Curtiss-Wright Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1971

193 N.L.R.B. 940 (N.L.R.B. 1971)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curtiss-Wright Corporation and Aircraft Lodges 703
and 974, International Association of Machinists
and Aerospace Workers, AFL-CIO. Case
22-CA-3998
October 26, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On May 25, 1971, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled
proceeding, finding that Respondent had violated
Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief.
The Charging Party filed a brief in answer to the
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Curtiss-Wright Corporation, Woo-
dridge, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
the National Labor Relations Board dated May 5 and
amended June 24, 1970, based on a charge filed with him
on January 5, 1970, against Curtiss-Wright Corporation
("Curtiss-Wright"; "Employer"; "Company") by Aircraft
Lodges 703 and 974, International Association of Machin-
ists & Aerospace Workers, AFL-CIO ("Unions" or
"Union"), was tried before me in Newark, New Jersey, on
July 9-10 and 20, 1970, and February 9-10, 1971.1 All
parties participated throughout and were afforded full
opportunity to present testimonial and documentary
evidence and arguments, cross-examine witnesses , propose
findings and conclusions, and file briefs. Subsequent to
completion of the trial, briefs were received from all of the
parties on March 22, 1971, time for the filing thereof having
been extended upon unopposed application of counsel.
Respondent is here charged with violation of Section
8(a)(5) and (1) of the Act through having failed and refused
to supply the Union with allegedly necessary bargaining
data in Respondent's possession and through compelling
bargaining to proceed in the absence thereof.
Having carefully considered all of the evidence,
testimonial2 and documentary, as well as all arguments and
contentions advanced at the trial and in the parties' briefs,
upon the entire record including my observations of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. PARTIES; JURISDICTION
At all material times , Respondent, a Delaware corpora-
tion, has maintained its principal office, corporate head-
quarters, and a plant in Wood-Ridge, New Jersey, as well as
plants in various other locations in New Jersey and other
States, for the manufacture, sale, and distribution of
aircraft engines, components, parts, and related products.
Included among those other plants in New Jersey are
Respondent's Curtiss Division (in Caldwell) and its
Electronics Division (in East Paterson), the only facilities
involved in this proceeding. During the representative 12-
month period immediately preceding issuance of the
complaint, Respondent caused to be manufactured, sold,
and distributed at, and shipped directly in interstate
commerce from, said Curtiss and Electronics Divisions
products valued in excess of $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; that the above Unions
have been and are labor organizations within the meaning
of the Act; and that jurisdiction is properly asserted in this
proceeding.
TRIAL EXAMINER'S DECISION
Preliminary Statement
STANLEY N. OHLBAUM, Trial Examiner: This proceeding
under the National Labor Relations Act, as amended (29
U.S.C. Sec. 151, et seq.; "Act"), on complaint of the
Regional Director for Region 22 (Newark, New Jersey) of
I The proceeding was held in abeyance between July 1970 and February
1971 pending the parties ' abortive settlement attempts
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The basic question presented is whether, in connection
with collective bargaining between Charging Party Unions
(as duly designated bargaining representatives of Respon-
2 Trial transcript as corrected by my April 27, 1971, order on notice.
193 NLRB No. 142
CURTISS-WRIGHT CORPORATION 941
dent's employees in its Curtiss and Electronics Divisions)
and Respondent Employer, Section 8(a)(5) and (1) of the
Act require Respondent to permit an "audit," at the
Unions' expense, of a noncontributory pension fund
maintained by Respondent for its employees, or to supply
the Union with equivalent data, for bargaining purposes. A
secondary question presented is whether pension modifica-
tion agreements executed by the Unions with express
reservation-of-rights provisions are, under circumstances to
be described, subject to reopening and renegotiation. A
further issue presented is whether an agreement executed
by the parties in attempted settlement of the instant
proceeding, and steps taken thereunder, during the
pendency of the proceeding, constitute a bar to disposition
of this proceeding through findings, conclusions and
remedial order.
B. Facts as Found
The facts are in substantial part undisputed.
1. The Curtiss-Wright pension plan and fund3
The Curtiss-Wright pension plan was established by
Respondent in 1952 as a noncontributory asset corpus
funded exclusively by the Employer. Undifferentiated,
undivided, and unallocated as to individual employees,
groups or classes of employees, or bargaining units, its
coverage now extends to employees who are members (as
well as to those who are nonmembers) of 16 different
bargaining units, including the Charging Parties. According
to the Company's March 27, 1969, notice of annual meeting
of stockholders, as of January 1, 1968, over 10,000
employees, of whom 6,096 were in active service, were
covered by the plan. The fund's current coverage includes
over 1,200 members of Lodge 703 and some 150 members
of Lodge 974, or over 1,350 members of the Charging
Parties here. Some benefits under the Plan are said to be
vested.4 As of December 31, 1968, the fund's "assets" were
valued at around $45,000,000; as has been indicated, these
assets were neither divided, allocated, nor otherwise
compartmentalized or earmarked by bargaining or other
S "Plan" and "fund" are used interchangeably herein, although it is
clear that the "fund" consists of Employer contributions , and their
accretions , under the "plan "
4 Testimony of General Counsel witness Packles This may be in
contrast to the pension plan , as viewed by the court, in Sylvania Electric
Products, Inc v N L R B, 291 F 2d 128 (C A I), cert denied 368 U S. 926,
and Sylvania Electric Products, Inc v N L R B, 358 F.2d 591 (C A I), cert
denied 385 U S. 852, discussed infra Unlike the Board, the court in those
cases viewed an employer 's noncontributory pension plan contributions (as
distinguished from benefit payments) as not constituting "wages [or]
other term[s] or condition [ s] of employment" (regarding which there is a
statutory obligation to bargain , under the Act ), from which it may be
inferred that the court would regard contributory pension payments (paid
into the fund ), as well as benefits (paid out of the fund ), otherwise-i e ,
subject to the bargaining obligation While the same court stated that it
viewed Employer disclosure of data concerning pension benefits (paid or to
be paid out of the fund ) as necessary to bargaining and therefore properly
required at the union 's behest , it is nevertheless reiterated and to be noted
that here , while the Pension Fund itself is noncontributory, some of the
pension benefits are said to be vested It could thus well be that the
Employer's payments into the Pension Fund , as well as the benefits paid
out of the Pension Fund, would here in the view of even the Sylvania court
be regarded as "wages or other term[s] and condition[s] of
units, groups, or individuals. The entire fund is trusteed
exclusively in a bank designated by Respondent.5 No
Union, other employees' bargaining representative, or
employee has a role in or access to the fund's operations or
data concerning the same.
