certain acts described in paragraphs 29a, 29b, 29c, 30, 30A, and 30B of the complaint, the Respondent did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act; that by certain acts described in paragraphs 33 and 35 of the complaint Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act; and that by act's described in paragraph 37 of the complaint the 'Respondent ' also engaged in independent violations of Section 8(a)(l) of the Act. In due' course the Respondent filed an answer denying all allegations of unfair labor practices; and as a special defense to the allegations of paragraph 29a of the complaint specifically pleads as a bar the limitation set forth in Section 10(b) of the Act, as follows: PROVIDED, That no complaint shall issue based upon any unfair practice occurring -more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason- of service in the armed forces; in which event the six-month period shall be computed from the day of his discharge.' From my observation of the witnesses, consideration of all oral testimony and documentary evidence, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT EMPLOYER United Aircraft Corporation is a corporation (consisting of several divisions) duly organized under and existing by virtue of the laws of the State of Delaware and at all times material herein has been and is now engaged in the manufacture and sale of aircraft engines, helicopters, I The first charge herein (Case 1-CA-3355 (1-3)) was filed by Lodge # 1746 on November 21, 1960, and copies thereof served the Pratt and Whitney Division, United Aircraft Corporation on November 21, 1960; aircraft accessories, parts, electronic devices, and compo- nents thereof which are being distributed to the Armed Forces of the United States--of. America, the commercial aircraft industry, and others. Involved in thisproceeding is the Pratt & Whitney Division consisting ofzplants at East Hartford and Manchester, Connecticut (herein jointly called the East Hartford Plant), and the Connecticut Advanced Nuclear Engineering Laboratory at Middletown, Connecticut (herein called the Carrel plant). Also involved is the Hamilton Standard Division consisting of plants at Windsor Locks and Broad Brook, Connecticut (herein called the Windsor Locks Plant and the Broad Brook plant, respectively). In the course and conduct of its business operations in the State of Connecticut during the past representative year, the Respondent purchased and received directly from sources outside the State of Connecticut goods, wares, merchandise, and raw materials- valued in excess of $1 million; and during the same period shipped from its various plants within the- State of-Connecticut directly to points outside that State goods, materials, and finished products valued in excess of- $1 million., I find, therefore, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. TIM LABOR ORGANIZATIONS INVOLVED Lodge # 1746, International Association of Machinists, AFL-CIO, is a labor organization. within the meaning of Section 2(5) of the Act and at all times material to this case by virtue of Section 9(a) of the Act was the exclusive representative for the purposes of collective bargaining of a majority of the employees at the Pratt & Whitney Division in each of the following units, respectively, whichl find to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 1. All production and .maintenance employees of the United Aircraft Corporation, Pratt & Whitney Aircraft Division, East Hartford, Connecticut,, at the East Hartford plant (including; the- DE Lab and the Willgoos Lab), including inspectors, crib attendants, material handlers, factory clerks, and working leaders; but excluding timekeepers, engineering and technical employees, laboratory technicians, foremen's -clerks, salaried office and clerical employees, medical depart- ment employees, first-aid employees, plant protection employees, executives, plant superintendents, division superintendents, general foremen, foremen, assistant foremen, group supervisors, watch engineers, and all other supervisors as defined in the National Labor Relations Act,-as amended; 2. All production and maintenance employees of the United Aircraft Corporation, Pratt `& Whitney Aircraft Division, at its Manchester, Connecticut, plant (Cheney Mills Buildings 1, 2, 3, 19, the Finishing Mill, and the Weaving Mill) including inspectors, crib attendants, material handlers, - factory clerks, and working leaders; but excluding timekeepers, profession- al employees, engineering and technical employees, thereby tolling as of that date the 6-month limitation for issuing a complaint, as provided in Section 10(b) of the Act. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laboratory technicians, foremen's clerks, office and clerical employees, medical department employees, first-aid employees, plant, protection employees,:execu- tives, plant superintendents, division superintendents, general foremen, foremen, assistant foremen, group supervisors, watch engineers, and all other supervisors as defined in the National Labor Relations Act, as amended. Representatives of Lodge # 1746 involved herein include Business - Representative George J. M. Cope, President Herman W. Muise, President D. Frazer, Recording Secretary, Phillip F. Kohler, and Financial Secretary Grace Hislop. Lodge # 1746 A, representing employees in an appropri- ate unit at a plant of the Pratt & Whitney Division in Southington, Connecticut, is not a party involved in these proceedings. Lodge #700, International Association of Machinists, AFL-CIO, is a labor, organization within the meaning of Section 2(5) of the Act and at all times material herein by virtue of Section 9(a) of the Act was and now is the exclusive representative - of employees of the Pratt & Whitney Division at the Connecticut Advanced Nuclear Engineering Laboratory, Middletown, Connecticut (called the Canel Plant), in a unit which I find to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as follows: 1. All production and maintenance employees at the Canel Plant, including inspectors, crib attendants, material handlers, and working leaders; but excluding all timekeepers, engineering and technical employees, professional employees, 'laboratory technicians, fore- men's ' clerks, salaried office and salaried . clerical employees, medical employees, first-aid employees, plant protection employees, executives, plant superin- tendents,' division superintendents, general foremen, foremen, assistant foremen, ' group supervisors, watch engineers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. Lodge #743, International Association of Machinists, AFL-CIO; is a labor organization within the meaning of Section 2(5) of the Act; and by virtue of Section 9(a) of the Act was at all''times material herein and now is the exclusive representative of the employees of the Hamilton Standard Division, United Aircraft Corporation, in the following units, which I find to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as follows: 1. All production and maintenance employees at the Windsor Locks Plant, including working leaders and all hourly-rated technicians in the chemical, rubber, metallurgical, vibration, and electronic laboratories, but excluding executives, professional employees, salaried technicians in the Engineering Department, foremen's clerks who have access to confidential information, draftsmen, plant protection employees, Medical De- partment employees, salaried office and salaried clerical employees, outside servicemen, truckdrivers, watch engineers, group supervisors, and all other supervisors as defined in the National Labor Relations Act, as amended; 2. All production and maintenance employees at -the Broad Brook Plant, including working leaders and hourly-rated technicians in the electronics laboratory, but excluding executives, professional employees, salaried technicians in the Engineering Department, foremen's clerks who have access to - confidential information, draftsmen, i plant protection employees, Medical Department' employees, salaried office and salaried factory clerical eltlployees, timekeepers, outside service men, truckdriv4rs, watch; engineers, group supervisors, and all ,ot er supervisory, employees as defined in Section 2(11) of the National Labor Relations Act, as end T Representatives of Lodge #743 involved herein include Business Representative, John R. Sullivan and President Butler J., Seedman. Representatives of the Grand Lodge, International Association of Machinists, AFL-CIO,. and District #91 include General Counsel Plato E. Papps, Grand Lodge Representative Raphael R. Oehler, and Organizer Raymond Jutras. III. THE UNFAIR LABOR -PRACTICES A. Factual Prestrike Background. With respect to a period of approximately-7 years prior to the strike of 1960, it is alleged in paragraph 29a of the final consolidated complaint that, since on or about September 11, 1953, and continuing to the inception of the strike on June 8, 1960, Respondent has refused to bargain collective- ly in good faith with Lodge # 1746 and Lodge #743 (jointly called the Union), as exclusive representatives of its employees in aforesaid appropriate units by refusing to furnish the Union information necessary and relevant to its functions as exclusive • representative in policing the contracts then and thereafter, in force, in serving and representing the employees in bargaining collectively with Respondent and related matters, although Respondent had such information in its possession and concealed such possession and such information from the Union, and although the Union had, requested such information on several occasions since September 11, 1953. It is specifically alleged in paragraph 31 of the complaint that the strike beginning June 8, 1960, and ending on or about August 11, 1960, was caused and prolonged by the aforesaid conduct alleged in paragraph 29a of the complaint. The record herein provides an accurate and complete history of the bargaining and c ntractual relationships between United Aircraft Corporation and various local lodges of the International Associ tion.of Machinists for a period of approximately seventeen 17) years dating back to the year 1950; during which peri prior to 1960 there is no record of any strike, lockout, or f ' ure to reach agreements, thereafter incorporated into writt contracts signed by all contracting parties: On August 1 , 1950, the President and Business Representative for Industrial Aircraft"Lodge No. 1746 (IAM) directed a letter to the Personnel Director of UNITED AIRCRAFT CORP. 397 United Aircraft Corporation, requesting that the Union be furnished with certain information concerning employees; and pursuant thereto the Respondent compiled and furnished to the Union an LB.M. runoff 2 listing numerical- ly by clock numbers all employees in the unit showing from left to right seven (7) columns of information as follows: (1) clock number, (2) job code, (3) name, (4) labor grade, (5) rate range position, (6) department, and (7) base rate pay. Thereafter, negotiations- continued until agreements were reached and incorporated into comprehensive 3 year contracts between the Respondent and the Union with respect to Lodge # 1746 representing employees of the Pratt and Whitney Division and Lodge #743 representing employees of the Hamilton Standard Division. These contracts contained elaborate and comprehensive articles designated as (1) Coverage, (2) Recognition, (3) Non- Discrimination, (4) Check-off, (5) Grievance Procedure, (6) Wages and Hours, (7) Seniority, (8) Vacations, (9) Reemployment of Veterans, (10) General Provisions, (11) Strike or Lock-Out, and (12) Duration. Information to be furnished to the Union was an outstanding feature of these 1950 negotiations for new contracts. Article IV, Check-Off, required that the Respondent furnish to the Union each month -a list of, the employees from- whose earnings dues deductions were made and the amounts of such deductions. Article V, Grievance Procedure, section 2, step 3, required that "The Company will produce such pertinent available and existing individual production, payroll, attendance records, and disciplinary notices pertaining to the employee involved' as may be necessary to the settlement, of a grievance at this step of the grievance procedure." Article VI, Wages and Hours, section 10, required that the Respondent furnish to the Union (a) a copy of the Hourly Job Rating Plan, including factor and degree definitions and point scores, and (b) detailed job description sheets covering all hourly rated jobs included in the bargaining unit. Section 14 of Article VI required that the Union be furnished-sample copies of employee performance rating sheets together with a description of the factors, the weighing of the factors, and the ranges of scoring points which -relate to the established rating steps, section 15 of article-VI required that the Respondent quarterly furnish to the Union a listing of the names of those employees in the bargaining unit who within the previous calendar quarter have received an increase in base rate of pay as a result of a performance rating, including the name, department number, job code, previous base rate, new base rate, and rating of such employees. Although recognized in Section 13 that the -administration and operation of the employee performance rating plan are solely the functions and responsibilities of management, it was provided in Section 16 that upon request to his foreman, an employee will be advised of -his performance rating; and section 17 provided that "A claim by an employee that he has not been properly rated under the Employee Performance Plan may be processed as a grievance under Article V of this agree- ment." Article VII, Seniority, section 4, with respect to general layoffs for an indefinite period, required that Respondent make available a list indicating the names of the employees to be laid off and their seniority status in relation to the remaining employees in the department involved. Section 5 of, article VII provided that "The Company shall prepare a list showing the seniority of the employees covered by this agreement each six (6) months and a copy of such list will be given to the president of the Union." The record shows that Respondent-fulfilled its aforesaid contracts with respect to furnishing information to the Union, and I find no evidence of any additional information requested by the Union during the life of those contracts prior to September 1953. It is not contended otherwise by the General Counsel. -Correspondence be- tween the parties shows that the Respondent conducted a course of training for selected representatives of the Union in the fundamentals of the hourly job rating plan and the employee performance rating plan in effect at the Pratt and Whitney Division. On September 11, 1953, Lodge No. 1746 directed a letter to the Pratt and Whitney Division requesting information concerning the East Hartford, Meriden, and Portland plants, as follows: In connection with the contract now in effect between the Company and Lodge 1746 which terminates on December 4, 1953, and to facilitate the drafting of the Union demands for a new agreement and the negotia- tion thereof, will you kindly -furnish us as soon as possible with the following information on the East Hartford,-Meriden and'Portland plants: 1. The average straight-time hourly earnings of all the employees in the bargaining unit represent- ed by Lodge 1746. 2. The average hourly earnings by labor grade of the employees in the bargaining unit represented by Lodge 1746. 3. The number of employees in each labor grade. 4. The number of employees at each rate, that is "Starting Rate, Job Rate," etc. of each labor grade. 5. A copy of the Company's financial statement for the year 1952 and. any financial statement issued by the Company for any period in 1953. 6. A copy of all existing Pension Plans covering employees of the Corporation. In reply thereto, the Respondent replied-on September 21, 1953, as follows: This will acknowledge receipt of your letter ; of September 11 requesting information concerning em- ployee earnings, ratings, financial statements, pension plans, etc., which you state will enable the Union to facilitate coming bargaining negotiations. We will be glad to cooperate with you and supply you with the information which is available along the lines you request. We are, therefore, enclosing the following: 1. A copy of the United- Aircraft Corporation Annual Report dated December 31, 1952. 2. A copy of the United Aircraft Corporation consolidated financial statement dated June 30, 1953. 3. A copy of the Retirement Income, Plan 2 This document appears in evidence as Resp . Exh. R-36. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'describing the present pension plan for employees which the Union represents: - We would appreciate advice- as to why you make this formal request for information concerning --financial reports, and' pension plans inasmuch as this is public information `which is readily available to you. Indeed, ,the annual financial report and the,description of our 'pension plan, which are enclosed herein, were furnished -to all our employees, including the local officers. The rest of the information `which' you request is information which we do not have available in the form which you have specified. We, of course, do have employee records which could be analyzed to obtain the information in that form. Such an analysis would require considerable time and effort. If you believe that this information which you have requested is of sufficient value to warrant the expendi- ture of this time and effort, we will be glad to make the employee records which we normally maintain availa- ble to you at our offices so that you can make the necessary analysis. The record shows that the Union thereupon filed charges against the, Respondent in Case I-CA-1575 with the Regional Office for- Region 1 of the National Labor Relations Board in Boston, Massachusetts, but upon investigation the Regional Director refused to issue a complaint, and after appeal to the General Counsel of the National Labor Relations Board in Washington, D.C., the charges were withdrawn. Thereafter,, the, Pratt and Whitney Division made available its records at the East Hartford plant, and the Union- sent in a clerical research team to make an analysis of the records at its own expense. After considerable research, this project was abandoned by the Union. In the meantime negotiations were completed and the agreements reached were incorporated into a new contract, with Lodge No. 1746 in January 1954, to remain in full force and effect'until-December 4, 1955. Similar new contracts were entered into by and between the Hamilton Standard Division and Lodge No. 743 for its Broad Brook and Windsor Locks plants taremain in full force and effect until April 21, 1956. Provisions, in the new- contracts with respect to data and information to be =furnished to the Union were substantially the same as those contained in previous contracts, and there isno contention or evidence that the Company failed to comply with these contract' provisions. Preparatory, to negotiations for anew contract on May 27, 1955, Lodge No. 1746 directed a letter requesting the Pratt and Whitney, Division to furnish complete seniority and payroll information for each employee in the bargaining unit, as follows: In, order to police the existing agreement, bargain intelligently and evaluate properly our own and managements wage proposals in our , coming contract negotiations, Lodge 1746, IAM, herewith requests that you supply it, as soon as possible but no later than July 24, 1955, with complete seniority and payroll informa- tion for each employee in the unit represented by Lodge 1746 , for the, period covered by the present contract as requested in items one thru ten as follows: 1. Name 2. Clock Number 3. Shift 4. Date of Hire 5. Weeks of Seniority 6. Occupational.: Group and Area in which seniority - is recognized. , 7.-, Postion of employee in relation to other employees in Occupational Group in Seniority Area. 8. Position of employee inclassification .of his labor grade and, hourly pay =rate. 9. Date of last merit raise and amount of raise. 10.- Date on which employee began work inltis classification. ' It is further requested that information be given us covering the groupwe represent as follows: 1. The number of employees ^ in `each labor grade. 2. The average hourly rate of pay of employees in unit for which Lodge 1746 is the bargaining agent. 3. Information on costs of the medical insurance programshowing: a-Premiums paid b-Dividends ' and or rebates received by' the Company The union requests this data because without it, we cannot know the actual `wage structure to the present contract minimum and so cannot draft and negotiate intelligently` our own wage proposals nor evaluate yours, nor can we determine whether' the' present contract is being properly applied. In reply to above request for information, the Respon-, dent by letter dated June 21, 1955, stated its position'with respect thereto, as follows: Mr. Norbert Dion, President Industrial Aircraft Lodge No. 1746, I.A.M. 1169 Maui Street East Hartford, Connecticut Dear Mr. Dion: This will acknowledge receipt of your letter of May, 27 in which you request numerous items of information concerning seniority, job classification, .wage rates and increases for each employee in the unit represented by Lodge 1746 for the period covered by the .present contract, A he average hourly rate of pay for all employees in the bargaining unit represented-by Lodge 1746, the number of employees in each labor grade, and information on the cost of the medical , insurance program. You claim that this information is necessary in order to police the existing, agreement, 'bargain intelligently, and evaluate properly, your own and management's wage proposals, in the coming contract negotiations. - ' - You should be well aware of the company's position with respect to requests of this type. On September 11, 1953, Mr. Theodore,R. Bothur, then President of I.A.M. Lodge No. 1746, wrote to me requesting information,of a similar type. I replied to him on September 21, 1953 by a letter in which I outlined the manner, by which Lodge No. 1746 could obtain any pertinent employee information which it `desired. Apparently my offer was unacceptable to Lodge No. 1746 because it promptly filed an unfair labor practice charge against United UNITED AIRCRAFT CORP. Aircraft Corporation with the National Labor Relations Board (Case No.' 1-CA-1575). As your records will show, the Regional Director of the First Regional Office of the National Labor Relations Board declined to issue a complaintbased upon this charge. Thereafter, Lodge No. 1746 filed an appeal with the General Counsel , of the National Labor Relations Board, requesting him to reverse the Regional Director and to issue a complaint in the matter. The General Counsel did, not pass on this appeal because, before he could do so, the union withdrew its charges. Shortly thereafter, the company and Lodge No. 1746 entered into a new contract for a 2-year period in which, among- other things, the company agreed to furnish personnel information to the union at specified intervals , presum- ably to enable the union to "police" the contract. The offer of cooperation which we extended Lodge No. 1746 in our letter of September 21, 1953 has never been rescinded and is, therefore, still open. Indeed, much of the information which you request in your letter of May 27, 1955 is available to you through an examination and analysis of information which is available to you under the terms of the now 'existing contract. All of the information which you - request can certainly be obtained if Lodge No:' 1746 -will utilize our standing offer of cooperation. With respect to your inquiry concerning the medical insurance -program, I believe that you know that this insurance is underwritten by the Connecticut Medical Service, a non-profit association of physicians organ- ized for the purpose of providing certain medical benefits throughout the' State of Connecticut. This organization charges a uniform premium for its services based upon the experience of all of its subscribers in the State` and the premium paid by Pratt & Whitney Aircraft and its employees is the same as that paid by all other subscribers. Since there -is no individual experi- ence -rating under this program, there are, consequently, no dividends or rebates paid to any one by the Connecticut Medical Service. The premiums paid for the medical insurance program have been made known to all Pratt & Whitney Aircraft Division employee subscribers, including union repre- sentatives, and, as you know, this division pays 50% of the premium in each case. - , Very truly yours, PRATT & ,WHITNEY AIRCRAFT T. R. Downs Personnel Manager Likewise, on November 8, 1955, Lodge 743 directed a letter to the Hamilton Standard Division requesting complete , seniority and payroll, information for each employee in its bargaining unit, as follows: In order to bargain intelligently and evaluate properly our own and management's wage proposals in our coming contract negotiations, Lodge 743, I.A.M., herewith requests that you furnish it, as soon as possible with complete seniority and payroll - information for each employee in the unit represented by Lodge 743 for 399 the period covered by the present contract as requested in items one thru seventeen as follows: 1. Rat, Unit 2. Dept 3. Shift 4. Clock Number 5.. Employee Name 6. Sex 7. Job Code 8. Rate Pos. 9. R GRP 10. Lab. Gr. 11. Seniority Date Mo. Day Yr. 12. Old Dept 13. New Dept Sen. Date Mo. Day Yr. 14.Occ. Code 15. Base Rate 16. Old Rate 17. Job Title, - It is further requested that information be given us covering the group we represent as follows: 1. The number of employees in each labor grade. 2. The average hourly rate of pay of employees in the unit for, which Lodge 743 is the bargaining agent. 3. Information on costs of the medical insurance program showing: a: Premiums paid b: Dividends and/or rebates received by the Company. The Union requests this data because without it, as previously stated, we cannot draft and . negotiate intelligently our own wage proposals, now in the process of preparation, , nor properly evaluate yours when presented to us during our coming negotiations. The Respondent replied by letter of November 29, 1955, as follows: - This will acknowledge receipt of your ` letter of November 8, 1955, in which you request numerous items of information concerning employees in the bargaining unit represented by Lodge 743. You claim that this information is necessary because without it your union cannot draft and negotiate intelligently its wage proposals now in the process of preparation, nor properly evaluate any proposals which may be made by the company during coming negotiations. Some of the abbreviations which-you use to designate certain items of information which you have requested are not intelligible to us . It is, therefore, impossible to advise you whether such things are available in our records. You request other items of information which we do not have available in the form,which you have specified. However, it is probable that a search of-our basic employee records plus some rather - extensive analyses thereof would produce all of the information which you have requested. Such an examination and analysis of our basic employee records would require considerable time and effort. If you believe that the information which you have regtiested is of sufficient value to warrant the expendi- ture of this time and effort, we will be glad to make the employee records which we normally maintain availa- ble to you at our offices. With respect to your inquiry concerning the medical insurance program, I believe that you know - that this insurance is underwritten by the Connecticut Medical Service, a non-profit association , on physicians organ- ized for the purpose of providing certain, medical benefits throughout the State of Connecticut. This organization charges a uniform .premium for its services ,400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD based upon the experience of•all of its subscribers in the State and the ;premium paid by Hamilton Standard Division and its employees is the same as that paid by all other subscribers. Since there is no individual experience rating under this program, there, are, consequently, no dividends or rebates •.paid to any one by the Connecticut Medical Service. The premiums paid for the medical insurance program have been made known to ., all- Hamilton Standard Division employee subscribers, including union repre- sentatives, and, as you know, this division pays 50% of the premium in each case. Thereafter,- Lodge No. 1746 and the Pratt and Whitney Division completed their negotiations and reached agree- ments which were-incorporated into a new ' contract dated December 1, 1955, to remain in full force and effect until December 4, 1957 ; and concurrently therewith Lodge No. 743 and the Hamilton Standard Division signed new contracts with respect to the Broad Brook and Windsor Locks plants, to remain in full force and effect until April 21, 1958. Information to be furnished the Union remained substantially the same as that provided in previous contracts; and there is no contention or evidence that the Company failed to comply with such contract provisions or that other additional information was requested during the term of the contract. Article XI in each contract provided that The Union will not call or sanction any strike, slowdown, or concerted stoppage of work during the period of this agreement. The Company agrees that there will not be a lockout of employees .... Employees participating in any strike, -slowdown, or concerted stoppage of work shalt be subject to discharge by, the Company -without recourse to the grievance procedure or. arbitration. Upon expiration of the foregoing contracts in December 1957 and April 1958, respectively, Lodge No . 1746 and the Pratt and Whitney, Division negotiated and entered into a new contract to remain in full force and effect until December 4, 1-959 ; and likewise Lodge No . 743 and the Hamilton Standard Division executed similar new con- tracts to remain ,in full force and effect until April 21, 1960; subject to reopening at the end of the first year for the sole purpose of negotiating a general change in the base hourly rates- set forth in schedule A annexed thereto , In each of these new contracts it was provided in section 6, article VII that "The company, shall prepare a list showing the seniority of the employees covered by this agreement each six (6) months and a copy of such list will be given to the president of the Union." In section 14, article VI, the Company agrees to make available to the Union at quarterly intervals records disclosing the 'names of employees in 'the 'bargaining unit, who in the previous calendar quarter have received an increase in the base rate as a result of a performance rating to reveal , the name, department' number, job code, previous base 'rate, new base rate,- and rating 'of such employees. Section 2, article V, required 'the Company to' furnish at step 3 of the grievance procedure such pertinent existing production , payroll, attendance„ records, and disciplinary notices, pertaining to the, employee 'involved as may be necessary to the -settlement of a grievance ; and section 11, article VI, required the Company to provide the Union with detailed 'job description sheets covering new or changed hourly .rated' jobs included in the bargaining unit as set forth in article' I thereof within - thirty (30)` days following final approval of such jobs. It is not contended that the Company failed to comply with any of these ' contract requirements to furnish information. In - the meantime on` April 4, 1958, the Grand Lodge, -Association of 'Machinists, issued to its membership everywhere Official Circular No. 596 containing instruc- tions as follows: INSTRUCTIONS The following are issued as official policy of the IAM designed to most effectively promote and prosecute our aims, objectives, and - approved programs: A. No local or district lodge may propose less or agree to accept 'lesser '-terms and conditions than our national objectives, until and unless the Interna- tional President or his designated representative or an authorized committee releases the local or district from ,the specific objectives involved. B. No local or district lodge may propose less or agree to accept lesser terms .and conditions , than the applicable corporation-wide objectives, until and unless the International President or his designat- ed representative or an authorized committee releases the local or district from the specific objectives involved. C. Prior to any vote _to accept-or reject a proposed agreement by, any IAM bargaining unit affected by multi-unit agreements with the same employer, company or corporation, the, International Presi- dent or his designated representative or an authorized committee shall determine whether all the units shall be combined for-voting purposes or shall be permitted to vote separately or in what combination. D. In the event separate bargaining units. are author- ized to vote separately, the ballot shall be a conditional ballot saying in effect that a vote to accept is conditioned on the acceptance of the employer's offer at all other units of the company open for and engaged in negotiations. ' E. Each local or district lodge must, at the first bargaining opportunity, bring its next bargaining period and the anniversary date of its contract with the employer into proximate timing with all other units - of the same company, unless a deviation is authorized by the International President or his designated representative, or an authorized committee. For the purpose of these instructions,' the Grand Lodge, Representative assigned to coordinate bargain- ing between the several units of a Company or corporation is the designated representative. For the aircraft missile [sic] program the Aircraft Advisory Committee appointed by the International President is an authorized committee. On September 25,,1958, Lodge No. 1746 directed a letter to the Pratt and Whitney Division, as follows: UNITED AIRCRAFT CORP. 401 Dear Mr. Morse: Lodge 1746 of the International Assoc. of Machinists is preparing a wage and classification study for use in our forthcoming negotiations. This study must be completed for use in the preparation of our proposals to you for our coming wage reopener. Accordingly and in order to bargain intelligently on these proposals we are requesting that, you furnish us the following data before October 12,1958. 1. Name 2. Clock No. 3. Shift 4. Date of Hire 5. Weeks of Seniority 6. Occupational Group and Area in which Seniority is recognized for each employee 7. Position of employee in relation to other employees in occupational group in each seniority area 8. Position of each employee in classification of his labor grade and his hourly rate. 9. Date of last merit raise and amount of raise. 10. Date on which ennloyee began work in his classification 11. The number of leadmen assigned to each job classification ,or classificational group. 12. The departmental listing showing the job classifi- cations which cover the jobs in each department. 13. The number of employees in each labor grade. 14. The average -hourly rate of pay of employees in unit for which Lodge 1746 is the bargaining representa. tive. Your prompt cooperation will be greatly appreciated and, in our opinion, considerably expedite our negotia- tions. Thereafter, on February 3, 1959, Lodge No. 1746 directed a similar letter to the Pratt and Whitney Division requesting information as follows: Dear Mr. Morse In order to police the existing agreement, bargain intelligently and evaluate properly the Union's and Management's wage proposals in our coming contract negotiations of 1959, Industrial Aircraft Lodge 1746 IAM herewith requests the Company to make the following available. Complete seniority and payroll information for each employee in the units represented in Industrial Aircraft -Lodge 1746 IAM for the period covered by the present agreement as requested in items one through ten as follows: 1. name 2. clock number 3. shift 4. date of hire 5. weeks of seniority 6. occupational group and area in which seniority is recognized 7. position of employee in relation to other employees in occupational group in seniority area 8.. position of employee in classification of his labor grade and hourly pay rate 9. date of last merit raise and amount of raise 10. date on which employee began work in his classification The Union requests this data because, without it, we cannot know the actual wage structure to the present contract minimums and so , cannot draft and , negotiate intelligently, the Union's wage proposals nor, evaluate the Company's nor can we determine whether the present contract is being properly applied. It would be most appreciated if this, -information could be made available by February 16, 1959. The- Respondent replied to the foregoing requests by letter of February 27, 1959, as follows: Dear Mr. Dion: This is in reply to your letter dated February 3, 1959 in which you request certain data concerning employees of the, Pratt & Whitney Aircraft Division of United Aircraft Corporation. We wish to-point out that the subject of the Company supplying or making available to the Union detailed information concerning employees was the subject of negotiations which preceded the execution of the current contract between the Company and the Union entered into on December 5, 1957 to expire no earlier than December 4,1959. Pursuant to these negotiations, the Company and the Union agreed in Section 6 of Article VII of-the contract that a list would be prepared showing the seniority of the employees each six months and a copy of such list would be given to the Union. Likewise, in Section 14 of Article VI of the contract, the Company agreed to make available to the Union at quarterly intervals, records disclosing the names of employees in the' bargaining unit who in the previous calendar quarter have received an increase in the base rate as a result of performance rating. It was agreed that these records, to be made available, would reveal the name, department number, job code, previous-base rate, new base rate and rating of such employees. In addition, the Company agreed to produce certain records for the Union's inspection in connection with Step 3 of Section 2, Article V, of the contract. Section I I of Article VI was also designed to provide the Union with information concerning new or changed jobs. - We also direct your attention to Section 3 of Article XII of the contract. We interpret this Section to constitute an understanding between the parties that the contract, as agreed upon, settled all demands of the union during the life of the ageement. We have, of course, always recognized the Union's right to have access to information concerning the employees it represents to assist it in bargaining and in assuring itself that all concerned are complying with the provisions of the contract. We assume, however, that this problem was one of the many which was settled in 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations culminating in -the current contract between the Union and the Company. -If this assump- tion is not correct, then we can see little or no purpose in such contractual provisions. Under the circumstances as set forth above, we suggest that you rely upon the information which is available to you under the current contract or has been-furnished to you inn the past. By a "JOINT IAM-UAW RELEASE" on May 9, 1959, it was announced that a Joint IAM-UAW Conference had been 'organized in' Washington, D.C., for the purposes hereinafter explained by co-chairman of the Conference as follows: We are today mobilizing all the resources and skill of our two great unions to bring to bear on United Aircraft Corp. and its Pratt & Whitney, Sikorsky and Hamilton Standard divisions, the maximum effective bargaining pressure. We have pledged, to one another full cooperation and wholehearted support in whatever problems arise with this Company. Our only purpose is to win justice and humanitarian treatment for all workers of United Aircraft. Solidarity of the JAM and the UAW in their bargaining efforts on behalf of aircraft employees, has been growing steadily since 1953. The two unions have developed a relationship of mutual trust and respect as a result of the common problems shared by the members of the two organizations. For the information of the joint membership of both Unions it was pointed out as significant information that (1) Lodge 1746 1AM Pratt and Whitney Contract expire on December 4, 1959; that (2) Local 877 UAW Sikorsky Contract expires February 15, 1960; that (3) Lodge 743 1AM Hamilton Standard Contracts expire April 21, 1960; that (4) Local 1234 UAW North Haven Contract expires May 15, 1960; and that this,is the time for all-to band together and fight for the common good of all instead of cutting each other's throat. Thereupon, International Association of Machinists and United Automobile Workers of America through their respective local lodges, representing collective-bargaining units at the several division plants of United Aircraft Corporation, jointly launched their so-called Unity Pro- gram demanding similar objectives, terms, and conditions in all future contracts with United Aircraft Corporation. This joint ,organizational campaign was characterized by increasing demands for union security, full arbitration of grievances, improved insurance and pension benefits, greater seniority rights by automatic progression, and more substantial holiday and vacation pay. Unity Program buttons were distributed, and all members of the Union were urged to wear them at all times to indicate, solidarity in making identical demands for each separate bargaining unit. In a somewhat lengthy letter dated, October 27, 1959, the president of Lodge No. 1746, fully explained to its membership, the bargaining situation and demands being 3 It should be noted that no mention whatever is made concerning alleged failure or refusal of the Company to furnish information' to the made upon United Aircraft Corporation for changes to be made in a new collective-bargaining agreement to, replace the contract expiring'on December-4,'l 959, as follows: 3 October 27, ' 1959 Dear Member: On the eve of the commencement of our negotiations with the Company for' a new collective bargaining agreement I would like to have the chance, through this letter, to better acquaint you with the contract proposals which we have made to the Company and to tell you why we feel that it is necessary that, such changes be made in our agreement. You, as I, have seen the many changes that have come about within the plant-we have seen the transition from the radial engines to the jets-and we have seen the dislocation which this- change brought with it. Today, we both look ahead with apprehension to even more drastic changes and I am sure;that you, as I, are well aware that these changes have a way of leaving disruption and heartaches iii their wake, for the labor needs of the future have not always been filled from the ranks of those who were fitted for the work of the past-progress-though necessary, can sometimes be brutal. We surely stand at the very door-step of a great tomorrow 'and your Union wants 'to make it not only possible, but probable, that there will, be a place for us in the work of tomorrow. You and I -cannot do this individually-we can do it as a united' labor group. So, if you will bear with' me -through thisrather long letter, you will have not only a good understanding of what we seek as a Union, but why we seek it. - `The cutbacks during the past two years, with the resulting dislocation, transfers and downgradings -which usually follow, has caused your Union to seek the following clause: ` ' ` ' When a job classification is discontinued or so modified as to result in the elimination" or reduction of a recognized occupational group in a given seniority area, the employees regularly assigned to such group will be -transferred to other jobs in the same labor grade in comparable occupational groups in the plant on the basis of seniority and' demonstrated ability. This is a clause 'which your, union was able to negotiate into a previous agreement but which the company refused to continue in the contract. You may remember that it was this very clause that served our members so well during the periods when the Company was opening branch plants and was attempting to compel the East Hartford Pratt, and Whitney workers to accept permanent transfers to jobs in other areas. The union is proposing too that senior employees -shall have the option to accept shift transfer to fill any vacancies and that transfers and loan outs be offered to employees on the basis of their seniority. In order to effect the training of today's workers for tomorrow's jobs, the Union is asking that openings for Union. UNITED AIRCRAFT CORP. 403 job training shall be offered on the basis of seniority and that if a trainee, selected from the bargaining unit, fails in the training program he shall be returned to his former job or a comparable one so that he will not find himself with no job at all. The Union is asking too, that supervisors not be permitted to engage in work normally performed by employees in the bargaining unit. This will stop the practice of supervisors performing bargaining unit work during the overtime days of Saturday and Sunday. And while we're discussing the provisions connected with seniority, the Union seeks to remove the clause from the contract which permits the Company to retain 10% of an occupational group in a seniority area regardless of the seniority of the employee. It further asks that the clause releasing the Company from liability for a period of 10 days in the event that an error is made in laying off by seniority, be removed from the contract. The 10% clause has not been used by the Company at the East Hartford Pratt & Whitney Division but it has been used by another division of the UAC and the Union wants it out of our contract lest senior employees find themselves on the street while less senior workers hold their jobs. The Employee Performance Rating Plan by which our members progress through classifications of the labor grades toward that "exalted" and rather rare position of "top" money, has long been a subject of negotiation between the Company and the Union. The Union feels that a system, which frequently cannot be intelligently explained by an employee's foreman, is not a good or desirable way to evaluate a worker's performance. The Union asks that this plan be done away with and a plan of progression which becomes automatic in a given period of time be substituted. There are far too many instances where old time employees have failed to received increases over long periods of time.