United Aircraft Corp.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Aircraft Corporation, Hamilton Standard Divi- sion (Boron Filament Plant) and Lodge 743, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Case 1-CA-7182 October 11, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 21, 1972, Administrative Law Judge 1 Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel, Charging Party, and Respondent each filed exceptions and a supporting brief, and each filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings 2 and conclusions' of the Administrative Law Judge and to adopt 4 his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, United Aircraft Corporation, Hamilton Standard Division (Boron Filament Plant), i The title of "real Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 Although the Administrative Law Judge found that Respondent 's July 9, 1970, letter to the Union, copies of which it distributed to the unit employees, placed the onus on the Union for its own unlawful conduct and revealed a motive to disparage and undermine the Union, he did not specifically find the distribution of this letter to unit employees to be violative of Sec. 8(a)(1) We conclude that the distribution of the letter was for this purpose and Respondent thereby violated that section of the Act. Contrary to the dissent, the Administrative Law Judge did not find that this letter was privileged under Sec. 8(c), nor do we. 3 The Board's decision in Chevron Oil Company, 182 NLRB 445, is clearly distinguishable from the instant case . Here Respondent had previously promised both the specific amount and effective date of the wage increase but withheld it following the Union's certification without notifying and offering to bargain with it. In Chevron, the company's policy was to grant to its unorganized employees the wage and benefit increases negotiated in the most recent industrywide contract, but there had been no announcement to the employees and, in fact, the new industrywide agreement had not been negotiated prior to either certification of the union or the commencement of bargaining. ° In adopting the Administrative Law Judge's Decision we do not adopt his speculative remarks concerning the nature and possible cause of the parties' inharmonious collective -bargaining relationship and the past history of this Respondent's violations of Federal labor laws. Not do we adopt this gratuitous observation of his fn. 9. Nevertheless , we do not find a broader remedy warranted in the instant case. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Insert the following as paragraph 1(c) and re- designate the present paragraph 1(c) as 1(d): "(c) Engaging in conduct designed to disparage and undermine the Union." 2. Insert the following as the fourth indented par- agraph in the notice: WE WILL NOT engage in conduct designed to disparage and undermine the Union. MEMBER KENNEDY, dissenting: In April 1969, Respondent and the Union nego- tiated a 3-year collective-bargaining contract for one of Respondent's plants whose employees were repre- sented by the Union. The contract provided for an immediate 8-percent wage increase, with additional 3-percent wage increases on successive anniversary dates. After the signing of this contract, Respondent posted at another of its plants, whose employees were then unrepresented, a notice that it would give these employees the same wage increases which it had agreed to grant the represented employees. Before the 1970 anniversary date, the Union was certified as the representative of the theretofore unrepresented plant employees. Respondent did not put into effect the promised wage increase for 1970 despite the Union's insistence that it do so, upon the ground that a wage increase became a bargainable matter. It therefore offered to meet with the Union and negotiate a com- plete collective-bargaining contract, including wages. Despite Respondent's efforts to arrange negotiating meetings, no meetings were held. On July 6, 1970, the Union filed unfair labor practice charges alleging, inter alia, that Respondent had unlawfully withheld wage increases customarily extended to employees. Three days later Respondent notified the Union that, inasmuch as negotiations for a collective-bargaining contract had been frustrated by the Union, it was granting the previously promised wage increases retroactive to the 1970 anniversary date. Respondent also sent copies of this letter to the employees involved. The Administrative Law Judge found, and my colleagues have adopted his finding, that by temporarily withholding the 1970 wage in- crease Respondent had violated Section 8(a)(1), (3), and (5) of the Act. I disagree. In Chevron Oil Company, 182 NLRB 445, 449- 450, the Board stated: - It has long been an established Board principle that, in a context of good-faith bargaining, and absent other proof of unlawful motive, an em- ployer is privileged to withhold from organized employees wage increases granted to unor- ganized employees or to condition their grant upon final contract settlement. Shell Oil Co., 77 199 NLBR No. 68 UNITED AIRCRAFT CORPORATION 659 NLRB 130. As the Supreme Court made clear in American Ship Building Co. v. N.L.R.B., 380 U:S. 300, the Act accords employees no right to insist upon their bargaining demands free from eco- nomic disadvantages, and an employer's use of economic pressure solely in support of a bargain- ing position cannot be held unlawful for that reason alone. In Chevron, the Board found that the withholding of the wage increase from organized employees was