Notwithstanding the foregoing, modifications in the
original or basic trust schema have historically been
negotiated every few years by the Employer (Respondent)
and the Unions. Those negotiations have traditionally been
conducted "separately" from the negotiations concerned
with wages and matters other than pension; negotiations on
the basic collective agreements occur after the pension
negotiations .6 The pension plan modifications take the
form of written agreements separate and apart from, and
not included in, the basic collective agreements. More
recently, the basic collective agreements , as well as the
pension modification agreements , have each been for 3-
year periods, with separate reopeners and "separate"
bargaining on each every 3 years, a few months apart at
least as to bargaining inception dates (as stated, pension
bargaining "first").
Lodge 703, one of the Charging Parties here, has had a
collective-bargaining relationship with Curtiss-Wright,
representing the latter's production and maintenance
employees, for over 25 years at the Company's Curtiss
Division at Caldwell, and for over 18 years at the
Company's Electronics Division at East Paterson, New
Jersey. Lodge 974, the other Charging Party, represents the
technical employees of the Company's Curtiss Division
(Caldwell, New Jersey).?
The periodic negotiations on pension plan modifications
have not been limited to pension benefits but have included
bargaining concerning "the structure of the plan" itself.
Examples are the parties' discussions regarding conversion
or restructuring of the plan from noncontributory to
contributory, and regarding the institution of provisions for
"portability" or retention of pension credits in case of
intracompany transfers. Thus, the original 1952 pension
plan has been periodically modified and, in the words of
Union Negotiator Packles, "has just grown over the
years."8
Although, as already indicated, the pension fund is not
employment "
5 I e, Chase Manhattan Bank
6 Thus, whether or not discussions of the two subjects of (I) wages, etc
and (2) pensions necessarily spill over into each other , the parties are in
any event in a position to have the wage and other provisions in the
ensuing basic collective agreement modification negotiations reflect the
results achieved in the immediately preceding pension modification
negotiations This would, of course, be especially true in case of any time
overlap of the negotiations or discussions
7 Another union represents the Company's clerical and office employees
of both Divisions
8 The 1965-68 "Pension Agreement," effective September 30, 1965, to
September 30, 1968, between Respondent's Curtiss Division and IAM
Local 703 and its International , recites that it is executed "subject to the
approval" of the Curtiss-Wnght board of directors and also stockholders,
as well as "the United States Air Force" and the Commissioner of Internal
Revenue, as an amendment of The Curtiss-Wnght pension plan, and
subject to existing provisions as well as future modifications of the Internal
Revenue Code and all "United States Air Force rulings." The 1965-68
"Pension Agreement" modifications are stipulated to be of no effect if
disapproved by the Curtiss-Wright board of directors or stockholders "or if
the costs of the Plan are not allowable costs under United States Air Force
contracts "
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under Employer-Union operation or administration, there
is, however, anoint Employer-Union Board (three members
from each) to adjudicate pension claims. The 1965-68
"Pension Agreement" calls for establishment of a manage-
ment-union "Board of Administration" to "transact
necessary business" as "may be mutually agreed upon by
its members" regarding "specific claim[s]" or applications
for pensions; Curtiss Division being required to furnish to
the board of administration an annual "statement from the
actuary reflecting the value of the pension fund" and
ancillary information upon which the Board "shall be
entitled to rely." The agreement further provides that
"There shall be no appeal from any ruling by the Board.
. The Union will discourage any attempt of its members
and will not encourage or cooperate with any of its
members, in any appeal to any Court or Administrative
Board or Agency from a ruling of the Board of
Administration." In considering disability claims, "medical
evidence" is required to be "established by means of a
medical examination satisfactory to the [Employer's
Curtiss] Division, which the Division shall cause to be
made and the findings of which shall be reported to the
Board"; however, if the division "at its option" waives this
requirement or if the board of administration disagrees with
such findings, the board or administration may designate
an examining "clinic or physician" to "decide the
question." In other respects "the general administration of
the provisions of the [Pension ] Plan shall be the responsibil-
ity of the [Employer's Curtiss] Division." Disputes
concerning the plan are expressly exempted from the
"grievance procedure established in the Collective Bargain-
ing Agreement between the Division and the Union." The
funds of the plan, consisting solely of "contributions
payable by the [Curtiss-Wright] Corporation, interest, and
other income," are to be held and administered by a
"trustee or an insurance company, or both . designated
by the Corporation" and compensated by the corporation
in "an amount not less than that required by the Internal
Revenue Service to maintain the Plan as qualified for
Federal tax purposes."
The indicated "Pension Agreement," for the 3-year term
specified (1965-68), is expressly stipulated to be
"contingent upon the Union continuing to be the certified
collective bargaining agent of the employees covered by
this agreement." The basic pension plan indicates that it is
noncontributory, with the Company the exclusive source of
its funds; that it is nonvesting, except to the extent
otherwise provided; provides "normal" benefits for em-
ployees retiring upon attaining age 65 after completion of at
least 10 years of "credited service", and, under defined
conditions, reduced "early retirement" benefits at age 60 or
55; and states that, subject to modification by collective-
bargaining agreement, "The Employer shall be responsible
for the general administration of the Plan and for carrying
out the provisions thereof." The basic pension plan
stipulates that the pension fund, together with its accre-
tions, are to be vested in "a Trustee or Trustees selected by
the [Curtiss-Wright] Corporation to manage and operate
the Pension Fund" and to receive and disburse its assets;
with power in the Company to "establish an insured fund
with such insurance company or companies as it [i.e., the
Company] may select . ..." Further, "The Corporation
will determine the form and terms of any such Trust
Agreement which may authorize the inclusion of obliga-
tions and stock (common and preferred) of the Corporation
and its wholly owned subsidiaries among the investments of
the Pension Fund provided for by such Trust Agreement;
the Corporation may modify any such Trust Agreement
from time to time to accomplish the purposes of this Plan,
may remove any Trustee and select any successor Trustee;
and select and change insurance companies." The Compa-
ny itself (as well as its officers, directors, and stockholders),
as distinguished from the pension plan, is expressly
exempted, or at any rate sought to be exempted, from
liability in connection with the plan or "in event of
termination of the Plan."