`While this undoubtedly adds to the low cost operation of- a department , it ca.uses `a worker to feel that no recognition has been given for long years of good work. The Union has asked that the shift differential for 2nd shift workers be increased to 10%. There can be no question but that workers who spend years of their working life employed on second shift work must sacrifice many things which employees on other shifts enjoy, both from the stand point of home-life with a family and recreational activities. The Union asks that all employees in the bargaining unit receive a 15 cents across the board increase. There is good reasoning behind the requested change in the vacation plan which your Union asks-3 weeks after 10 years. A good proportion of the agreements being negotiated now, give three weeks vacation for periods of employment under 15 years-as , our present agreement now gives us. We trust that a Company that is forward enough to lead the field in modernization of their retirement plan by the ,inclusion of a cost of living escalator factor, will not long stay behind the industry in the matter of liberalizing their vacation plan. And on the matter of vacations, the Union is asking too, that if an employee is retiring or is unfortunate enough to be laid off, that he receives a pro-rata vacation payment. To those of us who are still in our early years, the Union's- request that the Company provide a $2,000 paid up Life Insurance to those retirees who qualify for pension will not seem too important . However, to those who are approaching that time of life and who are now wondering if the combination of their Social Security and Retirement Annuity benefits are going to permit them to carry on, it will doubtlessly seem the most important item on the Union's list of proposals. It is a most difficult situation when one has to leave a job one has held year after year with a steady income and be faced with the necessity of revamping his entire way of life to meet the reduced income that retirement provides. It too, often happens that there just is not sufficient revenue to meet everyday needs and still continue adequate insurance that was so easy to maintain- during the working years. If each of us were to ask ourselves how able we would be to continue in force the insurance policy provided in our agreement in the event we were to leave our present employment and take work in a plant that was not covered by a contract carrying negotiated insurance, we would be better able to realize the importance of this proposal. The Union does not believe that this proposal for this amount of protection for the families of our retired employees is unreasonable-we believe that it is one of the most important areas for discussion during these negotiations. A great many contract[s] with Aircraft companies contain provisions for paid funeral leave for stated number of days in the event of a death in the immediate family. Your Union is presenting this proposal this year to the Company. Though many of the contracts which have , been negotiated with other companies carry up to five days paid leave,-our proposal asks for a paid leave of three days only. And now I would like to discuss an area of our negotiation that at first glance may not seem important to the member since it does not result in any increase in wages, vacations or monetary gain. This is the area of service by your Union through its representatives in the shop and in the Local Lodge. Your Union exists for the purpose of helping you with the everyday problems that you encounter in your work in the plant. Every restriction that is placed on the ability of the Union representatives to investigate and handle your grievance problem must sooner or later affect each and every employee. During years past we have experienced difficulty in making certain that every employee who had a grievance was able to obtain the service of his UnionSteward. This year the Union has submitted proposals that will insure that any employee having a grievance shall be guaranteed the services of a Steward and further that the Steward shall have the right to investigate the grievance on Company time. To assist the Steward in this, the Union asks that the employee records , which in the past have been available at Step 3 of the procedure, 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD now be made available at Step 1.,As a Union we fail to understand why a grievance, which could by the records be settled at Step 1, must await Step 3 before settlement can be made. Our present contract spells out the types of cases on which,the Union can compel arbitration. This year the Union asks that a clause be placed in- the new agreement which will -provide that all unresolved grievances at Step 4 of, the grievance procedure may, at the request of either party, be submitted to arbitration. ,We further propose' that the present contract restriction that an arbitrator's award shall not be retroactive beyond the date of the filing of the grievance in writing, be removed from the contract. We feel that if the injustice which the arbitrator corrected was present before the grievance was filed, the settlement should encompass the entire period during which the employee suffered the injustice. The last item I would like to discuss is our proposal for a Union Shop. You, on many occasions complained to us that, those who are not in,the Union are benefiting by the efforts of the Union members and that you do not believe this to be right. A Union Shop at Pratt & Whitney will insure that- all who benefit will be a part of the Union. Last month a new bill called the "Labor-Manage- ment Reporting and Disclosure Act of 1959" was signed into law by the President marking the end of a nation wide movement by the foes,of labor to place restrictions on labor Unions. A recent copy of "The Machinist" carried the full text of this -new law which should be read by every Union member in our country. The full impact of the law will not be realized until the act has been in effect for a period of time and the true meaning of the bill has been interpreted by the courts. Next month you will nominate the candidates for office in your Union. Every member should plan to attend the monthly meetings of his Union at the Machinist Building, 357 Main St., East Hartford, on November 1st, (11:00 a.m.) and November 22nd, (1:00 p.m.) at which time nominations for office will be,made. The election of officers for your union, will be held at the Machinist Building on the 9th of December. The voting will start at 6:00 a.m. and the polls will, remain open until 6:00 p.m. so that workers on all shifts, will have had an opportunity to vote. I urge that you attend the nominating meetings and that you cast your vote for your choice of officers on December 9th, either , in person or, if you qualify under the' International Constitution, by absentee ballot. Let, me say "thank you" for your patience in reading this lengthy letter. I hope that it will help you understand the problems which your Union seeks to correct through negotiations with the Company-I would like to think too, that as a result of this better understanding, you will help us in our efforts to bring all the workers at Pratt & Whitney into the Union so that we all may benefit through our United action. With every good wish for the future, I am Fraternally yours, DAVID FRASER, President Thereafter, the negotiating committees of the Union and the Company met and bargained with each other on October 29, November 4, 11, 12, 17, 20, 24, and 25, 1959 without reaching a complete agreement, until finally at approximately, 4 a.m. on December 3, 1959, written proposals were jointly prepared by the negotiating parties for recommendation and submission to vote of the membership of Lodge 1746, as follows: The present contract dated December 5, 1957, will be amended or clarified where necessary, to reflect the following agreement of the parties: ' 1. An employee eligible for holiday pay who works on the holiday will be paid holiday pay, and, in addition, time and one-half his regular base hourly wage rate for all hours worked on the holiday. 2. The amount of group life insurance available to hourly-rated employees will be increased from $4,000 to $5,000. The cost of such insurance will be paid for as at present. 3. The company as an element of its insurance program is now studying the, question of providing life insurance for retired employees. Further discussions on this matter will be had by the parties as soon as the company's study is completed. 4. The present grievance procedure providing that only employees,may file grievances relating to their,own wages, hours, and working conditions, will be amended to permit shop stewards to file grievances alleging,that a foreman has improperly refused to call the steward at the request of an employee in the steward's area for the purpose of assisting that employee in the handling of a grievance. 5. The Chief Personnel Advisor will be required to give his disposition of an Hourly Job Rating Plan grievance within thirty {30) days of the date on which the union notifies him in writing that it has completed its submission of facts relating to the grievance. 6. For all purposes, other than layoff, the seniority rights of members of the union shop committee, the president, vice-president, recording secretary, financial secretary, treasurer, sentinel, conductor and three (3) trustees of the union, if employees, and union stewards, shall be, exactly the same as the seniority rights of all other employees except as provided below. (a) In the case of layoff, and for the sole purpose of maintaining union representation of the time of the union shop committee, the president, vice president, recording secretary, financial secretary, treasurer, sentinel, conductor, and three (3) trustees of the union, if employees, shall, during their term of office, head the seniority list in their occupational group, and will not be laid off until all other employees in their labor grade (or lower labor grades) in, their respective occupational groups, have been laid off. (b) In the case of layoff, and for the sole purpose of maintaining union representation at the time of layoff, a union shop ' steward shall, during his term UNITED AIRCRAFT CORP. 405 of office, head the seniority list in his occupational group, in his steward area, and on his respective shift, and will not be laid off until all other employees in his labor ' grade (or lower labor grades) in his occupational group, in his steward area, and on his shift, have been laid off. (c) A union shop, committeeman or union shop steward will not be transferred or promoted to a job out side of his committeeman or steward area unless he notifies the company in writing that he wishes to be considered for such a job during which time he shall maintain his position as a committeeman or steward ; or unless there is a job of the same or lower grade in his occupational group in such area which he is qualified to perform; or except in the case of an emergency; or unless his department is being transferred to another location outside such area. 7. The following additional matters shall be subject to arbitration: 10. A grievance by an employee alleging that he was not, promoted to a particular job in violation of the provisions of Section 9 of Article VII. This, however, shall not apply in the case of promotions to leadmen's jobs. 11. A grievance by an employee alleging that the company failed to comply with the provisions of Section 1 of Article VI with respect to the payment of an overtime rate for work performed by him. 12. A grievance by an employee alleging that the company failed to comply with the provisions of Section 2 of Article,-VI with respect to the payment of a second or third shift premium for work performed by him. 13. A grievance by an employee alleging that the company failed to comply with the provisions of Section 4 of Article VL 14. A grievance'by an employee alleging that the company failed to comply with the provisions of Section 5 of Article VI with respect to work performed by him. 15. A grievance by an employee alleging that the company failed to comply with the provisions of 'Section 6 of Article VI with respect to work performed by him. 16. A grievance by an employee alleging that he did not receive pay for a holiday not worked as provided in Article VI, Section 8. 17. A grievance by an employee "alleging that Ihe company violated the provisions of Article VII, Section 2, by not paying him the proper vacation pay allowance under the provisions of Article VIII. 18. A grievance by an employee alleging that the company improperly invoked the provisions of Article X, Section 3(b), 'in terminating his employment. 19. A grievance by a female employee alleging that the company failed to credit her with the length of continuous service which she had on the date of her termination for gravida as provided by Article X, Section 3(c). 8. The Company will make available to the Chairman of the Shop Committee a list of the names of laid-off employees who exercised their right of recall. 9. The witnesseth clause of the present contract shall be changed so as to read as follows: It is the intent and purpose of the parties hereto that this agreement promote and improve the industrial and economic status of the parties, provide orderly collec- tive bargaining relations between the company and the union, and secure a prompt and fair disposition of grievances so as to eliminate interruptions of work and interference with the efficient operation of the compa- ny's business. It is recognized that in addition to other functions and responsibilities, the company has and will retain the sole right and responsibility to direct the operations of the company and in this connection to determine the number and location of its plants; the product to be manufactured; the types of work to be performed; the assignment of all work to employees or other persons; the schedules of production; shift schedules and hours of work; the methods, processes, and means of manufacturing; and to select, hire, and demote employees, including the right to make and apply rules and regulations for production and safety. It shall also have the right and responsibility to discharge or otherwise discipline any employee for just cause, to promote and transfer and to lay off because of lack of work or other cause , unless otherwise hereinafter provided. 10. The records described in paragraph 2 of Step 3 (a) of Article IV, Section 2, of the current contract will be made available at Step Y of the grievance procedure rather than Step 3. 11. Appendix `A' will be revised so as to reflect the general increases in base hourly wage rates as agreed upon. 12. An employee who would have been eligible for holiday pay under these provisions except that he failed to meet the eligibility rules and conditions set forth in subparagraph (a) above solely because he was required, as a member of the National Guard or as a reserve member of one of the United States armed forces, to be absent from work for the purposes of summer training or summer encampment for a period of not less than one (1) week nor more than two (2) weeks shall nevertheless be entitled to the holiday pay which he would have received had he been working on his regularly scheduled job during such absence. 13. The duration of the,contract will be for a period of two (2) years from December 3, 1959. The contract may be reopened once on December 4, 1960 , for the purpose only of negotiating a change in base hourly wage rates. 14. All of the foregoing is contingent upon agreement by the union negotiating committee that it will recommend ratification of such proposals to the union membership and upon ratification of such proposals by the membership. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 15. Although the contract is not to be revised in this respect, union officers and delegates will be excused for no less than a full shift (unless otherwise- agreed to) upon written application by a designated representative of the union for attendance at union meetings for which the company has granted excused absences in the past and, in addition, attendance at a union-sponsored school. signed: Dave Fraser (E. H. Pres.) Frank DeLuco (South Pres.)' Esidor Linder (Chairman) John Main (Sr. Bus. Agent) signed Morse for Co. At shift meetings on December 3, 1959, the jointly negotiated proposals recommended to its membership by the Union negotiating committee was accepted by the bargaining units in plants at Meriden and Southington, Connecticut, but was rejected by combined units from the East Hartford and Manchester plants of the Pratt and Whitney Division. It is now contended by counsel for the General Counsel and the urging Party, that the negotiating committee for the Respondent engaged in an unfair labor practice by insisting as a condition of this agreement that the Union negotiating committee recom- mend acceptance and ratification by the membership of Lodge No. 1746. Following rejection by the membership of the agreement recommended by its negotiating committee, the Union issued a public release explaining such rejection, as follows: RELEASE On December 3rd, 1959, Lodge 1746 negotiating committee presented to its membership, the proposals negotiated in ten bargaining sessions with the manage- ment of the Pratt & Whitney Aircraft Division of the United Aircraft Corporation. These proposals included monetary gains of a 7 to 12 cent per hour wage increase and an agreement on the part of the company to pay employees time and one half in addition to holiday pay for time worked on such holidays. Many people are today asking why the membership of Lodge 1746 turned down this proposed settlement offer of the company and sent their negotiating committee back into negotiations on the original Union proposals. At the first meeting with the Company they stated that they were not in a position this year to grant their employees more than the 3 cents per hour which was the amount of'the increase in the Cost of Living as shown by the index' of the Bureau of Labor Statistics. The Union on this first day replied that though they sought a 15 cents per hour wage increase for all employees, in the bargaining unit-they were just as concerned this year with contract clauses which would give security on the job to the workers at Pratt & 'Whitney-that the emphasis was on the non-economic issues. It was the inability of the Negotiating Committee to bring back such contract clauses, coupled by the attempt on the part' of the management of Pratt & Whitney, to further reduce the security of employees by changes in the established occupational groupings in which" all employees hold their seniority for purposes of layoff and recall ad the Company's, adamant position on the corrections proposed by the Union in the Grievance procedure that resulted in ,the rejection by the membership of the Company's offer. Nor would the membership of Lodge 1746 agree to language in the new contract' that would` permit the company to `assign the work which they have done over'' ver the years to other persons. As these items are explained the reasons for the memberships rejection will become very clear. The vast sprawling East Hartford plant is divided into seniority areas, and each employee holds his seniority for the purpose of layoff and recall in his occupational group in that seniority area. Therefore at time of layoff, all the workers in a given occupational group are pooled together in that seniority area and the least senior employee is the one subject to layoff. The employees have held their seniority in this manner for many years and over many contracts. They know pretty clearly where they stand in the seniority standing and on this information they have planned their lives and those of their families and felt secure in their jobs. At these negotiations the Company proposed that the occupational groupings for seniority - purposes be changed-that certain groups be divided and that certain other groups be formed. This can best be explained perhaps by the attempt by the company to divide the occupational group in which all electricians now hold their seniority. The company, proposed that they become two occupational groups, one to be of the maintenance electricians and the other of the construc- tion electricians. You may be sure that the electricians who attended the ratification meetings were loud in their protest against this division of the occupational group and the lessening of their seniority. The company also proposed that the seniority areas be changed by removing from the established areas some of the people now covered.,This too met with objections by those who had held their seniority by the combina- tion of these areas. When a company proposal aims straight at the job 'security of certain employees, these employees and others ' job may rightly fear, that the next division could affect them, are bound to make serious objection to the change. During the discussions on the seniority provisions in the contract protecting the workers the company stated that because of an arbitrators decision in one of the Divisions of United Aircraft, the present contract now gave them the right to lay-off by, occupational group from within seniority areas and instead of recalling that employee on the basis'of the seniority that lie'held for recall to his job, they had the right to transfer into that job, from any, seniority area or occupational group as long as the employee so transferred had more overall seniority than the employee who was on layoff awaiting recall. The basis of recall in the past has been on the same seniority that caused the man to be laid-off-this'Union UNITED AIRCRAFT CORP. 407 could not agree that a man who was awaiting recall to his job could have his recall rights negated by the transfer by the Company of another man into his job. The union has proposed that all areas of the plant be combined into one,seniority area and that all occupa- tional groups be combined for the purpose of seniority in lay-off and recall. This the company does not want to accept. The Union is trying to improve the security of its members-the company proposal tends to reduce that security. One of the company proposals drew the ire of all members from all areas. The Union now has in its agreement a clause which states that overtime shall be equally distributed among the employees who normally work on'these jobs in that department. It has been a matter of grievance by the Union that despite that contract clause, the company is utilizing its supervisory personnel to do overtime work. At this negotiating session the company introduced a proposal which would give them the unhindered right not only to assign foremen to the work done by the bargaining unit, but also to remove work now done by employees and claim it as part of salary or technical work. It may sound strange to many but a worker at Pratt & Whitney could have a deal of trouble in getting the service of his Union Steward in case he had a grievance. This right, though usually undisputed in other corpora- tions, has given the workers and the Union trouble at this plant. The Union asked for a guarantee that any employee having a grievance be guaranteed the services of his Steward. The company offered not a solution but a remedy-they still maintained that the company would still determine whether or not grievance existed and refused to give employees and the Union a guarantee that any employee having a grievance would receive the service of 'a Steward. The Union asked too that the Stewards have the right to investigate grievances at the point where they occur by talking with such other employees in the area as might have knowledge of the matter but the company would not entertain this nor would they make the records so important to the just settlement of a grievance available at Step 1 of the procedure. Such records in the old contract were available at the 3rd step and the correction by the company to the degree that they will be available at Step 2 leaves a lengthy period between the Step 1 of the grievance, where the case should be settled on the basis of the fact, and Step 2 of the procedure. The Union asked that all unresolved grievances' be submitted to arbitration at the request of either party. This the company would not do-instead they added ten areas of compulsory arbitration,. including disputes on promotional grievances, the remaning nine were not of a nature where they would be of great value to the employees since they covered items which are not often subject of grievances. Perhaps the one area of mutual discontent is with the company's Employee Performance Rating Plan. The Union during many negotiations in the past has asked that this plan be superceeded by a system of automatic progression so that the employee would automatically, over a given period of time, progress to the top rate range in his pay classifications of his labor grade. The Union has pointed out many times that too few of the Pratt & Whitney employees ever reach the premium or the top rate pay classification of their labor grade. The company itself has pointed out that the standards upon which every employee is judged are standards which each individual foreman may have set in his mind for the required work. The Union does not believe that a system which cannot be properly explained to the employee is a fair and just way to grade a man's performance or determine his chances for movement to the higher pay classifications of the labor grade. This merit rating system has also presented another problem to the union inservicing its membership. The company, in the past, has often used an individuals merit rating to justify promotion and termination. The man who workd [sic] during the hours from 3:30 to midnight each day must, in the doing, sacrifice a great deal of the time he would spend with his family. Children do not see too much of dad who has to work those hours-he's not with them during the evening hours when school is done and he's pretty, likely to be sleeping when the youngsters leave for school in the morning. The Union proposed that employees who work the second shift should be given a shift differential of 10% instead of the 12 cents per hour they now receive. The company denied this request: There has been a clause in the contract which permits the company at time of lay off to retain out of seniority 10% of the total number of employees in any occupational group in a seniority area. The membership of Lodge 1746 is insistant that this clause be removed from the contract though to date it has not been a problem with the membership as it has not been used by the company at Pratt & Whitney. The membership feels that this is a threat to any employee's individual security. The membership is also insistant on the removal from the contract of a 10 day release from financial, liability on the part of the company in the event that an error is made in the selection of the lease [sic] senior employees in an occupational group and seniority area to be laid off. The union has requested a list of all employees who leave the bargaining unit showing the reason for such leaving. The company would not move on this one. Over the years this has been a problem to the Union as the only notice we receive when an employee is removed from check-off is `°Terminated". The employ- ee might be temporarily transferred into a training course, he may have resigned or have been terminated, or he may have died. The Union has been embarrassed in the past when a member having been transferred back into the unit from school has been dropped from membership because of lack of information. It also results in the loss of accrued Death Benefits by the member. The Union had requested in its proposals that the company bring its vacation plan up to a par with major 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corporations. It pointed, out to the company in negotiations that-, employees' in aircraft plants in 'this immediate area-' were-participating in a far, better vacation plan than the one at United "Aircraft. The Union pointed out that the United Aircraft Corporation had been a leader'ingranting 3' weeks after 15 years of service. Over the years, in the absence of any improvements, they have fallen behind the industry since 3 weeks after 10 or 12 years now prevails. The company flatly refused to change the present plant [sic] and denied a requestin the union proposals that employees retiring or being laid off be given a pro rata vacation payment. They gave as reasons for the above, 1. Vacation was not an earned benefit, but rather a gift from- the company. 2. Retired or laid off employees received unemployment 'compensation to which the company contributed. They stated that they were not going to pay them twice. From December 11, 1959, until the strike began in June 1960, Lodge No. 1746 requested no further meeting with company representatives, although subsequent meetings were arranged by the federal and state mediation services that did not result in any confrontation between the parties. Concurrently with negotiations between Lodge No. 1746 and the Pratt and Whitney Division, Lodge No. 743 kept its own membership at the Hamilton- Standard Division fully informed as to what was going on', by issuing fliers emphasizing and discussing the issues proposed and published by the Steering Committee of the Joint Unity Program. After the Pratt and Whitney contract expired on December 4, 1954, and the membership of Lodge No. 1746 had rejected the new contract proposals recommended by its negotiating committee, Lodge No. 743 made an announcement to its membership, as follows: Soon, you at Hamilton will get your chance. Negotiations are just around the comer. Now is the time to thinkpositive and once for all stand firm for a contract which we will be proud of. Your final chance to show the Company that you mean business and this is the year to join with all other union members at East Hartford, North Haven and Sikorsky and wear the-Unity Button. Today, January 15, 119601 is "B" day at all plants who are either in 'negotiations or will be going in shortly. In another flier distributed on February 22, 1960, Lodge No. 743 announced that the membership of Local 877-UAW at the Sikorsky Division of United Aircraft Corporation had rejected all company proposals in a mass meeting held in the Loew's Poll Theatre in Bridgeport, Connecticut, and exhorted its own membership, as` follows: The time is drawing near for we who believe in full protection to stand-up and be counted. You will be called upon to make this choice, so get the true facts and evaluate them carefully. Talk it over with your fellow employees. Get that non-union employee off your back and fighting beside you. Let's not kid each other, this is War, not a cold war but a hot one. In the same` manner that 'January 15, 1960, was designated by Lodge 1746 as "B-Day" to wear the Unity Buttons in celebration of the rejection of a new contract with the Pratt and Whitney Division, Lodge No. 743 now designated Tuesday, February 23,1960, as "Tag Day" in all divisions of United Aircraft Corporation to wear the Unity Button with a tag attached to salute Local ' 87-7-UAW for rejecting a new contract at the Sikorsky " Division in Bridgeport, Connecticut, except on terms and conditions proposed by the Steering Committee of the Joint Unity Program. Thereafter,, on-April 20, 1960; similar action was taken by the membership of Lodge No. 743 by rejecting final company proposals for new contracts-at the Hamilton Standard Division. Current contracts at the Broad, Brook and Windsor Locks plants of the Hamilton , Standard Division .expired at midnight on April 21, 1960., Thereafter, on May 10, 1960; the IAM-UAW,Joint Unity Committee distributed a leaflet sponsoring a, mass demonstration to hear an address to be delivered by IAM President Al Hayes at the Bushnell Auditorium in Hartford, Connecticut, on May 22, 1960. Union members working at all, United Aircraft plants were urged to participate; and-this,flier containedthe following prediction: - ONLY 5 DAYS TO GO Negotiations between UAW Local 1234 and Pratt & Whitney North Haven plant - are coming down the stretch. In 5 more days the last major contract will ,expire unless the company makes a realistic contract offer. In all likelihood, after May 15th we will be able to report "4 down, None to go." The cycle would be complete. WATCH ALL LEAFLETS FOR -IMPOR- TANTANNOUNCEMENTS IN THE DAYSAHEAD. On May 13, 1960, Lodge No. 743 distributed a leaflet calling for a meeting of all picket captains on Sunday, May 15, at the District 91, office, to be instructed in their strike duties by an expert assigned by the Grand Lodge; and it was further noted therein that the North Haven UAW contract expired that weekend. On May 16, 1960, another leaflet reported that' Local No. 1234-UAW, had unani- mously rejected the proposed contract at North Haven and buried with it the company hope of driving a wedge into the IAM-UAW Joint Unity Program; about 500 gate, picket captains' from LAM Lodges No. ' 1746 and ' 743 had been instructed in strike duties; and in the name of the IAM-UAW Joint Unity Committee announced dates for a strike vote to be taken, on May 22 at UAW Locals and on May 23rd at LAM Lodges following the mass demonstra- tion and address of LAM 'President Al Hayes at the Bushnell Auditorium in Hartford. All majorvlocals and lodges working without contracts requested their members to stand up and give approval of strike action, reciting that: ALL MAJOR UNIONS AT UNITED AIRCRAFT ARE READY TO MOVE TOGETHER-THIS IS THE FIRST TIME IN HISTORY THE COMPANY HAS ITS BACK TO THE WALL YOU PUT IT THERE-KEEP IT PINNED TO THE" ,' WALL UNTIL THE COMPANY DROPS ITS MODEL-T POLICIES AND GRANTS ALL WORKERS AND THEIR FAMILIES GENUINE SECURITY. On May 17, 1960, Lodge No. 743 by the distribution of leaflets publicized its demands on the Company as follows: FOR THESE, WE FIGHT IF NECESSARY A' contract guaranteeing the right of stewards to investigate grievances with access to the records. UNITED AIRCRAFT CORP. 409 All unresolved grievances to be subject to arbitration by a neutral-,third party. An end to the apple-polishing merit system with an automatic raise plan to replace merit. Every employee will then reach the top rate of pay automatically. When jobs are discontinued, employees to be trans- ferred to other jobs on a seniority basis. Expand recall rights so, an employee with up to 3 years service has right to recall for 1 year; those with 3 or more years service will have recall rights for 2 years. All employees must share in the rights and responsibili- ties of union membership. Remove the restrictions from holiday pay eligibility. Shift transfers to be made on the basis of seniority within departments., Promotions to be made on the basis of seniority within departments. Employees to retain, seniority in old department for 60 days after transfer. Employees outside of bargaining unit, who have never been in the bargaining unit before to have seniority start as new employees. Improved vacations; 3 days paid funeral leave; pro-rate vacation allowance for laid off and retired workers. In an avowed effort to avert a strike the Respondent, Hamilton Standard Division on May 18, 1960, distributed a letter addressed "To All Hamilton Standard Employees," stating its position as follows: To All Hamilton Standard Employees The peaceful relations that have existed for the past 14 years between Hamilton Standard and Lodge 743, I.A.M., may be broken this year as a result of the present dispute between the company and the union. For, the first time since the costly strike of 1946, employees of ,Hamilton Standard who are members of the union have been asked to decide whether or not to authorize a strike against our division. This is a matter of grave concern to all of us at Hamilton Standard-not only because a strike could bring hardship to many people, but because it could seriously affect the business prospects of the division. For these reasons, I believe it important that you and your family know the full facts of our negotiations with the union. and understand what lies behind the threatened strike. The record of our negotiations with the union, frankly, is disappointing. It is public knowledge that Lodge 743 is involved in the so-called Unity Program devised by I.A.M. and U.A.W. leaders to pressure the company into agreeing to their demands. 'The Hamilton Standard management, at the very outset of negotiations, asked the union negotiating committee if it had any prear- ranged commitments to other unions which would restrict its freedom to make an agreement with us. The union negotiating committee, through its spokes- man, answered that it was free to negotiate independ- ently; that it was interested solely in the welfare of Hamilton , Standard employees; and that problems existing between the company and other unions and other divisions of United Aircraft Corporation did not concern it.- On the basis of these assurances, Hamilton Standard's representatives proceeded in good faith to attempt to negotiate a new agreement with Lodge 743. It is now clear that the union negotiating committee was either mistaken in the assurances it gave the company or deliberately misled the company representatives. During negotiations, representatives of the , company made a complete contract offer to the union which included the following: 1: Wage increases ranging from 7 cents to 12 cents an hour. Hamilton Standard's wage rates, with these increases, will continue to be well above the rates paid by other companies in this area for similar work. 2. Double time and one-half for work performed on holidays. Under this proposal an employee who works on a holiday will be paid holiday pay and, in addition, will be paid time and one-half for all lours worked on the holiday. 3. An increase in the amount of group life insurance available to employees. The company proposed to raise the amount of group life insurance from $4,000 to $5,000 under the present cost-sharing agreement. This proposal would permit an employee to increase his group life insurance coverage $1,000 at the cost of about 7 cents a week. The company also told the union it had, under study, plans concerning group life insurance for retired employees. It offered `to discuss this subject again when the study was completed. 4. Holiday pay for employees absent from work because of attendance at a summer camp or training as members of a National Guard unit or the organized Reserve. 5. A substantially increased number of matters subject to compulsory arbitration. 6. New provisions governing the wage rate to be paid employees in certain cases of, transfer from lower- rated to higher-rates jobs, and vice versa. 7. Improved seniority provisions governing layoff, recall, and promotion. The company's representatives were told by the union negotiating committee that seniority was the most important single demand involved in the negotiations. They were told that agreement had to be reached on this subject if the negotiations were to be successful. Recognizing the importance of seniority to employees and the company alike, we negotiated a new and broader seniority system which the union told us would meet the problems that had arisen under our former contract. The former contract provided that when layoffs were necessary, employees would be laid off and recalled by departments in accordance with their seniority and demonstrated ability. The company offered to broaden this clause substan- tially by combining most departments in Buildings # 1 and #2 to enlarge the area in which an employee could exercise his seniority rights in the event of a layoff.- The company also agreed to make other important changes in the existing seniority provisions. It agreed to 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establish new plant areas from which employees would be selected for promotion. It also agreed to the union's proposal that we drop the previous contract provisions giving management the right to retain, regardless of seniority, 10% of the employees in a department affected by layoff. These , were important concessions. Most people feel that when a compnay goes halfway in meeting a union's demands it is being fair and reasonable. In this case, the company went far beyond the halfway mark-it agreed to about 90% of the union's proposed changes on seniority. This has been admitted publicly by the union. In addition to the above, the company proposed to make certain other modifications and improvements in the terms of the former, agreement. It is my firm conviction that the complete company offer was fair and reasonable . In the light of present conditions in the aircraft industry, and particularly in view of the efforts all of us at Hamilton Standard have been making to meet the problems created by changing defense technology and increasingly keen competition, the offer was a sincere attempt to satisfy the needs of employees. No one has claimed that the company did not make a fair wage offer. Likewise, the company's offer on seniority seemed to remove it from the area of dispute. Even the officials of Lodge 743 admit these things. At the union meeting held on April 20 the leaders of the union recommended that the offer be rejected. Looking back now, it appears that the union leaders did not at any time have a- serious intention of reaching an agreement with the company. It is clear that unless the company agreed to those particular demands which had been devised by Lodge 743 in conjunction with other unions to increase the union's power over Hamilton Standard and its employees, and reduce management's right to manage, no agreement could have been reached. During negotiations we did not agree to these demands which include the unrestricted right of union stewards to investigate grievances on company time, compulsory unrestricted arbitration,, automatic wage progression and compulsory union membership. We will not agree to them under the threat of strike.,And we will not agree to them if a strike actually occurs. Let me explain briefly why this is our position. Investigation of Grievances on Company Time The contract which expired April 21 provided that an employee who had a grievance could have the services of a steward if he so desired. It also gave stewards the right to attempt to adjust such a grievance with the employee's foreman and to attend a meeting, at the second step of the grievance procedure , with the representative of management and the union commit- teeman for that area. In the contract the company also agreed to pay stewards for the time spent in attendance at such meetings up to 2 hours per week. The company and 'the ' union agreed that the proper number of stewards was 27, including the Broad Brook plant. The contract also provided that each of these stewards, regardless of his actual length of service, would be given artificial seniority so that, in effect, he would be exempt from any layoff in his department and on his shift. One of the final demands of the union was that the company agree to permit stewards to - investigate grievances on company time. If the company agreed to this demand, there would undoubtedly be serious disruptions of production ,and quite possibly confusion and friction among employees. The company, however, did tell the union that it would be willing to work out an arrangement to permit stewards to investigate griev- ances, so long as the investigation did not interfere with operations and provided the union paid for the time spent by the steward in making such investigation. This, I submit, is completely fair. Compulsory UnrestrictedArbitration The union has demanded that Hamilton Standard agree in advance to arbitrate all grievances and disagreements regarding the terms of the contract . This is, in effect, a demand that the company sign a blank check and turn it over to some outsider to be filled in by him sometime in the future. Unrestricted arbitration means the company would have to agree in advance to give some stranger, with no knowledge of the company's problems or business and no responsibility, for its successful operation, blanket authority to decide important matters which may affect its very existence and may endanger its ability to provide good jobs. The management of Hamilton Standard is unalterably opposed to compulsory unrestricted arbitration. When I use the term "management", I'm not talking of some abstract thing which is unfamiliar to you-'for in one way or another everyone is a "manager". The' function of a manager is basically the same regardless of what is managed. Some of us manage a business . Almost all of us manage a home and a family . `Some of us manage clubs for fraternal organizations, and some manage other activities such as P.T.A.'s and Boy Scout Troops. Few, if any such managers would endorse a demand that some third party be given absolute authority in advance of a dispute to tell us how to run the affairs for which we are responsible. I doubt that you would agree to allow your decision on the affairs thatyou manage to be overridden by the veto of some stranger. This is the basic position of the company on this demand. Let's look at the record and see, just how badly Hamilton employees need this type of'arbitration. Hamilton Standard takes pride in the fact that it treats all employees fairly. In order to insure such fair treatment, we have agreed, and we will continue to agree, to provide for the maximum protection of each employee's job rights by agreeing to compulsory arbitration on all the essential matters that affect his employment. In the recent negotiations we agreed to increase. substantially the matters which could be made subject to compulsory arbitration. If this offer were now in effect, any employee who believed that he had been unfairly dealt with on such things as discharge, disciplinary suspension, layoff, recall from layoff, promotion, shift assignment, over- time pay, premium pay, seniority, holiday pay, shift UNITED AIRCRAFT CORP. 411 premium, distribution of overtime, the rate range for a new or changed job, call-in pay, job classification, and other similar matters, could have an arbitrator rule on the question of whether or not the company had dealt with him fairly. To this extent, Hamilton Standard is willing to have an outsider review its actions and reverse its decisions if he finds reason for doing so. In all these cases, however, the matter subject to arbitration is known in advance. There is no requirement that we sign a blank check. In the past 10 years, during which many specific grievances were subject to arbitration, Lodge 743 took only 7 grievances to arbitration. I think this shows that Hamilton Standard has treated its employees fairly and that no need exists for the company to grant this demand for a blank arbitration check. During the two-year period of the last contract, only two grievances went to arbitratinn . One of these involved a seniority question; the other involved discharge. The company recognizes that on occasion a problem may arise which is ,not covered by the present arbitration offer described above. If this should occur, the union is, of course, free to have it decided by our Connecticut courts or by the U. S. District Court in this State. These , courts exist ibr the purpose of protecting the rights of Connecticut citizens and organizations, and they have established, a notable record for impartiality and fairness. The union has taken advantage of this right on several occasions during the past two years. In that period it appealed two cases to the state courts. One of these cases was subsequently withdrawn by the union in recognition of the fact that it was without merit and the other is still pending. I think these facts establish clearly that the union's demand for unrestricted compulsory arbitration is not one which is needed for the protection of Hamilton employees. Automatic Wage Progression Any reasonable person will agree that there is only one basic way to get a wage increase-that is, to earn it. Some unions, however, have adopted a device called ,automatic wage progression which is the complete opposite of this-principle. Along with other reasonable people,, we believe that wage increases can be paid only out of increased production and efficiency. Hamilton's wage system recognizes this basic fact and gears individual wages to individual output and efficiency. Automatic wage progression requires that all employees be given wage increases regularly and automatically until they reach the top of the rate range. The only requirement is the passage of time-4 certain number of months must elapse before the- next increase is forthcoming. So, increases are compulsory whether the individual has produced or not. Every employer who had faced the realities of meeting a payroll is aware that wage rates must be related to individual ability and effort. Everyone knows that all employees are not the same, that their individual abilities and skills and their performance on the job differ. We believe that the company should be able to pay more money to an employee who does a better- than-satisfactory job than to one who does not do so good a job. We believe that we should be able to reward efficiency and above-average job performance. And we think Hamilton employees expect to be paid more money when they demonstrate that their efficiency and job performance warrant it. Our rate ranges and our wage structure are based upon these fundamental principles. We have compared Hamilton Standard wage rates with the wages paid by other companies in the aircraft industry, including all of the companies which have automatic wage progression agreements with the I.A.M. This comparison shows that our wage rates equal or exceed those paid by the other companies . In practically all instances, the Hamilton "R" rate, and in many instances, the Hamilton "J" rate exceeds the top, rate paid 'by most other aircraft companies . Hamilton Standard's rates compare even more favorably to the rates of other companies in Connecticut and the New England area in general. The union has claimed that our rates are "paper rates"-that Hamilton employees do not get merit increases to the premium rates. As a matter of fact, well over one-half of all Hamilton Standard employees are paid rates in excess of the job rate. Compulsory Union Membership The union has demanded that the company agree to some form of compulsory union membership. This means that the company would have to force all its employees to join the union whether they wanted to or not. It means further that the company would have to discharge an employee who after having joined the union changes his mind and decided he wanted to get out. The company will not agree to such compulsion: Consider for a moment how this would affect Hamilton Standard and its employees. After almost .19 years of,, union representation, approximately 5% of the eligible employees here have elected not to join the union. If the company agreed to the union's original demand for a union shop, it would be required to do either of two things: force 2,200 employees to join the union, or discharge all those who refused to join it. Under any form of so-called union security, the company would be required to exert some form of compulsion. It seems reasonable to assume that since the union has been unable to, persuade ,Hamilton employees to join its ranks, it has decided it must get the company to do its job for it by forcing employees to become union members and to stay union members even against their will. The management of Hamilton Standard firmly believes that it has no moral right to enter into an agreement with a labor Union to force employees to become, or to remain, union members against their free will., In our opinion, the question of membership or non-member- ship in a union is a matter of individual choice and individual right. It is not a martter for majority rule. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hamilton Standard could undoubtedly secure a peace- ful settlement of this dispute for itself by agreeing to this demand. ' However, I assure you that under no circumstances 'will the company do this. Our plant is one of the pes where an employee has the freedom to decide for hi self whether or not,he wishes to join the union. We will not force anyone to pay tribute to a union for the right to work here. Although there is no collective bargaining agreement now in effect, the company will continue to investigate and adjust any complaint or grievance which may arise out of your employment. -I take pride in the fact that Hamilton Standard has always been a' good place, to work. It will'continue to be a good ' place to work whether or not there is a union agreement' in effect. Like most of you, I sincerely hope that an agreement with the union can be" reached so that we can all avoid the unhappiness that inevitably accompanies a dispute such as the present one. I would not be honest, however, if I did not tell you that I do not see any possibility of reaching such an agreement so long as the union officials continue to insist upon the demands which have led to the°present stalemate. I am sorry that this break in'our relations with Lodge 743 has occurred.'However,if the union calls a strike, our plants will remain open and work, which I urge you to accept will be provided for all employees. Very truly yours,,, HAMILTON STANDARD DIVISION Charles M. Kearns General Manager By leaflets dated May 24, 1960, Lodge No. 743-IAM announced that UAW locals at Sikorsky and North Haven, and IAM lodges at the Pratt-and Whitney and Hamilton Standard 'Divisionsi_had voted to strike; that the strike strategy committee' had been empowered to call a strike whenever it felt that it was the proper course to follow; and that strike _ sanction had also been requested from the Grand - Lodge.. In the meantime, State and Federal mediators called-ameetingof the negotiating committees of the parties in an effort to reach an agreement on the-issues involved; but the Union ..negotiators made it clear that' no agreement could be reached unless the Company 'yielded on the basic issues of automatic progression,-seniority, full arbitration, union shop, investigating grievances,' etc. The same procedure occurred at meetings arranged with the UAW locals -at the Sikorsky and North Haven plants. Letters were sent out, to all" members of the Union explaining the procedure to obtain strike benefits by registering at established strike headquarters and request- ing nonmembers to cooperate by remaining at home during the strike. Upon receipt of applications-for strike sanctions, Fred H. Coonley, vice president of the International Association of Machinists, replied by telegram to the local Unions on June 2, 1960, (Resp. Exh. 99D) stating that 4 Business Agent Sullivan admitted in his testimony that about 2 weeks before the strike he made arrangements with Attorney Zeman to represent "Release of Sanction will be governed by top level agreement with UAW as of June 13th." Vice President Coonley also sent a -telegram on June 8, 1960,. (Resp: Exh. 99A), to' John F. Main, senior business representative of District 91, as follows: ' Based on present developments in connection with Unity program with UAW dealing with the breakdown of negotiations with United Aircraft Corporation this is to advise that I am releasing strike sanction to Lodges 1746- and 743 covering all affected installations of United Aircraft Corporation as of 8 A.M. this' date.' Sanctions letters sent to Lodges Nos. 1746 and 743 contained a postscript, as follows: P.S. Consistent with our policy, Lodge 1746 [743] should not accept and sign an -agreement- with the `company unless and until-Lodge No. 743 [1746] has satisfactorily completed agreements with the Hamilton Standard Division [Pratt & Whitney Division] of the Company at Windsor Locks and Broad Brook, Connecticut [East Hartford, Connecticut], Both agree- ments necessarily should bear the same expiration dates. Pursuant to the foregoing grant and - release of strike sanction, Lodges Nos. 1746 and 743 on June 8,1960, began the strike and established-picket lines atRespondent's Pratt & Whitney-plants at East Hartford'and Manchester, and at the Hamilton Standard plants at Windsor Locks'and Broad Brook. Shortly before the picket lines were established, International Organizer - Raymond Jutras ` addressed a meeting at the headquarters of Lodge 1746 in East Hartford inter alia as follows: Your district staff met with the various business agents, of the building trades and they did assure us that all outside contractors who are doing work inside of the shop would- respect our -picket lines in this area: This thing started at nine -o'clock this- morning- by one department who felt we had•waited long enough. They felt that we should follow this United Program right to the letter; that we should walk,-out with our brothers and sisters from the UAW locals at Sikorsky-and North Haven. I think this department should be given a great deal of credit Department 963 on the,first shift. They started the ball rolling. Now it becomes our job to try to keep as many of the second shift employees from going info that plant as we possibly can, and that - can- only be done by, mass picketing. But listen, brothers and sisters, we have been waiting fifteen years for this.4 - Signs carried by strikers on the picket - lines and also displayed-at Strike Headquarters; clearly indicated that the strike was i a joint enterprise of UAW - and - UAM in connection with current negotiations for new contracts seeking to enforce -joint -demands for `more favorable contract provisions with respect to automatic progression, full, arbitration, investigation of grievances, seniority, union shop, etc. To all intents and purposes it was from the beginning an economic strike, and so recognized! by all parties, including the General Counsel of the National members and supply bail bonds where necessary. UNITED AIRCRAFT CORP. 413 Labor Relations Board when the original charges and complaint were filed and issued. B. Events During the Strike From overwhelming undisputed evidence it appears that the strike was accompanied by extreme violence, disorderly conduct, and mass picketing to the extent that the National Labor Relations Board, based upon charges filed by the Respondent in Cases 1-CB-652, 653, and 656, and pursuant to Section 10(j) of the Act, petitioned the U. S. District Court in Civil Action No. 8380 for an injunction against the Union to restrain activities alleged to be in violation of Section 8(b)(1)(A) of the Act. Thereupon, Plato E. Papps, Esq., as'General Counsel for the International Association of Machinists, Washington, D.C., came to Hartford, Connecticut, to assist in the representation of Lodges 1746 and 743;,whereupon an agreed stipulation with respect to picketing was entered into before the U. S. District Court without the formality of a hearing. General Counsel Papps testified as a witness before the Trial Examiner herein, as follows: If my memory is correct, and I told them what I had seen-the motion pictures, I said, `I'm: not going to permit any court to see those pictures. As far as I am concerned, any judge that saw them would issue an injunction immediately.' I then talked to Mr. Wells [Attorney for United Aircraft Corporation]. I was permitted-I think I 'said in open court-I believe I was permitted to-I was introduced to the Court. I think we met in Chambers, Judge Klau, if my memory is correct. I explained to the judge that we didn't condone this. That as far as' l was concerned it was illegal activity and that I was perfectly= willing to enter into a stipulation and was quite concerned frankly with people who might be arrested ' and Iwould--with consent of Mr. Wells we agreed to a stipulation. After signing the stipulation, -General Counsel Papps preempted to himself all further negotiations with Respon- dent and its attorney Joseph C. Wells, and thereafter on July- 15, 1960, made a report, conclusions, and recommen- dations by memo to. A. J. Hayes, International President, as follows, Memo to A. J. Hayes, International President From Plato E. Papps, Chief Counsel Subject: Report on United Aircraft Strike and Recom- mendation On June 28, 1960 at the request of Vice President Coonley and the Bargaining Committees of Lodges 1746, and 743, I proceeded to Hartford, Connecticut with the object of attempting to assist these Committees in negotiating a collective agreement and strike settlement ° with United Aircraft Corporation. The negotiation's- were completely deadlocked and no meetings were taking place at the time of my arrival. About June 26th Governor Ribicoff had called a meeting of the top officers of the Company, the IAM and the UAW in an attempt to have the'parties get off dead- center and-' commence negotiations . I was not present at - that meeting but at that time the parties agreed on a 3-man bargaining,team, the composition of which was Vice President Coonley, Dick Thurer and John Main. These meetings never really got off the ground. On my arrival I, together with the Bargaining Team, met with the Company for the purpose of attempting to broaden the bargaining team and after- two days of negotiations we expanded the team to include me and the Local Lodge President. On June 30 our negotiations broke off on a very unsatisfactory note because of the unwillingness of the Company at that time to break off negotiations with the UAW and commence bargaining with us. However, they agreed to reconvene for a meeting on Tuesday afternoon, July 5, ' at which point we commenced bargaining again.: (By way of explana- tion, it was my opinion that the easiest contract to negotiate would have been the Hamilton Standard contract because they had all but reached` agreement prior to the strike but because of the unity program and other-considerations broke off negotiations.) After running through the final proposals of the Company with , President Butler Seidman, and the contract that had been rejected by the membership prior to the -strike, we went in and met with the Company and went down the contract clause by clause as to what was agreeable and acceptable to the Union. During the course of the bargaining, the Company withdrew a number of its prior offers on the grounds that they were made only for the purpose of persuading the Union to accept the settlement and not to strike, but that since the strike situation had changed substantially. A. J. Hayes It was the consensus of all members of the Committee that I would be the principal speaker for the Bargaining-Committee. After a tremendous amount of general villification and extremely difficult negotiating we broke off for the afternoon by passing the difficult items in question. The items- in issue then and now are as follows: - 1. Full arbitration and hearing of grievances-Company won't buy! ! 2. Spell `out the wage increases for the reopening of the contract-Company offered 7-12 cents on January', 2, 1961 but wants an extension of the contract. 3. Form of union security-Company now wants to take away the checkoff. 4. Automatic progression in lieu of merit increases or in the alternative an upgrading of one step in the merit increase-Company refuses to give in on this, and' we -are trying to get standards established for merit increases. - 5. The return to work, reinstatement and recall of all employees-in my opinion this is the most serious aspect of theentire negotiations. Involved is the reinstatement and return of the striking employees and an attempt ,to minimize or save as many of the members as we possibly can who had either been discharged or replaced for violence on the picket lines and other misconduct. 414 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD (Parenthetically I was shown a 12-minute excerpt of a 10,000 foot film which contained typical conduct engaged in in the first week of the-strike showing mass picketing, acts of violence, destruc- tion' of automobiles and property as the scabs were going through the picket lines.) Meanwhile we 'had outstanding four applications for injunctions by the National Labor Relations Board to prohibit this conduct and limit the number of pickets at each gate, and one'injunction on file inAhe State Court by the Company alleging the same acts and conduct. I was successful in stipulating as to the facts in all cases and in stipulating that we would have one picket for every 2-1/2 feet'depending on the measurement'of the various gates of thee plants and a minimum of at least 2 pickets at each gate. Again, parenthetically, I was in no position to permit either the Company or the labor Board to put in a case of testimonial evidence which could be utilized to our detriment in any subsequent civil litigation for damages under the Russel Doctrine. The object of the stipulation was to protect our membership in that, if a violation of the stipulation occurred the Board and the Company could then apply for an injunction and we would litigate the question of whether we violated' the stipulation rather than litigating a ' contempt proceeding, thus giving our membership one more step in any proceeding before a contempt citation could issue. Ever since the stipulation, more than 700 affidavits have been filed by the Company with the Labor Board asserting violation of the stipulation and 'it now appears that the Labor Board will proceed this coming week for an injunction. The Company has advised me that they plan to bring an action on, behalf of all affected scabs for damage to property, etc. in a sum of a million dollars or more under the, Russell doctrine. If this suit is pressed we are in,serious trouble. All parties have been made fully aware of this situation and specific instructions have been issued to the membership to curtail this type of conduct. Meanwhile I was called to Governor.Ribicoff's office and met with the Governor for about one-half hour to forty , minutes in connection with the strike. I spent about the first 15 minutes listening . to his strong objections to the,picketing at the Capitol by our people while he was at the Governors' Conference in Montana, and about the last 15 minutes or so discussing the strike issues, He was pleased that people from Headquarters were in and that we were meeting. On Thursday of last week-July 7-because of the abuse by- the Company with regard to the other members of the Bargaining Committee, Vice President Coonley sent me in alone to bargain with UAC, during the course of which we negotiated and I agreed, to present to our, Committee the order of reinstatement and recall of striking employees once the strike had terminated and other contract items were settled. The method would be: 1..All; employees who wished to return to work must within. 5 days register with, the Company. 2. Recalls would commence immediately and employees would be returned to their former jobs unless their jobs were filled by scabs. 3. Where jobs were filled by scabs, all recalled employees would be offered substantial equiva- lent positions if such positions available on that shift, and if not, on another shift. 4. If positions not available, they would be placed on a preferential hiring list. Parenthetically again, the number of people affected by either promotions or shift transfers are: At Hamilton, 2 percent of the striking employees would not have their jobs available because of promotions of scabs and just under 4 percent would have an identical job but on a different shift,. At Pratt-Whitney between 1-1/2'and 2 percent on promotions and not more than 500 and 3 1 percent on shift transfers. About,8 people had been fired at Hamilton Standard and 25 people at Pratt-Whitney' for misconduct and violence on the picket lines. As to these it is my belief that I can pare these down,probably` by another 50 percent by some difficult negotiating. Upon getting ready to return to the Committee to report on the negotiations, I was asked by Martin Burke, Vice President of the Company, whether or not once we reached agreement the Committee' would recommend to the membership acceptance of the contract terms. I indicated that I felt certain that once we reached agreement they would recommend' the settlement to the membership but I""would have to check with the Committee. In discussion of this item with the Committee and wholly apart from contract items, it was the position of John Main and the two Presidents, Seidman and Fraser, that this was "complete surrender", and they would neither recommend nor accept such terms. After discussion L -pointed out that in my opinipna and according to the Company figures the strike waslost. My conclusion was based on and is based on'the fact that at Hamilton, 62 percent of-the employees have returned to work; at Manchester 85 percent have returned to work; and, at Pratt-Whitney 76 percent have returned to work. lI pointed out to them that our position would be no stronger a week, or two or three weeks from now, and that any opportunity for settlement was at its peak at this point; that the strike was lost; and, that we had an obligation .to the membership and to the organization to attempt to negotiate before, we lost this aircraft plant. In reply to this, Main, Seidman, Fraser and Thurer stated that they did not believe the "strike was, lost" and both Presidents and Main stated that they "would rather build from the ashes and with' dignity than recommend ; such a settlement to the membership. " I pointed out that they could well lose this plaiit rand even ,now ,.there was one employee (Dzidziak-a leadman at Pratt-Whitney) who was talking decertification. It was their position that they would rather lose the, aircraft plant, and walk with dignity, than to make such a recommendation. I, then told them that nowhere else in the Greater Hartford area could they hope to have a captive group of 35,000 UNITED AIRCRAFT CORP. 415 people in which to organize and that many a smart Field General surrendered during the war before his defeat was turned into a rout. They remained adamant that all employees must return to work, including those who had been fired for misconduct or arrested for violence and/or destruction of property. Upon report- ing to Burke, our position of not recommending whatever agreement was reached, but would only present to the membership the terms of agreement, and the Committees' -position as to the return of all employees I was accused by Burke of "whipsawing" the Company and the negotiations again broke off. The Company then informed me that they would commence an immediate hiring program of new hires. By this time it was 10:30 in the evening and by 11 P.M. the Company had had its press releases on TV and Radio in connection with the Union's position. I thereupon told the Committee there was nothing more I could do until they could agree among themselves that whatever agreement we reached in negotiations would be recommended to the membership. Meanwhile the Company commenced bargaining with the UAW and,they reached a settlement the day before yesterday which was, accepted by their member- ship at North -Haven. At the Sikorsky plant (UAW) a decertification petition was filed yesterday and accord- ingly no bargaining can occur. As to the settlement reached by the UAW, it is identical except for one or two minor variations with the agreement that we held at Hamilton as well as with the Company's last offer to us prior to the strike at that plant. However, there is an arbitration procedure which is broader than any that we can hope to get because of the UAW Review Board at Detroit, in connection with arbitration, and -which the Company will not give to us because we have, not demonstrated to them any effectiveness of such review at a higher level. Our members at Pratt-Whitney would, be satisfied with the terms of the Hamilton Standard agreement with minor variations but I doubt that we can get that in all respects. Yesterday I received a phone call from Thurer and Main in which they wanted me to-get a meeting with the Company and commence bargaining again. I' pointed out "to them that the Company would not bargain with us in the face of our refusal to recommend any agreement reached and unless and until the Committee agreed to go along with that position, no useful purpose would be served either in my coming there or attempting to get a'meeting. I also pointed out that every day that this strike continues and new employees are hired the settlement reached with regard to recall of employees would be exceedingly more difficult if not impossible. As of 8 P.M. last night and 10 A.M. this morning they had not changed their position. When I refused to go I did agree to call Burke to see whether or not he would meet on the basis of our Committees' terms. I called him and he refused to meet on those, conditions. I reported this back to Main, Thurer and Seidman and I told them that unless their position changed there was nothing further I could do. I also pointed out that they could call Burke if they desired and see what they could do in attempting to have him change his position. I again talked to Burke last night about 9 P.M. in connection' with West Palm Beach, which incidentally was finally settled, andasof that time no one had called him although his position remained unchanged. In conclusion, I strongly recommend: (1) that the members of the Bargaining Commit- tees be instructed that they are under , an obligation to recommend to the membership whatever final agreement we reach on the basis of a settlement of a strike; (2) that they take a realistic appraisal of the situation and recognize that they are not in a good bargaining position, and that they should try to salvage something from this strike, whatever it may be and that their failure tondo so will well cost us this aircraft plant. I am prepared to return to Hartford at any time to commence negotiations if they agree on this matter. P. E. P. cc: Walker Watkins Coonley P. S. I have notified the Committees by telephone as to where I can be reached this weekend, which is THE CHATEAU STONE HARBOR NEW JERSEY P. E. P. In a series of meetings with 'representatives of the Respondent on July 17, 18, 19, and 20, 1960, the negotiating parties, 'with Papps 'as chief spokesman for the Union, reached complete agreement on terms and conditions of settling the strike and entering into a new contract, subject to ratification by the respective membership of Lodges 1746 and 743, as provided in the local by laws-said agreements having been' reduced to writing, , International Vice President Coonley called a joint special meeting of Lodge 1746 and Lodge 743 to be held at Bushnell Auditorium in Hartford, Conn., on July 23, 1960, for the purpose of presenting said agreements to the local membership for ratification. Meanwhile, discussion and debate by certain members of the local bargaining committees prior to this meeting generated such violent opposition to the proposed settlement agreements that the meeting convened in an uproar, and General Counsel Papps was shouted down and denied the privilege of , reading and explaining the document to the assembled joint membership of Lodges 1746 and 743. General Counsel Papps testified thathe was placed in fear of his life or-serious-bodily harm at the hands of the assembled mob; consequently,: he hastily retreated from the Bushnell Auditorium and returned, to ,his Headquarters (IAM)_in Washington, D.C., without obtain- ing the required approval of the settlement agreements by the union membership. Shortly thereafter, Governor .Ribicoff of the State' of Connecticut called a summit meeting on August 5, 1960, at 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Park Lane Hotel in New York City to which high ranking officials of the Union and the Company were invited. Among others this meeting was attended by International President Hayes and General Counsel Papps representing the Union, and President Gwinn and Vice President 'Burke, representing United Aircraft Corporation. Inte ational President A. J. Hayes, as principal spokesman %Vlte Union, `recorded the results of this meeting as follows: MEETING WITH GOVERNOR ABE RIBICOFF, MR. GUINN, PRESIDENT, AND MR. MARTIN BURKE, VICE PRESIDENT, UNITED AIRCRAFT CORPORATION-PARK LANE HOTEL, NEW YORK, N.Y. Friday, August 5, 1960 Hamilton Standard Propeller, Lodge 743 Broadbrook and Windsor Locks, Conn. All of the terms and conditions of strike settlement set forth in the memorandum pertaining to the East Hartford Plant have also been agreed upon for the Hamilton Standard Plant. In addition, the Company-has agreed that all of the terms and conditions of the April 19, 1960 agreement will remain in effect. A. J. M. H/am cc: Coonley Main MEETING WITH GOVERNOR ABE RIBICOFF AND MR. GUINN PRESIDENT, AND MR. MARTIN BURKE, VICE PRESIDENT, UNITED AIRCRAFT CORP., PARK LANE HOTEL, NEW YORK CITY, N.'Y.^ Friday, August 5, 1960 After several hours of'pro and con discussion, which was in the nature of exploring all of the possible settlements of the strike now in progress, Company Officials finally agreed to the following terms of strike settlement. East Hartford Plant 1. The Company has agreed to change its prior position with regard to registration of all employees who desire to return to work and permit such registration' to' be -conducted at, various suitable locations inside the plant. The Company Officials even stated that they were willing to agree to let the Union conduct the registration of its own members and submit the membership lists' to the Company. With further reference to registration, the Company agreed that those employees who were ill, out of town, or out of the country, would be afforded a greater length of time to register. 2. The Company further agreed that they would arbitrate the cases of all of the employees who were scheduled to be terminated because of illegal or improper acts during the strike. In this connection, the Company agreed that the list of 42 of 43 which had been worked-out in a previous meeting with Attorney Plato E. Papps, plus some additional cases which were placed on this list by the Company since the negotiating session with Mr. Papps, will constitute the total number of cases to be arbitrated. Further in this connection, the Company agreed that the Chief Justice of the Connecticut Supreme Court-Justice Baldwinwill select the arbitrators from Justices and Referees of the Supreme and Superior Courts. (It was further agreed that in the event the Chief Justice could not secure a sufficient number (9 or 10) due to heavy calendars or vacations, that he would select the balance from Members of the Connecticut Bar Association with 25 years' or more experience as outstanding lawyers.) Further in connection with this, the Company agreed and the Chief Justice agreed and understands that each arbitrator will have full and complete authority to decide (a) whether the persons in question are guilty of all or any part of the charges alleged against them; and (b) whether the extent of their guilt justifies the supreme penalty of dismissal. In other words, under the agreement it is possible for an arbitrator to decide that even though the person in question is guilty of all or in part of the charges against him, he could still be returned to work if in the judgement of the arbitrator dismissal from employment is too severe a penalty. 3. The Company further agreed that all striking employees would be returned to work at the earliest possible date consistent with the needs of the Company. In this connection, the Company agreed that wherever a striker's job remains open, he or she will be returned to that position. In the event, however, that the, job or position is already filled by one who returned to work or one who was hired, the returning striker will be placed on a comparable job without a reduction in his or her previous rate. If it becomes necessary later to keep such strikers on a lower paying job they will receive notification of any reduction prior to the time that such reduction is made. (The Company estimated that there were, some 800 college and high school students on "summer jobs" and that all of these students would leave the employment ' of the Company immediately after Labor Day.) , 4. Vacations. The Company agreed that accrued vacation pay will be granted to all striking employees who return to work before January 1,1961. A. J. H. H/am cc: Coonley Main Following this summit meeting with Governor Ribicoff, the local negotiating committees of Lodges 1746 and 743, including Grand Lodge Representative Richard L. Thurer, resumed negotiations with Representatives of the Respon- UNITED AIRCRAFT CORP. 417 dent until a complete threefold agreement for settlement of the strike was reached consisting of: (1) procedure for recall of strikers to work, (2) terms and conditions of anew labor contract, and (3) submissions to arbitration of the cases of 50 selected strikers previously denied recall to work by Respondent because of their alleged misconduct during the strike. Thereupon, Lodge 743 on August 8, 1960, and Lodge 1746 on August 9, 1960, notified the Respondent that their respective memberships had accepted and ratified the negotiated proposals and were ready to sign written agreements.. Thereupon, the negotiated agreements as they applied to each separate plant were reduced to writing and signed by the contracting parties in the order hereinafter stated. As part of the overall aforesaid Agreements, the duly authorized representatives of Lodge 1746, and Lodge 743, including Grand Lodge Representative Richard L. Thurer, signed and entered into similar separate written agreements with the Respondent, on August 11, 1960, providing the terms, conditions, and procedure for the recall of striking employees to work. Each of these documents bears the caption "STRIKE SETTLEMENT AGREEMENT," and is attached to the Consolidated Amended Complaint herein as APPENDIX B, (Pratt & Whitney Division) and APPENDIX C (Hamilton Standard Division), the former being reproduced here as follows: 5 APPENDIX B STRIKE SETTLEMENT AGREEMENT recalled to other available jobs. in their occupa- tional groups and seniority areas in accordance with their seniority, pursuant -to Article VII, Section 1 and Section 2; of the contract ratified by the union on August 9, 1960. (c) Strikers for whom no job is available in accordance with (a) and (b) above will be placed on a Preferred Hiring List and will be recalled to job openings in their occupational groups -and seniority areas which develop at any time prior to January 1, 1961 before new employees are hired. Employees on such Preferred Hiring Lists will be recalled to such job openings in the order of their seniority pursuant to Article VII, Section 1 and Section 2, of the contract referred to above. Separate Preferred Hiring Lists shall be estab- lished for returning strikers employed at the East Hartford plant and those employed at the Manchester plant. 5. All employees who are returned to work prior to January 1, 1961 will receive their vacation or vacation pay in lieu of vacation. Employees who are returned to work prior to October 1, 1960 and who at that date have not taken a vacation will receive their vacation pay on October 14, 1960. Employees who are returned - to work between October 1 and December 31, 1960 will receive their vacation pay not later than December 30, 1960. This agreement made and entered into this 11th day of August 1960, by and between UNITED AIRCRAFT CORPORATION, for and on behalf of the EAST HARTFORD and MANCHESTER, CONNECTI- CUT, plants of its PRATT & WHITNEY AIRCRAFT DIVISION, and LODGE, 1746 of the INTERNA- TIONAL ASSOCIATION OF MACHINISTS, de- scribes the terms of the settlement of the strike called by LODGE 1746 with respect to the reinstatement and recall-of striking employees. 1. The union will call off the strike immediately after the acceptance and ratification by the union member- ship of the results of the negotiations. 2. All strikers who desire to return to work shall register in Cafeteria A of the East Hartford plant during the three-day period commencing Thursday, August 11, between the hours of 8 :30a.m. and 4:30 p.m., and such registration will be completed Saturday, August 13, at 4-30 p.m: 3. Strikers who do not register during this period will be considered as having quit and not desiring to return to work. 4. Strikers who register in accordance with the above will be returned to-work in the following manner: (a) If the job held prior to the strike (i.e. same job code, department and shift) is available, the registering striker will be returned to that job. (b) If such job is not available, strikers, will be treated as if they had been laid off, and will be y For ,identification and convenience these two documents will be jointly referred to as the "Striker Recall Agreements". Dated at E. Hartford, Conn.-this 11th,day of August, 1960. LODGE 1746 of INTERNATIONAL ASSOCIATION OF MACHINISTS UNITED AIRCRAFT CORPORATION PRATT & WHITNEY AIRCRAFT DIVISION By /s/ A. S. Smith By /s/ David Fraser /s/ Eugene L. Ripolone /s/ Thomas J. Radzevich /s/ Walter J. Kelly /s/ Roland F. Marshall /s/ John K. Main, Sr. /s/ Richard L. Thurer--Grand-Lodge Representative For, comparison only, paragraph `(b) of APPENDIX C (Hamilton Standard Division) is reproduced here, as follows: If such job is not available, strikers will be recalled to comparable or other available jobs in accordance with their seniority and demonstrated ability pursuant to . Article VII, Section 1 and Section 2, of the Windsor Locks contract ratified by the Union on August 8, 1960, or, pursuant to Article VII, Section 1, of the Broad Brook contract ratified by the Union on the same date .6 Article VII, Section 1-2 of the new Pratt & Whitney labor 6 It thus appears that the procedure provided for recall of strikers is a part of the layoff and recall provisions of new "labor "agreements" with (Continued) 418 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD agreement ratified by Lodge 1746 on August 9, 1960 (executed on August 16, 1960), is identical with the corresponding article and sections of the new Hamilton Standard labor agreement ratified on August 8, 1960, except that the former provides for layoff and recall of employees by occupational groups within specified seniori- ty areas in accordance with their seniority; whereas, the latter provides for layoff from and recall to specified seniority areas (at the Windsor Locks plant) or by departments (at the Broad Brook plant), as follows: ARTICLE VII Seniority Section 1. (a) In case of an indefinite layoff for lack of work, employees shall be laid 'off- and recalled by noninter- changeable occupational groups within specified senior- ity areas in accordance with their seniority (length of continuous service with the company since the most recent date of hire). (b), Nothing herein shall preclude the company from offering a transfer to an employee scheduled to be-,laid off from a job in one occupationalgroup to a job in a different occupational group, nor from recalling without loss of seniority an employee laid off from one occupational group to a job in a different occupational group in which no laid-off employee retains seniority. (c) Due to the ' great amount of work involved in a layoff, it is agreed that in any layoff of three hundred (300) or more employees, the company shall have a maximum period of ten (10) days from the date of the layoff during which the union agrees that grievances arising out of the layoff will not be filed. The company, however, agrees to investigate and 'correct where necessary any claimed violations of this Article which are brought to its attention during this period. The company shall not be liable for back wages claimed for any part of this period and arising out of an alleged violation of this seniority article. The five-day limitation on the presentation of grievances as provided in Section 6 of Article V, Grievance Procedure, will not begin until the period mentioned above in this section has expired. Section 2. The noninterchangeable occupational groups and the seniority areas mentioned in Section I above have been mutually agreed upon and are incorporated and made parts of this agreement as Appendices "B" and "C" attached hereto. The final issue with respect to settlement of the strike pertained to the recall of 50 strikers being denied reinstatement by reason of alleged misconduct, whereas the Union insisted that they be restored to full rights of employment without any penalty whatsoever. This matter was disposed of on August 24; 1960, by the "Arbitration Agreement" appearing in the record as 'Resp. Exh. 125 in the form, of a "Submission to the Honorable Raymond E. Baldwin, Chief Justice of the Supreme Court of Errors for the State of Connecticut who, as stated 'therein, was part of the layoff and recall provisions of new "labor "agreements" with respect to wages and working conditions dated August 8-9,1960. 7 In total disregard of the exhaustive investigation, deliberations, and requested and authorized to name -a panel of three arbitrators (and a fourth as an alternate) from among the retired judges of the aforesaid court to hear and render final decision in the matter. The panel of Judges so designated to serve as arbitrators were given full, complete, and final jurisdiction and authority to determine and decide whether any of the 50 strikers should, under all of the circumstances, be accorded all or any part or none of the rights and privileges accorded other striking employees under the Striker Recall Agreements. It was provided, however, that the panel should have no jurisdiction or authority to award- backpay to- any employee involved in this' matter or to, assess against any of the parties any monetary award or penalty. Thereafter, the Respondent strictly complied as to each of the 50 -strikers with the decision and award of the Baldwin Arbitration Panel.7 Consequently, we find that the strikers herein have never made'an unconditional offer to return to work, butonthe contrary through the duly authorized representative of each bargaining unit involved, after ratification by vote of the membership, entered into negotiated agreements setting forth the terms, conditions, and procedure for the recall of strikers to work pursuant to a new labor agreement for each bargaining unit. It was recognized, estimated, and agreed by all parties that there would notbe jobs available to recall all strikers immediately and that under the' Respondent's system of job classification it was not possible to identify the particular jobs formerly held by individual strikers except by means of an overall classification by job code, labor grade, occupational code, seniority area, shift, department, plant, and other descriptive methods. The job code is the basic identification of jobs throughout, the Respondent's plants with respect to available work to be performed, and it has- always been customary practice to hire employees to fill job codes rather than particular jobs occupied" by individual workers. Consequently, each operation "requires -a work complement commensurate with the volume of work. to be performed, and a job becomes available only as additional workers within a job code are needed to perform the work at hand. Recognizing this customary practice, the Striker Recall Agreements provid- ed that all strikers desiring recall should register as employees on layoff to immediately .fill all available "jobs and, "thereafter be placed on, a preferred hiring list from which other jobs would be filled as they become available. Each- striker was to be recalled according to his seniority to the, identical job-held before the strike, and,"if not, available, be offered comparable jobs- as they become available-'The strike had disrupted operations of the Respondent to such an extent that it would be absurd to conclude that all strikers could be recalled in a body to resume operations on the same basis that existed when the strike started. Respondent has used every possible adjustment allowed by law to protect and continue its plants 'in operation throughout a'9 weeks strike by transfers, promotions, hiring new employees, overtime oparations,'subcontracting work, etc., and, it was impossible to assume the'status quo when the strike ended on August 9, 1960. We -find nothing awards of this distinguished panel of experienced judges, and complete acceptance and compliance by the Respondent,;the complaint filed herein includes each of this group of 50 employees as alleged discriminatees. UNITED AIRCRAFT CORP. 419 unusual about the agreed procedure to recall strikers, except possibly the limitation of recall to job openings "which develop at any time prior to January 1, 196L" (Emphasis added.) This limitation on the right to recall by economic strikers raises a legal issue whether or not the Respondent by enforcing such a limitation thereby engaged in discrimination against employees to discourage member- ship in a labor, organization in violation of Section 8(a)(3)of the Act. Whether Respondent is liable to the Unions for any breach of contract is not within the jurisdiction of the National Labor Relations Board, but is the subject of Civil Actions Nos. 9084, 9085 now pending in the U.S. District Court of Connecticut before Judge Clarie, whose initial findings and judgment were handed down on March 19, 1969, of which this Trial Examiner takes judicial notice to the effect that the Court found that the strike settlement agreements and recall of strikers were administered in the utmost of good faith by Respondent, except as to minor infringements upon the right of certain strikers to be recalled to jobs in which they held seniority rather than be filled by transfers and promotions within certain depart- ments, seniority areas, or occupational groups. The Trial Examiner also takes judicial notice of the findings and decisions of Judge Leo V. Gaffney, Judge of the Superior Court' of Hartford County, State of Connecti- cut, in the case of United Aircraft Corporation v. IAM; DistrictLodgeNo. 91, IAM; and Lodge 1746, IAM (Case No. 13384) and United Aircraft Corporation v. JAM; District Lodge 91, IAM; and Lodge 743 (Case 133885) in "MEMORANDUM OF DECISION" dated May 31, 1968, and in "MEMORANDUM OF DECISION ON HEAR- ING IN DAMAGES" dated November 26, 1968. (See Resp. Exh. 168), in which the Respondent recovered actual damages for its Pratt & Whitney Division in the sum of $1,369,725.25, and for its Hamilton Standard Division in the sum of $88,662, bearing interest from August 12; 1960, plus additional punitive damages in the sum of $296,000. C. Registration and Recall of Strikers Paragraph 2 of the Striker Recall Agreements provided that all strikers desiring to return to work should appear and register such intention ' at the times and places designated therein. This registration was conducted on company premises under the supervision of representatives of both the Union and the Company, each retaining a complete list of those registered. Each striker prepared and signed a - registration card showing his- recall status according to previous employment and seniority, and the Respondent set up a file for these cards from which to make selections for recall and to establish the preferred hiring list required by the Strike Settlement Agreement. At the several plants of Respondent the number of strikers originally registered was as follows: P & W East Hartford - 4515 P & W Manchester - 20 H - S-Windsor Locks - 1721 H - S Broad Brook - 300 TOTAL NO. STRIKERS REGISTERED - 6556 Administration of the Striker Recall Agreements consist- ed of Phase I-recall under paragraph 4(a) to the same job code, department, and shift; Phase II-recall under paragraph 4(b)-to other available jobs in their occupational groups and seniority areas in accordance, with their seniority, pursuant to article VII, sections 1 and 2 of the Pratt & Whitney labor agreement ratified by the union membership on August 9, 1960, or in accordance with their seniority and demonstrated ability pursuant to article VII of the Hamilton Standard labor agreements ratified by the Union on August 8, 1960, at the Windsor Locks and Broad Brook plants; and Phase III-recall from the preferred hiring list set 'up as nominal "Plant 90" at Pratt and Whitney, nominal "Plant 800" (Windsor Locks plant), and- "Plant 900" (Broad Brook plant) at the Hamilton Standard Division, all consisting of strikers, not previously recalled under Phase I and Phase II, to job openings which develop at any time prior to Jan. 1 1961. During the settlement period from the end of the strike through December 31, -1960, Pratt & "Whitney recalled or offered to recall 3470 strikers to work, including 407 from the preferred hiring list set up pursuant to paragraph 4(c) of the Striker Recall Agreements; and during the same period 223 were removed from the preferred list by voluntary resignation-196, retirement-3, submission to arbitration agreement-24. Thirtytwo failed to pass the physical examination, required in jobs offered to them, and 87 others refused- to accept jobs offered to them under terms of the Striker Recall Agreements. Consequently, 723, strikers remaining on the preferred hiring list, established at the Pratt, and Whitney Division pursuant to the Strike Settlement Agreement had not-,been offered recall to work prior to January, 1, 1961. Thereupon, the Respondent terminated the remaining registered strikers at the Pratt and Whitney Division but offered to consider each of them as a new applicant for employment upon the filing within 5 days of an application for any job he might be interested in and qualified for. Thereupon 605 strikers complied with this latter offer, and the Respondent hired 277 of them as new employees during the months of January (132), February (87), and March (58) 1961, thereby reducing the number of available registered , strikers , at the Pratt and Whitney Division to 328. During this _ same period from January-April 1961 , inclusive, Pratt & Whitney hired 1,593, additional new employees from a total list of 17,000 applicants. During the settlement period from the end of the strike through December 31, 1960, Hamilton Standard recalled or offered to recall 1080 ,strikers, to work; including 753 returned to their, identical prestrike jobs in the same department, job code and shift at the Windsor Locks (689) and Broad Brook (64) plants; and also including 104 strikers at Windsor Locks (99) and Broad Brook (5) returned to same job code on a different shift; and.also including 223 strikers at Windsor Locks (184),and Broad Brook (39) from the preferred hiring list established pursuant to paragraph 4(c) of the striker recall agreements. During the same period 102 strikers were removed from consideration , by voluntary resignations from Windsor 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Locks (84) and Broad Brook (8); by death from Windsor Locks (5); by dismissal under the arbitration agreement at Windsor Locks (1); and by refusal to accept jobs offered to them pursuant to the striker recall agreements at Windsor Locks (3) and at Broad Brook (1). Consequently, 839 strikers at the Hamilton Standard Division were not offered recall to work prior to January 1, 1961, and-were thereupon terminated pursuant to the striker recall agreement. Respondent, however, immediately notified all strikers remaining on the preferred hiring list at the Hamilton- Standard Division that it would without discrimination consider each of them as a new applicant for employment upon the filing within 5 days of an application for any job he might be interested in and qualified for. Approximately 585 of these remaining strikers filed new applications as directed, and during the 4 month- period January-April 1961 the Respondent, hired 177 of these registered strikers at Windsor Locks (142) and at Broad Brook (35),8 thereby reducing the number of available registered strikers at, the Hamilton Standard Division to 408. All strikers hired after December 31, 1960, were hired as new employees without regard to seniority or other rights and ,privileges to which they were entitled by reason of, prior employment with the Respondent. D. Statute of Limitations The initial charge in these proceedings was filed on November 21, 1960, By Grand Lodge Representative Claude W. Fairfield to' the effect that "On orabout August 9, 1960, and at various ` dates thereafter, United Aircraft Corporation ' by its' officers, agents, and employees, withheld employment from those whose names are listed and attached hereto and/or failed to reinstate those'shown to their rightful job or jobs because of their membership and activities in behalf-of Lodge No. 1746 [Lodge No. 743 ], International Association of Machinists; AFL-CIO, a labor organization, and at all times since such date it has refused to and does now refuse to, employ the above-named employees. "On and since August" 9, 1960, it, by its officers, agents, and employees, have refused to bargain collectively with, the authorized agents of the above-named Union, a labor organization chosen by a majority-of its employees at its East Hartford, Connecticut [Windsor Locks and Broad Brook, 'Connecticut] plant to represent"them for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment. t ` "By-the acts set forth -above, and by interference such as intimidation, threats and- by other acts and conduct, it, by its officers, agents and employees interfered with, re- strained- and coerced its ' employees in the exercise of the rights guaranteed in Section 7 of said Act."", At frequent intervals thereafter, said Grand Lodge Representative continued to file' charges and amended charges to the same effect against the Pratt and Whitney Division and the Hamilton Standard Division of United Aircraft Corporation, until the Twelfth Amended Charges s After May 1, 1961, through December 31, 1964, Hamilton Standard hired 44 additional strikers at Windsor Locks (36) and at Broad Brook (8). were filed in, Case l-CA-3357 (Pratt & Whitney) on April 12, 1961, and in Case 1-CA-3358 (Hamilton Standard) on September 14, 1961. Thereupon, the Regional Director for Region 1, National Labor Relations Board, on February, 7, 1963; issued his "ORDER CONSOLIDATING CASES, COMPLAINT AND NOTICE OF HEARING" against United Aircraft Corporation, its Pratt & Whitney and, Hamilton Standard Divisions; as Respondent therein, fixing a date for the hearing to be conducted at Hartford, Connecticut, oil April 9, 1963. This complaint first issued on February 7, 1963, alleges in substance that since on or about May 21, 1960, and continuing to date; Respondent did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(i), (3), and (5) of the National Labor Relations Act, by: (1) Threatening its employees with economic reprisal for engaging in protected activities; interrogating them concerning their union affiliations and sympathies; making offers of benefit conditioned upon ceasing to engage in union or other` protected concerted activity; requiring all strikers not reinstated to any position prior to December 31, 1960, in accordance with paragraphs 4(a) and 4(b) of the Strike Settlement Agreements, to file new employment' applications" as a condition of employment on and after January 1, 1961; requiring all strikers : reinstated to a position in accordance with paragraph 4(b) of the Strike Settlement Agreements to sign waivers of their rights to be reinstated to their prestrike positions; requiring all strikers returned to some position, subsequent to the -strike to undergo physical examinations; terminating on January-1, 1961, the seniority rights and other benefits for all strikers rehired on and after January 1, 1961; and treating in a disparate manner the female strikers at Hamilton Standard plants; (2) Failing and refusing since August 11-13, 1960, to reinstate strikers to their former or substantially equivalent positions of employment pursuant to the terms,of the Strike Settlement Agreements, because said employees had joined or assisted Lodge 1746 and Lodge 743- or engaged in other concerted activities for the purpose of collective-bargaining or other mutual aid or protection and/or had participated in the strike from on or about June 8, 1960, to on or about August 11, 1960; and (3) Since on or about August 13, 1960, refusing to bargain with the Union as exclusive representative of its employees' by unilaterally changing strikers' rights to reinstatement, seniority, and other terms and conditions -of employment; and by refusing to furnish to the Union data relating to the rights of strikers to reinstatement and the manner in which the Strike Settlement Agreements were being implemented by Respondent, and related matters, and by refusing to submit a complete seniority list of employees in the bargaining unit. It should be noted that neither this complaint filed on February 7, 1963, nor the multiplicity of charges upon UNITED AIRCRAFT CORP. which it is based, allege or in any manner refer to any misconduct engaged in by the Respondent prior to May 21, 1960, which date marked the end of the 6-month limitation period from the filing of the initial charge on November 21, 1960, beyond which the Board, or any agent or agency designated by the Board is specifically denied the power or authority to issue a complaint based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. The Respondent on March 8, 1963, filed an answer to the complaint of February 7, 1963, denying all allegations of unfair labor practices, and at the same time it filed a motion to make the complaint more specific. Meanwhile, the hearing originally scheduled for April 9, 1963, was postponed at the request of counsel for the General Counsel and the Charging Party. On April 11, 1963, the General Counsel filed his-opposition and answer of counsel for GENERAL COUNSEL to RESPONDENT'S motion to make complaint 'specific in which he made certain assertions, which are pertinent to the statute of limitations herein, as follows: However, in order to facs„ilitate the joinder of issues and to advise Respondent of General Counsel's position as to various allegations, respecting which Respondent seeks specificity, and without retracting in any way the force of his objections to the propriety of such a Motion just described, regarding such Motion as falling into the approximate area comprised by a Bill of Particulars, the General Counsel answers as follows: 1. As to paragraph 1 of Respondent's motion: Strikers' right to reinstatement, etc., refer to the rights granted to economic strikers by the Act. The acts referred to are as follows: (a) The exaction by Respondent of a waiver from all strikers on their return to work; (b) The imposition upon all strikers not returned to work before January 1, 1961, of a requirement to apply anew, and the treatment of all such strikers as new employees. s s * s 2. As to paragraph 2 of Respondent's Motion: The General Counsel asserts that the strikers named in Appendix A of the complaint are economic strikers. (Emphasis added.) The failure to reinstate refers to a failure to reinstate them to their former or substantially equivalent positions of employment. 