un- lawful because it was an integral part of an unlawful course of conduct. However, the court of appeals re- fused to enforce this part of the Board's order because it rejected the Board's finding that the withholding action occurred in a context of bad-faith bargaining. "It follows," according to the court, "that the Compa- ny was within permissible bounds in refraining from granting the benefits to the Union-represented em- ployees in the absence of an agreement."5 The Administrative Law Judge attempted to dis- tinguish Chevron from the present case upon the ground that here Respondent had decided in 1969 to grant a wage increase to employees in 1970 thereby making the increase a condition of employment. In Chevron, although there was no promise of a specific wage increase, the Board found that it was "normal policy" to follow the most recently negotiated indus- trywide contract in determining the wage and benefit increases' to be granted its unrepresented employees, and at plants not covered by that contract to be of- fered to organized employees. A condition of employ- ment can as readily be created by a course of conduct, as in Chevron, as by an explicit promise, as in this case. The fact that the condition was created by one means rather than by another does not call for the applica- tion of different legal principles .6 Respondent's withholding of the 1970 wage in- crease did not occur in a context of bad-faith bargain- ing or other unlawful conduct. The administrative Law Judge found Respondent guilty of no unfair la- bor practices apart from the aforementioned with- holding. He did find that Respondent's July 9, 1970, letter to the Union, copies of which were sent to unit employees, although privileged under Section 8(c) nevertheless showed that Respondent's motive in withholding the wage increase from employees was to disparage and undermine the Union. I cannot accept this interpretation of the letter. We can take judicial notice from the large number of cases which have come before the Board involving these parties that disparagement of each other, to put it euphemistical- ly, has been a regular part of their dealings with one another. Employees could hardly be unaware of this fact. In the very letter which the Administrative law Judge characterized as having a purpose of undermin- ing the Union, Respondent referred to the unfair la- bor practice charge which had just been filed by the Union and announced the granting of the wage in- crease which had been promised in April 1969. I do not think the employees could escape the inference, despite Respondent's attribution of blame to the Un- ion, that the latter had forced Respondent to grant the wage increases previously withheld. If the employees had any doubt of the forcefulness of their representa- tive, it was clarified and emphasized in the Union's response to the July 9 letter sent to the Respondent and the employees on July 21, 1970. In the absence of a justified finding of unlawful motive, I consider Respondent's conduct in tempo- rarily withholding the previously promised wage in- crease pending bargaining for a complete contract as not unlawful. I would therefore reverse the Adminis- trative Law Judge and dismiss the complaint. 5 Chevron Oil Co. v. N.LR.B., 442 F.2d 1067, 1074 (C.A. 5). N.LR.B. v. Dothan Eagle, Inc., 434 F.2d 93 (C.A. 5), which was earlier decided by the same court, is distinguishable upon its facts. 6 N LR B v. Dothan Eagle, Inc, 434 F.2d 93, 98 (C.A. 5). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Trial Examiner: This case presents questions of whether the Respondent, United Aircraft Cor- poration, Hamilton Standard Division (Boron Filament Plant), violated Section 8(a)(1) of the Act by promising and granting employees wage increases and by warning employ- ees of the futility of selecting the Union, Lodge 743, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, as their collective-bargaining representative; whether Respondent violated Section 8(a)(3) of the Act by withholding a general wage increase to punish employees for voting in favor of the above-named Union; and whether Respondent violated Section 8(a)(5) of the Act by unilat- erally changing existing wage rates. The charge was filed by the Union on July 6, 1970. Pursuant thereto complaint is- sued on February 3,1971. On February 15, 16, and 17, 1972, a hearing was held in Hartford, Connecticut. Upon consideration of the entire record, including my observation of the witnesses and the briefs filed by General Counsel, the Union, and Respondent, I make the following: FINDINGS OF FACT I THE FACTUAL SETTING Respondent is a Delaware corporation with its princi- pal office at East Hartford, Connecticut, where it is engaged in the manufacture and distribution of aircraft engines, pro- pellers, and other accessories and parts. Respondent oper- ates several plants in the State of Connecticut, including the plant involved herein which is part of its Hamilton Standard Division and is known as the Boron Filament Plant.' Commerce is not in issue. The complaint alleges, the answer admits, and 660 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union is the bargaining representative of Respondent's employees at several of its plants, but prior to the events herein the Boron Filament Plant was unor- ganized. On March 25, 1970, pursuant to petitions filed by Respondent in Case 1-RM-765 on January 12, and by the Union in Case 1-RC-10945 on January 14, an election was held in a production and maintenance unit of the employees at the Boron Filament Plant, and on April 16, 1970, the Union was certified as exclusive representative of such em- ployees. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Independent 8(a)(1) Conduct 1. The campaign literature The complaint alleges that during the preelection peri- od Respondent warned its employees that unionization was undesirable and unnecessary and that collective bargaining would be fruitless and could invariably only result in harm and injury to them. This allegation is predicated upon three pieces of literature distributed to the employees by Respon- dent during the preelection period. The first piece of literature; adverted to the person-to- person relationship presently in existence between Respon- dent and its employees, pointed out that a union costs mon- ey and the employees were receiving the same benefits that employees working in the other shops of the Company were receiving under union contracts except for the fact that Boron Filament Plant employees were working a rotational schedule and the letter explained the necessity that they continue to do so.2 The letter further explained to employees how collective bargaining works; namely, that the Compa- ny does not have to change anything if it feels that its present wages and benefits are fair and that the Union's requests are unreasonable or economically unsound. The second letter, dated March 17, 1970, dealt with essentially one theme; namely, the unpleasant subject of strikes. The letter pointed out to employees that if the union were unable to fulfill its promises by negotiations, it would have only two choices, either to back down on the promises or to go out on strike. The letter described past strikes and explained the employer's right under the law to hire perma- nent replacements. The Union herein was charged with the reputation of frequently striking. The third letter, dated March 20, 1970, had as its princi- pal theme the motives of the Union in seeking to represent Respondent's employees. That motive was spelled out sim- ply as one to obtain money for the Union's treasury. In support of the contention that the foregoing litera- ture was violative of Section 8(a)(I) of the Act, both General Counsel and the Charging Party cite many cases. Board decisions in this area are of little value because each case appears to depend on its own facts. In my judgment, in this case the statements of Respondent in the campaign litera- I find that Respondent meets the Board's $50,000 direct inflow and direct outflow standards for the assertion of jurisdiction. 2 Not all employees worked a rotational schedule, and the letter they received said, "There is no difference whatsoever between your benefits and working conditions and theirs." ture referred to above did not exceed the boundaries of permissible propaganda, but rather were protected by Sec- tion 8(c) of the Act. Accordingly, I shall recommend dis- missal of paragraph 6(c) of the complaint. 2. The wage increases The complaint alleges that in March 1970, more partic- ularly in the weeks beginning March 9, 16, and 23, Respon- dent offered promised, and granted to its employees wage increases if they refrained from becoming members of the Union or voting for the Union and in order to induce them to do so and to demonstrate to them the futility and undesir- ability of union representation or support. This allegation has two discrete parts: (1) offers and promises of wage increases, and (2) the granting of wage increases. As to (1), the sole item of evidence consists of the testimony of former employee Martin Orenstein. Orenstein testified that when he was interviewed for employment on January 7, 1970, he was told by interviewer Walter Weisse that under Respondent's policy a new employee was proba- tionary for 90 days and "that after 6 months of employment, he would receive a pay raise." He testified that on or about March 22 or 23, Foreman David Steele called him in, told him his work was very satisfactory, and that he was getting a 7-cent-an-hour raise. Orenstein remarked, "Gee, I've only been here eight weeks ... you people would do anything for a vote." Steele laughed. Orenstein's testimony about his conversation with Steele is uncontradicted. Nevertheless, I deem it insufficient to support a finding that Respondent offered or promised employees wage increases to affect the outcome of the elec- tion scheduled for March 25. Steele did not say a word about the Union. It was Orenstein who injected the Union into the conversation and he admitted he did this jokingly. That Steele did not deny to Orenstein that the raise had any relationship to the Union is insufficient to support a finding Respondent offered and promised wage increases to em- ployees. The Orenstein incident has significance only as it relates to the second part of the allegation about wage in- creases; namely, that Respondent granted wage increases to employees to affect the outcome of the election and to induce them to refrain from supporting the Union. In order to evaluate the allegation that Respondent unlawfully granted wage increases, it is necessary to under- stand its wage rate system. Respondent has a wage rate program under which employees are given ratings such as J (job), R (above average), P (premium), and T (top). Em- ployees are generally hired at a wage rate less than the J rate, such as 85 percent of J rate, 90 or 95 percent. In certain job classifications employees are expected to achieve J rate within 6 months, and in others within 12 months from the date of hire. During that 6- or 12-month period, an employee's work