While, as has been shown, there is only one Curtiss-
Wright pension plan and fund, each bargaining unit enters
into a separate agreement with the Company concerning
that fund and has its own separate board of administration.
Thus, 16 different bargaining units have pension agree-
ments with Curtiss-Wright pertaining to The Curtiss-
Wright pension plan, each with its own board of
administration, concerned solely with the processing of
pension claims. Although there are 16 separate agreements,
their terms and provisions are the same.
2. Circumstances and events giving rise to the
instant proceeding
Shortly prior to the September 30, 1968, expiration of the
parties' 1965-68 pension agreement, Union President and
Negotiator David Packles on August 26, 1968, wrote
Respondent's director of personnel (Curtiss Division),
Wesley E. Boles, that the Unions' "desire[s] to commence
negotiations on or about September 1, 1968, for improve-
ments in the Pension Plan dated November 3rd, 1965." On
August 30, Boles answered that it would meet on
September 18, 1968, and the parties first meeting in the
pension negotiations with which we are here concerned
took place on that date. In that and the ensuing meetings
and negotiations, the Charging Parties were represented by
Packles. For Respondent's part, in the meetings prior to
October 25 its Curtiss Division was represented by Boles,
while its Electronics Division was represented by that
division's manager of labor relations, Vincent J. Kunz;
commencing with the meeting of October 25, joint
negotiating meetings of both divisions were held with the
Unions, and, although Kunz continued to attend those
meetings, Boles served as company spokesman.
Starting with the initial pension negotiating meeting
(September 18, 1968), the parties advanced and discussed
proposals and counterproposals concerning modification of
the Company's pension plan. Union proposals included
institution of a portability feature, preservation of pension
credits to furloughed or former employees, and ameliora-
tion of allegedly discriminatory age eligibility provisions .9
At the first pension negotiating meeting (September 18)
9 The union proposals are in the main contained in written form in a having been occasioned by circumstances to be described
document which it gave to the Company on January 19, 1970-the delay
CURTISS-WRIGHT CORPORATION 943
Packles raised the question of retroactivity of any changes
to be agreed upon, since the existing pension agreement was
slated to expire on September 30. Without exception, each
preceding pension agreement had contained or was
negotiated subject to the proviso or understanding that
when agreement was reached its terms would be retroactive
to the expiration date of the preceding agreement.
According to Packles, on this occasion, too, in 1968, the
same understanding was had between him and Boles;
according to Boles and Kunz, however, the understanding
was subject to the express condition that a new pension
agreement be reached within a "reasonable" time.10 It is
undisputed that no deadline was established for the pension
negotiations.
The Company gave the Unions a written proposal
concerning pension modifications on November 1, 1968,
the parties' fourth negotiating session.
Consistently during the course of the parties' pension
negotiations commencing in the fall of 1968, the Unions
requested, and continued to request, certain data, or in lieu
thereof an audit, concerning the pension fund, considered
by the Unions to be essential to informed and intelligent
bargaining on their part. In the fall of 1968, there came to
the Unions' attention the Company's form D-2 annual
report, concerning its pension plan, to the Office of Labor-
Management and Welfare-Pension Reports, U.S. Depart-
ment of Labor, under the Welfare and Pensions Disclosure
Act. Inter alia it alleged total liabilities and reserves at the
end of the reporting year 1967 to be $42,224,681.28, of
which only $8,491.92 was in cash at the beginning of the
year and $178,629.86 at the reporting year's end; that over
$3,000,000 was in unspecified common stock and over
$30,000,000 in unspecified "nongovernment obligations";
that $7,285,000 consisted of unsecured "commercial
paper"; and that the amount of surety company bonding of
the fund against fiduciary losses is $2,000,000. It contained
no breakdown of securities by name or specific amounts,
nor the market value of any security.
Over and beyond the foregoing, the alleged tnggering
mechanism for particular concern by the Unions about
basic background facts regarding the pension fund was
their receipt around September 2, 1969 (from the Compa-
ny) of an actuarial report" indicating that-in one of the
supposedly "best years the stock market had had for a great
number of years"-the Pension Fund "had sold securities
and incurred a loss of six hundred and eight thousand
dollars" and, furthermore, "the liability was described for
our members in the Curtiss-Wright Division at seven
million and something. We also wanted to determine how
10 It will be recalled that Kunz negotiated separately with Packles on
behalf of Respondent's Electronics Division prior to October 25, 1968,
when Boles took over on behalf of that division as well as Curtiss Division
Kunz conceded on cross-examination that he did not at the negotiation
meetings with Packles prior to October 25 employ the qualification
"reasonable" in agreeing to retroactivity , while corroborating Boles that on
and after October 25 retroactivity was so qualified (i e , to be for "a
reasonable period only") by Boles
11 "Report of the Actuary As Of December 31, 1968," dated September
2, 1969, of Ronald C. Moore, "A S A , " of Towers, Perrin, Forster &
Crosby, Inc [the "Inc " appears on the subscription but not on the punted
papers used ] "Table 68-I" thereof does indeed show an unexplained
"Loss on Sale of Securities" in the amount of $608,407.71, claimed to have
reduced the "Investment Income" of the Pension Fund from $2,054 ,484.36
much of a liability was involved in the whole fund which we
couldn't determine."