3. As to paragraph 3 of-Respondent's Motion: The General Counsel asserts that Respondent failed to accord to all those named in Appendix A of the complaint their rights as economic strikers. (Emphasis added.) In the alternative, he asserts that between January 1, 1961, and May 1, 1961, and continuing thereafter, all those _ named in Appendix A attached hereto were, as applicants for employment, discrimina- torily denied employment. 421 4. As to paragraph 4 of Respondent's Motion: The General Counsel respectfully declines to divulge the names of witnesses who were threatened , interrogated and offered benefits, as requested by Respondent in its Motion. In the opinion of the Trial Examiner, the foregoing assertions and statements by counsel for the General Counsel on April,l 1, 1963 concerning his position, confirms a finding that none of the charges previously filed herein and the original complaint based thereon do not allege any violation of the Act by Respondent prior to May 21, 1960, and that the General Counsel in issuing his original complaint was conforming to the limitation of his power and authority as defined in the proviso contained in Section 10(b) of the Act. This position and finding is also confirmed by the Charging Parties on April 15, 1963, when -a thirteenth amended charge to the same effect as previous charges was filed by Grand Lodge Representative Claude W., Fairfield against the Pratt & Whitney Division in Case 1-CA-3357 and against the Hamilton Standard Division in Case l-CA-3358, attaching thereto new lists of alleged discriminatees; and thereupon, the General Counsel on April 16, 1963, issued an amendment to,the complaint that did not raise any material new issues; and again on May 6, 1963, counsel for the General Counsel filed a motion to further amend the consolidated complaint to an extent that did not materially change the issues previously raised. Thereupon, the hearing opened at Hartford, Connecticut, on May 16, 1963,, and the Trial Examiner at intermittent sessions heard evidence pertaining to the issues raised by the pleadings uiitil; Plato E.,Papps (General Counsel for IAM) on September 30, 1963, filed a fourteenth amended charge against the Respondent' alleging unfair labor practices dating back to the year 1953 by deliberately concealing from the exclusive bargining representative of the ' appropriate unit the fact that' Respondent's payroll department procures through Respondent's data processing installation a bi-weekly seniority list showing, among other things, employee name, clock number, `plant, department, shift, job ` code, seniority date, weeks of service, rate, position, rating groups, occupational code, section, and labor grade; and, by 'concealing and lying about the aforesaid information the Respondent denied to the Union the recognition as exclusive bargaining representative to which it was entitled; and that the strike beginning on June 8, 1960, was caused and prolonged by such unlawful representations, concealment of information, frustration of collective bargaining, and by a 'wide variety of other unlawful acts and conduct of the Company- designed to retain for management unilateral control over wages , hours, and working conditions and administration of employee relations in defiance of the employees' statutory right to joint control through-collective bargaining. Thereupon, the General. Counsel revised his complaint of February 7, 1963, to conform to the aforesaid Fourteenth Amended Charges, and reissued the CONSOLIDATED AMENDED COMPLAINT, INCLUDING ALL AMENDMENTS MADE AND MOTIONS GRANTED BY TRIAL EXAMINER UP TO AND INCLUDING MARCH 19, 1965, which is identified among the formal 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD papers in these proceedings as G.C. Exh. 1(uuu). Whereas, all, charges, complaints, and amendments issued prior to September 30, 1963, and notwithstanding the hearing and trial of issues being conducted by the duly assigned-.Trial Examiner since May 16, 1963; counsel for the General Counsel requested and obtained a recess of 30 days to investigate the new charges and to revise his,complaint. The final consolidated complaint, now alleges inter alia in paragraphs , 29 a, (1), (a), (b), (c), (d), ,and. (2) inclusive additional; unfair practices since on or about September 11, 1953,, and continuing, to the inception and termination of the strike; by which it is alleged in paragraphs 38 and 41 of the complaint that the Respondent did engage in .and is engaging in unfair labor practices within the -meaning of Section 8(a)(5) and. (1), of the Act; and it is alleged in paragraph 31 of the .final consolidated complaint- that the strike from on or about June S, 1960, to on or about August 11,' 2960, was caused and prolonged by the unfair labor practices of Respondent described above in Paragraph 29 a. It is entirely clear that no charge with respect'to unfair labor practices' engaged in prior to die,-strike (1960)'was filed until the fourteenth amended charges were filed on September 30, 1963; and fully recognizing that fact the General `Counsel did not'allege in his complaint any illegal conduct by the Respondent prior to May 21,1960. Both the Charging Parties and counsel for the General' Counsel recognized -the strike (1960) 'as entirely 'economic 'in character; and furthermore, from the historical background of contract negotiations dating back to 19510 land the entire record in the case; I find no'substantial evidence to support any finding `of unfair labor practices engaged'in by the Respondent prior to the beginning of the strike on June 8, 1960, and consequently could not find that it was an unfair labor practice strike. I find, therefore, that this is a case in which the limiting proviso contained in Section 10(b) of the Act should and does apply with full force and effect,, and, that the Board or any agent or agency by reason of the Act itself is without authority to issue the complaint herein insofar'' as' it is based upon any ,unfair labor practice 1-_ 1 occurring more than ,6 months prior to the filing of the original charge, and all subsequent charges herein with the Board and the service of a copy thereof upon the person against whom such charge is made. It is, therefore, recommended, that the final consolidated amended com- plaint (including all amendments: made and motions granted by Trial Examiner up to and including March 19, 1965) introduced in evidence, herein, as G.C., Exh. 1 (uuu), insofar as it alleges unfair labor practices occuring prior to- May 21, 1960, be dismissed,-except to the extent that any evidence appearing in the record will be considered as background evidence insofar 'as it,relatesto and explains any unfair labor practices found to have-occurred within 6 months prior to the filing of the original charge herein filed on November 21, 1960, in Case 1-CA-3355(1-3). See: Axelson Mfg. 'Co., 88 _ NLRB 761; General Shoe, 192 F.2d 504 (C.A. 6); Food Fair. Stores, 307 F.2d 3 (C.A. 3); -Stafford Trucking, Inc., 154 'NLRB No. 99; and News Printing Co., 116 NLRB 210. 9 The fourteenth amended charge upon which this allegation (29a) is based was filed with the Board on September 30, 1963, approximately 5' E. " Refusal to Bargain Without regard to the proviso in Section 10(b) of the Act to the effect that no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, the General Counsel' by motion dated January 3, 1964, added paragraph 29(a) to his consolidated amended complaint for the first time alleging: 29a. Since on or about September 11, ,1953, and continuing to ' the inception .'and' termination of the strike, referred to in Paragraph 31 infra,, Respondent did refuse and continues to refuse to bargain collective- ly in good faith with Lodge #°1746 and Lodge, #473 (hereinafter jointly called the Union) as exclusive representative , of all the employees -in the ' units described above in Paragraph 24, 24A, 25 and 26 by refusing to furnish the Union information necessary and relevant to its functions as exclusive representative in policing the contracts then and thereafter in'force, in serving and representing the employees insaid units, in bargaining collectively with Respondent and in other -related matters, although`, Respondent has such infor- mation in its possession and concealed such possession and'such information from the Union and although the Union had requested such -information on several occasions since September 11, 1953.9 ' TVs allegation (29a) on its face is barred by Section 10(b) of the Act, but the ' General Counsel contends that the alleged "concealing of unidentified information" referred to therein tolls the running of the statute of limitations, because such information was needed and desired by the Union for the purposes aforesaid, and that under such circumstances it was it legal duty of Respondent to voluntarily without request furnish such` information to the Union as an aid in collective- bargaining. Documents alleged to have been concealed from the Union now appear in evidence `as G.C. Exh. 68, which is a data processing tabulation prepared semimonthly for the payroll section of the personnel department at the Pratt & Whitney Division listing (1) all hourly paid employees, (2) the employee's plant, (3) department within the plant, (4) job code within the department, (5) rating in the merit rating system within each job code, and (6) within the "ratings," the employees listed in order of seniority (G.C. Exh. 73), which is a similar data processing tabulation prepared ''monthly' :for the payroll section at the Hamilton Standard Division. These tabulations are not permanent records-and correctness of the information therein can be relied upon for the limited time and purpose for which they are published. Each current issue is destroyed when the next semimonthly or monthly issue is run off. O' er•the years since-about 1950, the form in which these.tabulations' were published ,'has varied, but it appears from the testimony of George Cope, business agent for Lodge 1746; that the Union` was furnished copy of a similar document by the Company upon request on August 10, 1950 (Resp. Exh. 37), tending to show that the Union knew that Respondent produced' and months after the hearing convened on May 16, 1963, UNITED AIRCRAFT CORP. 423 used temporary records of this kind. Cope admitted that he had in previous years seen "IBM run-offs" published by the Respondent Company, and had copied such lists made available to the Union, and that such lists contained substantially the same information contained in G.C. Exh. 68, except possibly "military service and sex" of the listed employees.. Cope also admitted that since 1951 the Union kept in its office "a book five or six inches thick, containing the names, clock numbers, job codes, labor grades and rating postions of all hourly employees" represented by Lodge 1746 at the Pratt & Whitney Division, and this book was later introduced in evidence as Resp. Exh. 36. A comparison of Resp. Exh. 36 with Resp. Exh. 68 and Resp. Exh. ' 73, shows that each of these three documents contained the same type of information until 1963, and thereafter the latter'two were supplemented with additional information showing (1) sex, (2) shift, (3) military service, (4) occupational code and seniority (weeks of seniority and seniority date), whereas Resp. Exh. 36 prepared in 1951 did not contain the latter information. It thus appears that the Respondent did not and could not conceal this type of record from the Union. In short, the allegations of paragraph 29a do not allege fraud and there is no substantial evidence in the record to support a finding of fraudulent concealment so vehemently argued by counsel for the General Counsel and the Charging Parties. There is an old legal maxim to the effect that he who claims fraud must clearly allege and prove all elements of it by cogent and convincing evidence. Consequently, I find the Respondent not guilty herein of either fraud or fraudulent concealment. There is no evidence in the, record to justify a finding that the Respondent has at any time made an outright refusal to furnish information requested by the Union. The primary complaint of the Union is that Respondent has declined to analyze its own records for the Union and at its own expense with its own clerical staff and office equipment prepare and deliver to the Union massive tabulations and statistics pertaining to its business and employees. For practical purposes, it appears that the Union wished to have in its own office a counterpart of all Company personnel records in tabulated form for quick and ready reference in the promotion and handling of grievances concerning the contract or otherwise. Correspondence between the parties dating back to 1950, and renewed at intervals thereafter., including the period from 1963 to 1968 during the progress of the hearing herein, shows that the Union is seeking to obtain at Company expense a maximum of information pertaining to, individual employees in the bargaining unit. Admittedly such information might be interesting and useful for the purpose of collective bargaining but not necessarily essential or required for that purpose. The Respondent has never refused to make such information available, but strenuously objects to analyzing and preparing such statistical information at its own expense for the benefit of the Unions with whom it must bargain at arm's length concerning _ wages, hours, and working conditions. Information to be furnished to the Union has habitually been a subject of collective bargaining, and -pertinent provisions with respect thereto have been included in all labor agreements negotiated between the parties since 1950. Pursuant to Article VI of the labor agreement, dated December 4, 1950, and by letter dated February -1, 1961 (C.P. Exh. 63) the Respondent furnished Lodge 1746 copy of its hourly job rating plan including, (a) -detailed job description sheets covering all hourly rated jobs included in the bargaining unit, and (b) sample copies of employee performance rating sheets together-with a description of the factors, the weighing of the factors, and the ranges of scoring points relating to the established rating steps. Several months thereafter by letter dated June 30, 1952, concerning the factors and point values - used in its performance rating system, - one of the local unions submitted to Respondent the factors and point values used by it in a hypothetical case to determine whether the Union was correctly interpreting the company performance rating system; and in reply thereto by letter dated July 2, 1952, the Respondent noti fied the Union that the scoring and ratings had been correctly applied in the hypothetical case submitted. Thereafter, by letter dated September 11, 1953, (appearing.in the record as G.C. Exh. 99) supra Lodge 1746 requested Respondent to furnish a tabulation for its approximately 17,000 employees at the East Hartford plant to individually show (1) the average straight-time hourly earnings of all employees in the bargaining unit represented by Lodge 1746; (2) the average hourly earnings by labor grade of the employees in the bargaining unit; (3) the number of employees in each labor grade; (4) the number of employees at each rate, that is "Starting Rate, Job Rate," etc., of each labor grade; (5) a copy of the Company's financial statement for the year 1952 and any financial statement issued by the Company for any period in 1953; and (6) a copy of all existing pension plans covering employees of the Corporation. Respondent promptly replied by its letter dated September 21, 1953 (G.C. Exh. 100, supra ), sending the Union its latest financial statement issued June 30, 1953, a copy of its pension plan for employees represented by Lodge 1746, and notified the Union that the information requested in the first four items of its letter was not available in the form requested, but could be obtained by an analysis of company records that would require considerable time, effort, and expense; and invited the Union to send in its own representatives to make such analysis it desired from records that would be made available- for that purpose at, the plant offices; but the Union did not presently accept Respondent's invitation to examine company records. This reply of Respondent can only be construed by the biased mentality of a union representative or.advocate to be a fraudulent concealment of information to which a labor organization, is normally entitled; and certainly it was not unreasonable for the Respondent to balk at the expense, time, and effort necessary to analyze, compute, and publish such massive statistics on its own time and expense for the Union. The Respondent clearly agreed to furnish and make available the only records from which this tabulation could be made. There is no reason to believe or find that G.C. Exh. 68 and G.C. Exh. 73 later discovered in 1963-would have satisfied the Union's requests in prior years, because those documents are certainly not in the form requested, and it would be grossly unjust to find Respondent guilty of fraud 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for not suggesting the use of this type of temporary payroll data to meet the ever increasing demands of the Union., The capabilities of Respondent to produce such statistics was apparent, and it was recognized, by-all negotiating parties that -the, time and expense involved was the only stumbling block. Consequently, new labor agreements were negotiat- ed providing again the type of information to be furnished to the Union as an aid in administration of the contract. Respondent's labor agreements with Lodge 1746 custom- arily expired in the month of December, and those with Lodge 743 usually, expired in,the month of April thereafter. Lodge 1746 customarily negotiated new or renewal contracts in the,fall, followed in the spring by negotiations with Lodge 7,43.. Several months prior to expiration, of contracts in 1955 and 1956, the Union by letter dated May 27,1955 (G.C. Exh. 100, supra), requested 10 separate items of statistical information for each.of the approximately 17,000 employees at the East Hartford plant plus (1) the number of employees in each labor grade; (2) the average hourly rate of pay of employees in the unit for which Lodge 1746 is the bargaining agent; and (3) information on costs of the medical insurance program, showing: (a) premiums paid, (b) dividends, and/or rebates received by the Company.10' In reply thereto by letter (in the record as G.C. Exh. 115, supra ). Respondent renewed its invitation to the Union to send representatives with suitable clerical assistance to offices of, the Company and obtain all desired information from :original records showing the type of information desired. For a second time the Respondent took the position that ' it would furnish the -records containing requested information but denied any obliga- tion to analyze, and prepare such massive statistical tabulations for the Union at its own expense. From all the evidence, facts, and circumstances I find no desire by the Respondent to ' deprive the Union of needed information, and it did not refuse to furnish such information within the meaning of Section 5 of the Act and policies of the National Labor Relations Board. The next request for information came by letter from Lodge 1746 dated September 25, 1958 (see G.C. Exh. 103, supra ), seeking an analytical tabulation of substantially' the same information requested in its previous letter of May 27, 1955 (G.C. 'Exh. 101, supra ); Respondent's reply thereto does not appear in the record but can reasonably be presumed to be the same as its response to the former request for similar information. Consequently; my ruling would be- the same-that there was no refusal by Respondent to furnish information within the meaning of Section 8(a)(5) of the Act. The final request by the Union for "information!' was made by letter to the Respondent (G.C. Exh. 104, supra ) dated February 3, 1959, calling for "complete seniority and payroll information for each employee in the units represented by Industrial Aircraft Lodge 1746, IAM, for the period covered by the present contract as requested in items one through 10," previously set forth in its letters of May 27, 1955, November 3, 1955, and September 25, 1958. In reply thereto (see G.C. Exh. 105, supra ), the Respondent cited article VII, section 6 of the current labor agreement, 10 Approximately 5 months later by letter dated November 1955, Lodge 743 requested identical information with respect to all employees in the which would expire on December, 4, 1959, providing that 'a list would be prepared showing the seniority of the employees each 6 months and that a copy of such list would be given to the Union; and article VI, section 14 of the contract, obligating the Respondent Company "to make available to the Union at quarterly intervals, records disclosing the names of employees in the bargaining unit who in the previous calendar quarter have received an increase in the base rate as a result of performance rating," which records would , "reveal , the, name, department number, job code, previous base rate, new base rate and rating of such employees"; and suggested that the Union "rely upon this information which is available to you under the current contract or has been supplied to you in,the past." It is not contended by the General Counsel that Respondent, at any time has failed to furnish the information agreed to in successive contracts; and the seniority list referred to in article VII, section 6, therein has been furnished'to the Union at 6-month intervals for many years, including the name, clock number, department, and weeks of service for each employee mil the bargaining unit. In the year 1955 the information given to the Union also included each employee's shift, occupational group,rjob code, labor grade, rate per hour, merit rating classification, date of last merit increase, and amount of such increase (see G.C. Exh. 122 and Tr. 7,194-7,216). Beginning in April 1959, the Respondent again furnished to the Union the same individual data concerning each emloyee in the bargaining unit as that furnished in 1955' to fill in the information called for on 3x5 inch cards prepared in advance by clerical personnel of the Union. From ` the seniority list furnished by the Company pursuant to Section 6, Article VII of the contract, the Union had prepared such a card for each employee showing his name, clock number,, department and weeks of seniority; whereupon, the remaining-information was filled in by-clerks--of-the Union to whom, by request, it was given orally from company personnel records. The course 'of collective bargaining between the parties with respect to information to be furnished to the Union shows ' that' the parties frequently discussed, reached agreement on various listings of tabulated employee data, and thereupon incorporated such agreements in the labor agreement consummated in 1950 and in succeeding contracts with Lodge 1746 and Lodge 743, including- the strike settlement agreements of 1960. Provisions With respect to such data and information usually 'appears in Articles IV, V, VI, and VII of the Pratt & Whitney agreements, and similar provisions also appear in the Hamilton Standard agreements ; all of which were intro= duced herein as exhibits by counsel, for the Charging Parties. In my opinion, these various collective-bargaining agreements and Respondent's- responses throughout the years to union demands for information, demonstrate good faith in ^ollective bargaining rather than fraud and fraudulent concealment of company records, from the Union. In any event, G.C. Exh. 68 and G.C. Exh: 73 are not company records in a form that would satisfy the demands of the Union for complete seniority and payroll informa- unit represented at the Windsor Locks plant of the Hamilton Standard Division. UNITED AIRCRAFT CORP. 425 tion for each employee in the bargaining unit, including the average hourly rate of pay for each employee in each labor grade in the bargaining unit, and including the 10 categories set forth in its letters of May 27, 1955, and February 3, 1959. It was no lie and not fraudulent concealment when the Respondent said that information was not available in the form requested and offered to make available the necessary company records from which to tabulate and compute the desired information, much of which had been previously furnished to the Union in a variety of forms. Furthermore, the listing shown in G.C. Exh. 68 and G.C. Exh. 73 was not limited to employees in the bargaining unit and did not include historical information requested by the Union such as 'average straight-time hourly earnings, average hourly earnings by labor grade, number and rate of employees in each labor grade, date and amount of last merit raise, date of hire, seniority area, position of each employee to other employees in occupational groups in each seniority area, date each employee began working inhis classification,-the number of lead en assigned to each job classification or classification group, and the average hourly rate of pay of each employee in the bargaining unit. Had such listings been suggested by either party at the time aforesaid requests were made, it is highly probable that neither of them would recognize or accept such temporary documents as a timely compliance with the union demands for complete and permanent information for use as a basis for reopening and renegotiating expiring labor agreements, as indicated by the timely request for such information. The cry of fraud and fraudulent concealment by counsel for the Charging Parties in the fourteenth amended charge a decade later, thereby procuring a redrafting of the complaint - by counsel for the General Counsel several months after the opening of the hearing in 1963, appears to be extremely clever strategy to suspend the statute of limitations and obtain legal sanction to change an unfavorable economic strike to an unfair labor practice strike with more favorable aspects towards the Union. Any unfair labor practices engaged in after June 8, 1960, could not be the cause of strike, but at most could only prolong it. I find, therefore, that the strike beginning June 8 , 1960, was not caused by unfair labor practices of the Respondent. I also find of course that the alleged violations set forth in paragraph 29a of the complaint are barred by the limitations of Section 10(b) of the Act. - Other allegations were added to the complaint by motion of the General Counsel filed on August 18, 1964, and granted on March 19, 1965, bringing into question certain bargaining positions taken by the Respondent during contract negotiations between the parties on and prior to December ,3, 1959, when the respective bargaining commit- tees reached agreement on terms and conditions of the new labor agreement to be submitted for ratification to a vote of the membership, which was thereupon rejected. These matters were never covered by any charge filed by the Union, and their inclusion in the complaint appears to be an afterthought of counsel for the General Counsel and the Charging Parties after the hearing had been in session for more than 1 year. In substance it is now alleged as paragraph 29a(l) that since on or about October 29, 1959, Respondent refused to bargain in good faith with Lodge 1746 by (a) on or about December 3 , 1959, May 27, 1960, June 6, 1960, July 21, 1960 and August 5, 1960, conditioning all!counterproposals to the Union Negotiating Committee upon submission to the Union membership with their recommendation of acceptance and ratification; (b) insisting on an agreement that the services of a steward would not be furnished to process a grievance unless management considered it subject to the grievance procedure of the contract; (c) insisting that Respondent have the unqualified right to assign work and jobs to "employees or other persons"; (d) insisting that the definition of "employee" as used in'the contract not include "trainees"; and in paragraph 29a(2) it is alleged that by insisting on such illegal conditions , Respondent failed and refused to make any valid and legal counterproposal to the union bargaining committee . On their face these allegations simply recall unpleasant features of negotiations between the parties that resulted in agreed proposals for submission to ratification by the union members, and are barred by the limitations of Section 10(b). Very little evidence on the subject was offered at the hearing, and the issues raised thereby (if any) seem too puerile and farfetched to warrant serious consideration. The Respondent could , hardly be blamed for hesitating to make a proposal binding upon itself with no assurance that the duly authorized bargaining committee for the Union would make any recommenda- tions to its constituents . Submission to the membership in stony silence without some explanation or recommendation from the bargaining committee would make a, mockery of collective bargaining. No company should be expected to make proposals to a bargaining committee without authority to either accept or recommend acceptance by the principal they are purportedly representing. I am sure that such one-sided bargaining by an employer representative has been and would now be found to be arefusal to bargain in violation of Section 8(aX5) of the Act. The same shoe fits a labor organization in an impartial administration of the Act. Again it could hardly be an unfair labor practice to request some provision in the contract to limit the activities of union stewards in promoting the processing of griev- ances on company time at company expense, which in this case had become burdensome and expensive for the Respondent during working hours, and was also detrimen- tal to the working efficiency of both employees and their stewards. With respect to assignment of work, an effort to retain and preserve what was and is usually regarded as a prerogative of management should not be considered an unfair labor practice when insistence is made to include such provisions in a labor agreement ; and finally, it hardly sounds plausible to contend that Respondent engaged in an unfair labor practice when contending and seeking a contract provision to exempt specially selected persons in training for supervisory jobs from the bargaining , unit, not as a compulsion but as a matter of individual choice, because even a supervisor can become a member of any labor organization of his own choosing if otherwise eligible. I find, therefore, that Respondent did not engage in a refusal to bargain within the meaning of Section 8(aX5) by the activities alleged in paragraphs 29a(l )(a)(b)(c)(d) of the complaint; and the same ruling follows as to the allegation 426 DECISIONS OF NATIONAL LABOR RELATIONS BO ARD of paragraph 29a(2). I also find of course that all allegations of paragraphs 29a(l) and 29a(2) are barred by the , aforesaid statute of limitations; and substantive evidence sufficient to justify a finding of violations of Section 8(a)(5) by the Respondent during the 1959 negotiations cannot be found in the record. By further amendment of his complaint on January 3, 1964, the General Counsel added paragraph 29b, alleging: 29b. Since on or about October 13, 1960, and continuing to date, Respondent did refuse and contin- ues to refuse to bargain collectively in good faith with the Union as the exclusive representative of all - the employees in, the units described above in Paragraphs 24, 24A, 25, and 26 by refusing to furnish to the Union data relating to the rights of strikers to reinstatement and the manner in which the Strike Settlement Agreements, referred to in Paragraph 32, in were being implemented by Respondent , and in related matter, thereby repudiating totally its obligation to bargain collectively in good faith and by refusing since the termination of the strike referred to in Paragraph 31, infra, to furnish thUnion complete seniority, lists or complete seniority ormation of the employees in the units described ab6v despite requests renewed by the Union on or about October 13,''1960 , October 14, 1960, November 11, 1960, November 25, 1960, April 10, 1961 and continuing to date. The evidence with respect to this allegation appears in lengthy ' correspondence' initiated by the Union with the Respondent in an exchange of letters beginning on October 13, 1960(G.C. Exh.'2 and G.C. Exh. 3), and ending on June 7, 1961. The entire exchange of letters consists of G.C. Exhibits 2 thru 14, inclusive. By identical letters dated October 13 and 14, respectively, Lodges 1746 and '743 requested for its bargaining unit tabulated lists, as follows: 11 1. Employees whose jobs were filled by replace- ment during the period from June 8th to the'signing of the Settlement Agreement on August 11, 1`960. 2. Employees who were returned to their original jobs. 3. Employees who were recalled under paragraph 4- b' of the Strike Settlement Agreement showing their seniority status. 4. Employees who are recalled under paragraph 4-c of ` the Strike Settlement Agreement showing the seniority status of such employees. 5. Employees awaiting recall by Preferred Hiring List under the Strike Settlement showing their seniority status in their occupational group and seniority area. The' Respondent on October 21, 1960, posted identical replies to the foregoing letters, as follows: You now have in' your possession the names of all striking employees who registered their desire to return to work, pursuant to the terms of this agreement-such information having been furnished to you by the Company in accordance with the request you made some time ago. No formal listings showing the information requested in your letter of October 13, are ii Union representatives were present throughout the registration of 4,535 strikers' and had the same opportunity as the Respondent to compile maintained by the Company. However, such data may be obtained through, inspection of certain basic personnel records which are kept bythe Company and the correlation of information so obtained with information already furnished by the Company. It would , be necessary, therefore, for us to inspect and analyze these records to compile and list the , informa- tion you seek. This, of course, would require time and effort and a considerable expense on our part. If you believe that the- information which you have requested is of sufficient value to warrant the expendi- ture of the time and effort involved , we shall be glad to make the appropriate records which we normally maintain available to you at our offices for your inspection so that you may compile the data which you, have requested. By reason of the extensive research and clerical personnel required to compile the aforesaid information in the form requested, I find it entirely reasonable for Respondent to make available its records from which these statistics must b6 obtained without furnishing at its own expense clerical assistance to perform the job . In the position taken by the'f Union, I find an effort to obtain from the Respondent free clerical assistance rather than a bona fide request for essential information. No doubt, the same information was also available to the Union from records in its own office and by consultation with its own members. I find no refusal by the Respondent, to furnish information within the meaning of Section 8(aX5) of the Act. Instead of accepting Respondent's' offer to make its records available for the desired compilations , Lodge 1746 and Lodge 743, on November 11 and 25, 1960, respectively, by accusatory letters threatened to'file charges for alleged violations of Sections 8(a)(1), (3), and (5) of the Act and at the same time demanded additional statistical` information in different form, as follows: (1) A list of names of all employees in the bargaining unit hired since the expiration date of the contract, together with their respective dates ' of hire, clock' numbers, classifications, job code, wage 'rates, shift assignments, departmental assignments , the respective seniority, either departmental or by occupational group or by seniority areas as the case maybe. (2) A list of employees in the bargaining unit hired by the Company with the attendant information requested in paragraph (1) above since 1960. (3) A seniority list as of November 1, 1960 of all employees in the bargaining unit together with the information requested in paragraph numbered- (1) above. (4) A list of all employees in the bargaining unit who registered in the "preferred hiring list" under the terms of the Strike Settlement;Agreement of August 11, 1960, together with information as to their standing for recall purposes in classification, date of seniority, and occupational groups and seniority areas. (5) A list of all employees in the bargaining unit hired by the Company during the strike or since the strike whose names do not appear on the "preferred hiring lists at the conclusion of the strike, and, thereafter upon request, Respondent furnished the registration list to Lodge 1746. UNITED AIRCRAFT CORP. 427 list" or the strike settlement agreement under date of August 11, 1960, together with the attendant informa- tion requested in paragraph numbered (1) above. The Respondent replied to the above on November 18, 1960, denying the numerous accusations contained therein and with respect to the additional lists of employees stated as follows: If you do not have sufficient information upon which to base an informal judgment as to whether the Company is complying with the terms of our labor agreements, it is only because your Union has ignored our -repeated offers to make available to the union detailed information concerning all employees in the bargaining unit. We will not, as we have told you before, undertake the clerical work and analyses of records necessary to furnish you with such detailed information as you requested in your letter of November 11, 1960 and as you requested many times in the past. We believe that this union should use its own clerical personnel for this task. Concurrently with these accusatory letters of November 11 and 25, 1960, the Union filed initial charges with the National Labor Relations Board, after having been recently notified by Respondent that it would not perform the massive clerical work required, but would make necessary records available. Consequently, the Union's request for similar and ambiguous additional informational lists appears to be an effort to create and augment self-servicing evidence to support the charges being filed rather than a bona fide request for essential information. I unhesitantly find, therefore, that on this occasion the Respondent did not refuse to furnish information within the meaning of Section 8(a)(5) of the Act. Once again the Union declined Respondent's offer to make the necessary records available and thereby furnish the desired information. In my opinion the Union was and is trying under duress to force Respondent to perform an expensive clerical service without regard to the value or necessity of such information as an aid to collective bargaining. The latest contract signed on August 9, 1960, provided that a seniority list would be furnished each 6 months, was not due until on or about February 9, 1961, and contained an additional provision, as follows: The Company agrees to make available to the Union at quarterly intervals records disclosing the names of employees in the bargaining unit who in the previous calendar quarter have received an increase in the base rate as a result of a performance rating. Such records shall reveal the name, department number, job code, previous base rate, new base rate and rating of such employees. (C.P. Exh. 222, Art. VII, Sec. 6). In accordance with the foregoing provisions of the current contract, Respondent provided said seniority list on February 4, 1961, and thereafter on April 10, 1961, Lodge 1746 addressed another letter to Respondent, saying: Lodge 1746 has examined the February 1, 1961 Seniority Roster which the Union received from the Pratt & Whitney Division showing the name, clock number, weeks of seniority and department of bargain- ing unit employees of the Division. This Seniority Roster does not permit us to determine the seniority of employees in their occupational group in the seniority areas in which such seniority is held. Referring you to' our letter of November 11, 1960 in which this information is requested, may we again ask that we be provided with a Seniority Roster that will show the seniority in the occupational group, and seniority area of the bargaining unit employees, for without such a roster we are unable to police the current agreements. The Company responded by noting that the February 4, 1961 seniority was similar in all respects to seniority lists furnished to the Union for more than 10 previous years and referred to its letter of November 18, 1960, to answer the renewed requests for the Company to compile information or lists for the Union. As late as May 5, 1961, Lodge 743 requested Respondent to supply it with a copy of the preferred hiring list showing the order of recall of employees to their jobs in the various areas and depart- ments of two plants in the Hamilton Standard Division; and Respondent by letter dated May 26, 1961, replied as follows: The Company has no `Preferred Hiring List' such as you request. It would, of course, be possible for the Company by research through a great many reoords to make a comprehensive report showing the manner in which it complied with its obligations under the Strike Settlement Agreement covering the plants in question. Such a report, however, would be extremely lengthy and involved, and would cover a myriad of events covering a period of nearly six months. The Company has no occasion for its own purposes to construct such a report which would, in effect, comprise an entire history of the Company's compliance with its obligations under the Strike Settlement Agreement. The Board and the courts have consistently held that an employer is not necessarily required to furnish information in the exact form requested by a labor organization-that it is sufficient if the information is made available in a manner not so burdensome or time consuming as to impede the progress of bargaining-that a union does not have the right to arbitrarily impose its own terms and conditions upon which such information must be furnished, because that is a subject of collective bargaining; and good-faith bargaining requires only that such information be made available at a reasonable time and in a reasonable place with an opportunity for the Union to make a copy of such information if it so desires.12 When and if the Union should reimburse Respondent for the expense of making the desired compilations from its records or bodily assume that clerical task which is equally burdensome and expensive to the Respondent, it could reasonably expect the cooperation of Respondent in making the necessary records available at a suitable time and place for performance of what appears to be a massive statistical undertaking. Beyond such cooperation with respect to information to which the Board and courts' have held the Union to be entitled, I cannot hold 12 Cincinnati Steel Castings Co., 86 NLRB 592; 24 LRRM 1657 (1949). Lasko Metal Products, Inc., 148 NLRB 976, enfd.- 363 F.2d 529. Proctor & Gamble Mfg. Co., 160 NLRB No. 36 (1966). 