performance is evaluated by his foreman who at any time during the period may recommend him for increases from, for example, 85 percent of J rate to 90 per- cent, then later from 90 percent to 95 percent, until the employee reaches J rate. After an employee receives J rate, his work performance is reviewed every 6 months, and, if deemed qualified by his foreman, he may receive a wage increase to R rate. UNITED AIRCRAFT CORPORATION 661 The foregoing is undisputed and General Counsel and the Union contend that Respondent used this rating system to grant wage increases to employees for the purpose of affecting the outcome of the election. The underlying prem- ise for the contention is that the wage increases granted pursuant to this system are discretionary and that this de- cretion was exercised to grant a significantly greater number of raises in the period preceding the election than were given in other periods of equal duration. To demonstrate this point, the Union set up three peri- ods of approximately 10 weeks' duration: the 10-week peri- od before the election, January 12 to March 23, 1970 (referred to as the critical period); the 10-week period pre- ceding the critical period, namely, October 28, 1969, to Jan- uary 11, 1970; and the 10-week period following the critical period; namely, March 24 to June 6, 1970. According to the Union, 52 percent of the bargaining unit employees re- ceived increases during the critical period, whereas only 25 percent received increases in the preceding period and 21 percent in the succeeding period. In light of these statistics, plus the fact that Orenstein received a raise after 8 weeks' employment, after he had been told by Weisse that he would get a raise after 6 months, the Union contends a finding is dictated that wage increases were granted in the critical period with an unlawful purpose of influencing employees against union representation. I do not agree. I have already pointed out that there was no evidence that any employee was offered or promised a wage increase to affect the outcome of the election. As to all the wage increases granted, there is no evidence whatsoever that in granting them Respondent deviated from its regular prac- tice; there is no evidence that any increase was accelerated or unjustified, including Orenstein's.3 In short, the sole basis for finding that the wage increases were unlawfully motivat- ed is the statistical analysis of the Union which purports to show a significantly higher percentage of employees receiv- ing wage increases in the critical preelection period than in comparable periods. As Respondent points out, however, the percentages are not quite as disparate as the Union contends. Thus, the 52-percent figure during the critical period is arrived at by assigning to the unit during that period a population of 59 employees as shown by the eligi- bility list for the payroll period ending February 28, 1970. However, although the size of the unit was so measured, the Union included among the discretionary raises those given to four employees who were not on that list because three had been transferred out of the bargaining unit and one had quit. If these four increases are to be counted, the unit size should be increased to 63 and the percentage reduced from 52 percent to 49 percent. (Of course, this creates the anoma- lous situation that Respondent granted wage increases to employees to affect the outcome of the election and then transferred three of the employees out of the unit so that they were no longer eligible to vote.) 3 The only employee about whom any evidence was submitted was Oren- stein and the record does not support a finding that his raise was unjustified. The fact that it came in less than 6 months from his date of hire proves nothing, because the record clearly indicates a company practice of granting raises before an employee has worked 6 months. For this reason, I do not credit Orenstem's testimony insofar as it suggests he was told he would not receive a raise until after 6 months' employment. I credit Walter Weisse's testimony about what he told Orenstein. Another factor overlooked by the Union is the fact that although five increases were effective March 23, 1970, they were not approved until March 31, and, according to Chief Personnel Adviser Frederic Dustin, it is company policy not to advise employees of a wage increase until it has been approved. The Union would have me give no credence or weight to this testimony because Dustin could not testify that the policy was followed in the five March 23 increases. I credit Dustin. It seems to me that if the five employees in question were told before the election that they were getting a raise it would have been a simple matter to produce them to so testify. If five merit increases are deducted from the critical period that means 26 employees received merit in- creases during the critical period out of a unit of 63 (59 plus the 4 added above) for a percentage of 41. Other permutations of the records on wage increases could be developed. As a matter of fact, the Union submit- ted an alternative analysis comparing the percentage of em- ployees in the unit who received raises in March 1970 with the percentage receiving raises in March 1969. I find the alternative analysis no more persuasive than the one dis- cussed above. The simple answer to the Union's analyses is that they are totally dependent on artificially structured data and require acceptance of premises whose validity has not been established. They overlook the fact that none of the wage increases