Also disturbing to the Union and impelling it to request
the audit was the statement contained in the Company's
1968-69 annual report (G.C. Exh. 6, p. 19) that:
"At January 1, 1968, the actuarially computed value of
vested benefits exceeded the pension trust fund of one
of the plans by approximately $19,350,000 but was less
than the trust fund of the other plan. While the
Corporation has certain obligations regarding the
funding of actuarial liabilities under the plans, the plans
provide that benefit payments are an obligation of the
pension trust funds, and not of the Corporation.12
Still another cause of union concern propelling it to insist
on the requested audit was the Company's March 27, 1969,
"Notice of Annual Meeting of Stockholders" (G.C. Exh. 7)
containing a proxy authorizing (inter alia) "approval of
modifications to the Corporation's Pension Plan" (id., pp.3
and 10) and including the statement (id., p. 10) that as of
January 1, 1968 the plan's "unfunded liability" was
$23,335,000-as compared to the $19,350,000 figure
referred to above in the Company's 1968-69 annual report;
and also an "unfunded liability" on the same date, under
proposed plan amendments, in excess of $49,000,000. The
same notice of annual meeting of stockholders states (id., at
11), "While the Corporation hopes to maintain the
amended [Pension] Plan indefinitely, there is no commit-
ment to do so except to the extent provided for under
collective bargaining agreements with respect to the
amended Plan, which agreements continue until September
30, 1971. The cost of retirement programs are recognized as
a part of the cost of doing business and, as previously
indicated, allowable as a deduction for Federal income tax
purposes. A portion of the cost of the amended Pension
Plan which is attributable to U.S. Government business is
expected to be allowed in costs, and hence to be
recoverable in the prices of products sold to the Govern-
ment."
Union Negotiator Packles maintains that the Union's
reasons for desiring the requested "audit" of the pension
fund are in order "to determine whether enough money is
in that fund to pay the present benefits that we have. Also,
if we negotiate higher benefits, that there will be enough
money in there to pay the higher benefits. And, if there is
less money, we believe that our people would want to
negotiate higher wages because, actually, this is all part of
the package and fnnges and wages. Then if we don't have
the money in the pensions and can't get it, we certainly
want to get more wages for it."
to $1,446,076.65. "Table 68-2" thereof shows 393 "retired employees," 193
"vested employees," and 715 "active employees," composing a total of
1,301 employees in the production and maintenance bargaining unit of the
Curtiss Division as of December 31, 1968
12 As shown in the pension plan's "Report of the Actuary as of
December 31, 1968" dated September 2, 1969 (GC. Exh. 5, p. 1), the
"assets . as of December 31, 1968" thereof were reportedly "in the
amount of $45,436, 148.88 " The Curtiss-Wright 1968 annual report (G C
Exh 6, p 2) shows the "Year-End Financial Position" of the Company
itself as having "Current assets in excess of current liabilities" in the
amount of $91,967,347. The basic pension agreement (G C Exh. 2, p. 25)
authorizes the Company to include in the pension fund "obligations and
stock (common and preferred) of the Corporation and its wholly owned
subsidiaries among the investments of the Pension Fund "
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other purposes of the data or audit requested by the matron but attaching a mere summary sheet of alleged
Unions are, to negotiate any change in pension benefits, the assets said to total $42,224,681.28, with mere subtotals of
Unions need to know the level of the asset picture of the seven generic categories without further enumeration; viz,
fund; they need to know the nature of the expenses (e.g., "common stocks," "preferred stocks," "mortgages,"
commissions paid out) of the fund; they need to know what "commercial paper," "bonds," "accrued income," and
the alleged "assets" of the fund consist of-e.g., money, "cash." The largest single subtotal, $30,507,786.72, was
securities, etc.; and they need to determine negotiating listed merely as "bonds"; the second largest, $7,285,000 was
positions to take in the wage negotiations following the listed merely as "commercial paper." Boles' accompanying
pension negotiations 13-in Packles' words, "If we couldn't letter of October 23, 1968, stated that "The total assets or
receive enough . . . pensions because there wasn't enough
money in there [i.e., in the pension fund], we could then
secure bigger benefits in wages. Now, if there was more
money in there than we thought there was, we could then
negotiate bigger pensions for our people It was a means of
determining how we would negotiate." Further, lacking
information regarding the specific funding of the plan,
Packles was in no position to answer questions of
employees regarding what would happen to their pensions
in the event the Company closed down their division as
they had or were about to another division in Cleveland.
These reasons were communicated to Company Negotiator
Boles by Union Negotiator Packles from August 1968 on,
without avail. Boles' "continuous answer to me [i.e.,
Packles] through all these meetings was that the only thing
the union was there for was to negotiate benefits and that's
all we had to do there, and anything else was, to put it
mildly, was none of our business." However, based on the
Unions' expert's projection of company contributions to
the fund, the Unions-without knowledge of the nature of
the fund's investments-were at a loss to understand the
small apparent yield of the fund's investments, which
appeared to be only "about half" of what they would have
been if invested in an "insurance fund" or the IAM's own
pension fund. The Unions' purpose in seeking the requested
audit "specifically with respect to the market value of the
securities which comprised the corpus of this pension fund"
was that "we [i.e., the Unions] wanted to determine what
[the] portfolio was so we could get the actual market value
of the fund. Also to determine whether or not they were
using this fund to manipulate the Curtiss-Wright stock on
the market which was one of our questions we had put to
the company on a number of occasions." The Unions'
repeated inquiries as to whether any of the reputed assets of
the Company's pension fund consisted of stock of the
Company itself were unanswered.
On October 14, 1968, Packles wrote separate letters to
Boles and Kunz requesting certain information in connec-
tion with the pension plan negotiations, as expressed by
Packles, in order "to negotiate intelligently with regard to
ammendment [sic] termination or the substitution of some
other pension plan." The information requested included
details as to the "investment capital or other assets they
[i.e., the trustees] are holding or managing in behalf of the
Fund," a list of the assets and by whom held, with book and
market values, and reserves if any allocated toward future
pension projects. On October 23, 1968, Boles and Kunz
replied to these communications, providing certain infor-
reserves of the plan are held against all liabilities of the plan
without regard to the type of liability" and that "The
Corporation does not consider itself obligated to identify
securities in the Plan's Trust Fund by name or market
value."
Upon receipt on November 1, 1968, of the Company's
pension plan modification proposals, on November 8
Packles again wrote separate letters to Boles and Kunz
reiterating the request for the information specified in
Packles' letters of October 14 which he stated was
"necessary so that we can properly evaluate our position
and negotiate intelligently." With regard to the Unions'
requests (in its November 8 letters) for information as to the
fees paid to the trustees, actuaries, and for the acquisition
and sale of securities held by the fund, Boles and Kunz each
replied on November 22 and 25 that "we feel we are not
obliged to furnish you with the information requested
because, as we have repeatedly stated, the Company is
negotiating benefits only"; and Boles again declined to
supply itemized assets of the fund or their values as
previously requested by the Unions. Although total alleged
annual "amount(s) contributed" to the pension fund were
supplied, over the period 1953-67, showing a total of
$33,631,137.82, it was neither stated nor shown what form
(e.g., cash, corporate common stock, promissory notes)
those amounts took at any time.