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent is required to foresee the needs of a labor organization, or to keep it informed as to what information is available, or to volunteer, such information. Simple-, failure to keep the union informed or to volunteer information, in the absence of gross fraudulent misrepre- sentation of facts (1) made with intent to deceive, (2) made with knowledge of their falsity, (3) calculated to defraud, (4) which actually does defraud, and (5) which results in injury to the person deceived, does not legally constitute fraud or, fraudulent concealment. Simply misleading another even to the extent of making an untrue statement or telling a he is not fraud in a legal sense, unless all of above elements are present. By motion dated June 5, 1964, when the hearing had been in session for more than a year, the General Counsel added paragraph 29c to the complaint, alleging: 29c. Since on or -about February 5, 1964 and continuing to date, Respondent, Hamilton ;Standard Division located in Windsor Locks and Broad Brook, Connecticut, and Pratt & Whitney Division, located in East Hartford and Manchester, Connecticut, refused and is refusing to bargain collectively in good faith with Lodge # 1746 and Lodge #743 as the exclusuve bargaining representatives of the employees in the, units described above in Paragraphs 24, 24a, 25 and 26 in that Respondent refused and failed to furnish the Unions with the following information, documents and records necessary and relevant to their functions as exclusive collective bargaining representatives of said units: (1) Biweekly "employee service record" at Pratt & Whitney; (2) Monthly "personnel data listing" at Hamilton Standard; (3) "Put-on records"; (4) Change of status records; (5) Termination slips; (6) Lay off lists; (7) "Employee classification records" (also known as wage and salary master card); (8) "Employee ranking list" together with a copy of the "employee performance rating" of each employee on such list; (9) "Physical demands record" for each job in the bargaining unit; (10) "Functional capacity record" of each employee in the bargaining unit. At the hearing herein throughout presentation of the case of the General Counsel from the opening session on May 16, 1963, until he rested on March 19, 1965, the Respondent was required by subpoenas daces tecum to produce all personal records pertaining to the thousands of employees constituting working complements at the East Hartford plant of the Pratt & Whitney Division and the Windsor Locks and Broad Brook plants of the Hamilton Standard Division. For a considerable length of time, by request of counsel for the General Counsel and Charging Parties, the Trial Examiner placed these voluminous documents in charge of the Official Reporter and impounded them under lock and key in an abandoned cell block adjacent to the old U. S. District Courtroom on third floor of the U. S. Post Office Building in Hartford, Connecticut, where they were made available for examination and research by counsel for all parties. It was stated by counsel for the General Counsel that he proposed to expose from these records a pattern of discrimination against the strikers registered for recall to work pursuant to the strike Settlement Agreements for the priod ending December 31, 1960, and a further statutory discrimination for the 4-month period from January 1, 1961, through April 30, 1961. All records considered pertinent to this case were introduced in evidence, reproductions of which in the form of photostatic copies are now a part of the record in this proceeding. Counsel for the Charging Parties participated in this presentation and became familiar with documents not theretofore requested by the Union for informational purposes. At any rate, in the fall of 1963 the Union, apart from the hearing in progress, initiated self-serving correspondence with the Respondent making demands for many of the records already impounded by the Trial Examiner and later introduced as evidence in this case. Letters addressed to the Respondent on September 9 and 25, 1963, were clearly a prelude to filing shortly thereafter on September 30, 1963, the fourteenth amended charge against Respondent and persuading counsel for the General Counsel to amend his complaint to such an extent that the entire nature of the case was changed and a new theory of procedure was adopted. In its letter to Respondent dated September 9, 1963, Lodge 1746 devoted five typewritten lines to a request for an up-to-date copy of the "Supervisors Employee Relations Manual," which had already been admitted in evidence on August 23, 1963, demanding that the Union be notified in advance of any proposed changes therein or additions thereto in the future., The remainder of five typewritten pages were replete with accusations and recriminations against the Respondent.13 Respondent replied to this letter and tried to explain the innocuous nature of such a document pertaining to internal management affairs and called attention to the fact that the issues of furnishing such information to the Union was presently in litigation in this case before the National Labor Relations Board. Shortly thereafter, Respondent received another letter on the subject dated September 25, 1963, revealing the same argumentative capabilities of a legal expert and also accusing Respondent of carefully and deliberately concealing from the Union a seniority list of hourly employees prepared biweekly' for its personnel department and demanding that, contemporaneously with the preparation of such lists, the Union hereafter be furnished a copy of such seniority lasts. Again the Respondent replied on October 10, 1063, calling attention to article VII; sections 5 and, 6, of the current labor agreement defining the different types of employee lists that Respondent is, required by contract to furnish (o the Union. The same expert draftsman in the name'of Lodge 1746 replied on October 21, 1963, with further argumenta- tive accusations against the Respondent. Concurrently therewith, the hearing was temporarily adjourned to await 13 It is obvious that this letter is the handiwork of expert counsel rather signature is attached thereto. than the composition of the President of Lodge 1746 (a layman), whose UNITED AIRCRAFT CORP. an investigation of the new charges dated September 30, 1963, contained in the fourteenth amended charges. Similar letters addressed to Respondent by Lodge 1746 on February 5, 1964 (G.C. Exh. 111), and by Lodge 743 on February 11, 1964 (G.C. Exh. 116), eloquently portray the unreasonable position now being taken by the Union and confirms my earlier-observation that this labor organization will be satisfied with nothing less than establishment, at Respondent's expense-in its own office, a counterpart of all personnel records maintained by United Aircraft Corpora- tion and keeping them up to date with current data to furnish a complete history of every employee relationship with the Employer and its supervisors. I hesitate to reproduce here such a lengthy document but find it necessary to explain the current feud that has continued and been extended throughout this hearing for the past 6 years. The Union's letter to Respondent on February 5, 1964, to Pratt & Whitney Division (substantially the same to Hamilton Standard on February 11, 1964) reads as follows: Dear Mr. Morse: On Monday, January 20, 1964, upon demand of counsel for the General Counsel, you produced in the NLRB hearing room the ledger-type document those who prepare it in your data processing installation describe as a'bi-weekly seniority list. Upon examina- tion, it was noted that this document is entitled "Employee Service Record" and that it features both the "Seniority Factor," by means of which seniority is translated into weeks, and the date to which, for the purposes of the list; seniority was computed. On the list, employees considered comparably situated, i.e., in the same plant, department, job and wage rate, are ranked, in relation to each other, in order of seniority. Your denial that this document is a "seniority list" is applicable only as an antic with semantics, characteris- tic of the deception by which the Company has historically kept from the Union the informational tools indispensable to effective policing and bargaining and thereby frustrated performance of the Union's statutory functions and responsibilities. Your admission that these lists are prepared bi- weekly for use by the Wage and Salary Section of the Personnel Department, and by the Personnel Advisors, aptly characterized Company stewards, confirms what the document on its face shows, that it is not only used for the purpose of administering and reviewing administration of the Company's obligations under the collective bargaining contract but that it is the indispensable basic tool. Certainly, as you admit, the list you furnished the'Union every six months "showing the seniority of the employees" could not possibly suffice, for on that list the names of all of the employees covered by the agreement appear in clock number order, and it would not only be impractical from a time and cost standpoint, but actually impossible, from that list, to arrange in order of seniority in relation to each other employees who are comparably situated. The need for such arrangement in policing adminis- tration of the contract is too plain for extensive 429 elaboration. Seniority is controlling in layoffs and recalls, and relevant in promotions and transfers. Consequently, an accurate, up-to-date, picture of the relative seniority of employees comparably situated is the prerequisite for judging compliance, with the contract in every such case. Without such a picture, the Union is ,as -helpless as a personnel advisor would be to determine whether a promotion, transfer, layoff or recall does or does not comply with the contract. As this ultra-sophisticated Company is, and has always been, well aware, the exclusive bargaining agent needs, and is therefore legally entitled to have, the picture of relative seniority provided by the bi-weekly lists not only in connection with grievances but for informational purposes; to be able to advise employees who may seek a transfer, or be hopeful of promotion or fearful of possible layoff what their chances might be. If the Company's personnel advisors have this informa- tion but the Union does not, the status and function of the exclusive bargaining agent is diminished and the Union is degraded in the eyes of the employees. Moreover, it is not enough for the Union to be provided with such information when a specific grievance arises. It is the Union's statutory function and responsibility to determine whether each and every change of status conforms with the contract and, if in its opinion it does not, to so advise the employee or employees it considers adversely affected, so that he or they may file a grievance. Without a copy of the bi- weekly seniority list the Union obviously cannot even begin to perform this task. Accordingly, withholding the list from the Union must have been intended to accomplish exactly what it did-insulate the Company's administration of the agreement from effective challenge. By thus reducing the Union- to impotency, the Company robbed collective bargaining of substance and transformed it into a meaningless ritual. We therefore request that you furnish to the Union. promptly upon receipt of each bi-weekly "Employee Service Record," a copy thereof, omitting from the Union's copy if you choose, employees outside the bargaining unit. The cost of preparing such an additional copy is obviously negligible and, in any event, in our opinion, must be part of the burden imposed upon employers by Congress since without such copy, in a unit as large as this , a bargaining agent cannot perform its bargaining and policing responsibili- ties to its constituents. However, lest our opinion on this point not prevail, we offer to pay the fair and reasonable cost of the extra copy, until this issue is adjudicated. While the bi-weekly seniority list will open the door to performance of the Union's policing function, it is not, of course, of itself sufficient. Thus, to keep the list current and accurate, to determine whether the contract provisions covering such matters as promotion transfer, discrimination, loss of seniority, layoff and recall are being observed or arguably violated, the Union must be promptly furnished a copy of each put on, change of status and termination slip. We therefore request that such copy be furnished us, beginning with the date you DECISIONS OF 430 NATIONAL LABOR RELATIONS BOARD first supply us a copy of the bi-weekly "service record." Since those are now prepared in multi-form, little, if any, additional expense is involved. This request is not to be taken as in any way superseding or relieving the Company of its obligation to furnish us semi-annually the, traditional , clock number list and to make available the layoff list before layoffs. The clock number, list is, of course, vital for location and identification of employees known only by clock number or by clock number and name, and is therefore essential both in processing grievances and as an index to the bi-weekly seniority list. The lay off list is essential to apprise the Union of the Company's plans. All are indispensable tools for policing the contract. But the tools referred to above are by no means all that are required. As you know, the contract historically provides that, the "basic Employee Performance Rating Plan now in effect will be continued during the life of this agreement." Improper ratings may be challenged through the grievance procedure. Performance ratings are, of course, the key to rates of pay. Possession of the bi-weekly seniority list will, for the first time, open the door to effective policing of the Company's administra- tion of the, performance rating plan by laying bare the standards foremen and their reviewers use in rating employees similarly situated, and enabling determina- tion whether such standards are uniformly or discrimi- natorily applied, and whether ratings are reasonable or arbitrary. The "service record" is the basic tool here because it groups employees in the same job and department, who are rated together by the same rater and reviewer. Thus, it allows comparison of the treatment accorded each employee in relation to. the others and thereby provides material for objective analysis and judgment. Of course, the "service record" is not the only document of value in this connection. Once the appropriate grouping of employees is ascertained through the "service record" mote intensive examina- tion and evaluation of rating standards and their application become possible. Thus, the "employee classification record" reveals the rating given, on each element, not merely the over all rating, as does the "service record." " And, since the "classification record" carries historical data, it permits comparative examina- tion of the treatment the same employees received in prior rating periods. Such comparison almost certainly would cast powerful light on the reasonableness or unreasonableness of current ratings. Of course, the key to such examination is identification of the employees in the same rating group, and for that the bi-weekly "service record" is indispensable. Self-evident as it is, the vital importance of comparison of the ratings assigned to employees similarly situated is confirmed by the Company's use of the-"Employee Ranking List" in the rating ' process. That these lists, like the bi-weekly seniority lists, have been treated as "private" and thrown away, instead of furnished to the Union, demonstrates the Company's intention to' frustrate effective Union policing of the Company's administration of the merit rating 'plan. Again, we repeat, the Union's function in the, merit rating program does not begin with the filing of a grievance. It has the responsibility to investigate for the purpose of unearthing violations or potential violations which may turn into grievances. Withholding from the Union materials and informa- tion in the Company's possession essential to establish what the standards used by rating officers and reviewers are, and how those standards are applied, has had its intended and inevitable effect: merit rating grievances are few- and far between. Thus, although the Company is bound by contract to rate employees fairly in accordance with the Performance Rating Plan, the Company made that obligation illusory by concealing the criteria on which performance can be judged. Redress through the grievance procedure is a promise to the ear, broken to the hope. The Company did not merely disparage the Union in the eyes of the employees; it reduced the Union to a caricature of an exclusive bargaining agent. Instead of removing the feeling on the part of the worker that he is a mere pawn subject to the arbitrary power of the employer, the Company intensified it. The consequence of withholding, the merit rating data discussed above is notlimited to administration of the merit plan; it also defeats effective policing and thereby, in effect,. nullifies the contract provision on promotions. The contract provides that promotions to jobs within the bargaining unit "shall be made on the basis of seniority, ability, and the fitness of the employee." You testified that the Company administers this provision as if seniority is irrelevant unless ability and fitness are equal. Thus, if the Union is cut off from analysis of, the Company's appraisal of relative ability, it cannot possibly police administration of this provision. Again, what is ostensibly a binding contractual obligation of the Company is, by the strategem of withholding tools essential for policing, made illusory. To enable the Union to perform its statutory function, we therefore request that upon furnishing us a copy of the--bi-weekly employee service record, you concurrently supply us also (1) a copy of the "Employee Classification Record" (or, if you prefer your "in house" jargon, "wage and salary master card"), for every employee currently in the bargaining unit and (2) every "employee ranking list" thereafter prepared, together with a copy of the "employee performance rating" of every employee listed thereon. Moreover, since "fitness" of the employee is a factor we request that you also' furnish us a copy of the "Physical Demands Record" for every job within' the bargaining unit and a copy of the "Functional Capacity Record" of every employee in-the bargaining unit; Observation of the bi-weekly seniority list confirms, furthermore, that by concealing and withholding it the Company not only prevented effective policing of existing contracts but defeated the Union's .right intelligently to negotiate new contracts as well. As you acknowledged in your testimony, the lists, which show the actual rate of pay of each employee, also carry totals which permit easy computation' of average rates by UNITED AIRCRAFT CORP. 431 department, by job code, and in a variety of other ways. This information `is so obviously essential to intelligent negotiation and bargaining that the Union requested it repeatedly over the years . The Union considered it so vital that it finally even accepted your invitation to engage in what you knew would be, and intended should be, a futile effort to- compile the information from your "basic personnel records," i.e., change of status slips and the like. Compelling the Union to resort to "basic personnel records" when the Company actually had the information in summary form not only demeaned the Union and rendered it ineffectual, it made a mockery of the process of negotiation upon which Congress relied to -produce understanding the meaningful agreement and to avoid provocation for resort to strikes. When it receives the bi-weekly seniority lists the Union will , be able to determine and to keep track of differences and changes in average rates of pay within and among departments ; it will for the first time be in a position intelligently to formulate and support wage demands and to evaluate and debate intelligently statements made and positions taken by the Company in wage negotiations. For this reason, also, we request that you commence immediately to supply us with the bi-weekly .seniority list. Finally, I should comment'on the assertion in your letter of October 10, 1963, that by requesting tools which are indispensable to effective contract policing and bargaining the Union is somehow attempting to alter or amend the contract . The fact is, of course, that it is you who are attempting to alter and amend the contract. Nowhere does the contract say that the Union shall not, during the life of the contract, demand, or waives its right to demand, a copy of the bi-weekly seniority list. - Explanation of the absence,, of course, is simple: you carefully concealed from the Union the very existence of the list. If the Union had known of it, not only would the Union have demanded a copy, as it did promptly upon discovery, and as it once again does now, the Union would not, and could not, forany consideration, have waived that demand . Any waiver the Company could conceivably have exacted by coercion or by purchase would have been illegal, for without a copy of the list, intelligent policing and bargaining in this mammouth unit is, as you very well know , impossible, and the Union cannot legally agree with the Company to refrain from exercising its bargaining rights. Consequently, you resorted to concealment for the purpose of evading your statutory duty to recognize and bargain collectively with the Union. Concealment enabled you to defeat the substance of your obligation while ostensibly complying in form. Concealment enabled you plausibly to pretend that your "basic personnel records'-' were the only source of the information you knew the Union was seeking., If wholesale unilateral action on subjects where agreement is required betrays wilful contempt for the practice and procedure of collective bargaining, your conduct bespeaks such contempt much more eloquent- ly. For you have cloaked retention of unilateral control by surreptitious concealment under the guise of submitting to negotiation and policing. As you know, Congress passed the Act to enhance the bargaining power and the dignity of, employees by reducing the area' of arbitrary employer power. Effectuation of Congress' objective requires constant, searching and creative questioning by the exclusive bargaining agent of management decisions and actions which affect the terms and conditions of employment of employees. Without timely access to the data and compilations, which reflect and upon which manage- nient bases such decisions and actions, the exclusive bargaining agent is incapable of providing the chal- lenges which are the essence of the system . That is why the law requires employers to supply to the bargaining agent data and computations which are the tools of contest. Now that the barrier erected by concealment has finally been stripped away we demand that you comply with the law. The reply letter dated February 26, 1964 , from Respon- dent to Lodge 1746 (in substance the same to Lodge 743 on same date) reads as follows: Dear Mr. Muise: Reference is made to your letter dated February 5, 1964, addressed to Mr. N. B. Morse, concerning matters related to employee data and information. Your letter closely parallels a similar letter dated February 11, 1964, to Mr. J. E. Vandervoort, Personnel Manager, Hamilton Standard Division, from the President of Lodge 743, International Association of Machinists. Your lengthy letter appears to comprise substantially the same unfounded charges, accusations, and argu- ments which you have previously expressed and which, as you know, are present the subject of extensive litigation before the National Labor Relations Board on a complaint issued by the General Counsel of the Board at your instigation. Inasmuch as our differences in connection with these matters are in the process of being defined and adjudicated in that proceeding, no useful- purpose will be served by our debating these matters in correspondence, and we decline to do so. We realize, however, that, during the period while the extensive- and protracted litigation on which you have instigated is being tried our employees have current problems which are affected 'by the labor agreements between the Company and your Union. Therefore, in the interests of these employees (and for. your future guidance), we wish to make the following observations. Article VII, Section 6, of our current contract provides that the Company will prepare and provide to your Union each six months "a list showing the seniority of the employees covered by this agreement." This provision of the contract has been in effect for many years, and the Company has heretofore fulfilled its obligations under this provision and will continue to do so. Your letter appears to state that the list which the Company has provided under this contract provision is inadequate--although it does, of course, show the 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority of, every employee covered by the agreement-and"you indicate that the bi-monthly list which the Company prepares for its' own use would be more useful to you. Our recollection is that the seniority list heretofore prepared by the Company and furnished to you pursuant to Article VII, Section 6, of the contract has been in the form which your Union has agreed upon as appropriate. However, if you wish this `list to be in a different order, we will be glad to discuss with you the question of the order in which you may desire this list to be -furnished you. We will not, however, at this time discuss amending the current agreement so as to obligate the Company, to prepare and furnish the Union ,more ,than one seniority list at intervals less than six months. Your letter demands "a copy of the `Functional Capacity Record' of every employee in the bargaining unit." " This record comprises a report, by medical examiners, based on their physical examination of the individual employee, of the employee's physical capaci- ties. Such physical examination is conducted only after the employee consents thereto under an understanding that the examination is made by the Company physicians only for the purpose of enabling the Company to determine whether the employee may safely be assigned to a particular job. The information on the "Functional Capacity Record", is therefore, the physicians' diagnostic findings and judgment, based on the physical examination of the employee, of the employee's physical capacities. As such it' is not information which the employee has authorized the Company to make public to the Union or his fellow employees. Accordingly,.withoutand express authoriza- tion from the individual involved, the Company will not 'release the information contained thereon as you have requested. Where such express authorization. is ob- tained, we will be glad to make such report available to you. The Company, at each of its divisions, maintains a personnel department as a means of efficiently operating its business. The staff, of the personnel department performs many functions-including deal- ing with your Union in day-to-day matters and assisting the Company to comply with its obligations under its labor agreements. In performing such functions, the Company expendsconsiderable amounts of money for salaries, materials, etc. to maintain records; analyze and correlate data; prepare statistics, arguments, and summaries ; and -in general to provide itself with' the facilities necessary to carry out its many functions. The Union also has functions and duties to perform and-as you state-among these is the duty to represent employees who have designated it as their representa- tive. To perform its functions; the Union presumptively maintains offices; holds meetings; elects and 'trains stewards, committeemen, and other' officers; publishes newspapers, fliers, and other documents to inform its members' and officials; keeps' records; analyzes and correlates data; `prepares statistics, arguments and summaries; and provides itself with the best available tools with which to -operate. Undoubtedly, these functions of, the Union-like similar -ones of the Company's personnel department-are, expensive. Presumably,' it is expenses -such as these--for salaries, materials, and other operatingneeds--which justify the monthly dues collected from the Union members. The National Labor Relations Act has always prohibited an employer from contributing "financial or other support" to any labor organization., The clear import of this provision of the Act is that expenses for union functions shall be borne by the Union rather than by an employer lest the union become dependent upon such "financial or other 'support" and thus in no position to act as'a fiduciary'when employee interests run counter to the employer's. While prohibiting an employer from contributing "financial or other support" 'to a union, the 'National .Labor 'Relations Act; through 'numerous decisions of the Board and the courts, has operated to insure that unions shall have access to data concerning the wages, hours' and working conditions of the employees whom the union represents. The clear and often expressed purpose of this doctrine istoinsure that unions have the information necessary to bargain for the employees they represent and to administer on their behalf agreements entered into with their employers. The problem of the Company, or of any employer, in accommodating these two basic policies of the Act is obvious. On the one hand, the employer is prohibited from 'extending to the union "financial or other support." On the other hand, the employer must not withhold from the union employee data necessary for the union to represent employees. This Company has attempted through- the years to solve this problem in a simple manner, i.e., "by making available" to the Union information concerning the employees' wages, hours and working conditions, , while, at the same ' time, refusing to expend its own funds-whether it be'in the form of administrative expense, clerical - expense, materials expense, rent, light, heat, equipment' rental, etc.-to assist -the union in gathering, analyzing, correlating, or otherwise treating such information. It is true that the Company has' agreed in some instances to perform services for the Union which are "financial assistance or support" to the Union. In the case of collecting dues, from our employees for the Union through check-off arrangements, and in the case of paying wages to 'Union stewards and other Union officers for time spent in discussing grievances with Company representatives, the Company's "assistance" to the Union is specifically authorized by the Act. Our cooperation with the Union, therefore, in-these areas is neither' required or prohibited by the Act but is a matter for negotiation'and judgment. '' -In other instances,' we have assisted the Union where-at least arguably-we should not have done so. Thus, to prepare and provide Your Union with a' list showing the seniority of all employees whom your Union represents, is an expenditure on the part of the Company for clerical help, equipment, and material, without recompense by the Union, which literally is UNITED AIRCRAFT CORP. 433 forbidden by the Act because it comprises "financial assistance and support." We have agreed to do this gratuitously, however, in a spirit of cooperation to promote -good labor relations. Certainly we have not extended this assistance because we were compelled to do so or, as you suggest, because it is our obligation to do so. Accordingly, we reject the several demands that you have made that the Company expend its funds-for materials or salaries for clerical and administrative employees-to prepare various lists or provide docu- ments (or copies thereof) to enable the Union to perform its functions beyond the extent to which the Company has obligated itself in the current labor agreement. We will, of course, continue to make relevant employee data available to your Union which it may analyze, or treat in the manner suitable to its various needs. It is apparent from your letter that your Union has rejected any thought that the considerable financial assistance and support which the Company has heretofore extended to you was made in a spirit of cooperation. This is regrettable. Such cooperation was extended in the best interests of the many thousands of our employees. However, in this same spirit of cooperation, the- Company will be glad to discuss with you the offer contained in this letter. In a letter to Lodge 1746 dated June 18, 1964, the Respondent further explained its position with respect to the documents described in paragraph 29c of the complaint as follows: Dear Mr. Muise: In conversation on June 15, 1964, with the General Counsel of the National Labor Relations Board, our counsel learned that your Union has represented to the General Counsel- (or to his office) that the Company seeks to deprive the Union of relevant factual information concerning employees it represents, and that the Company contends that it has no duty under the law to divulge employee information to the Union. For many years, the Company's position has been that, while the Union is entitled to information concerning the wages, hours and working conditions of employees who are represented by the Union, the Company is not under any general legal obligation to assemble, analyze, compute, list, or study such employ- ee data upon demand by the Union so as to give, the Union such employee data in the form the Union desires to have it. Quite simply, the Company's position is that it will make available to the Union by reasonable methods the requested information concerning each of, part of, or all of its several thousands of employees represented by the Union, but leave it to the Union to assemble, analyze, compute, list, or study such data at its own expense. On the other hand, from voluminous correspondence with the Union, from innumerable conversations with Union representatives, and from many comments of its counsel in various legal proceedings, it is our under- standing that the, Union disputes this policy and contends that the Company's statutory obligation includes furnishing the Union with copies of records or written lists of employee data in the exact form and order requested by the Union whether or not the compilation of such written material involves expenditures of time and money by the Company for which no reimbursement by the Union is offered or can be expected We did not consider that your letter of February 5, 1964 represented any retreat from the above-described position which the Union has so often asserted. Indeed, the next to the last sentence of that letter reiterates your position that "the law requires employers to supply to the bargaining agent data and computations which are the tools of contest." Further, your letter, in toto, was interpreted by the Company to, state that the law requires the Company, whenever for its own purposes it maintains records or makes any written listings, compilations, computations, or analyses of basic employee data, to advise the Union that it has done so and to supply copies of such written documents to the Union upon demand. Perhaps, however, we should more carefully have separated certain details of your letter from the lengthy arguments contained therein. In any event the principal purpose of this letter is to remedy any possible misunderstanding which may exist, and (we hope) explore the areas in which our basic differences of opinion are of no practical importance to either party. To this end, we submit the following: (1) Your request that the Company `furnish to the Union, promptly upon receipt of each , bi-weekly `Employee Service Record, a copy thereof, omitting from the Union's copy-, employees outside the bargaining unit." This "bi-weekly Employee Service Record" is a bi- weekly report which compiles data concerning plants, departments, and individual employees not represented by your Union. For example, it contains data concerning the Pratt & Whitney Division plant at North Haven, Connecticut and other plants where the employees are represented by other unions. According- ly, the sections of this report relating to these plants are irrelevant to any legitimate purpose your Union has expressed. The remainder of this bi-weekly report (which relates to the East Hartford plant of the Company) lists all employees who are hourly paid and who work at the East Hartford plant. Your Union, however, does not represent all hourly paid employees at this plant. For example, as set forth in our current labor agreement, your Union does not represent employees such as "timekeepers," "technical employees," "laboratory technicians," "foremen's clerks," "medical department employees," "first aid employees," "plant protection employees," "group supervisors," and "watch engi- neers," all of whom are hourly paid and, therefore, included in the section of this bi-weekly report related to the East Hartford plant. Here again the date included in the bi-weekly report concerning these employees are 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD data with respect to which your Union has no legitimate concern. You propose that the Company furnish you promptly with a copy of each such bi-weekly report but appear to concede that the Company properly may omit from the Union's copy, all data related to persons other than those represented by the Union. You do not suggest the manner in which the Company should prepare a copy of the bi-weekly report which omits this irrelevant information, but merely comment that the cost of preparing such a copy is "obviously negligible" and "in any, event,-must be part of the burden imposed upon employers by Congress-." The Company does not agree that Congress has placed' upon employers any such financial burden as you suggest, or that it is in this instance "negligible." However, you also state that, "lest our [the -Union's ] opinion on this point not prevail, we [the Union] offer to pay the fair' and reasonable cost" of`the bi-weekly report' (modified to delete all data concerning non- bargaining unit employees) "until this issue is adjudicat- ed." - Th'e' bi-weekly report encompasses all Connecticut plants of ' the Division and (for each plant, including East Hartford) all hourly paid employees ' and was designed to do so in order to meet the Company's particular need for such a report. The need would not be satisfied by a report covering merely bargaining unit hourly employees. The preparation of a similar bi- weekly report covering only bargaining unit employees would involve considerable cost to the Company, and, in any event, you do not appear to suggest such a procedure. Rather you appear to suggest that an extra copy of the bi-weekly report be made by the Company but that all data concerning non-bargaining unit employees be deleted from it before it is delivered to the Union. The Company can every,two weeks run off an extra copy-, of the biweekly report. Further it would be possible to , assign an employee of the personnel department to the task of modifying the report by hand to, block out (or cut out) all data therein concerning non-bargaining unit employees . Finally, the Company would have no objection to giving the Union such a copy of .,,the report as so modified provided, the Union obligates itself to pay the cost of the preparation thereof. We have never, of course, performed such an operation,- and therefore, can give you no reliable estimate of the cost thereof. We would, however, expect the Union to pay actual costs, including wages of employees necessarily assigned to prepare the extra copy of the report, materials, etc. We ignored your "offer" to, pay the "obviously ,negligible" costs contained in your letter of February 5, 1964,, because we believed that this "offer" was merely an offer to pay the "few cents" which your counsel, Mr. ,Ratner, had indicated would be the cost of the paper in an extra copy of the report. The General Counsel ,appears to have some information leading him to the conclusion that you would be willing to pay actual costs. If this is a correct assessment of your position, this matter can be resolved pending a final determina- tion of our basic differences. (2) Your request that the Company supply the Union with copies of all future put-on slips, change,of status slips, and termination slips. On each occasion when a new employee commences work, a "put-on slip" is filled out to record that fact and other data concerning the employee and the job to ,which he is assigned. The put-on slip is a -form which is specially printed ,and assembled for the Company's use and consists of several duplicate sheets pasted'together for ease in handling. In a year,- several thousand employees may be hired and "put-on slips" filled out for -each of them, - A "change of status slip" is filled, out for each employee each time his employee status is altered; for example, when his pay is increased, when he is transferred, promoted, demoted, etc. The change of status slip is also a specially printed and assembled form designed for the Company's use, and consists of several copies pasted together at the top for ease in handling. There are approximately 16,000 employees in the bargaining unit and as many as 40 or 50 thousand changes in status may be processed each year. Termination slips are similar to the slips referred to above and, of course, are used whenever employees are terminated, resign, die, are laid off, or retire . Here again several thousand termination slips may be processed each year. We have no objection, as we have repeatedly stated, to furnishing the Union information concerning the hiring of new employees, their subsequent changes of status, or their termination. The dispute between us has been related, as we understand it, solely to the manner in which such information shall be transmitted to the -Union. We cannot agree that the Company is obligated to transmit such information by preparing and giving to the Union copies of its records--the method which your letter insists be followed However, there are several alternate methods' by which the information contained on these records can be furnished to the Union. For example, we have no objection to making these records available to the Union so that it may micro photograph them or otherwise duplicate them at its own expense at any reasonable times at the'Company's offices. (3) Your request that the Company supply the Union with a copy of the "Employee Classification Record" for every employee in the bargaining unit, The individual "Employee Classification Record" or `,`Wage 1 and Salary Master card" is a 5" by 8" card prepared for each employee to record thereon his original employment and, from time to time, each change of status which occurs to him during his employment. These cards are prepared, to show in compact form the up-to-date personnel history of each employee. Only one copy of this record is prepared and maintained. The entire file of these records for current employees consists of approximately 32,000 , cards with UNITED AIRCRAFT CORP. 435 notations on both sides of the cards. Your Union in litigation now pending in the United States District Court has made photographic copies of these cards for about 500 employees. If you wish to make copies for each of the approximately 16,000 employees involved at your own expense, we will make them available to you. (4) Your demand for `every `employee ranking list' ""to be prepared do the future, "together with a copy of the 'employee performance rating' of every employee listed thereon." The Company does not retain "employee ranking lists" as a normal part of its permanent system. We do have a form which supervision uses to facilitate merit rating each employee. This form is known as the "employee ranking list." After the form has been used it does not become a part of the permanent file, but is regarded as a tool which is discarded because retaining it would serve no purpose. Your demand in this instance is not merely that we make available to you copies of our records kept in the normal course of business, but rather that we institute a new program requiring us to create and maintain a new record system for the sole use of your Union. Perhaps we misinterpret your demand in this respect. If we do, will you kindly clarify your request. (5) Your demand for a copy of the "Physical Demands Record" for every job within the bargaining unit and a copy of the "Functional Capacity Record" of every employee in the bargaining unit. Your demand in this instance is that we take from our files "Physical Demands Records" for each of many jobs in the bargaining unit and individual "Functional Capacity Records" for the approximately 16,000 employees in the bargaining unit, copy them, and transmit them to the Union. Inasmuch as physical demands for jobs frequently change, and physical capacities of individual employees also are subject to change, your asserted requirements would, in addition, require the Company in the future to supply you with copies of such changed records. We do think that the actual physical disabilities and infirmities of employees discovered by a physician in a personal physical examination ought not to be broad- cast without the employee's permission unless and until that individual's physical capacities become relevant to some particular problem. We do not, however, under- stand your assertion in your letter of March 10, 1964, that we have "the notion that an employer is entitled to make secrecy `deals' with employees, by which the Union is bound." Surely you do not suggest that it is improper to assure employees who are asked to undergo a personal physical examination that the results of the examination will be 'used only where it is necessary to determine their physical capacity to fill a particular job, or that such assurance is properly described as a "secrecy deal." We do not suggest, of course, if an employee is denied a promotion or a transfer by the Company on the grounds that he lacks physical fitness, that his Functional Capacity Record will not be made available at his request. In such case, his argument (and presumably the Union's) would be that, to the contrary, he was physically capable, and he could have no valid objection to his physical records being brought into the dispute (as in fact has been done in the handling of grievances on such matters in the past). We have no objection, of course, to the Union having information concerning the physical demands for each job in the bargaining unit. Again, our only dispute here appears to concern the manner in which the Union is to obtain the information. We have understood that it is your position that we must prepare copies of the Physical Demands Records at our expense and transmit them to you. You do not state that you are willing to make copies yourself at your expense. If, however, you are willing to do so,, the Company will make them available for copying, photographing, etc., at reasonable times at its offices. The request for copies of personnel records con., tamed in your letter of February 5, 1964 is hardly a modest one. Thus, in addition to the bi-weekly "Employee Service Record", you propose that we furnish copies of put-on slips (from 2,000 to 4,000 a year); copies of change of status slips (40,000 to 50,000 a year); termination slips (from 2,000 to 4,000 a year); Employee Classification Records (initially about 16,000 records consisting of about 32,000 cards, and the 2, to 4,000 such records created each year as new employees are hired); "employee ranking lists" (more than 32,000 per year); Physical Demands Records (about 2,200 initially and about 1,500 each year as job changes are made); and Functional Capacity Records (initially about 16,000 and 8,000 to 10,000 each year thereafter). In total, some 169,000 to 187,000 items. The Company could, of course, employ additional administrative and clerical personnel and,' by altering present record keeping procedures and by extensive use of duplicating processes, create and maintain an extra set of these personnel records for the Union. By the same token, the Union can make copies of these personnel records and utilize its own administrative staff to create and maintain its set of these records. The result would be identical whichever method is employed except that in the first instance the Company world bear the costs whereas in the second instance the c.ostss would be borne by the Union. You assert that such a burden of costs is a burden which "Congress has placed upon employers." Yk also state, however, that "lest our [the Union's] opinion tin this point not prevail, we [the Union] offer to pay the fair and reasonable cost" of the bi-weekly employee classification record until our dispute is adjudicated. You appear to carefully refrain from stating, however, that you would be willing to pay the actual cost of creating and maintaining the extra set of personnel records described above pending adjudication of the issue. We have made no estimate of the actual cost which would be involved were the Company to embark on the project of creating and maintaining for the Union a 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duplicate set of the above-mentioned personnel records, because, in any event, you appear unwilling to pay, such costs. Obviously such costs would be very substantial. However, if you, in fact, would desire to underwrite such costs, we will" be glad to discuss the matter with you. MRM:la Very truly yours, Morgan R. Mooney Personnel Director Notwithstanding the foregoing explanations, the General Counsel at behest of the Union proceeded with Section 10(j) proceedings in the U.S. District Court, and that case was settled by an agreed stipulation, pendente lite, (G.C. Exh. 148D) under which Respondent furnished specified documents at its, own expense upon condition that the Union would obtain and maintain a surety bond to cover the costs of preparing and furnishing such material not exceeding $17,000 for the first year and $10,000 for the second year. Evidence shown in the record-(Tr, 29,901) shows without contradiction that the actual cost of supplying this information to the Union pursuant to the District Court Stipulation from August 17, 1964, through the first quarter of 1968 was $46,667.51 to the Pratt Whitney Division, and to the Hamilton Standard Division was $$5,460.51. Thus it appears that surety bonds posted by the Union are grossly inadequate to reimburse Respondent for the continuing costs of meeting demands made by the Union; and the propriety of furnishing much of the demanded information is not yet resolved. Issues as to furnishing information not consented to by Respondent must be determined when such occasions arise. The original complaint issued by the General Counsel on February 7, 1963, contained paragraph 30, which now appears to be inconsistent, vague, and incomprehensible in the light of facts alleged in original paragraph 32 and in paragraph 29b added as an amendment on January 3, 1964. Paragraph 32 alleges that the strikers made an offer to return to work pursuant to the terms of the strike settlement agreements entered into between Respondent and the Union with the ratification of its membership, and paragraph 29b alleges refusal to bargain by refusing to furnish information relating to'the implimentation of those agreements. The agreements were 'not unilateral action, and any changing of strikers' rights, seniority, and other terms and conditions of employment resulting therefrom should and has already been considered herein as discrimination or breach of contract, which is not a subject for collective bargaining. It is, therefore, recommended that paragraph 3,0 of the complaint be consolidated with paragraph 29b or dismissed. By motion dated January 7, 1965, counsel for the General. Counsel added paragraph 30A and 37K to his complaint, as follows: 30A. Since on or about January 28, 1963 and at all times thereafter to date, Respondent refused and is refusing to bargain with Lodge 1746, 743 and 700 as the exclusive representatives of all employees; in the units described above Paragraphs 24, 24A, 25, 26 and 26A by refusing certain of such employees the services of a union steward upon proper request made by those employees. 