which are included in the analyses was shown to be at variance with Respondent's wage rating system. In my judgment, General Counsel has failed to establish by a preponderance of evidence that wage increas- es were unlawfully granted and I shall recommend dismissal of paragraph 6(b) of the complaint. B. The Alleged 8(a)(3) Conduct 1. The facts About April 1969, the Respondent negotiated a 3-year contract with the Union for another of its plants. This agree- ment provided for three annual wage increases beginning with April 21, 1969, and on the anniversary of that date in 1970 and 1971. On April 17, 1969, Respondent posted a notice to the employees of the Boron Filament Plant (which was then known as the Broad Brook Plant) announcing a wage increase of 8 percent effective April 21, 1969. The notice also referred to improvements in several fringe bene- fits and concluded with an announcement that on April 20, 1970, and April 19, 1971, there would be a 3-percent general increase subject to a possible cost-of-living adjustment to be added to the 3-percent general increase. This promised wage increase was not given to the em- ployees at the Boron Filament Plant on April 20, 1970. As noted earlier, the Union was certified on April 16 and on May 13, 1970, it sent a letter to Respondent requesting a meeting for the purpose of bargaining and requesting cer- tain data. The letter also requested that Respondent imme- diately put into effect for the employees in the bargaining unit the wage increase which had been placed into effect on April 20, 1970, at the other plant of Hamilton Standard represented by the Union, and asking that such increase be made retroactive to that date. On May 21, the Respondent replied to the Union's request for a meeting and indicated its readiness to begin negotiations with the Union at any 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date mutually convenient. Respondent requested that be- fore any such meeting the Union submit its contract propos- als. The letter said nothing about this wage increase. On May 27, Respondent sent another letter to the Un- ion stating with regard to the request that it immediately put into effect the wage increase that "we will be prepared to negotiate wages in the pending negotiations for a complete contract." On June 17, the Union replied to Respondent's letter of May 27, accusing it of an unfair labor practice for refus- ing to put into effect the wage increase in question. On July 6, Respondent replied to the last letter of the Union complaining of the Union's ignoring Respondent's letter of May 21, offering to begin negotiations promptly, and requesting that the Union submit its contract proposals. Respondent again requested that it be advised about dates in the near future when representatives of the Union could meet with company representatives to negotiate an agree- ment, including an agreement on wages. On July 6, the Union filed the charge herein which Respondent received on July 8. On July 9, Respondent sent a letter to the Union accusing it of a lack of intent to bargain in good faith and of preventing negotiation of a contract. The letter adverted to Respondent's April 17, 1969, promise of a wage increase on April 20, 1970, and expressed Respondent's belief that such increase had become subject to negotiations as a result of the Union's certification. Since negotiations had been frustrated by the Union, Respondent advised the Union that the April 20 increase would be put into effect retroactively. 2. Analysis and conclusions The complaint alleges that by withholding the wage increase scheduled for April 20, 1970, Respondent violated Section 8(a)(1) and (3) of the Act. On the basis of the facts recited above, it is evident that the allegation has meet. It is undisputed that since April 17, 1969, Respondent had decided to grant and had scheduled for its Boron Fil- ament Plant employees a wage increase effective April 20, 1970. In addition, it is clear that between the date of the decision to grant the increase and Respondent's decision to withhold the increase the only intervening circumstance re- lating to the wage increase was the employees' selection of the Union as their exclusive representative for purposes of collective bargaining. That this circumstance was the reason for the withholding of the promised wage increase is re- vealed both in Respondent's letter of July 9 referred to above, and the testimony of Respondent's vice president, Morgan Mooney, who stated, The reason that we didn't put it into effect was because we anticipated that we would be bargaining with the Union subsequent to certification and, at the time, we had invited the Union to meet with us any time that was mutually convenient. It was quite clear, on the basis of my conversation with Mr . Ostro and, in fact, he so stated, that the question of the rotating shift and the pay practices in effect at Broad Brook were going to be a very essential part of these negotiations . He said that the employees over there did not like the rotating shift and it was one of the major reasons why they had sought or agreed to representation by the Union. I considered, then, that this would be one of the major items in dispute and that we would be bargaining on the basis of an entire pay package of some sort or other. In effect, the statements in the July 9 letter and Mooney's testimony above constitute admissions that the April 20 wage increase was withheld because the employees selected the Union as their representative for purposes of collective bargaining. It is true