The Unions' requests for explanations relative to the
above-described matters of concern to it relating to the
pension fund were unanswered by Respondent, other than
Company Negotiator Boles' statement that "the only thing
the union was there for was to negotiate benefits and that's
all." Packles thereupon pointed out to Boles that "We [i.e.,
the Unions] thought we had a moral obligation to our
people to determine whether we had money to negotiate.
We didn't want to negotiate a pie in the sky and not be able
to give our people the benefits if we got more money or
whatever we did with this plan." Boles reiterated that "the
only thing the union is here for is to negotiate benefits."
Pointing out that the Union "didn't like the structure of the
thing" and "didn't know ... where the money was or how
the trustee handled the money," Packles exhibited to Boles
a copy of an October 22, 1968 letter from the Unions'
expert (i.e., their International's associate director of
research) to the effect that "the way the money was
handle[d] was contrary to most pension plans throughout
the country." 14 The only verbal response from Respondent
to the Unions' requests for audit was Boles' telephone
statement to Packles around December, 1968, that
13 While the pension agreements expire on September 30, the basic could not understand why "such a large amount "as $7,000,000 was
collective agreements expire on December 31 invested in "Commercial Paper (Query Whose'), and that he also could14 The International's associate director of research had pointed out in not understand why over $24,000,000 of the fund's assets were "sold" only
this letter that, inter aha, whereas "most pension plans have about 50% of to have nearly $28,000,000 "purchased . in some other form "
their assets in stocks," this one had only 7 6 percent so invested, that he
CURTISS-WRIGHT CORPORATION 945
Respondent was willing to supply "a statement of
verification by an officer of the Chase Manhattan Bank
conditional upon the [Union bargaining] committee
recommending the Company's proposal."
It is conceded by Company Representative and Negotia-
tor Boles that during the pension negotiations the Union
sought, without success, among other things to ascertain
"the cost of [the] benefits . .. so they could determine what
benefits they could perhaps get under a different fund for
the same amount of money." Indeed, according to Boles, a
"constant theme" by Packles throughout the pension
negotiations was "the financial stability of the fund" and its
alleged poor performance during a good securities market
period. "I [Boles] made a statement at many of the
meetings that the company position was that we would
negotiate benefits [under the Curtiss-Wright Pension Plan]
with the union and not costs or the funding media."
Further, according to Boles, during the pension negotia-
tions in the fall of 1968, Packles "constantly attacked the
integrity [i.e., "the financial stability"] of the Fund .. .
Money was allegedly missing from it." In consequence, on
January 2, 1969 Boles [according to his testimony] for the
first and only time told Packles that the Company "would
permit an audit" but that if the Unions were "concerned
about the expense" the Company would provide "a letter
[from the fund trustee] to . . the Union's attorney,
verifying that the money was in the Fund as reported .. .
in the actuary's report." However, this "offer" of an audit
was predicated on Boles' assumption of union acceptance
of the Company's proposed pension plan modifications
"intact." Boles concedes that Boles did not "go into what
was meant by an audit" and that Boles did not "understand
what he [Packles] meant by audit." In January 1969,
Packles rejected Boles' offer to provide a statement by the
fund's trustee as to the worth of the pension plan, as a
substitute for the specific data or audit requested by the
Unions. According to an affidavit furnished by Boles to a
Board agent (sworn to June 19, 1970), Boles met personally
with Packles in January after January 3, 1969, and "gave
him [i.e. Packles] a company proposal relating to an audit
verification of the amount of the reported assets in the
Curtiss-Wright Pension Fund, to be made at Union
expense, or in the alternative delivery of a letter from a trust
officer of the Trustee bank [The Chase Manhattan Bank],
verifying the reported amount of the assets in the Pension
Fund, if such verification was needed by the Unions'
negotiating committees to induce their membership to accept
the proposal previously made by the Company." (Emphasis
supplied.) Boles refers to his offer throughout as a
"verification proposal" and as a "conditional proposal."
(Emphasis supplied.)
On March 6, 1969, the Unions filed with the Board's
Regional Director an unfair labor practices charge (Case
22-CA-3736) against Respondent, accusing it of not
bargaining collectively as required by the Act through
failure to supply the Unions with the requested bargaining
75 The General Counsel's Office of Appeals sustained the Regional
Director's determination that an employer is not required to bear the
expense of such a union audit The Unions here deny that the Company
ever made an offer to them to audit the pension fund at the Unions'
expense No hearing was held by the Regional Director on such an issue
In any event, Respondent has conceded upon the record here that the
data or audit allegedly essential to bargaining. By
agreement, the parties suspended their pension negotiations
pending disposition of this charge. On May 15, 1959, the
Regional Director, upon the authority of Tree Fruits Labor
Relations Committee, Inc., 121 NLRB 516, declined to issue
a complaint upon this charge, upon the ground that the
Unions had refused the Company's offer to audit the
pension fund at the Unions' own expense. The Unions'
appeal from this determination was rejected on November
12, 1969, by the General Counsel's Office of Appeals.15
The pension negotiations having thus, in accordance with
the parties' understanding, been held in abeyance pending
disposition of the Unions' March 6, 1969, charges,16 after
their final determination on November 12 the parties
resumed pension negotiations on December 15, 1969. By
this time, various Unions other than the Charging Parties
here had already entered into pension agreements with
Respondent.
At the resumed December 15, 1969, pension negotiations,
the Unions advanced various proposals, including one to
increase benefits by conversion to a contributory plan,
interdivisional transferability of pension credits, earlier
retirement, and reduction of age of death eligibility for
survivors' benefits. In connection with the ongoing
negotiations, the Union requested "the right to an audit of
the books [of the Pension Fund ] and we said we certainly
would pay for the audit . . . Audit the books of the fund, of
the security [ies ] and the moneys that were held which
formed the basis of the financial structure of this fund .. .