37K. On or about January 28, 1963, and continuing to date, refuse the services of a union steward to certain employees in the bargaining unit described in Para- graphs 24,25,26 and 26A, above, upon a proper request being made. Based upon identical evidence, the former alleges a refusal to bargain in violation of Section 8(a)(5), and the latter alleges an independent violation of Section 8(a)(1) of the Act, thereby seeking two separate adjudications of unfair labor practices rather than a derivative violation of Section 8(a)(1) and (5). Both of these allegations are also closely related to bargaining negotiations between the parties from October 29, 1959, thru August 4, 1960, as alleged in paragraph 29a(l)(b) of the complaint to the effect that Respondent refused to bargain by insisting that employees not be furnished the services of a union steward on company time in processing a grievance unless manage- ment considered the subject matter thereof a grievance under the contract. Having failed to reach an agreement with the Union in that respect,, it does not, follow that Respondent is required to call in a steward at its own time and expense during working hours whenever a disgruntled employee wishes to contest instructions received from his foreman or other supervisor on the job., The current collective-bargaining agreement does not require the employer to do that. Having found, supra, that there was no refusal to bargain with respect to paragraph 29a(l)(b) of the complaint and further finding that there is 'not sufficient evidence in the record to justify'a finding of refusal to bargain in that respect at any time since October 29, 1959, I shall recommend that paragraphs 29a(l)(b), 30A, and 37K of the complaint be dismissed. By motion dated January 7, 1965, counsel for the General Counsel also added duplicating paragraphs 30B and 37L to the complaint, as follows; 30B. Respondent refused to bargain with Lodge 1746 as the exclusive collective bargaining represent- ative of the employees in the unit described in Paragraph 24, above, by unilaterally and without prior consultation with Lodge 1746, removing certain work from the bargaining unit described above in Paragraph 24. 37L. In or about September 1963 unilaterally remove certain work from the bargaining unit described in Paragraph 24, above. In view of the failure and refusal of the General Counsel to clarify the issues raised thereby or to produce sufficient evidence to justify a finding thereon, I find both of these allegations ambiguous, vague, and too obscure to furnish information as to time, place, and substance sufficient to apprise Respondent or the Trial Examiner concerning the nature of the alleged offense or to enable the'Respondent to prepare a defense with respect to any unfair labor practices alleged therein. I find in the record no substantial evidence of a refusal to bargain in violation of Section 8(a)(5) or an independent violation of Section 8(a)(1) of the Act and, therefore, recommend that paragraphs 30B and 37L of the complaint be dismissed. By motion dated January 3,1964, counsel for the General UNITED AIRCRAFT CORP. 437 Counsel revised paragraph 31 of the complaint to read as follows: 31. From on or about June 8 , 19,60, to on or about August 11, 1960, certain employees of Pratt & Whitney and Hamilton Standard employed at the East Hartford, Windsor Locks and Broad Brook plants ceased work concertedly and went out on strike. Said strike was caused and prolonged by the unfair labor practices of Respondent described above in Paragraph 29a. Having carefully reviewed all of the evidence pertaining to allegations of refusal to bargain in paragraph 29a of the complaint, I find no substantial evidence to justify a finding that the strike 'was caused or prolonged by any unfair labor practices engaged in by the Respondent either prior to the strike beginning on June 8, 1960, or during the strike ending on or about August 11, 1960. I further find that all of the allegations of 29a of the complaint refer to activities engaged in prior to May 21, 1960, which marks the limiting date provided in Section 10(b) of the Act; -that the Respondent did not engage in fraud or fraudulent concealment of information from the Unions as alleged in the complaint; and that the complaint is in that respect barred from issuance by Section 10(b) of the Act. The Respondent contends that the strike was caused by the Unions engaging in bad faith bargaining tactics in violation of Section 8(b)(1)(A) and (3) of the Act, as to which it filed charges with the'National Labor Relations Board, but the General Counsel refused to issue a complaint; and that the Union's planning and execution' of the strike -on June 8, 1960;was so marked with violence and violations of Section 8(b)(1)(A) that participation by individual strikers became an illegal and unprotected act for which they were subject to discharge as an entire group without regard to individual acts of misconduct ; but the Board on appeal from rulings of the Trial Examiner limited - the evidence with respect to strike-related violence-and as to violations by the Unions of Section 8(b)(1)(A) after the beginning of the strike to either (1) the cases of 50 strikers subject to special arbitration agreements concerning their alleged misconduct , or unless (2) Respondent could show that there was a "specific" agreement as a part of the Unity Program to use violence and mass picketing. It should be noted, however, that the Respondent in its answer to the complaint asserted such an affirmative defense only with respect to the aforesaid 50 strikers whose conduct was submitted to arbitration as a part of the strike settlement agreements but had agreed to recall all other registered strikers to work pursuant to the terms of the Strike Settlement Agreements. In the opinion of this -Trial Examiner both the Respondent and the Unions are bound by the terms of the strike settlement agreements except to the extent that it be found that they restrict the statutory rights of economic strikers to recall at the end of the strike or thereafter to their former positions. Having found that the strike was not caused by unfair labor practices of the Respondent, it is not necessary at this time to inquire further into the real causes thereof, and the Trial Examiner will now proceed with a determination of the issues with respect to discrimination herein against registered strikers by the Respondent in failing to carry out the terms of the strike settlement agreements and/or by infringement upon their statutory rights to reinstatement as economic strikers. F. Discrimination It is alleged in the final consolidated amended complaint (paragraph 32) that on or about August 11-13, 1969, the striker named therein made an unconditional offer to return to their former or substantially equivalent positions of employment, pursuant to the terms of the strike settlement agreements and (paragraph 33) that the Respondent discriminated by failing and refusing to reinstate said employees for the reasons (paragraph 34) that they had joined or assisted Lodge #1746 and. Lodge #743 or engaged in other protected activities and had participated in the strike; and it is further alleged in paragraph 35 (subparagraphs a-f) that since on or about August 13, 1960, Respondent discriminated against said employees as follows: (a) By requiring all strikers not reinstated prior to December 31, 1960, to file new employment applications as a condition of employment on and after January 1, 1961; (b) By requiring all strikers returned to other available jobs to file waivers of their rights to be reinstated to their prestrike positions; (c) By requiring strikers being returned to some positions to undergo physical examinations; (d) By failing to reinstate female strikers ; (e) By altering the seniority and vacation rights, and other benefits and privileges previously enjoyed by all strikers rehired on and after January 1, 1961; and (f) By delaying the reinstatement of strikers until after January 1, 1961, by operating with a reduced labor force and working excessive overtime during the months of September, October, November, -and December, 1960. Notwithstanding this scattershot fashion of the foregoing allegations of the complaint, the. primary real issue with respect to discrimination is "whether the Respondent, from the end of the strike on August 11, 1960, through April 30, 196 1, engaged in unfair labor practices violative of Section 8(a)(3) of the Act by failing or refusing to recall registered strikers to jobs held by them prior to the strike. For the sake of clarity, this issue will be analyzed and discussed as it pertains (1) to the period ending December 31, 1960, and (2) as it pertains to the period January April 1961, inclusive. The situation herein is entirely different from cases such as the New Orleans Roosevelt Hotel case, 132 NLRB 248, and I do not agree with contentions of counsel for the General Counsel and Charging Party that the burden is upon Respondent to prove as an affirmative defense that the jobs of economic strikers herein were abolished or filled by permanent replacements prior to the end of the strike. No such affirmative defense has been alleged in its answer to the complaint, nor is it contended by Respondent that such was the case in all instances as to the jobs previously held by individual strikers . We have here the administration of negotiated settlement agreements including (1) the striker recall agreements, (2) new labor agreements concerning grievances, wages, rates of pay, hours of employment, and conditions of work, and (3) the arbitration agreement with respect to Respondent's refusal to recall 50 strikers charged with gross misconduct during the strike. Recall of strikers. pursuant to these agreements, 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in my-opinion, cannot be found discriminatory within the meaning of Section 8(a)(3) unless the treatment accorded to strikers thereunder deprived them individually or collec- tively of some right guaranteed to them by law or under provisions of the National Labor Relations Act. The right of economic strikers to reinstatement upon an uncondition- al offer to return to work is based upon Section 13 of the Act, providing that "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right"; but I find nothing in the statute to augment the constitutional right to strike or to provide a guarantee of reinstatement to a former position if work in that particular job is being performed by another on a permanent basis or is no longer economically needed or desired. The most that a striker is entitled to or can expect from the employer is to be recalled without discrimination when such work in his particular former position has not been deactivated by the employer. In that respect the striker recall agreements herein guaranteed recall to the job immediately, if available, which in my opinion constituted full compliance with the Act; and the Respondent, further agreed therein to recall registered strikers to other available jobs for which they might be qualified within their occupational groups and seniority areas (or departments) pursuant to Article VII of the new labor agreements being ratified and signed at that time. It is clear, therefore, that this offer of other available jobs augmented the rights guaranteed to economic strikers under the Act; but the further provisions of paragraph 4(c) limiting the recall of strikers on the preferred list to job openings which develop at any time prior to January 1, 1961, before new employees are hired, restricted the rights of the strikers by failing to provide or preserve any preferential' recall to their former positions after December 31, 1960, and also failed to preserve the seniority and other rights and privileges of employment previously enjoyed by them. I'am, therefore, (except as to 50 strikers submitted to arbitration) constrained to find that Respondent on and after January 1, 1961, discriminated against unidentified, registered strikers by abandoning the preferred hiring list provided by the strike settlement agreements and by hiring both strikers and other job applicants only as new employees without credit for seniority or other rights and privileges of previous employment, as alleged in paragraphs 35a and 35e of the complaint.14 I find that all available registered strikers not recalled to work by December 31, 1960, pursuant to the strike settlement agreements, and, therefore, remaining on the preferred hiring list therein provided, are now entitled to reinstatement according to seniority in positions corresponding to their respective prestrike job code, department, and shift that developed and were activated during the period January-April 1961, including those jobs in the same category that were filled by transfers or promotions within the operating organization prior to January 1, 1961, for which registered strikers were available and eligible under terms of the strike ^ settlement agreements. Unless the General Counsel can now identify the aforesaid discriminatees by name, clock number, job 14 See: The Laidlaw Corp., 171 NLRB No. 175. code, department, and shift, and the corresponding job openings that developed on and after January 1, 1961, it will be- necessary to reopen this case to obtain the required identification. It should be noted that during the hearing at page 11,786 of the transcript, counsel for the General Counsel refused to offer evidence of-discrimination against individual strikers, saying that he would rest his case entirely upon proof of a pattern of discrimination. The Trial Examiner finds, however, that,the evidence offered by the General Counsel and Charging Parties is insufficient to find a pattern of discrimination against all employees named and listed in the complaint. With respect to the contractual recall period from the end of the strike through December 31, 1960, counsel for the General Counsel and the Charging Party offered before this Trial Examiner identical evidence offered by the Union in its suit for damages under Title III, Section 301, of the National Labor Relations Act in the U.S. District Court before Jude Clarie in Civil Actions Nos. 9084 and 9085; and have requested the Trial Examiner to take judicial notice of the entire record in those civil cases. In contending before the Trial Examiner that Respondent discriminated against registered strikers, counsel for the General Counsel and the Charging Party rely upon, this same evidence to prove herein unfair labor practices, that was presented in the U.S. District Court to show breach of contract. In an overall consideration of the contracts and a masterly analysis of all the facts and circumstances of the situation, the Court found that the Respondent carried out its obligations under the strike settlement agreements in good faith except in the two categories of transfers and promotions. Whenever a registered striker from the preferred list was offered employment in a job code and labor grade less than that previously held before,the strike, but within his occupational code, seniority area, or department, he was permitted to sign a waiver indicating his election to wait for a vacancy that might occur in his former job code prior to January 1, 1961; and thereupon, the next less senior striker was offered the job opportunity to become an active member of the work complement. Thereafter, when the higher job grade vacancy in his prestrike position became available, the latter employee was promoted to his former status even though it also be the former, position of the striker, who signed the waiver; and this, also applied to any transfer of a less senior employee into the same job code, department,, and shift of a striker who had signed a waiver. From uncontradicted evidence herein, the Trial Examiner concurs in this ruling of the Court, and finds that such action by the Respondent also constituted discrimination within the meaning of Section 8(a)(3)' of the Act, because the individual striker signing such a waiver had not lost the statutory right of an economic striker to be recalled to his former position in the same job code, department, and shift when it became available. Since such strikers cannot be individually identified from the record, and in the absence of identification by agreement between the parties, I shall alternatively recommend that the identification of those strikers by the Court be adopted, or that such' identification UNITED AIRCRAFT CORP. ' 439 be established at a reopening of the hearing in the instant case. Except as set forth above, and reserving for further findings the arbitration agreement with respect to 50 strikers, I find no merit in the contentions of the General Counsel and Charging Parties that Respondent otherwise discriminated against employees to discourage membership in a labor organization within the meaning of Section 8(aX3)`of the Act.' It is difficult to comprehend the position taken by counsel for the prosecution with respect to 50 of the strikers to whom Respondent denied reinstatement because of their participation in violence and malicious damage to property during the strike. In negotiations for a settlement of the strike, the Union insisted that such strikers be accorded the same rights to recall as other economic strikers. Finally, as a part of the settlement agreements, General Counsel Papps for the Union and Attorney Wells for the Respondent, agreed-to arbitrate the matter as follows: SUBMISSION Industrial Aircraft Lodge 1746, and Lodge 743, International Association of Machinists, unincorporat- ed labor organizations hereinafter "referred to as the "Unions," from on or about June 8, 1960, conducted and engaged in a strike or concerted stoppage of work among employees of United Aircraft Corporation, herein called the "Company," working at the Compa- ny's plants located at the towns of East Hartford, Manchester, Windsor Locks, and Broad Brook, Con- necticut. On or about August 11, 1960, the Unions and the Company entered into agreements in settlement of the strike, copies of which agreements are attached hereto and made a part hereof as Exhibits A and B. The said strike settlement agreements finally disposed of the issues with respect to the reinstatement and recall of striking employees except 'with respect to an issue concerning the reinstatement rights of 50 employees who had participated in the strike and whose names are attached hereto as Exhibit C. With respect to the said employees whose names are listed on Exhibit C, the Company declines and refuses to accord them the rights and privileges with respect to reinstatement to the Company's active employment which are accorded to other striking employees under the strike settlement agreements because of the conduct of these employees during the strike. The Unions allege and declare that the striking employees whose names are listed on Exhibit C hereto, have not engaged in conduct which warrants said employees being accorded reinstatement /rights any different from, or less than, those accorded any other employees who participated in the strike until the end thereof, and contends affirmatively that the employees whose names are listed -on Exhibit C attached hereto should be accorded reinstatement rights and privileges to the same extent as other' striking employees who 15 By request of all parties, Governor Ribicoff a thorized Chief Justice Raymond E. Baldwin to appoint the board of arbitrators consisting of reinstatement rights are set forth in the strike settlement agreements attached hereto as Exhibits A and B. To resolve this issue as set forth in the two preceding paragraphs, finally and completely, and without recourse whatsoever to any appeal or review under any State or Federal laws by the Unions, or by the Company, or by any individual employee whose name is listed on Exhibit C attached hereto, the Unions (acting for and on behalf of themselves and in their capacity as representatives of the - said individual employees so listed) and the Company agree as follows: 1. The Honorable Raymond E. Baldwin, Chief Justice of the Supreme Court of Errors for the State of Connecticut, may appoint, and is hereby requested to appoint, a panel of three retired judges of the said Court (including a fourth judge to act as an alternate in this matter) to sit as an impartial board of arbitration to hear and decide finally and completely the aforesaid issue concerning the reinstatement rights of each of the striking employees whose names are listed on Exhibit C. 2. This panel of judges shall decide and determine the issue with respect to each employee in accordance with recognized principles of equity and law by the decision of a majority of the three (3) judges who shall hear evidence on the facts concerning such issue. In this connection, the panel shall not be required to make specific findings of fact, and its decision on the issue with respect to each employee may be in whatever written form the panel shall deem to be appropriate. 3. The Union and the Company will present to the panel evidence concerning the facts relevant to such issue which shall be heard and considered by the panels without prohibitions or limitations arising from or out of formal rules of evidence or procedure. 4. The panel shall have no jurisdiction or authority to award backpay to any employee involved in this matter, or to assess against any of the parties any monetary award or penalty, but shall- have full, complete and final, jurisdiction and authority to determine and decide whether any individual whose name is listed on Exhibit'C attached hereto should, under all of the circumstances, be accorded all, or any part, or none of the rights and privileges accorded other striking employees under the strike settlement agree- ments attachedhereto as Exhibits A and B. 5. . . . (provides for compensation of the panel) (Duly signed) The foregoing- submission to arbitration included by names and clock numbers 44 strikers at the East Hartford plant of the Pratt & Whitney Division, 1 striker at the Manchester plant; and from the Hamilton Standard Division it included 2 strikers at the Windsor Locks plant and 3 strikers at the Board Brook plant. The board- of arbitration (herein called the Baldwin Panel)15 held extensive individual hearings at which all parties, including the accused individuals themselves, personally appeared and were represented by counsel; and thereupon (in retired justices from the Supreme Court of Errors for the State of Connecticut. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October-November 1960) issued final and binding awards in 31 of the 45 Pratt and Whitney cases (tr. 22,560) and in all of-the 5 Hamilton Standard cases. As to 14 of the strikers at -Pratt & Whitney, consisting of Earl P. Belton, Robert Black, William Condel, Donald L. Jakubiak, Joseph W. Kaminsky, Jr.,_ Eleanor, Murphy, Walter Reilly, Roy E. Russell, Donald J. Scanlon, Theodore U. Sherman, Lee W. Tracy, Robert J. Wagner, Thomas A. White, and Robert J. Zukas, the Baldwin Panel found each of them guilty as charged and not `entitled to further employment by the Respondent. Thereupon, the Respondent terminated the aforesaid 14 strikers. As to two other strikers at Pratt & Whitney, the Baldwin Panel found Fernando Abreu and Richard R. Pinette guilty of misconduct and decreed that they be placed at the bottom of the seniority roster within their respective seniority areas and occupational groups for reinstatement when reached in that position. With a notation to that effect, the Respondent placed them on the preferred hiring list along with the other economic strikers pursuant to the strike settlement agreements (tr. 22,561; Resp. Exh. 72(G)). Abreu was' thereafter rehired on December 5, 1960, in his former job code and labor grade, but on the second shift instead of the first shift on which he worked prior to the strike (tr. 22,561-562; Resp. Exh. 150(A), p. 2).' Since that time he had been promoted, put back on the first shift, received various merit increases, and, in 1967, received an hourly wage rate of $3.22, whereas his prestrike rate was $2.36. Richard R. Pinette returned to work on December 6, 1960, at his old job code and labor grade on the second shift rather than on the first shift where he worked prior to the strike. Since that time he has been promoted two labor grades, received several merit increases in pay, and, in' 1967, received an hourly rate of $3.08, whereas his prestrike rate was $2.70 an hour (Tr. 22,565). With respect to six other Pratt & Whitney strikers, the Baldwin Panel found Joseph R. A. Blair, Elmer James Hicks, Jr., Lymon G. Kelly, Jean B. Senecal, ,Fred Isasc Stevens, and Eugene E . Taylor guilty of misconduct and decreed that they be placed at the bottom of their respective seniority, areas and occupational groups for reinstatement when reached, in that position on the preferred hiring list established pursuant to the strike settlement agreements. In that position they were not reached by December 31, 1960 (tr. 22,566-567). Consequently, I find that these six employees should remain on the preferred hiring list in the position decreed by the Board of Arbitration and recalled along with other registered strikers hereinafter found to be entitled to , job openings developed during the period January-April 1961. Pratt & Whitney employee Anthony S. Rakiewicz was found guilty as charged, and the Panel decreed that he be reduced 1 year on the seniority roster and reinstated from that position on the preferred hiring list, but he was not put back to work prior to expiration of the strike settlement agreements on December 31, 1960. Consequently, I find that he remains on the preferred hiring list for recall according to his seniority along with other registered strikers herein found to be entitled to job openings developed and activated during the period January-April 1961. Pratt & Whitney strikers, Frederick R. Moody,=and George Roman, were found guilty as charged, and the Panel decreed that they. be reduced 2 years in seniority and placed on the preferred hiring list. Thereafter, George Roman returned to work on December 5, 1960, pursuant to the strike settlement , agreements, and in 1967 was receiving an hourly wage rate of $3.40, whereas his -rate, prior to the strike was $2.75. Frederick R. Moody was not recalled prior to expiration of the strike settlement period; and I find that he remains on the preferred hiring,list for recall according to his decreed seniority status along with other registered strikers herein found entitled to job openings developed and activated during the period January April 1961, inclusive. Two other Pratt & Whitney strikers, George J. Gudaus- kas and Frederick W. Pettingill, were found guilty as charged, and the Panel decreed that they-be reduced 3 years on the seniority roster, and placed on the preferred hiring list (tr. '22,572; Resp. Exh. 72). Neither of them was recalled prior to expiration of the strike settlement period on December 31, 1960. Consequently, I find that they remain on the preferred hiring list for recall according to their decreed seniority status along with other registered strikers herein found entitled to job openings developed and activated during the period January-April 1961. With respect to the remaining 4 of the 31 decisions rendered by the Baldwin Panel between October 19, 1960, and November 23, 1960 (Resp. Exh. 72), Pratt & Whitney strikers Richard E. Fairbanks, Edward J. Fitzsimmons, Vinal E, Moore, and Lawrence A. Powell were found not guilty of misconduct during the strike and placed immediately on the preferred hiring list. All were reinstated in their, prestrike positions prior to December 31, 1960; Fairbanks, Fitzsimmons, and Moore returned to work on December 5, 1960, and Powell returned on December 8, 1960. In addition to the 31 cases adjudicated at Pratt & Whitney by the Baldwin Panel, the Respondent withdrew all charges against 4 , , of the strikers (Josiah N. Collins, Joseph O. W. Chapman, Arthur L. Fournier, and Francis P. Molloy), and ' placed them on the preferred hiring list (tr. 22,576-582). Chapman returned to his prestrike position on October, 19, 1960, and since that time has received several merit increases and promotions to the effect that in 1967 his hourly wage rate was $3.87, whereas his prestrike rate'was approximately $2.80. Fournier returned to his prestrike position on December 12, 1960, and thereafter received merit increases and promotions to theeffect that in 1967 he was holding a salary exempt job at_'$668.00'per month (tr. 22,584). Molloy returned to his prestrike position on December 5_1960, and since that time has received at, least one merit increase and promotion (tr. 22,584). Josiah N. Collins was not recalled prior to expiration of. the strike settlement period on, December 31, 1960, ,because, his seniority bracket was not reached. 'Consequently, I find that he, remains on the preferred, hiring list of registered„strikers hereinafter found entitled, to job openings developed and activated during theperiod January-April 1961, inclusive. The Union withdrew from the Arbitration submission the cases of'six strikers at- Pratt & Shitney Charles E. Beam, Francis Borkowski, Richard U. Dubuc, Zora M. Fraser, UNITED AIRCRAFT CORP. 441 Bernard M. McGuinness, and William Washington (tr. 22,576); and four other strikers, Raymond N. Cason, Thomas Finnie, Malcolm J. Mattison, and Arthur M. Moyen (tr. 22,577), voluntarily resigned from employment with, the Respondent and thereby withdrew their own names from the Arbitration submission. Having shown disposition of 45 cases at the Pratt & Whitney Division from the original list of 50 strikers submitted to arbitration, the record still shows that the -Baldwin 'Panel found 2 strikers at the Hamilton Standard Division (Joseph Janiak, Jr. and J. F. Siana) not'guilty of strike misconduct (Resp. Exh. 69 and 74); two others (Guarino Tranghese and Jerome J. Morin) were found guilty as charged and reduced to the bottom of their respective seniority groups (Resp. Elh. 68 and 73); and one other (Warren Currie) was found guilty as charged and not entitled to further employment (Resp. Exh. 72). Janiak, Siana, Tranghese, and Morin were not recalled prior to expiration of `the strike settlement period on December 31, 1960. Consequently, I find that they remain on the preferred hiring list for recall along with registered strikers herein found entitled to job openings developed and activated during the period January-April 1961, inclusive. It should also be taken into rnsideration that Janiak was hired by, the Respondent as a new employee at some time after January 1, 1961, and must be restored to his prestrike seniority and other rights and privileges previously enjoyed by him. No complaint or exception has ever been raised by the Union or by any of the 50 strikers whose cases were submitted to the Board of Arbitration. From all of the evidence herein, the Trial Examiner finds that the entire arbitration proceeding was conducted by learned eminent jurists of the State of Connecticut with the utmost patience, thoroughness, and fairness usually accorded an accused on trial before State , and Federal Courts. Eminent union attorneys were present and representing each of the strikers throughout the hearing of this case. Records of the proceeding and the decrees rendered by the Baldwin Panel reveal that great leniency was accorded these strikers, especially in the cases of those to whom a reduction in seniority was awarded instead of dismissal. Only 14 of the 50 were denied reinstatement by reason of the gravity of their misconduct during the strike. The National Labor Relations Board is not bound "as a matter of law" by voluntary arbitration of issues between the parties, nor by solemn binding agreement or contract between the parties in collective bargaining, but in Spielberg Mfg. Co., 112 NLRB 1080; International Harvest- er Co., 138 NLRB 51, LRRM 1155 (1962), and other decisions the Board established a policy of encouraging the voluntary settlement of labor disputes by the recognition of arbitration awards not clearly repugnant to the purposes and policies of the Act. Consequently, I recommend that the awards and decrees of the Baldwin Panel be recognized and accepted by the Board in this case. Notwithstanding acceptance and compliance with such decrees in 1960, counsel for the General Counsel included these 50 strikers as alleged discriminatees in the complaint herein on the theory that notwithstanding the ,misconduct found by the Baldwin Panel, which was not denied, the real reason for refusal by the Respondent to recall was part of a pattern of discrimination practiced against all of its employees. Consequently, counsel for the General Counsel and Charging Parties failed and refused to call any one of these 50 strikers to deny, explain, or defend himself against charges of misconduct alleged by the Respondent in its answer to the complaint. Thereby, the Respondent at great expense to itself and by greatly prolonginng this hearing was required to again produce the motion pictures and witnesses previously introduced during the extended hearings before the Baldwin Panel in the fall of 1960, while attorneys for both General Counsel and the Charging Parties continually tried by captious objections on the ground of relevancy to rulings of the Trial Examiner, after they were recorded on the record, to prevent introduction of this same evidence for consideration of the Board. While showing the motion pictures on the screen and also individual photographs of the individual strikers con- cerned, witnesses identified on the record before the Trial Examiner each of the strikers found guilty by the Baldwin Panel actually engaging in violent conduct towards persons entering and leaving the premises of Respondent Company, including in many instances damage to automobiles in which they were riding. Without rehearsing all of the evidence shown by the motion pictures and by the testimony of numerous witnesses on -the record, I find that the findings and decrees of the Baldwin Panel are amply justified by overwhelming evidence now appearing in the record herein. Based thereon, I further find that each of those strikers found guilty by the Baldwin Panel from every standpoint of fairness and justice is not entitled to further employment for reinstatement by the Respondent except to the extent hereinafter provided for those remaining on the preferred hiring list and herein found entitled to job openings developed and activated during the period January-April 1961, inclusive. G. Independent Violations of Section 8(a)(1) Paragraph 37 of the last amended complaint consists of 12 subparagraphs concerning isolated incidents alleging that Respondent by and through its agents, representatives, and supervisors interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. By reason of the multiplicity of persons and the variety of conduct involved, each subparagraph will be separetely analyzed and discussed. Subparagraph 37a alleges that Respondent threatened its employees with econon.' . reprisal for engaging in union or other protected activities. With respect to 22 supervisors alleged in this subparagraph to have threatened employees with economic reprisals, I can find no evidence whatsoever; and for that reason I shall dismiss this allegation as to Robert Sweeney, George Lawrence, Frank Slusarz, Leo- nard Welles, Frank Desjardins, John Carpenter, George McCready, Jack' Baker, John Ruff, L. Davis, Harold Walsh, O. Hervey. S. Matova, Henry Ritter, Edward Erbow, N. B. Morse, Foremen Postum, Foreman Tutt, Foreman Radovick, Charles Hurd, Foreman Andrew Birch, and- Foremen Joseph Slaffenhoffer. In some cases the individual named could not even be identified as a representative- or supervisor of the Respondent. It was 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apparent from the outset that such allegations were wantonly made without description or proof, by reason of which the Respondent justly complained and moved to dismiss paragraph 37 of the complaint in its entirety for vagueness 'and failure to make allegations clear enough for Respondent to prepare a defense. Ruling on that motion was deferred, but the Trial Examiner requested counsel for the General Counsel to stop long enough to inquire into the validity, of remaining allegations and to clarify his 8(a)(l) allegations for the benefit of Respondent and the Trial Examiner, and to comply with the requirements of the Board's Rules and Regulations, Section 102.15(2). This he autocratically refused to do, and the Trial Examiner permitted him to proceed rather than create further dissension in the already overheated atmosphere. (a) Foreman Cubbs (Cribbs) , Adolph Konis testified that he had been a union steward for a period of 6 months, while employed at Hamilton Standard for a period of 6 years, and went out on strike in June 1960; that approximately 2 weeks before the strike, Foreman Bill Cribbs (William F. Cribbs) said: "What are you going to do during the strike? Yes, there,is going to be a strike, and if you guys go out, you are going to be sorry, because the Company is out to break the Union"; that approximately 2 weeks before the end of the strike, Foreman Cribbs called him by telephone, and said: "Al, when are you coming back to work' ; that he told the Foreman that.he would be back when the strike was over, and Cribbs said: "You don't want to wait until then. You might get hurt. After all it is dog eat dog." Foreman William F. Cribbs credibly testified that there was a lot of talk and rumors in the plant about the coming strike, but he had no discussion with individual employees and made no speeches to groups about these rumors-that he does not recall any conversation with Konis prior to the strike and certainly did not say: "If you guys go out, you're going to be sorry, because the Company is out to break the Union." Cribbs credibly testified further that, pursuant to instructions from his General Foreman, he called employ- ees during the strike requesting that they return to work but never at any time promised any reward nor threatened them in any way; that he called Konis from his office in the plant and asked him to come in to work; that I£onis said that he would not cross the picket line; that he did not say to .Donis: "You don't have to wait until then. You might be hurt. After all, it is dog eat dog." Having carefully observed the demeanor on the witness stand of Adolph Konis and William F. Cribbs, without hesitation I discredit the testimony of Donis as to any alleged threats made to him by his Foreman William F. Cribbs and to the contrary give full faith and credit to the denial of William F. Cribbs that he made any of the aforesaid threatening statements attributed to ' him by Adolph Konis. Consequently, I find that Respondent did not violate Section 8(a)(I) of the Act by reason of any statements made to Adolph Konis either before or during the strike. (b) Foreman William Robinson - Edna Thomen testified that approximately 2 days before the strike Foreman William Robinson said to her:- "You don't want to go out. You want to stay here and work, with us," that I couldn't afford not to work because L had to support my family. - Finding no semblance of a threat in the foregoing statements alleged to have been made to Edna Thomen,,, I find no violation of Section 8(a)(1) in that respect by the Respondent. (c) Leonard Willis (Welles) Joseph 0. Fournier testified that he was a leadman on first shift in Department 817 at Pratt & Whitney; thatihe,has been a member of Lodge 1746, since 1945, served as Treasurer from 1946 to 1956, frequently, acted as_ shop committeeman, and was a member of, the, negotiating committee; that shortly before the strike in June 11960 Foreman Leonard Welles from department 816 inquired of him whether he had heard anything about the contract negotiations or thought there would be any change in the insurance, and thereupon said, "Confidentially I'll tell you this, but I won't ever repeat this anywheres, but watch yourself. You're being watched-we have meetings up- stairs, and your foreman Ted wasrkeeping an eye on you, and if anybody goes out on strike keep your nose,, clean because who knows what may happen, whether it be a job, I don't know." The foregoing testimony of Fournier was not contradict- ed, and the approach of Respondent's foreman to him as a representative of the Union indicated that his union activities were being kept under surveillance, and' that he would lose his job if the employees went out on strike. Under all the circumstances, I am constrained to'find that the statements of'Foreman Leonard Welles were a threat or warning of economic reprisal, and that the ' Respondent thereby engaged in interference, restraint, and coercion of employees in the exercise of the -rights guaranteed in Section 7 of the Act. Mrs. Grace Shea testified that at the appointed time employees were walking but on strike when.her Foreman Leonard Welles came into his department 816 and inquired, "Where is Helen Zavisky." Thereupon someone in the group replied, "Well, she has gone-she has left the plant," and Foreman Welles said, "Gee, /that's too bad--she was my best worker-I hate to lose her but she is fired." Mrs. Shea testified 'further that she was not a member of the Union, but, after the walkout started, she went on strike for the duration, joined the Union, and worked at the Union Hall doing paperwork and later in the summer 1963 volunteered to be a witness for the Union in response to a newspaper advertisement soliciting witnesses concerning the' 'strike. Mrs. Shea also testified that Helen Zavisky went back to work in her former position. Mrs. Shea further testified that they were getting ready to walk out when Foreman Wellesannounced that Helen Zavisky was fired, that one 'girl next to her (named Waslaski) became hysterical aud`eried out that she did not want to lose her job, that 'she couldn't go out because ' her daughter was sick, and that she herself was a divorcee UNITED AIRCRAFT CORP. without anyone to work for her and could not afford to lose her job. The foregoing testimony of Mrs. Shea was not contradict- ed and shows that the statement of Foreman Welles was interpreted by employees to whom it was made to be a threat that they too would be fired if they went out on strike. I find, therefore, that Respondent by and through Foreman Leonard Welles threatened, in violation of Section 8(a)(1) of the Act, to fire its employees in department 816 if they walked out on strike, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. (d) Charles Hurd Mrs. Mildred Lillian Davis testified that prior to the strike she performed assembly work in Department 425 under the supervision of Foreman Charles Hurd; that Foreman Hurd came to her work bench approximately 2 days before the strike started, and in the presence of Mary Webber and Ann Webber stated that if she went out on strike, she would not be coming back. Thereafter, on the day the strike started, Foreman hurd inquired whether her husband was going out on strike,- and said, "A lot of people are going to get hurt and a lot of people won't be coming back." Mary Ruth Webber was called as a witness for the General Counsel but did not mention the statements alleged to have been-made in her presence by Foreman Hurd; Mrs. Webber testified that prior to the strike she was working in the assembly of manifold clusters under the supervision of Foreman Charlie Hurd, when he inquired what she was going, to do if there was a strike, and she replied, "I will be on the picket line"; and he said, "Ha, you probably can hold the -line down by yourself." " Thereafter, she went to Foreman Hurd on the day the strike started and said, "I am going out for a while. Are you going to miss me?" Thereupon, Foreman Hurd said, "You can go home and stay, and I hope you never get back." Robert Nelson testified that prior to the strike he was performing' assembly work under the supervision of Foreman Charles Hurd and talked with him several times; that Foreman Hurd said, "The first week most of you will be out; and during the second week they will trickle back; and the third week probably the majority of them will be back; and if you are not back by then, you are never coming back." Nelson testified that thereafter he made a practice whenever he,saw Foreman Hurd to say, "When am I coming back"; and Foreman Hurd said, "You elected to' stay out on strike. I don't care if you ever come back, and that goes for the rest of you, especially Joe Chamanski. He let me down." In the foregoing statements alleged to have been made by Foreman Hurd to Mrs. Davis, Mrs. Webber, and Robert Nelson, ' the foreman appears to be expresssing his own personal feelings about how he was being treated by' employees in his department, but I find therein no threats of economical reprisal that could be attributed to the Respondent Company. I find, therefore, that Respondent engaged in no independent violation of Section 8(a)(1) through the conduct of Foreman Charles Hurd. 443 (e) Roger Hall Mrs. Anna Palmer testified that prior to the strike she worked as an electronic assembler at Hamilton Standard under the supervision of Foreman Roger Hall; that, while leaving the plant on the day before the strike, she said to him, "Good night, and I will be seeing you. If we go on strike, we will see you after the strike." Foreman Hall looked up and said, "Not if I can help it, you won't be seeing me." Mrs. Palmer further testified that approximate- ly 2 months prior to the strike she talked to the foreman about a merit rating grievance, and he said, "Ann you are too unionized and not enough company-wise, and some day you will pay for it." The latter statement is too remote to be considered herein and is also barred by the statute of limitations. The former statement is ambiguous, and in the opinion of the Trial Examiner neither of these remarks contain any threat of economical reprisal. Furthermore, I credit the denial of Foreman Hall rather than the testimony of Anna Palmer. Roger A. Hall credibly testified that he was not at work or present in the plant during the week immediately preceding- the strike that started on June 8, 1960; 'that he, left the job on Friday, June 3, 1960, and did not return until June 13, 1960; that on June 6, 1960, he received a death call to visit his father-in-law at Clinton, Iowa, and was there when he died on June 7, 1960, which was the same day as the alleged discussion with Anna Palmer' in Hartford, Connecticut, more than 1,000 miles from where he actually was on that date. Hall swore positively that he never at any time made such statements to Mrs. Palmer; and, from observation of these two witnesses and from all the circumstances involved, I credit his testimony and find that Respondent did not thereby interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in Section'7 of the Act. (f) Daniel Taft Robert H. Richardson testified that he was employed as a leadman at Pratt & Whitney in department 42 under the supervision of Foreman Daniel Taft; that approximately 2 weeks before the strike started, Foreman Taft said, "You belong to the Union. If you go out on strike you won't have a job." Jane McLachlan testified that she worked as a tool- expediter under the supervision of Foreman Daniel Taft; that approximately 1 week prior to the strike, "Mi. Taft said if we took part in this strike, we would be apt to lose our jobs. Our insurance would be gone. The Company would set up cameras to record activities on the picket line. The Union would reduce our benefits from $35 to $10 a week." Daniel Warren Taft credibly testified that he was a foreman in department 42 at the Pratt & Whitney East Hartford Plant in 1960, with 28 to 30 employees working under his supervision; that he never discussed the possibilities of a strike with any individual employee, but about one week before the strike he called his entire group of employees together following their lunch period and told them that Pratt & Whitney would continue to operate the plant by hiring other people to fill jobs left vacant by 444 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD strikers, and that strikers coming back to work might find their jobs filled by someone else; that it was strictly up to them whether they went out on strike, and that they would have to make up their own minds about that. Foreman Taft further testified that he did not engage in any individual conversation with Robert H. Richardson and positively did not make the statement attributed to him by Richardson. Foreman Taft further testified that he did not engage in any individual conversation with Jane McLachlan and did not-make the statements attributed to him by her; and that, furthermore, he had had no knowledge whatsoever with respect to strike benefits to be paid by the Union or insurance provided for employees by the Company or plans to use cameras on the picket line. From my observation of these witnesses, I credit Foreman Taft's version of statements made by him to employees and discredit the testimony of Richardson and McLachlan as a biased interpretation and augmentation of remarks made by this foreman at the group meeting. I find from all the evidence and circumstances that statements made by Foreman Daniel Taft did not constitute interference,- restraint, and coercion of employees in, the exercise-of the rights guaranteed in Section 7 of the Act, and that Respondent did not thereby engage in an independent violation of Section 8(a)(1) of the Act. (g) Albert Paul Leone (Jr.) Alex A. Newell testified that he was working as a tool- expediter in Department 97 at Pratt & Whitney