Respondent does not state its reasons in such terms ; rather, it speaks in terms of eco- nomic considerations ; namely, that the promised wage in- crease was based on the assumption that other matters of compensation would remain as established. But the certifi- cation did not alter that assumption; it did not change any matters of compensation. All it did was create the possibility of a change in matters of compensation, and even as to that possibility, Respondent itself had stated to employees in its campaign literature, "The Company, if it feels that its pre- sent wages and benefits are fair, or if it feels that the union request is unreasonable or economically unsound, has every right to refuse. The company doesn't have to change anything." In defense of its conduct, Respondent relies on Chevron Oil Co. v. N.LR.B., 442 F.2d 1067 (C.A. 5), and McGraw Edison Co., 172 NLRB No. 178. Neither case is apposite. Both cases dealt with the question of whether an employer who grants certain benefits to his unorganized employees is required to grant the same benefits to organized employees. But that is not the issue here.4 Respondent had decided in April 1969 to grant a wage increase to the Boron Filament plant employees and had thereby made the April 1970 wage increase a condition of their employment .5 By withholding the increase on April 20, 1970, Respondent affected a change in conditions of employment. Respondent contends that there is no proof that its decision to withhold the April 20 increase was unlawfully motivated. None was needed. Respondent's conduct was "inherently destructive" of important employee rights. N.L. R.B. v. Great Dane Trailers, Inc. 388 U.S. 26. Upon analysis, it is evident that Respondent's reasons are no different than those in Metromedia, Inc. (KLAC), 182 NLRB 202, wherein the Board stated that "Respondent may have believed, even accurately, that the Union's becoming the employees' exclu- sive bargaining representative would cost him money, or cost him the time and effort spent in bargaining. Indeed, if these kinds of business reasons could justify discrimination, the proscriptions and protections of the Act would be ren- dered largely nugatory." Based upon the foregoing, I find that Respondent vio- lated Section 8(a)(1) and (3) of the Act by withholding the wage increase of April 20, 1970. But General Counsel and A It is true that in requesting that Respondent put the April 20, 1970, scheduled increase into effect the Union adverted to, and appeared to predi- cate its request upon, a wage increase placed into effect at other plants of Respondent's Hamilton Standard Division where employees were repre- sented by the Union. The proper predicate was Respondent's own April 17, 1969, announcement The fact that the Union was maccurate is no defense, however, because Respondent was legally obligated to put the increase into effect even without a request. 5 As the Court stated in Armstrong Cork Co. v. N LRB, 211 F.2d 843 (C A. 5), the definition of "condition of employment" includes not only what the employer has already granted, but also what he "proposes to grant." UNITED AIRCRAFT CORPORATION 663 the Union would go beyond the foregoing and argue that there is independent evidence that Respondent was unlaw- fully motivated in withholding the wage increase. In support of this contention, they point to Respondent's campaign literature adverted to above. However, I have found that literature to be privileged by Section 8(c) of the Act. They advert to the statements in Respondent's letter of July 9 accusing the Union of avoiding negotiations and delaying any agreement, and that "We do not believe that this is responsible union conduct, nor do we believe that the Company and its employees need suffer from its results." By thus placing the onus on the Union for its own unlawful conduct, General Counsel and the Union contend Respon- dent revealed that its true motive in withholding the in- crease was to undermine and disparage the Union and discourage employees from supporting it. At first blush, it was my inclination to brush aside this argument. After all, the statement was contained in a letter from Respondent to the Union, and it appeared to be part of the polemics practiced by both. However, Respondent was not content to dispute with the Union; rather, it sent the letter to the employees. By thus communicating to em- ployees that the Union was to blame for its own miscon- duct, Respondent revealed that, from the outset, its motive in withholding the wage increase was to disparage and un- dermine the Union, and thereby lent further support to the finding above that the withholding of the wage increase was violative of Section 8(a)(1) and (3) of the Act. C. The Alleged 8(a)(5) Conduct Respondent's conduct with regard to the wage increase as described above must be evaluated not only in terms of Section 8(a)(1) and (3) of the Act, but in terms of Section 8(a)(5). According to the Union, by withholding the April 20 wage increase Respondent violated Section 8(a)(5) of the Act. The difficulty with this contention is that the complaint does not allege a violation of Section 8(a)(5) based on the withholding of the wage increase . However, it is well estab- lished that where the facts have been alleged and fully lit- igated the Board is not precluded from finding that the conduct in question violates subsections of the Act other than those which were alleged as legal conclusions in the complaint. Laclede Gas Co. v. N.L.RB., 421 F.2d 610 (C.A. 8); N.L.R.B. v. Dennison Mfg. Co., 419 F.2d 1080 (C.A. 1); Frito Company, Western Division v. N.L.R.B., 330 F.2d 458 (C.A. 9); Independent Metal Workers, Local No. 1, 147 NLRB 1573, 1576. Here, the facts concerning Respondent's withholding/of the April 20, 1970, increase were alleged in 6 Paragraph 12(a) of the complaint alleged that Respondent had refused to negotiate and discuss with the Union matters relating to the April 20 wage increase, but in light of the correspondence adverted to above, it was evident that Respondent had not refused to negotiate and discuss that issue. To the contrary, it had offered to do so and the Union had refused to discuss the matter because it believed Respondent was obligated to put the wage increase into effect without bargaining in accordance with its April 1969 notice. Accordingly, at the hearing, I granted Respondent's motion to dismiss para- graph 12(a). In its brief, In. 3, the Union asserts that paragraph 12(a) alleged that the unilateral withholding of the wage increase constituted a refusal to bargain and I should not have dismissed the allegation . Paragraph 12(a) does not allege unilateral conduct (compare 12(a) with 12(b)) and I adhere to my ruling dismissing it. the complaint and fully litigated at the hearing. Actually, the facts are not in dispute. Respondent, without notifying the Union, decided to withhold the April 20, 1970, wage increase and to use the increase as an item in bargaining. That such conduct was violative of Section 8(a)(5) of the Act is too clear to warrant any discussion. Suffice it to say that whatever arguments are made, they are answered by the court in N.L.R.B. v. Dothan Eagle, 434 F.2d 93 (C.A. 5). On the facts herein, I find that the withholding of the April 20, 1970, wage increase constituted a unilateral change in conditions of employment in violation of Section 8(a)(5) and (1) of the Act. Although the complaint did not allege that the with- holding of the April 20 wage increase was unilateral conduct violative of Section 8(a)(5) of the Act, it did allege that Respondent violated Section 8(a)(5) when, on July 9, 1970, it did put the increase into effect. In my judgement, the allegation is lacking in merit. The reason unilateral conduct is violative of Section 8(a)(5) of the Act is that it obstructs bargaining. It often discloses an unwillingness to agree with the Union. But in this case, it was not Respondent who was unwilling to discuss the wage increase. To the contrary, it was unlawfully attempting to inject the issue into the nego- tiations and the Union was vehemently opposing its at- tempts. When Respondent belatedly put the wage increase into effect, it was acknowledging the merit of the Union's position. True, it sought to make capital of its capitulation in its July 9 letter which it distributed to the employees. But, it did not try to make capital of the decision to grant the increase; rather, it sought to capitalize on the delay in grant- ing the increase. It was in this respect that it sought to undermine the Union. Significantly, the Union did not pro- test about the granting of the increase, nor did it request bargaining about it. For the foregoing reasons, I find no merit to the allegations of paragraph 12(b) of the complaint and shall recommend dismissal of that paragraph. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. By withholding until July 9, 1970, the wage increases scheduled for April 20, 1970, Respondent deprived employ- ees of the use of such wage increases. In order to make them whole, I shall recommend that Respondent pay employees interest at the rate of 6 percent per annum of the amount of money which they received as a retroactive payment of the April 20 increase to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because Respondent has been found guilty of unfair labor practices in several other cases,' General Counsel and the Union request that I recommend extraordinary reme- dies: (1) that a copy of the notice be mailed to each employ- ee in the bargaining unit; (2) that such notice be posted at all Connecticut plants of Respondent; and (3) that an offi- cial of Respondent in charge of Boron Filament Plant read a copy of such notice to an assembled group of employees and in the presence of union representatives. I do not deem such remedies appropriate to the case, nor necessary to effectuate the policies of the Act. It is clear that a substantial number of Respondent's employees are organized. It also appears that this has been the case for many years and Respondent has been a party to many collective-bargaining contracts. Under the circum- stances, it is difficult to understand why Respondent, a major corporation, has been found guilty of violating Fed- eral labor laws on several occasions. I sense that the reason lies in past disputes between Respondent and the Union,8 which have given rise to a mutual distrust exacerbated on both sides by correspondence and charges and counter- charges. In my judgment, more reason and less polemics on both sides could have avoided this entire proceeding. The remedy sought by General Counsel and the Union would only exacerbate the situation further. I consider the unfair labor practices herein distinguishable from those in the prior cases involving this Respondent and, although I find the withholding of the wage increase of April 20 violative of Section 8(a)(3) of the Act, under all the circumstances, I do not deem the conduct egregious, or reflective of a will on the part of Respondent to deprive employees of their Sec- tion 7 rights on any broad scale.9 For these reasons, I shall not recommend any extraordinary remedies. CONCLUSIONS OF LAW 1. United Aircraft Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Broad Brook, Connecticut, Boron Filament Plant, but excluding salaried office and salaried factory clericals, salaried technicians, salaried laboratory techni- cians, foremen's clerks, medical employees, first aid em- ployees, plant protection employees, watch engineers, truck drivers, group supervisors and all other supervisors as de- ' In United Aircraft Corp., 179 NLRB 935 and 180 NLRB 278, enfd. 440 F.2d 85 (C.A. 2), Respondent was found to have violated Sec . 