[b]y bringing in an auditor who could determine from the
securities that were held what the market value of each
securities was at the time of the audit, so we could
determine what the market price and the actual value of the
fund was at that time . . . Because we have never been able
to determine how much money was in that fund outside of
the fact that the company had contributed since 1952,
forty-five million dollars that was invested in the fund, and
that's the only figure we ever got . . . [O]ne of the
stockholders reports highlighted the fact that the fund was
not responsible for the benefits . . . we received a copy of
the stockholders report and this went out to all our
employees . . . and, in that, the company stated that there
was a nineteen million dollar liability and there was more in
another fund which we couldn't identify specifically stated
in there that the corporation was not liable for any of the
liabilities of the [pension] fund." Company response to the
Unions' request for the "audit" was that "they [i.e., the
Company] would give us [i.e., the Union] a letter on it."
And the Company also stated that "if we [i .e., the Unions]
didn't consummate an agreement by January the 31st [,
1970], that the company would withdraw its agreement on
the retroactivity to our retired members." According to
Packles, this was the first intimation to the Unions that the
"retroactivity" understanding was to be limited or modi-
fied; and, at his request, this likewise was reduced to writing
by the Company.
determinations of the Regional Director and of the General Counsel's
Office of Appeals are not controlling in the instant case-as indeed they
are not
16 On April 4 and 7, 1969, Boles and Kunz-in response to Packles'
letters of March 24, 1969-supplied Packles with lists of employee pension
plan members and their payments from or credits under the plan.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter the Union received letters dated December 16
and 17, 1969, from Boles for the Company's Curtiss
Division and Kunz for the Company's Electronics Division,
each stating that:
Retroactive application of the [Curtiss] [Electronics]
Division's [final Pension Plan] proposal to your Union
[made at the pension bargaining meeting on December
15, 1969] of specified increased benefits, as outlined by
the Division, is conditioned upon acceptance of that
proposal by your Union, together with the signing of a
Pension Agreement incorporating those specified increased
pension benefits, no later than January 31, 1970.
On and after February 1, 1970 the [Curtiss] [Electronics]
Division will negotiate increased pension benefits with
Lodge # 703 International Association of Machinists and
Aerospace Workers, AFL-CIO and the International
Association of Machinists and Aerospace Workers,
AFL-CIO only on a current basis. [Emphasis supplied.]
It is conceded by Respondent 17 that at the December 15,
1969, pension negotiating meeting, Packles on behalf of and as
spokesman for the Unions "asked. . for the right to audit the
books at the union 's expense. " Boles further concedes that, at
the December 15, 1969, meeting when Packles requested an
audit at the Unions' expense, among other things Packles
expressed concern over the financial status of the fund and
stated "that he wanted to know if there is money in the fund
to pay for the negotiated benefits and they didn't want to
bargain for pie in the sky."
Just before the inception of the December 15 meeting,
however, Boles and Kunz had been served with papers in
an equity action by the pension plan through the union
members of the Plan's Boards of Administration of the
Unions here, the Unions here, and certain employees suing
in a class capacity, as plaintiffs, against the Company and
the Employer members of those boards of administration.18
That action, a civil suit in equity in New Jersey,
subsequently removed by the Company to Federal court,
was in the nature of a discovery proceeding to compel
disclosure through an audit of the fund's assets and
finances . As of the time of the conclusion of the hearing in
the instant case, that proceeding (including an order to
show cause for relief pendente lice therein), which the
General Counsel of the Board (and seemingly also the
Company) apparently moved to dismiss on preemption
grounds, was still undetermined, as were various motions
therein.
As has been indicated, at the December 15, 1969, pension
negotiating meeting Packles concededly made a request or
offer to audit the Pension Fund at the Unions' own
expense. Boles' response was that "I [Boles] would give him
[Packles] a proposal on it." Thereafter, according to Boles,
Respondent's officials, after discussing Packles' offer,
"decided that we could not now agree to an audit since we had
been advised by outside counsel who was handling the court
case that this could have an adverse effect upon the case."
(Emphasis supplied.)
Ir Testimony of Boles on cross-examination
19 Boles and Kunz (as well as others) were served in that suit on
December 15, 1969, dust before the pension negotiating meeting of that
day To at least Boles' knowledge, the Company itself had been served in
that suit on December 12
19 On cross-examination, Kunz acknowledged he had also employed the
At the ensuing January 5, 1970, pension negotiating
meeting, the Unions advanced various proposals regarding
changes they desired in the pension fund, including
transferability instead of loss of pension credits upon an
employee's transfer from one division to another division of
the Company; increase of benefits; conversion of the fund
to a contributory fund; and reduction of age eligibility
requirements for retirement and survivors' death benefits.
The Unions' proposals were all turned down by the
Company. The Unions several times at this meeting
renewed their request for an "audit" of the fund. According
to Respondent's witness and negotiator, Kunz, Packles
"opened the [January 5, 1970] meeting with a reference to
the National Labor Relations Board disposition there of the
Union's charge. And he [Packles] stated. . .`You told the
Board that we could look at the books at the Union's
expense. We are willing to take you up on [your] offer.' "
Kunz' response to this was negative-as he put it, "this is a
brand new ball game . . . in view of the litigation
proceedings initiated by the union, where at one time there
we would have looked at the request for audit in one light,
we have to look at it in a different light altogether." 19 Boles
(according to his testimony) stated that the Company was
informing the Union "officially that we [i.e., the Company]
would not conduct the audit because of the court suit which
was pending, because we did not know the effect of it."
Boles and Kunz thereupon handed the Union a letter from
themselves to the Unions' combined negotiating committee
dated that date (i.e., January 5, 1970), as follows:
[Letterhead of Curtiss-Wright Corporation ]
January 5, 1970
To the Members of the Combined Negotiating
Committee for Aircraft Lodge No. 703 IAMAW,
Curtiss Division, Aircraft Lodge No. 703 IAMAW,
Electronics Division and Lodge No. 974, Engineers and
Technicians, IAMAW Curtiss Division.