wherein Albert Paul Leone was a general foreman; that a few days prior,,, to the strike, Leone said to him, "I'll tell you something. If you go out on strike, you will never work in this department as expediter," Approximately 2 years later, after his reemployment by the Respondent, when he was summoned as a witness in the instant hearing, he showed the subpoena to General Foreman Leone, who at first said that the subpoena was not legal because it had not been served upon him by the sheriff but later came back and asked to see it. Thereupon, Leone took the subpoena to the office of the plant superintendent and, shortly thereafter brought it back and said, "You can honor it. We'll let you go, but be careful whay you say-Remember you were misled once." Albert Paul Leone, Sr., credibly testified that he is a general foreman of semiproduction in department 97 at the Pratt & Whitney East Hartford Plant and was acquainted with Alex A. Newell (tool-expediter), but Newell did not work under his supervision and as general foreman he did not hire the tool-expediters or have any control over their assignments towork. - General Foreman Leone positively denied making the statements attributed to him by Alex A. Newell but admitted that Newell -approached him with the alleged subpoena in his hand and requested time off from work to attend, this hearing; that he might have expressed some doubt of its legality before making an examination of the document , and might have taken it to the personnel department for instructions then brought it back to Newell, told him that it was a legal subpoena, and that he should comply with it. General Foreman Leone further testified that prior to the strike there were a lot of rumors, but he never discussed it with any employee and did not attend any, ,personnel meetings where it was discussed; that he was not interested in the Union one way or the other, and it made no difference with him; and that he did-not tell any employee that he would never work in- the plant again if he went out on strike. From my observation of the demeanor of the aforesaid two witnesses, I find from all the circumstances and the entire record in the case that the testimony -of General Foreman Leone is more compatible with the truth of the situation, and I discredit the testimony of Alex A. Newell. I find, therefore, that Respondent did not by the conduct of General Foreman Albert Paul Leone engage in interference, restraint or coercion of employees - in the exercise of the rights guaranteed in Section 7 of the-Act or any independent violation of Section 8(a)(1). (h) Marcus Moriarity Mrs. Hilda'Adamczyk testified that prior to the strike in 1960, she was working as a braser in department 1221; that in May 1960 her foreman,'Moriarity, held a meeting in the department and told'his employees that they would -have to work until the quitting bell rang and could not clock, out ahead of quitting ' time; , that there must' not' be any discussion of union activities on company time and no grouping together 'for little chats. Moriarity said; '"I don't care for so much mess and fuss. Get it 'over with, and get this 'thing settled one way or the other. Get it over with, get the thing settled, get settled down. When you come back in; we can check and work who we want to work." Foreman Marcus Moriarity credibly testified,,that it'was normal procedure to hold monthly or'bimonthly meetings of his employees, and that he probably held such a meeting in May 1960; that he told these employees that there must be no discussion of union activities on company time and property, -and that there could be no clocking in early, before thine for work but does not recall` telling them to get it over soon, if they go out on strike; and that he-positively did not make the statements attributed to' him 'by Mrs. Adamczyic concerning employees coming back' to work or selecting those that the Company wanted.'Moriarity further testified that approximately 40 people worked, under his supervision including' Hilda Adaniczyk `and 'or 5' other brasers, but all ' hiring of his employees was handled by the personnel department. I find no threat of , reprisal in the statements alleged by Adamczyk; and from my observation of these witnesses and from all the circumstances and record in the case give full faith and credit to^ Foreman Moriarity's version of what he said at the meeting The testimony of Mrs. Addamczyl , was not corroborated by any other witness, although the record indicates that approximately 35 or` 4il people were present at this meeting. I find, therefore, no interference, restraint, or coercion of employees by reason of statements made by Foreman Marcus Moriarity and thereby no independent violation , of Section 8(a)(1). UNITED AIRCRAFT CORP. 445 (i) Tracey Page ,Wilhemina -Wilcox testified that in June 1960 she was working at Hamilton Standard and went out on strike for the duration; that approximately 1 week prior to the strike, one Tracey Page from the personnel department spoke to her at the "burr bench" and said, "Billy, don't go out on strike, because if you do, you will be sorry." Such, a statement could just as properly have been made by a member of Mrs. Wilcox's family, her best friend, or any" well wishing associate, rather than a supervisor of the Respondent. It contains no threat of reprisal by anyone, and the record fails to show whether Tracey Page held any supervisory position with the Company. I find no interference, restraint, or coercion and no independent violation of Section 8(a)(1) by reason of such statement by Wilhemina Wilcox. conversation directly with him or making any statement to Rosa or anyone else to the effect that he would personally see that anyone walking out of here would never walk back into Hamilton Standard. The testimony of Gerald Rosa was not corroborated by any other witness; and from my observation of the demeanor of the two witnesses, and from all the circumstances of the case, I credit the testimony of Michael Reardon rather than that of Gerald Rosa. From a preponderance of the evidence, I find that Respondent by the conduct of General Foreman Reardon did not interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any violation of Section 8(a)(1). (1) Carl Edward McAllister, (j) George Sabisky Guy De Mascolo testified that in June 1960 he was working,iii Department 957 at Pratt & Whitney under, the supervision of Foreman George Sabisky; that approximate- ly 1 week prior to the strike Sabisky said to him in the presence of two other employees (Allen Alimone and John McCullen), "In a few days the employees may go out on strike-that we may go out on strike, but we better not be the last ones in." Neither Allen Alimone nor John McCullen were called to corroborate the witness De Mascolo, and I find no threat of economic reprisal by the Respondent in the aforesaid statement. Furthermore, from my observation of the demeanor of this witness and from all the circumstances allegedly surround this incident I cannot credit his testimony by finding a preponderance of evidence to support any finding of an independent violation of Section 8(a)(1) by the Respondent. (k) Michael Reardon Gerald Rosa testified that in June 1960 he was a union steward working as a prop-assembler at Hamilton Stand- ard,' and he was designated as the union representative to give the signal 'in department 213 to walk out at 10 :40 a.m. on June 8, 1960; that General Foreman Reardon asked him, as he was leaving, if he was walking out on strike and said, "Onc°e you walk out of here, I will personally see to it that you never walk back into Hamilton Standard." Michael Reardon credibly testified that in June 1960 he was a general foreman of departments 13 and 213 at the Windsor Locks plant of Hamilton Standard, in a working area separated from the rest of the factory by a wire fence, with the timeclocks situated immediately outside the entrance to this fenced area . Reardon testified that the walkout caused much commotion and milling around within this fenced area, because some employees would clock out and then come back in, thereby interfering with others still at work, so he approached a group of the strikers and said, "If, you are going out, go ahead-don't keep coming back into the area." When making this statement to the strikers, General - Foreman Reardon does not recall seeing Gerald Rosa but positively denied having any Frank Lombardo testified that prior to the strike in 1960 he was working as an electrician helper in department 27 at Pratt & Whitney under the supervision of Foreman Red Barnes and frequently made announcements for the Union over Radio Station WINF, where he related thereon what he observed; that approximately 1 to 2 weeks after the strike started he went to the home of General Foreman Carl McAllister to talk to him about the strike, and during their conversation McAllister said: "What are you, some kind of nut, going on the radio and shouting your mouth off. You will never get a job back at Pratt & Whitney." Carl Edward McAllister credibly testified that in June 1960 he was a general foreman in area 4 at the East Hartford plant of Pratt & Whitney but had no jurisdiction over Frank Lombardo; that in the evening of June 1'0; 1960, his Chevrolet station wagon was badly damaged by the mob while driving through the picket line leaving the plant, and when he got home that night, ' Frank Lombardo, Ronnie Nevison, and another employee by the name of Duggan were outside in the driveway. Thereupon, Frank Lombardo said, "I see they give you a rough time when you come through the picket line tonight. You've got a busted window. Better luck next time-maybe they'll break your wind shield." Thereupon, McAllister latched on to Lombardo, and the other two fellows took off. The only thing he said to him was "that I'd help break the wind shield, as he suggested that they might do next time; and did not say anything to the effect that he would never get a job back at Pratt & Whitney." General Foreman McAllister positively denied under oath that he made the statements attributed to him by Frank Lombardo, and no other witness was called to corroborate Lombardo's testimony. From my observation of these two men and their demeanor on the stand, I give full faith and credit to McAllister and do not believe the testimony of Lombardo. From a preponderance of the evidence, and, all the circumstances of the case, I find that by the conduct of General Foreman McAllister when so brashly approached, on his own premises at home by Lombardo and other strikers on the night of June 10, 1960, Respondent did not interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any-independent violation of Section 8(a)(1). 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (m) Raymond Pelletier Evo Lazzerini testified that he worked several, years as a scraper and fitter for Pratt & Whitney at East, Hartford, Connecticut, but was absent on personal business with the Veterans Administration at time of the strike in 1960 and never returned to work. However, he engaged in picketing and at the plant gate saw and heard General Foreman Pellitier say that "if we came in he would terminate us." Thereupon, he walked across the street to face the general foreman on the sidewalk, and Pelletier said, "Boy; if you come in I'll terminate you"; that later during the strike, General Foreman Pelletier called him by telephone, and said: "I'd appreciate it if you get some of the boys together and come in (to work)"; but "I told him that I would take my chances to stay out, because I did not care to be a scab. Prior to that Pelletier had asked me to come back to work across the picket line. When I went in to register after the strike, General Foreman Pelletier said, `it may not do you any good'; and I said, `Well, let Pratt & Whitney be the judge of that'; but when I received a letter from the Company about January 6, 1961, I notified them that I did not care to go back into Industry, and wanted something a `little more soft."' John Telesmanic testified that during the 4th or 5th week of : the , strike, General Foreman Pelletier called him by telephone, requested him to come back to work,, and said, "You can come in any time hk- the morning, work as many hours as you want," i.e. overtime. The finding of the Trial Examiner is that the foregoing conduct alleged by John Telesmanic does not constitute a threat .of economic reprisal, and is not an independent violation of 8(axl). Andrew Kalafut testified that he had been employed in a variety of jobs at Pratt & Whitney since 1934 and was assigned to light work after incurring a disfiguring injury, to his hand in,line of duty about 4 years prior to the strike, and that while engaged in picketing during the fourth or fifth week of the strike alongside the East Hartford plant on Willow Street next to the fence he heard General Foreman Pelletier say, "Come on in, I'll terminate the whole bunch of you." Dominick Rubbo testified that during the third week of the strike, he received a telephone call from General Foreman Pelletier saying that he would terminate me if I did not come ' back to work; and I told him that he had a lot of -nerve calling my house to threaten me,about my job. Thereafter, about the sixth week of the strike, while engaged in picketing at Willow Street, he saw General Foreman Pelletier and heard him yell at the pickets, "Come on in and I will terminate you." Herve Desriusseaux testified that on one occasion during the strike he was in a group of strikers on the picket line at Gate #3 and spoke to General Foreman Pelletier who was just-inside the fence on company premises ; that Pelletier heard him call somebody "a scab," and invited him to come in--that he would terminate him. He saw Pelletier again at Willow street on the registration, day for strikers,, and Pelletier said, "Herve, you look good after being out on strike." General Foreman Raymond Pelletier died sometime in 1966, thereby ' depriving the Respondent of the only witness that could answer the testimony of witnesses for the General Counsel and Charging Party. Prior to his death there was no opportunity to obtain his disposition,. because the allegation concerning him in Paragraph 37(a) recites only • the following information: "Raymond Pelletier-sometime June-August 1960.",There- is a very wholesome rule of evidence that evidence concerning conversations and transactions with a dead, man.are not admissible, especially where he had no,opportunity prior to his death to deny or explain his version of the transaction. The testimony of Lazzerini, Kalafut, Rubbo, and Desrius- seaux is suspect in the emphasis placed, on the word terminate, indicating that they - had been - instructed concerning the importance of this word to prove a threat of economic reprisal by the Respondent. Furthermore, the manner and occasion on which it is alleged, to have been used in yelling at strikers walking a picket line was ambiguous, because it was not at all necessary to get the strikers to come inside the plant to be terminated. Termination is either voluntary or involuntary, and if Respondent ,wished to terminate strikers it could easily do so unilaterally, and normal procedure would be zto follow that course rather, than publicly proclaim -such an intent from the housetops for all to hear. - The Trial Examiner will therefore invoke the rule of evidence to disquality testimony against a dead man, and also find that the statements alleged are too ambiguous, to constitute a threat of economic reprisal by Respondent against its employees already on the picket lines Therefore, Respondent did not engage in an independent violation of Section 8(a)(1) by the alleged statements of General Foreman Raymond Pelletier (deceased). - (n) Charles Kaler Evo Lazzerini testified that in 1960 he was working under the supervision of Foreman Charles Kaler , but was absent when the strike started ; that sometime during the strike, Foreman Kaler called him by telephone at home and requested him to get some of the boys together at his house for a conference, but he refused to hold such a meeting,at his home, and suggested that such a meeting; beheld at the Union Hall.' Foreman Kaler did not like that suggestion, and said, When this strike ends up,,you maybe one of the fellows outside looking in." He told Foreman Kaler that he would take his chances on that . Foreman Kesler told him to "get four or five scrapers and call him or Mr. Pelletier-that they would be glad to come to my house and talk ,to us"; also Kaler told him about Torin and Getz putting a nail in their coffin, but did not explain what he meant. Dominick 'Rubbo testified that prior ,to the "strike he worked as a precision scraper in department,133 at Pratt ,,& Whitney under the supervision of Foreman Charles-Kaler. Rubbo, further testified, "During the fifth or ' six th week of the strike, Foreman Kaler called me by telephone and said, `if youscrapers don't come back we are going to take this work and ship it out to different factories, and you won't have nojob.' I told him that Y was on strike, and that he had no business calling my house." Foreman Charles Kaler testified that he was foreman in the machine repair department #33 at Pratt & Whitney with' 25 to 30 employees under his supervision."'He was UNITED AIRCRAFT CORP. instructed by General Foreman Raymond Pelletier during the strike to call employees and request them to return to work but not to threaten them in any manner whatsoever. So, he testified, he called-many of them, and may have suggested that they talk it over among themselves, but never requested a meeting for him to talk with them; and he did not tell Lazzerini or any other employee that "if he failed to come in, you might find him on the outside looking in when the strike was over"; and did not mention Paul Tongrin in any conversation with Lazzerini. He called Rubbo by telephone, told him that "we had work to be done, and requested him to come back," but did not tell Rubbo that his work would be sent out if he did not return to work and did not tell any employees that their work would be taken by a replacement if they didn't come back to work. From my observation of the demeanor of these witnesses I am persuaded that Foreman Kaler's testimony should be credited to the effect that he did not threaten employees by telling Lazzerini that when the strike ended he might be one of the fellows outside looking in, or by telling Rubbo that if the scrapers don't come back they would not have a job. The testimony of Evo Lazzerini and Dominick Rubbo was not corroborated by any other witness. It is the veracity of one man against another in each instance, and I am convinced that Foreman Kaler was telling the truth while Lazzerini and Rubbo by deliberate misinterpretation or addition of a few extra words tried to change honest persuasion of employees to voluntarily return to work into inducement by threats of economic reprisal to return involuntarily to work. I find, therefore, that there was no independent violation of Section 8(axl) in the conduct of Foreman Charles Kaler. (o) Foreman Ackerberg (George Ecabert) Valente Gallucci testified that in June 1960 he was employed as a carpenter and maintenance worker in department 39 under the supervision of Foreman George Ecab'ert and shortly prior to the strike had a conversation with this foreman concerning overtime, whereupon, Foreman Ecabert said, "Why do you want to be a troublemaker? You caused all this trouble." This incident occurred at the second step of the contractual grievance procedure, following two previous grievances about overtime. This witness testified further that during the strike Foreman Ecabert called him by telephone and said, "If you don't come back we are going to put somebody in your -place." He also testified that, "At a later date about October 1, 1960, I had a talk with Foreman Ecabert, and he said that I should have returned to work when he called me." From the foregoing testimony of Gallucci it is apparent that this supervisor was simply interested in persuading his employee to come back to, work and made no threat of economical reprisal whatsoever. Telling an employee that he would be replaced if he failed to report to work is simply the expression of the legal right to obtain permanent or temporary replacements for striking employees, which in the absence of discrimination within the meaning of Section 8(a)(3) does not constitute an independent violation of Section 8(a)(1). I find, therefore, that Respondent did not 447 thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. (p) William Dwyer Earl C. Martin testified that prior to the 1960 strike he was working as a blade inspector in department 7 at Hamilton Standard, and that his experience was limited to approximately 12 of approximately 1,500 component parts contained in a propeller blade; -that by reason of a newspaper advertisement in April 1961, he called Personnel Advisor William Dwyer about one of those jobs and was told by Dwyer that those ads were for inspector jobs for which he was not qualified; and that about 2 months later he again called Dwyer about jobs advertised for in the newspaper, and Dwyer said, "Well, they are not for you. They are for men of different experience. By the way, weren't you one of the 200 who signed a statement against the Company?" William F. Dwyer credibly testified that he was senior personnel advisor at the Windsor Locks plant of the Hamilton Standard Division and recalled telephone calls received by him from Earl C. Martin during the spring of 1961; that Martin was inquiring about the prospect of being rehired at Hamilton Standard and referred to advertise- ments seen in the newspapers. Thereupon, he told Martin that he was not qualified for the particular positions available at that time. Dwyer further'testified'that he had no knowledge or information that 200 employees had signed any statement against the Company, and positively did not mention that subject or say, "By the way, weren't you one of the 200 who signed a statement against the Company." From my observation of the witnesses (Martin and Dwyer), I discredit the testimony of Martin and give full faith and credit to - Dwyer's denial of the aforesaid statement attributed to him about Martin signing any statement against the Company. Consequently, I find therein no independent violation of Section 8(a)(1) by Respondent. The allegations of Paragraph 37(a) of the complaint pertain only to independent-violations of 8(a)(1); and discrimination against-all employees is covered in other allegations in the complaint as to violations of Section 8(a)(3), including any derivative violations of 8(a)(1). Milford Dearborn testified that prior to the 1960 strike he was working as "chip man," shoveling metal chips into a 3- wheel cart or wheelbarrow and dumping them into a hopper, having been removed from office maintenance work when it was discovered that he had a hernia. He stated, "After the strike about January 1, 1961,1 was called to the plant and offered a job as office janitor, and sent to the Medical Department for a physical examination. There, my hernia was discovered, and I was requested to sign a waiver similar to one previously signed prior to the strike; and thereupon,.I was given a card with which to report to Department #39. Thereupon, I was called in to see Bill Dwyer; and he said that they could not use me on account of my hernia because this new job required the lifting of weights beyond the limits permitted by the doctor; and also said: `If I hadn't gone out on strike, they would have kept me on the job-but seeing I had gone on strike-they would have to let me go because of my hernia."' 448 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD William F. Dwyer testified under oath that he did not recall talking to Milford Dearborn in January 1961 and certainly did not tell Dearborn or any other employee that he would have been kept on the job if he had not gone out on strike and did not say that "since they had gone on strike, I'd have to let him go because of some physical defect." From my observation of the demeanor of the two witnesses (Dearborn and Dwyer) and from -all the circumstances of the case, I discredit the testimony of Milford Dearborn and give, full faith and credit to the denial of William F. Dwyer that he made the statements attributed to him as being the"reason for the Respondent refusing to rehire Dearborn in January 1961. I find no independent violation of ' Section 8(a)(1), as alleged in Paragraph 37(a) of the complaint; and discrimination against Dearborn, if any, is covered by other allegations with respect to violations of Section 8(a)(3) including derivative violations of Section 8(a)(1). Joseph Motyka testified that prior to the 1960 strike he worked as an 0.13-grinder in the toolroom in Department 219 at Hamilton Standard and a union steward for a period of 3 years from' 1955 through 1958; that he went on strike for the,duration and thereafter registered under the strike settlement agreements and also filed new applications for employment-in January 1961; that he discussed the matter with Bill Dwyer in August 1962, and Dwyer said that he would do everything humanly possible for him because his wife was hospitalized-that he would rather employ the older help that went out on strike by reason of their experience-that it would be much better all,, around than hiring new employees. It does not appear necessary to make.a credibility finding between the testimony of Joseph Motyka, and William, F. Dwyer because on its face this evidence does not support a finding that such statements constitute threats of economic reprisal or any other act of interference, restraint, or coercion of employees in the exercise of the rights guaranteed in Section 7 of -the Act. Dwyer did not remember any such conversation with Motyka and appeared unable to recall the identity .of the man. If any discrimination against Motyka is claimed by the General Counsel and, Charging Party it is covered by other allegations of the complaint, but as to, the allegation in paragraph 37(a), I find there was no independent violation of Section,8(a)(1) by the Respondent. Gerald Rosa testified that he was engaged in picketing at the main gate, that Bill Dwyermade a practice of coming there each day at 9:00 a.m., and that on one occasion he called him over to his position and inquired, "When are you fellows going to give up? Don't you know you are beat? Don't you see the new faces coming in the gate?" This witness further testified that during the registration of strikers, Bill Dwyer looked over his application for reinstatement and said, "Oh Hell, Rosa it is'you. You might as well leave. We don't have anything for you." William F. Dwyer credibly 'testified under' oath that he could not recall any discussion with Gerald Rosa during the 1960 ' strike, and he positively denied making any such statement attributed to him about the strikers giving up and accepting defeat. Dwyer also testified that he could not recall having any conversation with Rosa during the registration of strikers at the end of the strike, and he positively denied making any such-statement attributed to him at that time. Dwyer credibly testified further quite to the contrary that he at-all times publicized the fact that they, were requesting these strikers to come in on two particular dates to register under terms of the strike settlement agreement, and on all occasions the union representatives sat at adjoining tables to insure a fair and:: proper registration of all strikers participating therein. From my observation of these two witnesses (Rosa and Dwyer) on the witness stand, and from the entire record in the case, and in the absence of other -corroborating witnesses, I discredit the- testimony of Gerald Rosa, give full faith and credit to the denial of William F. Dwyer, and find that a preponderance of the evidence fails to show that Respondent, engaged in interference, restraint, or-coercion of employees by reason of the, statements attributed to Senior Personnel Advisor William F. Dwyer. I find therein no independent violation of Section 8(a)(1), as alleged in Paragraph 37(a) of the complaint. Francis M. McCann testified that he formerly held official positions in the Union as steward, committeeman, member of the negotiating committee, chairman of the organizing committee, and assistant strike chairman in charge of picket duty; that during the second week of the strike in a conversation at the' main office gate, he'made a remark to the effect that it was a beautiful summer day and in reply thereto William- F. Dwyer said, "'it might be a long cold- winter before you get back in:" ` The foregoing incident could not be recalled by William F. Dwyer, and he testified under oath that he never made such a statement to McCann or to any other' employee. Some timid and sensitive souls might discern, in such a statement some element of interference, restraint, or coercion, but I fail to find it and see no necessity for making a credibility finding between the testimony of these, two witnesses. The statement, if made and correctly interpreted, is too ambiguous, and lacking in, the elements of a threat of economic reprisal to justify a finding of interference, restraint, or coercion of the strike leader, on the picket line on this alleged occasion; and the preponderance of the evidence is to the contrary. No witness was, called to corroborate the testimony of McCann,, and the burden is on the General Counsel to prove . his allegation by a preponderance of evidence. Having failed to do, so, I find that Respondent did not thereby engage in an independent violation of Section 8(aXl), as-alleged in Paragraph 37(a) of the complaint. (q) George Bentley Robert H. Richardson` testified that in June 1960 he was working as a leadman in department 42 at Pratt & Whitney under the supervision of Foreman Daniel Taft,'and George Bentley was the general foreman; that on the morning of June 8, 1960, he walked out on strike'and passedwithin 14 feet of Taft and Bentley standing together, and in passing he heard General Foreman Bentley say to Foreman Taft, "You won't see them "any more." Richardson testified further that in September 1960, he called General Foreman UNITED AIRCRAFT CORP. Bentley about going back to work, and Bentley said, "We don't intend to call you back." George R. Bentley credibly testified that he was a general foreman in department 42 at the Pratt & Whitney East Hartford plant, and on the morning of June 8, 1960, Foreman Taft reported to him by telephone that his employees were milling around the plant. He reported this situation to the personnel department and 'received instructions to tell these people to either clock out or go to work. Thereupon, he and Foreman Taft stood in the center of-the department area and told them just that; whereupon some of the employees clocked out on strike, and some went back to work, but he did not talk individually to any of the employees leaving the plant and did not discuss the matter any further with Foreman Taft. Bentley swore positively that he' did not make any such statement to Foreman Taft or to anyone else as that attributed to him by Richardson. Bentley further testified that Richardson did thereafter call him by telephone in September 1960 from some place where jazz music could be heard in the background, making it hard to understand what Richard- son was saying over the telephone, but he understood that Richardson was inquiring about coming back to work. He told Richardson that it would be necessary for him to check with the employment office, and he also reported this conversation to the, personnel department next morning. Bentley swore positively that he did not tell Richardson that they did not intend to call him back. Furthermore, he did not know what had happened to Richardson's job and did not have a list or schedule of strikers being recalled to work, but he knew that Richardson could contact the personnel department about the matter. In my opinion the statement (even if true) alleged to have been privately made to Foreman Taft by General Foreman Bentley, and overheard by an employee, does not constitute a violation of Section 8(a)(1). The testimony of Richardson was not corroborated by any other testimony or evidence. From my observation of these two witnesses and all the circumstances of the case, I discredit the testimony of Robert H. Richardson and give full faith and credit to the denial of General Foreman George R. Bentley; and since the burden of proof rests upon the General Counsel, I cannot, in any event, find from a preponderance of the evidence that Bentley made any such statement. I find, therefore, that Respondent did not thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1) as alleged in Paragraph 37(a) of ' the complaint. With respect to a statement in September 1960 to the effect that "they did not intend to take them back," the testimony is likewise discredited and full faith and credit given to the denial thereof by General Foreman Bentley; and since there was no corroboration of Richardson's -testimony, I cannot, in any event, find from a preponderance of the evidence that Bentley made any such statement or that the Respondent thereby interfered with, restrained, or coerced employees in the exercise of their rights under Section 7 of the Act or thereby engaged in any independent-violation of Section 8(a)(1) as allegedin Paragraph 37(a) of the complaint. 449 (r) William Slaffenhaffer (William Schladenhaufen) Joseph Heck testified that in 1960 he-was working as a vertical turret operator at Pratt & Whitney under the supervision of Foreman Joe Smith, but sometime prior to that time he had worked under the supervision of Foreman Bill Schladenhaufen in department 97. He went out on strike for the duration, and thereafter in September 1960 went to the plant in company with Walter Wolczak to turn in his badge. They conversed with Foreman Schladenhau- fen at his desk in department 97, and inquired about coming back to work, whereupon Foreman Schladenhau- fen said, "If you fellows ever come back to Pratt & Whitney, it won't-be in Department 97. It will be in some other area." - - Walter Wolczak testified that he was also working as a vertical turret lathe operator at Pratt & Whitney when,he went out on strike June 8, 1960 for the duration and thereafter registered in August 1960 for reinstatement, under the terms of the strike settlement agreements. Thereafter, in company with Joseph Heck, he went into the plant in September 1960, got his tool box, turned in his badge to Foreman Joe- Smith, and then went in to see Foreman Schladenhaufen and asked him if there was any chance of coming back to work; whereupon Foreman Schladenhaufen said that, "if we ever got back we would not get back to that department." William Schladenhaufen credibly testified that in 1960 he was a foreman in department 97 at Pratt & Whitney, and that Joseph Heck and Walter Wolczak were working under his supervision when they went out on strike on June 8, 1960. After the strike these two employees came in the plant together in September 1960 to turn in their tool boxes. They inquired why they could not go back to work and were told that, "their ^ jobs had ' been permanently filled with either trainees or transferees and no longer existed; that they could apply for another job at the Employment Office; and I recommended that they go over there and do so at once. Thereafter, Wolczak came back to work in the latter part of 1960, and is still at work in department 96 where he had formerly been employed. When they applied in September 1960, my department had a full complement, and there were no openings to be filled." The testimony of Heck and Wolczak appears more pertinent to the discrimination section of this case rather than to an independent violation of Section 8(aX1); and this Trial Examiner should be required to adjudicate aforesaid incident ' only as alleged discrimination in violation of Section 8(aX3) and derivative violation of Section 8(a)(1) and not as duplicate adjudication as an independent violation. The Trial Examiner has already found discrimination by the , Respondent with respect to unidentified transfers, promotions prior to January 1, 1961, and hiring new employees during the period January -April 1961, inclusive, and has recommended a method of identification in the absence of an agreed identification by the parties. In any event, from my observation of A he witnesses and from all the circumstances of the case, I credit Foreman Schladenhaufen's version ofrwhat he told Heck and Wolczak when they came , to see him in September 1960, rather than the misinterpreted and ambiguous, version imposed upon this conversation by self- 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested witnesses testifying as to their recollection more than 5 years after it occurred . I find, therefore, that Respondent did not thereby interfere with , restrain, or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act and did not thereby engage in an independent violation of Section 8(a)(1). (s) Foreman Postum (William E. Postal) Joseph Shemanski testified that he was working as a leadman (labor grade 6) in the fuel manifold department at Pratt & Whitney when he went out on strike for the duration on June 8, 1960 ; and that he was recalled to work on the first shift in labor grade 8 on October 31, 1960. Thereafter, in February 1961, he asked General Foreman William E. Postal why he had been bypassed by giving another man his former job as leadman on the third shift and was told "that Postal said that I had been considered that either I was company or I was union, and that management takes the position of promoting loyal company men." Shemanski further testified that several days later he asked General Foreman Postal how promotions were made, and he stated "that they were made by seniority, ability, and proven loyalty-that he never saw a check issued by the Union-it was always signed by the Company-that I did a good job keeping the people out on strike--that it was a proven fact, if the leadman came back, 90 percent of the people would follow-that they had a poor showing in my department during the strike-that it was a known fact that I ate lunch with 'a striker." Thereafter; in May 1961 , Shemanski was promoted to leadman, labor grade5, in the same job held by him prior to the strike, except it was one grade higher than before. William E. Postal credibly testified that in 1960 he was general foreman for departments 424, 425, and 651 at the East Hartford plant of Pratt & Whitney and is presently Division Superintendent for area 4 at that plant. Prior to the 1960 strike, Joseph Shemanski worked as a leadman in department 425. Shortly after the strike Shemanski went back to work as a manifold assembler ; but, Postal testified " it was reported to me by his foreman that Shemanski was uncooperative and was frequently warned and reprimand- ed concerning his poor attitude on the job-that he refused to work with employees unless they were strikers, and, partly for that reason, Shemanski was not promoted back to leadman at that time. In February 1961, Shemanski approached me on 2 successive days, aggressively inquiring why he had not been given consideration for promotion to the job of leadman, and trying to get me to commit myself. In the first conversation, I told him that he had been given consideration, but was not selected , because from his attitude on the job we did not find him capable at that time of doing a real leadman's job. I told him that in general, we promoted people on the basis of-seniority and demonstrat- ed ability and skill. Then he came back to my office next day, and inquired whether I felt that he had the necessary skill for the leadman job. Thereupon, I told him that his craftsmanship was excellent, but that his attitude onthe job was such that I just couldn't see him being put in a position where he would have to deal with a new group of people froffi various backgrounds, some of whom had been out on strike, and some who had not-that it was very obvious that he would not associate with or talk to those who had, not joined the strike, and that he could not do a job requiring communication with a group in which there were only a few individuals that he would talk to-that under these circumstances, I could not use him as a leadman. Shemanski, had been a leadman under my jurisdiction for a period of several years prior to the strike; and approximate- ly 3 months after the aforesaid conversations , he was again promoted to a leadman's job in Department 425 in a higher labor grade." General Foreman Postal further testified under oath that he did not make any such statement as that attributed to him by Shemanski to the effect that he was either company or union, and that management takes the position of promoting loyal company men; and he did not include "proven loyalty" in his ,statement to the effect that the basis of, promotions in general was seniority and demonstrated ability and skill. The foregoing testimony of Joseph Shemanski appears more pertinent to the discrimination section of this case, including a derivative violation of Section 8(axl), and a duplicated adjudication thereon as an independent viola- tion of 8(a)(1) would be entirely improper in the opinion of this Trial Examiner. However, from my observation of these two witnesses (Shemanski and Postal), I discredit the version placed upon his conversations with this general foreman, and give full faith and credit to the denial of William E. Postal that he made the statement attributed to him. I find, therefore, that Respondent did not thereby- interfere ,with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any independent'violation of Section 8(a)(I). (t) Robert Backus William Wallace testified that in June 1960 he was employed as an experimental inspector in department 207 at Hamilton Standard and went out on strike for the duration; that on the day after the picket line was reduced by an order of Court at the end of the first week of the strike, Foreman Robert Backus called him by telephone and said, "We have reduced the number of people on the picket line. I would like to have you come in to work. You shouldn't have any trouble. Well, I think you would be smart if you came in now." In the above , testimony of William Wallace, I find no element of interference, restraint, or coercion of employees in the exercise of the rights guaranteed.in _Section 7 of the Act, and I therefore find that Respondent did not , thereby threaten employees with economic reprisal, for engaging in union or other protected activities and did not thereby engage in any independent violation of Section,8(axl) as alleged in Paragraph 37(a) of the complaint. (u) Foreman Hajak (Frank Hejuk)' Lucian LaRose testified that in 1960 he was working as a leadman in department 19 at Hamilton Standard on the first shift and went out on strike for the duration ; that more than a month later Foreman Hejuk called him by telephone and said, "You fellows seem to be keeping the rest of the setup men [out]" and "Why don't you get the bunch together and walk in tomorrow"; and he further testified UNITED AIRCRAFT CORP. 451 that he was told "that I would lose my job, because they had to hire someone to take it." I find in the above testimony of Lucian LaRose no threat of economic reprisal for engaging in union or other protected activities, as alleged in Paragraph 37(a) of the complaint. Such a statement, if made by Foreman Hejuk was no more than a plea for this employee to return to work coupled,-with a true statement of Respondent's legal right to hire a,permanent replacement in his job. I find, therefore, that Respondent did not- thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1), as alleged in Paragraph 37(a) of the complaint. (v) William Grennan Lucian LaRose further testified that about the end of the second or third week of the strike General Foreman William Grennan called him by telephone and said that "I'd better come to work, because now they would have to hire someone to take my place. I'd think it over if I was you." (emphasis added) In the foregoing testimony of Lucian LaRose, I find no threat of economic, reprisal &u: engaging in union or other protected activities, as alleged in Paragraph 37(a)` of the complaint, and, therefore, find that Respondent did not thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act and did not thereby engage in any independent violation of Section 8(a)(1) of the, Act. Howard F. Peters testified that in 1960 he was employed as a toolmaker in department 219 at Hamilton Standard and 'went out on strike for the duration; that sometime thereafter, in July 1960, he called General Foreman William Grennan by telephone to inquire about the strike situation and Grennan said, "All I can say, if you do not get back, here very very shortly, your job will be-eliminated." In the foregoing testimony of Howard F. Peters, I find no threat of economic reprisal for engaging in union or other protected activities, as alleged in "Paragraph 37(a) of the complaint, and find, therefore, that Respondent did not thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act and did not thereby engage in any, independent violation of Section 8(a)(1). William Francis Grennan credibly testified that prior to January 1, 1960, he was a general foreman in departments 219 and 237 at the Windsor, Locks plant of Hamilton Standard; and that at that time and place Howard F. Peters worked as a toolmaker under his supervision. Then he was transferred to departments 19 and 37 in another building and General Foreman Henry Stokes took over his previous job and all personnel, working therein. When the strike started on June -8, 1960, Peters was not working under his jurisdiction, but Lucian LaRose was working as a leadman in his department 19. After the strike had continued for 2 or 3 weeks, he called LaRose by telephone and requestedhim to come back to work; he told him that "we were hiring replacements," and said, "I would think about it, Louis, if I were you," but did not threaten him in any manner or use the words attributed to me in his testimony. He was calling LaRose and other cutter-grinders on behalf of the, Cutter Foreman Frank Hejuk, who was absent sick at home for approximately 2-1/2 months during the entire period of the strike. He was authorized by Superintendent Louis Horvath to request employees to come back to work, but Hornath "specifically instructed me to tell them the truth and not to threaten them in any way whatsoever; and I followed these instructions to the letter." This witness testified further that, about I month after the strike ended, Howard F. Peters called him by telephone and inquired whether there were any jobs open, whereupon he told Peters that he was trying to take care of the employees in his own departments under the' terms of the strike settlement agreements, explained to Peters that he was under the jurisdiction of another general ;foreman -and should get in touch with him, but did not make the statement attributed to him in the testimony of Peters. A preponderance of the evidence herein fails to prove that General Foreman Grennan threatened employees with economic reprisal for engaging in union or other protected activities, and I find, therefore, that Respondent did not thereby interfere with, restrain, or coerce its employees in the exercise of their rights under Section 7 of the Actor engage in any independent violation of Section 8(a)(1). - (w) Superintendent Howatt (Louis Horvath) Lucian LaRose further testified that sometime during the strike Superintendent Louis Horvath stopped his car-at the picket line and said to him, "You 'd better hang on to that sign you are carrying. You're going to need it to heat your home this coming winter." There appears to be no connection between the above remark and the employment of this witness, because he did not work under the supervision of Louis Horvath and did not furnish sufficient identification to enable the General Counsel to spell his name correctly in the complaint. I find in this testimony a simple banter of -a picket in passing with no threat of economic reprisal 'whatsoever for engaging in union or other protected activities . The incident is too isolated and frivolous to warrant a finding of any violation of the Act. I find, therefore, that Respondent did not thereby interfere with, restrain, or coerce its employees in the exercise of the. rights guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1). The only response from the picketing employee was, a smile, at least showing in a bad situation a sense of humor on the part of both LaRose and Horvath, and no display of temper whatsoever. (x) Foreman Chenier (Eugene Chenier) Michael Martohue testified that he was working as a lathe operator in department 31 at Hamilton Standard when he went out on strike in June 1960; that approximately 1 week prior thereto, Foreman Eugene Chenier told him that he would have a lot to lose if he went out on strike. I find in the foregoing testimony only the isolated remark of a foreman interested in the mutual - welfare of his employer and its employees containing no threat whatsoev- er of economic reprisal for engaging in union or other 452 ` DECISIONS OF NAIIVNAL LABOR ItLAIIONS BOARD protected activities. I find, therefore, that Respondent did not thereby interfere with, restrain, or coerce its employees in the, exercise of the right's, guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1). (y) Foreman Gus Holderman (Gus Oldermman) Mrs. Stephanie Bakulski, testified that she worked on the "burr. bench"' in department 203 at Hamilton Standard and went out on strike in June 1960„ and, thereafter about the fourth week of the strike her foreman,, Gus Olderman, called her at home byttelephone, whereupon a conversation ensued ,as, follows: "He said 'Have you got your housework done?' I said `No,' He said -`Hurry, up and do it. We need you in here.,,This' is ,Cass [Gus ] Uldermann [Olderman].' Well, I, kind of hemmed and hawed. I told him our driver wasn't in. He said ,there was other workers and if I needed protection.