8(a)(1) and (3) of the Act by discharging and suspending employees and by certain acts of interference, restraint, and coercion. In United Aircraft Corp, 181 NLRB 892, enfd. 434 F.2d 1198 (C.A. 2), Respondent was found to have violated Section 8(axl) and (5) of the Act by refusing to furnish to the Union the names and addresses of employees in units represented by the Union. In United Aircraft Corp., 188 NLRB No. 86, Respondent was again found to have violated Section 8(a)(l) and (3) of the Act by suspending a union steward. 8 See United Aricraft Corp v N.L.R.B., 434 F.2d 1198 (C.A 2). 9 Apparently General Counsel did not consider the unfair labor practices to be too serious, else the complaint would have been brought to hearing much sooner than it was. fined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO, is the exclusive repre- sentative of the employees of Respondent in the above- described unit within the meaning of Section 9(a) of the Act. 5. By withholding the wage increase scheduled for April 20, 1970, without notifying the above-named Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 6. By withholding the wage increase scheduled for April 20, 1970, because its employees selected the above- named Union as their exclusive representative for purposes of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. General Counsel has failed to establish by a prepon- derance of evidence that Respondent violated the Act as alleged in paragraphs 6(b) and (c) and 12(b) of the com- plaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER10 Respondent, United Aircraft Corporation, Hamilton Standard Division (Boron Filament Plant), its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withholding scheduled wage increases because its employees select Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO, or any oth- er labor organization, as their exclusive representative for purposes of collective bargaining. (b) Refusing to bargain with Lodge 743, International Association of Machinists and Aerospace Workers, AFL- CIO, by unilaterally changing conditions of employment by withholding a scheduled wage increase. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above- named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion as guaranteed by Section 7 of the Act, or to refrain from any or all activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all employees in the unit described above, and, if an under- ") In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. UNITED AIRCRAFT CORPORATION standing is reached, embody such understanding in a signed agreement. (b) Make whole all employees employed in the Boron Filament Plant whose wage increases were withheld until July 9, 1970, by payment of 6 percent per annum on the amount of wages which they received as a retroactive pay- ment of the April 20 increase in accordance with the rec- ommendation set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the National Labor Relations Board and its agents, for exam- ination and copying, all payroll records, social security pay- ment records, timecards, personnel records and reports, and all other records relevant and necessary for a determination of the amounts of interest on delayed wage payments due under the terms of this recommended Order. (d) Post at its Boron Filament Plant at Broad Brook, Connecticut, copies of the attached notice marked "Appen- dix."" Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, 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 custom- arily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, for cov- ered by any other material. (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.12 IT IS FURTHER RECOMMENDED that the allegation of para- graphs 6(b) and (c) and 12(b) of the complaint be dismissed. 11 In the event that the Board's Order is enforced by a Judgment of a United State 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 Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 12 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read : "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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 665 WE WILL NOT withhold scheduled wage increases because you have selected Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO, as your exclusive representative for pur- poses of collective bargaining. WE WILL NOT withhold scheduled wage increases without notification to, and bargaining with, Lodge 743, International Association of Machinists and Aero- space Workers, AFL-CIO. Because the wage increase scheduled for April 20, 1970, was unlawfully withheld until July 9, 1970, WE WILL make employees whole by paying them interest at a rate of 6 percent per year on the amount of wages which were withheld. UNITED AIRCRAFT CORPORATION, HAMILTON STANDARD DmsioN (BORON FILAMENT PLANT) (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Bulfinch Building, 15 New Char- don Street, Boston, Massachusetts 02114, Telephone 617-223-3300.