Dear Sirs:
In conjunction with the pension negotiations now in
process between Curtiss-Wright's Curtiss and Electron-
ics Divisions and the above Unions, the Company's
negotiators are willing to obtain for the Union
negotiators a letter signed by an officer of the Chase
Manhattan Bank as Trustee under the Curtiss-Wright
Pension Plan, verifying that as of December 31, 1968,
the assets in the Curtiss-Wright Pension Plan Trust
Fund were $45,436,148.88, as stated in the latest
available published Actuary's Report as of December
31, 1968.
Please understand that this offer to furnish such a
letter, or the actual furnishing of such a letter if requested
by you, does not constitute in any way a recognition or
admission of the validity of any allegations contained in
the Complaint recently served upon the Curtiss-Wright
Corporation and the other defendants named therein.
"new ball game" expression at the December 15, 1969, meeting. Packles
denies that Boles or Kunz then or at any other time mentioned the equity
suit to him as a reason for refusing an audit The resulting testimonial
conflict on this point need not be resolved, since it is unimportant See
infra
CURTISS-WRIGHT CORPORATION 947
The information in the proposed letter will be
furnished without reference to that suit , which is deemed
to be without merit.
Please advise the undersigned as soon as possible in
writing whether you wish to be furnished with such a
letter from the Bank as Trustee.
Very truly yours,
/s/ W. F. Boles
For Curtiss Division
/s/ V. Kunz
For Electronics Division
On the same day (January 5, 1970), the Unions filed the
charges resulting in the proceeding here for determination.
It is conceded by Respondent20 that at subsequent
negotiating meetings later in January (January 12, 19, and
20), 1970, Packles renewed his requests for an "audit at the
union's expense" and "for the extension of the retroactivity
date . . . beyond January 31, 1970." Respondent's response
was, as testified by Boles, that "We denied the audit .. .
because of the situation involving the court suit"
The Company's actual written pension proposals were
transmitted to the Union on January 12, 1970.21 Thus, on
January 12, 1970, Company Negotiator Boles wrote Union
Negotiator Packles a letter enclosing the Company's "final
offer" as to pension plan modifications. The letter also
expressly conditioned retroactivity of these proposed changes
upon the Union's signature to the company proposal no later
than January 31, 1971, after which the Company indicated
it would negotiate any increased pension benefits "only on
a current basis." Boles concedes that the Company's "final
offer was almost identical" to its original offer. Thereafter,
on January 19, 1970 (according to Boles), the Company
received the Unions' first and only written counterproposal
thereto, but the Company continued steadfastly to refuse to
extend "retroactivity" beyond January 31, 1970.
Under the foregoing circumstances, faced with the
Company's written threat of cancellation or withdrawal of
retroactivity unless a pension agreement was executed by
January 31, Packles and the other representatives of the
Unions who are Charging Parties here, on January 30, 1970,
in the presence of the parties' respective counsel, signed the
Company's proposed pension agreements covering the
period October 1, 1968, to September 30, 1971,22 but only
after adding thereto the following proviso above their
signatures:
In executing this agreement the [Union] expressly
reserves, and does not waive any rights it has under
proceedings pending before the NLRB and the United
States District Court for the District of New Jersey.
20 Testimony of Respondent ' s witness Boles on direct examination
21 A posthearing exchange of letters among counsel and to the trial
examiner makes this clear See April 5, 1971, letter of Charging Parties'
counsel to Respondent 's counsel All of this correspondence is hereby
incorporated into the record
22 As has been indicated, by then at least some bargaining units
represented by unions other than the Charging Parties here had entered
into agreements accepting the pension changes offered by the Company
without disclosure of the data sought by the Charging Party Unions here
for bargaining purposes
23 It may be observed that , in view of provisions of the basic pension
Two days later the same agreement, with the same proviso,
was executed covering the Company's Electronics Division,
on behalf of Lodge 703. As explained by Packles, the
Unions signed these agreements, under the circumstances
described, only because the Unions had been unsuccessful
in obtaining an audit of the fund, had filed charges with the
Board as well as a civil action in equity to secure the same,
and were faced with the fact that "the company had
threatened us [in its letter of January 12, 1970] with the
deadline of January 31st [on which retroactivity of any
pension modifications would be withdrawn if not agreed to
in writing by the Unions], we [the Unions] would have
jeopardized seventeen months of benefits [i.e., since
October 1, 1968] for those people who were on retirement
receiving pension from the company, and this is the reason
we went ahead and signed it in this fashion [i.e., with the
indicated proviso preceding the signatures], under instruc-
tions by my membership."
Respondent's witness and chief negotiator, Boles,
testified that between the resumption of pension negotia-
tions on December 15, 1969, and the execution of the
pension agreement on January 30, 1970, there were
approximately five negotiating sessions, at each of which
the Unions requested but the Company refused to extend
the Company's announced January 31, 1970, deadline date
for retroactivity. The January 30, 1970, agreements covered
two unions at Respondent's Curtiss Division and one at its
Electronics Division. Prior to executing these agreements,
Packles-still according to testimony of Boles-"again
asked for an audit and again asked to extend the
[retroactivity] date of January 31st, 1970. . . . My [i.e.,
Boles'] response was no in each case." With regard to the
proviso added by Packles above his signature, Packles
stated "that the company would have to agree to that
language or the union would not sign without it."
As is evident from the foregoing, the Unions here have in
one form or another during the course of their 1968-70
pension negotiations been requesting the Company for data
or an audit concerning the pension fund, including its
specific assets and their values, as well as its transactions.
While supplying certain information to the Unions,
nevertheless, as shown, the Company's tangible response
touching those matters, during the course of the bargaining,
was its January 5, 1970, letter, set forth above, offering to
provide a letter from the fund's corporate trustee "verifying
that as of December 31, 1968, the assets in the Curtiss-
Wright Pension Plan Trust Fund were $45,436,148.88, as
stated in the latest available published Actuary's Report as
of December 31, 1968."23 It is not open to dispute that in
plan (G C Exh. 2, p 25, par. 48), such a fund could consist in whole or in
part of the stock of the Company itself (or of its subsidiaries), in which
case the fund would be hardly more than at best a promissory obligation of
the Company itself , as distinguished , for example , from a dollar trust fund.