` not to be' afraid to come in, so he. says, `You know, :we are counting on cutting down, and if you don't come in, you might find yourself out,of a job.' I says,'! need the job. Lwouldn'twant' to lose my job,' and he says, `Well, I wouldn'twant to have it on my conscience that I didn't let you know." I find in the aforesaid testimony no threat of economic reprisal for engaging in union or other protected activities. It portrays the,desire of a friendly foreman trying, to protect both the interests of his employer and also the-rights, of an employee,to be,pioteeted from violence, if she desired to work, and by,affording,her an opportunity to prevent loss of her job by legal replacement or elimination . I cannot detect- in this conversation any threat, effort, or desire by this foreman to punish, penalize, or, inflict economic reprisal,of any kind upon this or any other employee, and surely underrthe.circumstances surrounding this conversa- tion no, ulterior, motive,, should be imputed to the Respondent Corporation. I find, therefore, that Respon- dent did not-engage in any independent violation of Section 8(a)(1),, as alleged in Paragraph 37(a) of the complaint. (z) Foreman Maxwell (James Maxwell) Stanley T. Zubeck testified that he was employed- at Hamilton Standard and went out `on strike in June 1960; that about -2 'weeks- later Foreman Maxwell 'called him by telephone-and said, "If you want your job, you got to come back to work." In the foregoing testimony F find the alleged statement of Foreman Maxwell insufficient to threaten employees with economic reprisal for engaging in union or other protected activities, as alleged in Paragraph 37(a) of the complaint. It is well established that an employer has the legal right to hire a temporary or permanent replacement for striking employees in order to-keep his business in operation, or-he may `Tor justifiable ' bu`sines reasons free of discrimination abolish- such ^ jobs. Therefore, 'the warning of a foreman, interested in preserving the'-jobs of his employees And' maintaining'bperations Within his jurisdiction, that a job may' be lost by permanent, replacement or elimination does not in the absence of other supporting evidence constitute a threat of economical reprisal, and the burden is on the General Counsel to prove the violation by a preponderance of the evidence. James W. Maxwell credibly 'testified ' that - he was a foreman in department 23 at the Windsor Locks plant of Hamilton Standard during the 1960 strike ; that he was instructed by his superiors, General Foreman Clark and Superintendent McIntosh, to call-and encourage employees to come back to work, but not to threaten or promise them in any manner whatsoever . When - he called individual employees, most of them would forthwith inquire about the situation at the plant and who had returned to work, and,all of his conversations with them were on a very friendly basis. Among others, he called Stanley S. Zubek from his desk in the plant, reviewed the situation , told him who was back at work, and encouraged him to return to work; but he did not say "If you want your job, you'd better come back." In talking to these employees he never mentioned wages, overtime, shifts, or anything like that and never told any employees they would lose 'their jobs. From my , observation of the witnesses, Zubeck and Maxwell, and from all the circumstances bf' the case I discredit the testimony of Stanley T. Zubeck With respect to the statement attributed to the foreman, and I give full faith and credit to the testimony of Foreman-James Maxwell and his version as to what -was said in his conversation with Zubeck. Therefore, I cannot find from a preponderance of the evidence' in union or other protected activities, as alleged' in Paragraph 37(a) of the complaint; ` and' conse- quently find no independent violation of Section 8(a)(1). (aa) Foreman Robert Hewell (Robert Hewell) John Rauza testified that he performed bench work and operated' various machines in department 3 at ' Hamilton Standard under the supervision of Foreman Robert Newell and went out on strike in June 1960 for the duration.' Later during the strike on a Friday, Foreman Hewell called him by telephone and "said that he was going to start up the `line' on Monday, and would like 'for me to come back to operate the machines. Thereupon, I'objectedto crossing-the picket line, and Foreman Hewell said: `You can cross it. You don't have to be afraid of anything. I would like to start up Monday. If you don't, I will have to replace you with another man.' So I said `All right,' I will see you Monday'; but later decided to stay out."' In the foregoing testimony of John Rauza, I find no threat of econonuc' reprisal to employees for engaging in union or other protected activities, as alleged in Paragraph 37(a) of the complaint. It follows, therefore,' and I find that Respondent -did not thereby' interfere with, restrain,' or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. (bb) Foreman Phalen (John,'Phalen) William P. Reilly' testified that he was employed at Hamilton Standard under the supervision of Foreman John- Phalen, had been a timekeeper about 2 years, and Went out on strike for the duration in June 1960; that during" the strike he talked to Foreman John Phalen several times and all statements made to him by his foreman were to the same effect. Phalen said "I am' in a crisis"; and told him that UNITED AIRCRAFT 'CORP. 453 some of the timekeepers had already , come back to work, and' he couldn't understand why Reilly didn't come back-"that I would be liable to lose my job, if I did not come back to work." The foregoing witness does not even contend that any threats were made to him during the, several conversations had with Foreman Phalen. The alleged statements were no more than a plea to help his foreman in the apparent crisis caused in his department by reason of the strike,-' and any such statement about losing his job if he did not return to work, under the circumstances, merely referred to efforts being made to continue operations to the extent of hiring replacements if possible. _ I find therein no threat of economical reprisal for engaging in- union or other protected activities, as alleged in Paragraph 37(a) of the complaint- It follows, therefore, and I find that Respondent did not thereby interfere with, restrain, or coerce its employees or engage in any independent violation of Section 8(a)(1) of the Act. (cc) Personnel Manager Wilhide (Mr. P. Wilhide) Herve Desriusseaux further testified that sometime during the latter days of the strike, a personnel man named Wilhide, at gate 2 of the Pratt & Whitney East Hartford plant called to him on- the picket line, and said "Come on it. It's your last chance." I find in the foregoing testimony no threat of economic reprisal for engaging in union or other protected activities, as alleged in paragraph 37(a) of the complaint. The complaint simply alleges . that "Personnel Manager Wilhide-June 1960 to August 1960." There was no identification of Wilhide beyond referring to him as a personnel man, and it does not appear that he exercised any supervisory authority whatsoever. Evidently he was- no more than a nonstriking heckler, and any such statement made by such a person cannot be attributed to the Respondent Corporation: I find, therefore, that Respon- dent did not thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1). - (dd) Foreman, Sanfield--June 1960 to August 196016 Frank J. Don Aroma testified in pertinent substance that. he has been a member of Lodge 743 since 1941; that he became a union, organizer- in 1941 and also served as a union steward for the period 1941-1944; and that, he -then enlisted in the Armed Forces of the.United States until 1946 when he returned to the employment of Hamilton Standard. In 1947 he was-appointed union committeeman and was thereafter elected President of Lodge 743 in 1948. He worked for Respondent in several different jobs including that of setup man- until-appointed foreman in May 1956. He served as a foreman in experimental test department 23 until laid off in June 1959 by reason of a cutback in-'operations. Thereupon, he accepted a job as ordinary employee with assurance of a later promotion back to foreman upon materialization of a new department is These are the exact words used in the allegation shown in paragraph 37(a) of the complaint, without further explanation. requiring the services of a foreman to supervise the installation and repair of propellors on aircraft brought in from other manufacturers. Thereupon, he rejoined the Union and at that time discussed the subject of his job with Assistant Superintendent Sanfield , who inquired whether he realized that it might , hurt his chances of getting back into supervision and getting the new job asforeman that they were lining up for him. He was actually performing this proposed new type of work at that time but had not yet received the anticipated promotion, and about 3 'weeks prior to, the strike he was reclassified to a -fuel laboratory mechanic by reason of a seniority conflict with another setup man. Thereafter,, on June ,8, 1960, he went out on strike for the duration. - - - The foregoing testimony of Don Aroma clearly shows that any conversation he had with Assistant Superintendent Sanfield occurred several weeks or probably months prior td the strike and prior to May 21, 1960-*hidh date has been found 'herein to fix the limitation proscribed by, the Proviso in Section 10(b) of the Act forbidding the Board or any agency thereof to issue any complaint based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of 'a copy thereof upon the person against whom such charge is made, the initial charge herein, having been filed and served on November 21, 1960. Furthermore, it is a well-established principle of law that an employer has the right to adopt and publish the policy that an employee must- automatically forego his membership in the Union when he becomes a supervisor-even °to the extent of discharging a-supervisor for affiliating, with a labor organization `in conflict with his duties as, a part of management . It, follows' therefote;-that telling a prospective foreman that,rejoining the Union will conflict with his being a supervisor does not interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, and does not -constitute a threat of economical reprisal for- engaging m ,union or other protected activities, as .alleged in Paragraph 37(a) of the complaint. I find, therefore, -that Respondent did not thereby engage in any- independent violation of-Section 8(a)(I). - - John Francis Lesczynski testified that during the;second week of the 'strike Superintendent' Sanfiel&called him by telephone and requested that he come back to work , saying, a L'esczyn ccording to sk%, "there would be'les's interference now because ° the mass picketing had stopped and there were fewer pickets on the-line-that I would-6e one of the senior men, and had, an' awful lot to lose if I stayed out-that I should think it over." I find in the foregoing testimony no threat of economical reprisal for engaging in union or other protected activities, as alleged in the complaint. It follows, therefore; and I find that Respondent did not thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of theAct or engage in any-independent violation of Section 8(a)(1). 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (ee) , Foreman Romeo Cartier June 1960 to August 196017 John Telesmanic further testified that his foreman, Romeo Cartier called him by telephone , several times during the strike. In the first call, about the third week of the strike, Foreman Cartier "told me that -a lot of the boys were back at, work, and said:-'Get together with the boys and come on'' in to work your job is still open.' In the second "call about- the seventh week of the strike, Foreman Cartier told me that if I-was not back to work by Friday of that week that I wouldbe replaced by someone else." In the foregoing testimony of John Telesmanic I find no threat of economical reprisal for engaging in union or other protected activities. It is well established that an employer has , the legal right to replace striking employees on a permanent ; basis, and when that is done the striking employee, has no further, claim to his ,former position as an economic striker. It follows, therefore, that fixing a date-on which such replacement will be made, thereby affording the striker, an opportunity to reclaim his job prior to that date, does not interfere with, restrain, or coerce employees in the exercise` of the rights guaranteed in Section 7 of the Act. I find, therefore, that Respondent did not thereby engage in an independent violation of Section 8(a)(1). (ff)- Foreman =Hill-June 24, 1960 and September 196018 (Gardner Hill) Alex A. Newell further testified that on June 24, 1960, "Foreman Gardner Hill called by telephone and asked me to come, back to, work-that they would not hold my job [open] any longer if I didn't come to work. Thereafter in September 1960, 1 went to see Foreman Hill to inquire as to when I would be called back to work since-being put on the preferred hiring list, and he said 'Yourjob has been taken. You were replaced by somebody else. As far as I know yourgoose is cooked:"19 ' Discrimination, if any, against the above striker, Alex A. Newell will be determined pursuant to other allegations of the complaint, including any-derivative violation of Section 8(a)(l), but the foregoing testimony of Newell contains no threat of economic,reprisal for engaging in union or other protected activities, as alleged in Paragraph 37(a) of the complaint. Surely it _ was no threat to tell the striker that there was no job open for him at that time because he had been replaced by somebody else or to express an opinion as to the result thereof. I find,, therefore, that Respondent did not, thereby interfere with , restrain, or coerce employees in the "exercise,of the rights guaranteed in Section 7 of the Act or engage in any independent. violation of Section 8(a)(1). Subparagraph `37(b) of the complaint alleges that Respondent did "Interrogate its employees concerning their onion affiliations and sympathies. "20 (gg) Edward Rollands-May 21, 1960 With respect to Edward Rollands, I find in the record no evidence or identification whatsoever to support the IT Aid Is Ibid Is Newell was rehired and returned to work in March 1962. allegation made against Respondent in Paragraph 37(b) of the complaint. I find, therefore,, that-Respondent did not thereby 'engage in, any independent violation of Section 8(a)(1). (hh) George Sabisky-June 1, 1960 The evidence relied upon by the General Counsel to support this allegation against George Sabisky is the same as offered to support the allegation of threats contained in Paragraph 37(a), supra Having already found' from a preponderance that Respondent did'not thereby engage in any independent violation of Section 8(a)(1), I repeat that finding here and recommend that this duplication of an alleged violation of Section 8(a)(l) be dismissed. (ii) William Dwyer-Early Part of '1961 The evidence relied upon by the General Counsel -to support this allegation of interrogation is the same testimony of Earl C. Martin which was discredited by this Trial Examiner -in his determination of the allegations against William Dwyer in Paragraph 37(a) of the com- plaint, supra in which it was found that Respondent did not thereby engage in any independent violation of Section 8(a)(1). My finding is the same here, and I recommend dismissal of this duplication of an alleged violation of Section 8(a)(1) of the Act. (jj) Foreman Norman Millard-June, 1960 Alexander H. Sulewski testified .in substance that h'ewas employed as a turret lathe operator in department 121 at Pratt & Whitney under the supervision of Foreman Millard and on June 8, 1960, went out on strike -for the duration. Approximately 1 week, prior thereto,,Foreman Millard "inquired whether I thought we would go on strike .,When I -replied that 'We - are-Foreman Millard said: `Tome guess you are foolish to go out on strike. You have a good job here. If I were you-you may find out you may not have a job if you go out on strike-if,l,were you I would tell the fellows to turn around and talk them-out, of it' Then I said: 'I can't talk them out of it. After all, it is a union strike."' I. find in the foregoing testimony of Sulewski no illegal interrogation of employees concerning their union affilia- tion and sympathies, as alleged-in Paragraph 37(b) of the complaint, and' certainly no threat of economic reprisal for engaging in union or other protected activities, as alleged in Paragraph 37(a) of_ the complaint. I find, therefore, that Respondent 'did not' thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in lion 7 of the Act-or engage in any independent violation of Section 8(aXl) of the Act. (kk) ,Foreman John Swiatkewicz ;May 1960 to June 1960 Stanley A. Modzeleski testified that hewas employed as a leadman in the material control department of Hamilton 20'The following subheadings show - exact terminology used in subparagraph 37(b) of the complaint to describe the individual -violations committed. - UNITED AIRCRAFT CORP. 455 Standard under the supervision of Foreman Swiatkewicz and went out on strike for the duration on June 8, 1960, and that approximately 3 weeks prior to the strike, Foreman Swiatkewicz "asked if I was going on strike, and I said: `I will go with themajority." It having been found herein, supra that the limiting proviso contained in Section 10(b) of the,Act is a bar to the litigation of unfair labor practices occurring prior to May 21, 1960, the burden is on the General Counsel to prove that the alleged statement of Foreman Swiatkewicz is not barred by the Statute of Limitations, and this he failed to do. I hold, therefore, that the litigation of aforesaid allegation contained in Paragraph 37(b) of the complaint is proscribed by Section 10(b)-of the Act. Furthermore, I hold under the circumstances of this case that a casual inquiry as to whether employees are going on strike, unless accompa- nied by some threat of economic reprisal or other form of interference, restraint, or coercion, does not constitute an independent violation of Section 8(a)(1). I find, therefore, that Respondent did not thereby interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act. ' (11) Foreman William SmithJune 1960 Edwin Chmieleski testified in substance that he was employed as a sheet metal leadman in department 616 at Pratt & Whitney under the supervision of Foreman William Smith and went out on strike' for the duration on June 8, 1960; that approximately I week prior to the strike, Foreman Smith came to him at his place of work in the plant, and said: "Do you have a button on?" He said "Yes," and showed him a "Unity button:" Thereupon, "Foreman Smith- wrote something on a paper tablet, and I inquired: `What's that for?' and he replied: `Oh, they want a count-of how many boys' are wearing buttons: After leaving me, I observed Foreman Smith checking' other employees in the plant." " The Respondent offered no evidence to deny or explain the aforesaid credible' testimony of Edwin Chmieleski, and I am constrained to find that such conduct engaged in by Foreman William Smith constituted interrogation and surveillance of its employees concerning their union affiliations and sympathies in violation of Section 8(a)(1) of the Act. I- ' find, therefore,' that Respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act ad engaged in an independent violation of Section 8(a)(1). (mm) Personnel Manager DeMarco-October 1960 Gerald F. O'Connell testified that he was working in the maintenance department at Pratt & Whitney and on June 8, 1960, went out on strike for the duration; that he had been a, group leader in charge of the storage cribs-for parts, wire, pipes, etc., and about 2 years before the strike had been given a physical examination by the company doctor, required to sign a waiver; and was thereafter restricted to lifting weights not in excess of 35 to 40 pounds. After the strike, he was recalled in October 1960 and went back to work in his old department, whereupon the supervisor in charge sent `him over to the hospital for a physical examination, after which he went back to work. Shortly thereafter, his general supervisor sent him back to the hospital for a further examination , upon the completion of which he was directed to see a Mr . DeMarco at the personnel department, and thereupon the following conversation with Henry P. DeMarco transpired: He said to ,me "Gerry you are active in the Union.", I says, "Yes, I was a steward and a committeeman. What does that have to do with it?" He -says "Nothing, I was just curious." He says, "The job we had for you, you can't do." I said, "I was doing it for the last three years." He said, "Well, we will have to look around and find another job for you." - Henry P. DeMarco credibly testified that he was assigned as a personnel advisor to the area of the plant engineering group for the primary function of assisting supervisors in their relationship with employees and in some situations to discuss with them the provisions of the collective-bargain- ing agreement. If Gerald F. O'Connell was a unioirsteward or committeeman in that area it is possible that such matters were discussed with -him but he cannot recall any such contact or, discussion with him in October 1960; and he denies making any such alleged statements to O'Connell or any other employee. - From my observation of these two witnesses, O'Connell and DeMarco, I am constrained to credit the denial of this personnel supervisor that he made such statements-in the garbled form alleged by the witness for General Counsel, It is not positively denied that some-discussion concerning the recall of O'Connell occurred, but I am convinced from all the testimony and all' surrounding circumstances that such conversation, if any, is more pertinent to the discrimination section of this case- 'including any derivative violation therefrom than to interrogation of employees as an independent violation of Section 8(axl). I find , therefore, that a preponderance of the evidence does not show that Respondent thereby engaged in any independent'violation of Section 8(a)(1) as alleged in Paragraph 37(b) of the complaint. - (nn) Foreman Ray Morin-April 1960 to June -1960 Clifford Stanley Lyon testified that he was'employed as a fusion welder in department 963 at Pratt & Whitney and on June 8, 1960, went out on strike for the duration ; that he was appointed union steward in 1956, committeeman in 1959, and during the strike served the Union "as trustee, performed picket duty, and was in charge of transportation. After the strike, in August 1960, - "he registered for reinstatement pursuant to the strike settlement agreements. Prior to the strike, in March 1960,'Fbreman Morin engaged in conversation with him at his welding booth saying that "my union activities were too strong, and that Ihad-better cut it out or something would happen." Thereafter; about 4 weeks prior to the strike,, Foreman Morin engaged in a second conversation with him at his welding booth, inquired "whether we were going out on strike, and said: `Let me ' tell you something, if you go' out on strike, you'll never come back in this plant."'- Foreman Raymond L. Morin credibly testified that prior to February 15, 1960, Clifford Lyon -worked as a welder under his supervision on the second shift in department 963 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Pratt & Whitney but,on that date was transferred to the first shift under the supervision of another foreman; and since - his" transfer he, has not, had,any, conversations whatsoever'-with him. Lyon was, a- union steward,. and shortly prior to his-transfer in February 1960, he, Foreman Morin, on several occasions =observed employees crowded around Lyon in the small welding booth- (9 x 9 feet) where ,he worked, thereby causing-a, dangerous situation; and he .thereupon instructed - Lyon that he must not have discussions in .the plant, about matters not pertaining to his job: He might, have mentioned, the Union, because he suspected ;that they' were talking about union affairs, but never at any time made any statement similar to those now attributed to him by Lyon. From my -observation of, these, two witnesses, Lyon and Morin, and-from all the circumstances of this case, I credit the, testimony of, Raymond L. Morin and discredit that,of Clifford-,Stanley Lyon. There is nothing in the record to corroborate Lyon, but Foreman Morin is corroborated by a "change of status slip" introduced in,evidence as Respon- dent's Exhibit, 123 showing, the, transfer of Lyon to the-first shift `on February 15, 1960. From a-preponderance of -the ;evidence, I find that Foreman Ray Morin (Raymond L. Morin) did not make the statements attributed to him by Clifford Stanley Lyon and did not. interrogate employees concerning their, union affiliations and, sympathies, - as alleged in Paragraph -37(b), of the complaint. Furthermore, it is apparent even from the testimony of Lyon that the alleged -statements testified xo by himoccurred more than 6 months prior to,the-filing of the initial charge herein, and any litigation as -to them, is barred by the limiting proviso contained in Section 10(b)1of the Act. Thereupon,;,it follows and -1 find that Respondent did not thereby interfere- with, restrain,-or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1)._ Subparagraph,37(c),of.the complaint alleges that Respon- dent did "Make pffers -of benefit conditioned upon-ceasing to engage in union or other protected concerted activity. " , (oo) Foreman Robert Sweeney (at various times in June-August 1960) Rene',G,_ Iebert credibly testified in substance that he was employed -as^ a, machine operator (gear shover) in depart- ment 3- ,at, Hamilton. Standard under the supervision of Foreman Sweeney, on June 8, 1960, went on strike for the duration, and at the, end of, the, strike in August 1969, registered for, reinstatement pursuant to the strike settle= went ,. agreements. At some time during the, strike, "Foreman , Sweeney called by telephone and offered me a raise. of twenty- cents per hour if ,I would cross the ,picket line and comeback to work." , It is well established that it is a violation of Section 8(a)(1) when anti. employer promises a reward or benefit to employees,yon,,_condition that they cease and desist from participation in concerted ,activities for the purpose of collective bargaining or other mutual aid or protection. In this case employees were engaged inaneconomicstrike and otherwise exercising the rights guaranteed in Section 7 of the, Act. From the undisputed testimony of Rene G. Hebert (employee on strike), I find that Foreman Robert Sweeney (admittedly a supervisor of the Respondent) proposed to give him an increase in pay of 20 cents per hour if he would come- back : to work;- thereby crossing, the picket line whereon his fellow strikers were exercising the right to engage in such activities. I find, therefore, that Respondent thereby interfered with, restrained, and coerced employees in the exercise of the rights guaranteed inSection 7-of the Act and thereby engaged in an independent violation of Section 8(a)(-1). (pp) Charles LindsayJune 1960 to August 1960 Robert J. Bellon credibly testified that he was employed as labor grade 9, in department 311 at Hamilton Standard under the supervision of Foreman Charles -Lindsay and on June ,8, ,1960, went out on strike for the duration ;,and that during the second or third week of the strike Foreman Lindsay called him by telephone and proposed to give him the job of leadman if he would return to work, which he refused because it would replace his good friend and fellow striker Joe Burke, who had held that job for25 years. Therefore, I find from the undisputed testimony of Robert J. Bellon that Respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act and thereby engaged in an independent violation of Section 8(a)(1). Roger E. Vallerand credibly testified that he,-was employed as a mechanic and electric assembler ' in department 311 at Hamilton Standard under thesupervi- sion of Foreman Charles,,Lindsay , and on June 8, 1960, went out on strike for the duration ; that about the third week of the strike,, Foreman Lindsay called him by telephone, proposed that he come back to work-that he would get his old job back plus a reasonable hike in pay at that time and have better chances for advancement; but he would not be responsible for what happened later. I find, therefore, from the undisputed testimony of Roger E. Vallerand, that Respondent thereby interfered with, restrained, and, coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in an independent violation of Section ,8(a)(1). (qq) Foreman ZareskyJune 1960 to August. 1960 John Francis Lesczynski (having also testified with respect to.,a,telephone call from Superintendent-Sanfield, supra ) further testified that his foreman, Steve Bareski, called him by telephone and requested him to come in to work-that he wanted someone to start a ' movement back to work.that he could work extra overtime hours on the second shift on which he wouldbe working. General Foreman Stephen Zaresky credibly -testified that he was instructed , by his supervisor to call employees by telephone and tell them that their jobs were still available and to ascertain whether they would return to work but, not to promise them ,anything; - that he, called John F. Lesczynski from his'office during the strike and said, "Low do you feel John? The job is ,still open. I'd;be glad to have you come back to work." He further testified, "And that is all. I did not tell Lesczynski_that I wanted someone to siart,a movement back to work; and did ,not say that if he would come in, he could work extra overtime hours. I did notmake UNITED AIRCRAFT CORP. 457 any such statements to Lasczynski or to anyone else, and did not indicate in any way that they would be rewarded for returning to work." From my observation of the witnesses, Lesczynski and Zaresky, and from all the circumstances of the case, I credit the Zaresky version of his conversation and discredit the Lesczynski version insofar as it is contrary thereto. I cannot find from a preponderance of the evidence that General Foreman Stephen Zaresky made any offer of benefit to employees conditioned upon ceasing to engage in union or other protected concerted activity, as alleged in the complaint. It follows, therefore, and I find that Respondent did not thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1). Subparagraph 37(d) of the complaint alleges that Respon- dent did "Require all persons-who engaged in the strike ... and who were not reinstated to any position prior to December 31, 1960, in -accordance with Paragraphs 4(a) and 4(b) of the, Strike Settlement Agreements . . . to file new employment applications as a condition of employ- ment on and after January 1, 1961. " I --find in the strike settlement agreements herein no restriction whatsoever on the- right of=economic strikers to be-recalled to their prestrike positions if available at the end of the strike. These agreements simply provided for an orderly implementation . of this right for a period of approximately 5 months following the strike and ending on December 31; 1960, and did not affect any continuing right to reinstatement after that date. Consequently, I find that the invitation of Respondent to approximately 1,701 registeredstrikers to-file new applications for employment on or, after January 1,1961, resulted in nothing more than a new registration or revision of the preferred hiring list of strikers, still available and claiming the right of reinstate- ment to their prestrike position of employment. Having already found, that Respondent discriminated against strikers not recalled to work by January 1, 1961, by hiring new. employees into jobs formerly held by them, it would be a duplication of charges, allegations, and remedies to hold that Respondent also engaged in an independent violation of Section 8(a)(1) by, requiring these strikers to file new employment applications as a condition of employment on and after January 1, -1961 . I shall hold, therefore, that such invitation or requirement herein constitutes a derivative 'violation of my, previous finding of discrimination in violation of Section 8(a)(3) and recommend that this duplicating allegation contained in Paragraph 37(d).of the 'complaint be dismissed. Subparagraph 37(e) of the complaint alleges that Respon- dent did "Require all persons who engaged in the strike . and who, were reinstated to a position in accordance with Paragraph- 4(b) of the Strike Settlement Agreements ... to sign waivers of their rights to be reinstated to their prestrike positions." The record fails to show that any-of the registered-strikers signed a document to waive their right to recall under the terms of the strike settlement agreement of their continuing right thereafter to be recalled during . the period January-April 1961, inclusive. It is true that on occasions when strikers were offered comparable jobs under the terms of those Agreements, but declined to accept, and expressed the desire to wait for an opening 'for them in their prestrike positions, the Respondent -requested- such strikers to sign an, acknowledgement in writing that such offer had' been made by Respondent. I find no discrimination therein-by the Respondent, and the right of reinstatement to -their prestrike positions was not restricted thereby and .did not constitute the signing of a waiver as alleged in the complaint. It is therefore recommended that subparagraph- 37(e) of the complaint be dismissed. - Subparagraph 37(f) of the complaint alleges that Respon- dent did "Require all strikers who werereturned ' to -some position subsequent to t h e strike ... up to and including December 31, 1960, to undergo phy ical examinations.' 'The record fails to show any o the, registered strikers herein have been disqualified fo reinstatement of their prestrike status by requiring" th to take a physical examination before returning to ork. If such is the' case, the strikerinvolved has not lost his tight of reinstatement to his prestrike status and will be co'ered by the discrimina- tion section herein and the remed provided therein. -This ruling will not apply to any striker' called to a comparable job and thereupon found physi ly disqualified for the work required therein; otherwise eRespondent might be held legally . responsible for' req' i ' g an employee to perform work for which ho was- p sically unfit. Such a ruling would= not apply if it be fo d upon recall to work that the employee's physical condition had changed to the extent of rendering him unfit for f 'er performance in his prestrike position. I find, therefore, that subparagraph 37(f) is a duplication of the charge and allegations of discrimination herein determined and - will be given consideration as a derivative violation of 8(a)(3) rather than an independent violation of '8(a)(1). I recommend, there- fore, that subparagraph 37(f) of the domplaint be dismissed. Subparagraph 37(g) of the complaint alleges that Respon- dent did "On and after January rl, 1961, terminate the seniority rights and other benefits of employment previous- ly enjoyed for all persons , who engaged in the strike . ,. . and who were reemployed by' Re pondent on and after January 1, 1961." From the entire record in this cas , it appears and is not denied that Respondent interpreted the strike settlement agreements to mean that the right of registered strikers, to reinstatement in their prestrike status ended on December 31, 1960, and that all strikers rehired after, that date would come back to work -as new employees without seniority or other accumulated benefits and privileges to which they were entitled by reason of prestrike employment . Having found that the strike settlement agreements did not restrict the reinstatement rights of strikers, it follows and I find that the material denial, or curtailment of such -rights, by the Respondent with respect to thosestrikers rehired during the. , period January-April 1961 was and is a discrimination against its employees within the meaning of Section 8(a)(3) for which a remedy will be provided herein, including a derivative violation rather than an independent violation of Section 8(a)(1). Subparagraph 37(h) of the complaint alleges that Respon- 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent did "Treat female strikers in a disparate manner at its plants of Hamilton Standard and Pratt & Whitney. - The National Labor Relations Act does not proscribe or prevent discrimination- against employees by reason of sex but does make it an unfair labor practice-(regardless of sex) to discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. It must be, noted, however, that any female strikers herein are entitled to and will receive the same consideration provided for all strikers in the application of the remedy provided herein. I recommend, therefore, that subparagraph 37(h) of the complaint be dismissed. Subparagraphs 37(i) and 37(/) were added to the complaint on August 30, 1963, after the hearing herein had been in session for, several months, and relate to the final efforts of attorneys representing the Union and the Respondent to settle -the entire controversy, between the parties without further litigation. Since both paragraphs pertain to the same subject, matter and . allege the same independent violation of Section 8(a)(l), and to simplify procedure herein, they are hereby consolidated and considered together. It is, alleged (37(i)) that Respondent did "On or about January 4, 1963, threaten the-,Union'that it would bring a civil suit against it,, unless the Union would withdraw the charges in Case No. l-CA-3355 et al., or have those charges dropped from the consideration of the Board"; and did (370)) On or about May 14, 1963, institute- separate civil suits against Lodge # 1746 and Lodge _# 743 in the Superior Court for the State of Connecticut pursuant to its threat -described above in Paragraph 37(i)." These4llegations are based upon testimony of"Plato E. Papps, `General', Counsel of IAM, AFL-CIO, to the effect that during negotiations to settle the controversy, represent- atives of the Respondent said that Respondent was going to sue` the Union' for damages to property resulting from violence and malicious mischief on the picket lines. The Respondent` had` pr`,eviously filed unfair labor practice charges against the Union-but 'the General Counsel had refused to, issue a 'complaint. The strike settlement agreements and a new collective-bargaining agreement went into effect about August 8-11, 1960, and the arbitration hearings as to the 50 strikers had been started before the Baldwin Panel on September 20, 1960, when about that time Papps, representing the Union, complained to Burke and Wells that the Respondent was not complying with --the terms of the strike 'settlement agreements and threatened to file' 3,000 unfair labor practice charges" against the--Company,' whereupon Vice President Burke retorted "I will sue,you." Shortly thereafter on November 21, 1960, the -Union filed the initial charge -herein and continued to file numerous amended charges over a long period of time even after the hearing began on May 16, 1963. The, Union concurrently therewith filed a suit against Respondent in the U.S. District Court of Connecticut, alleging breach of contract, and invoked therein ancillary disclosure proceedings to develop information for use in both that lawsuit and with respect to the unfair labor practice charges filed with the National Labor Relations Board. Thereafter, in January 1962, representatives of the Union and the Respondent held a meeting at the Waldorf Astoria Hotel in New York City for the purpose of negotiating a settlement of the ; entire controversy and withdrawing all charges and the lawsuit for breach of contract. At that meeting Burke said that the Company was going to sue the Union for damages unless the entire controversy could be settled by the withdrawal of all suits and charges; and at that time the Respondent proposed to open,its records for the Union to determine as to which employees, if any, the strike settlement agreements had not been complied with. General Counsel Papps thereupon agreed to consider the offers made by Respondent and jointly with Respondent's Attorney Joseph C. Wells called the General Counsel. of the Board in Washington, D.C., requesting a postponement of prehearing subpoena pro- ceedings and a meeting with him to discuss a settlement agreement. Thereafter, about December 11-12, 1961, in a telephone conversation, Vice President Burke urged Papps to get moving on these cases-that there was no merit in the. Union lawsuit--or else the Respondent was going to file suit against the Union. Thereupon, a meeting of the-parties' was arranged for and held at the- office, headquarters of General Counsel Plato E. Papps, JAM, AFL-CIO, in Washington, D.C., on January 4, 1963, at which the Union, was represented by its General Counsel Plato E. Papps, International President Hayes, Vice Presidents McGlon and Mat DeMore, and the Respondent was represented by its Attorney Joseph C. Wells, Vice :President Burke, and Personnel Director Mooney.' Respondent contended there were only, about _300 of the strikers not completely restored to work and again offered to open its records for the Union to identify them; whereupon Papps told Vice President Burke there was no point in his going to the company plants to look at personnel records because the U. S. District Court was going to require Respondent to bring them to the Union. Then Burke said that the Company was prepared to file three- suits for damages against the Union for the total sum of $15,000,000. Thereupon Papps said "We will pay $65,000 or $68,000," but his offer,was ignored. After that meeting, there were no further negotiations, for a settle= 'r ment; and, thereafter, on May-14, 1963, Respondent filed Civil Suits Nos. 13384 and 13385 in the Superior Court of Hartford County, State of Connecticut, in which the Court on November 26, 1968, by, memorandum of decision- on hearing in damages awarded damages to Pratt & Whitney in the sum of $1,369,725.25 with interest from August 12, 1960; and to Hamilton Standard the sum of $88,662 with interest from August 12, 1960; plus expenses of litigation in the sum of $296,000; and judgment was entered in, 11 1 accordance therewith. - - The right to sue and be sued is a fundamental right of ' citizenship in the United States of America and in every State thereof; and only a sovereign government of itself can claim exemption from suit. I find -nothing in Section 8(axl) or anywhere else in the Act that makes it a violation to sue' or threaten to sue a labor organization. Section 8(a)(1) provides that it shall be an unfair practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act"; but a labor organization is not included within the term "employee" defined in Section 2(3) of the Act. I find, therefore, that subparagraphs 37(i) and 37(j) do not allege a UNITED AIRCRAFT CORP. violation cognizable under Section 8(a)(1); and further find from all the evidence and circumstances of this case that the Respondent did not thereby interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act or engage in any independent violation of Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, supra, occurring in connection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent, in violation of Section 8(a)(1) and (3) of the Act, during the period from August 11, 1960, through December 31, 1960, inclusive, discrimi- nated against certain economic strikers herein registered pursuant to the strike settlement agreements on the preferred hiring list for reinstatement according to seniority to their prestrike positions by filling such positions by transfers and promotions within the operating organization, I shall order that Respondent from its records identify and offer to each of such employees immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority, vacation, or other rights and privileges previously enjoyed, discharging if necessary the present occupant of such position, and make him whole for any loss of earnings he may have suffered by reason of its untimely failure or refusal to recall him to work by payment to him of a sum of money equal to that lwhich ,he ' would I normally have earned as wages from the date on which such position was filled by transfer or promotion within the operating organization to the date of Respondent's offer to him of proper reinstatement, less his net earnings during such period, backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289 and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. Having also found that Respondent in violation of Section 8(a)(1) and (3) of the Act, during the period January-April 1961, inclusive, discriminated against eco- nomic strikers by failing and refusing to reinstate them according to seniority to their prestrike positions, by terminating their employment , by treating them as new applicants for employment with resulting loss of seniority and other rights and privileges previously enjoyed, and by hiring new employees to fill jobs developed or activated in the prestrike job codes, departments, and shifts for which they had registered and applied at the end of the strike, I shall order theat Respondent from its records identify and offer to each of such employees immediate and full 459 reinstatement, according to seniority,-to his prestrike or substantially equivalent position in jobs developed or activated during the period January-April 1961, inclusive, without prejudice to his seniority, vacation, and other rights and privileges previously enjoyed , discharging if necessary the present occupant of such position ,- and make him whole for any loss of earnings he may have sufferedby reason of the discrimination by restoring to him all seniority and other rights and privileges previously enjoyed and by paying to him a sum of money equal to that which he normally would have earned as wages, from `the date on which such position was filled by a new employee or other person to the date of Respondent's offer to him of proper reinstatement, less his net earnings during such period, with packpay and interest in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. In the event that Respondent and counsel for the General Counsel cannot agree to or determine the identity of aforesaid discriminatees, it is recommended that the General Counsel request a reopening of the hearing and the designation of another Trial Examiner to hear evidence limited to identification of the employees discriminated against and the jobs to which reinstatement has been ordered herein. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Aircraft Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Association of Machinists, AFL-CIO, Lodge #71746, Lodge #7743, and Lodge #7700 (herein collectively called the Union) are labor organizations within the meaning of Section 45) of the Act. 3. By virtue of Section 9(a) of the Act, Lodge #71746 at the Pratt & Whitney Division, East Hartford, and Manchester, Connecticut, Lodge #7743 at the Hamilton Standard Division, Broad Brook and Windsor Locks, Connecticut, and Lodge #7700 at the Canel plant have been at all times material herein the exclusive representa- tive of all production and maintenance employees in the appropriate unit for the purpose of collective bargaining. 4. During the period from August 11, 1960, through December 31, 1960, inclusive, by transferring and promot- ing other employees within its operating organization to available prestrike , positions of economic strikers regis- tered for reinstatement pursuant to the strike settlement agreements, Respondent has discriminated in regard to hire or tenure of employment and other terms or conditions of employment to encourage or discourage membership in a labor organization, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. During the period JanuaryApril 1961, inclusive, by terminating the employment of economic strikers , unilater- ally changing their rights to reinstatement, seniority, and other terms and conditions of employment, by treating them as new applicants for employment, and by hiring new employees to fill their prestrike positions, Respondent has 460 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD discriminated in -regard to hire or tenure of employment and other terms and conditions of employment to encourage or discourage membership in a labor. organiza- tion, and thereby engaged in and is engaging in unfair labor practices within-the meaning of Section 8(a)(3) of the Act. 6. By the foregoing conduct and by other independent acts of, certain -of its supervisors, Respondent- interfered r mployees in the exercise of with, restrained, and coerced e the ights-guaranteed inSection 7 of the Act and thereby engaged in ,and is engaging in unfair labor practices within the meaning of Section.- 8(a)(1) of the Act; the other, acts consisting of (1) threats of economic reprisal for, engaging in union or other protected activities by Foreman Leonard Welles; (2) interrogation creating - the impression of surveillance of their union- affiliations and sympathies by Foreman William Smith;_ and (3) offers, of -benefit conditioned upon ceasing to engage in .union -or other protected activity by Foremen Robert Sweeney and Charles Lindsay. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent did not engage in any unfair labor practices alleged in the complaint which are not specifically found herein. [Recommended Order omitted from publication.]