The foregoing is not to suggest that the Fund in fact so consists in whole or
in part, nor that, even if it does , such would constitute an unfair labor
practice in violation of the Act, it is mentioned only to reflect a facet of the
employees ' bargaining representative 's (i.e, the Unions ') asserted need to
know more about the pension fund (e g, its liquidity and stability) in order
to be able to bargain knowledgeably and intelligently concerning the
employees' pensions
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact no data disclosure or audit of the nature desired took
place here prior to the hearing of the instant proceeding,24
and that at no such time has the Union received any data
concerning the assets of the pension fund, other than the
actuary's report stating the alleged total assets of
$42,224,681.28.25 It is, finally, undisputed that at no time
during the pension negotiations has the Company explicitly
claimed, nor has it raised any issue concerning or called
into question, financial inability to meet any pension
demand by the Unions; on the other hand, as expressed by
Packles, "They wouldn't let us talk about finances." 26
As will have been noted, the basic facts are disputed in
only two respects worthy of mention. These concern (1) the
true nature of the parties' "retroactivity understanding"
and (2) whether the Unions prior to December 15, 1969
signified willingness to conduct the requested audit at their
own expense.27 Neither of these issues is, however, of
significance here. As to the first ("retroactivity"), although I
find that the parties' understanding at the inception of their
pension negotiations in September 1968 was indeed that, as
in the past, any pension modifications agreed upon would
be retroactive to the date of expiration of their last pension
agreement, this was nevertheless subject to the implied if
not express condition that a new pension agreement be
concluded within a "reasonable" time. I view of the
circumstances here, including the holding of the pension
negotiations in abeyance by agreement pending resolution
of the official proceedings before the Board, the duration of
"reasonable" must in fair contemplation be considered
tolled or extended beyond what it would otherwise be.
Furthermore, in view of the determination hereinafter
reached concerning Respondent's obligation to furnish the
Unions with necessary bargaining information or an audit
at the Unions' expense, the "reasonable" time limitation on
retroactivity must fall, in view of the unlawfulness of
Respondent's refusal to furnish such information or permit
such an audit. A party may not gain advantage from his
own unlawful conduct by pressuring another party into
suffering disadvantage unless he joins in its exercise. As to
the second potential factual issue-namely, whether the
24 An audit took place during the pendency of the instant proceeding
pursuant to an abortive settlement attempt discussed below
25 The Union has also had access to the report or reports filed by or on
behalf of the pension fund with the Secretary of Labor, but these likewise
contain no information of the nature desired by the Union The Union
desires, among other things, to know the fund's investments and profits
and losses thereon, as well as values, and its other specific assets, as
distinguished from mere unrevealing alleged, so-denominated total
"assets "
28 That refusal to discuss economic matters may under certain
circumstances amount or be equivalent to the taking of a position of
economic inability to meet the other side's bargaining demand, without
necessity for such an assertion in haec verba, cf, e g, N L R B v Western
Wirebound Box Co, 356 F 2d 88 (C A 9), Stockton District Kidney Bean
Growers, 165 NLRB 223 (employer denying access to books declared it was
in "no mood" to increase costs, held, tantamount to plea of economic
inability), Taylor Foundry Company, 141 NLRB 765, 766-67, enfd 338 F 2d
1003 (C A 5), Tennessee Chair Company, Inc, 126 NLRB 1357, Tennessee
Coal & Iron Division, US Steel Corp, 122 NLRB 1519, B L Montague
Company, 116 NLRB 554
21 This matter is sharply disputed Packles insists that from the very
start of the pension negotiations the Unions were willing to pay the cost of
the requested audit, even though they did not at first expressly so specify,
and that around the third meeting (October or November 1968) he did so
specify, even to the extent of identifying Price, Waterhouse and Company
as the Unions' auditors who would perform the requested audit, but that
Unions agreed prior to December 15, 1969, to stand the
expense of the requested audit-that question is academic
here, in view of Respondent's concession that on and since
December 15, 1969, the Unions expressed willingness to
pay for the audit. Respondent's refusal to consent to a
Union-paid audit on and since that time upon the basis of
the Unions' institution of the equity discovery proceeding
overlooks the fact that if Respondent had permitted an
audit there would not have been such litigation, and also
the fact that that litigation as well as the instant proceeding
could presumably readily have been terminated through
stipulation or consent order.
C. Resolution and Rationale
1. Are the Unions entitled to an audit of (or
equivalent data concerning ) the pension fund in
connection with collective bargaining?
The basic question presented is whether, under the
circumstances shown, the Unions are entitled to the data
they seek from the Employer, through an audit at the
Unions' expense (or through equivalent appropriate
means), relative to the pension fund, in connection with
collective bargaining concerning pensions covering the
employees in the bargaining units they represent. If they
are, Respondent has violated the Act by denying it to them.
Sections 8(a)(5) and 9(a) of the Act mandate that an
employer bargain collectively with its employees' designat-
ed bargaining representative concerning "rates of pay,
wages, hours of employment, or other conditions of
employment." Large numbers of cases, enforcing this
requirement, violation of which is an unfair labor practice,
have reiterated a union's right to obtain from the employer
relevant information, typically wage-related data, for
bargaining purposes. See, e .g., N.L.R.B. v. F. W. Woolworth
Co., 352 U.S. 938; Korn Industries, Inc. v. N.L.R.B., 389
F.2d 117 (C.A. 4), clarified F.2d, 67 LRRM 2976 (C.A. 4);
Curtiss-Wright Corp. v. N L R.B., 347 F.2d 61, 68 (C.A. 3);
Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746, 751
Boles turned this down and bluntly asserted that "The company wasn't
willing to let the union audit the books"-a position which the Company at
no time changed Taking a directly contrary position, Boles denies that
Packles at any time prior to December 15, 1969 offered to him to pay for the
expense of an audit Respondent's counsel took the position at the hearing
that Respondent actually "offered or invited the union to make an audit at
its own expense" -a position characterized by Packles as "absolutely
false" In the Unions' view, the Regional Director's assigned reason for
declining to issue a complaint based upon the Unions' earlier charge (Case
22-CA-3736) - viz, that "The Employer was willing to permit the Union
to audit the fund at its own expense but the Union denied [ sic] this
offer"-was demonstrably without factual basis (assuming that "declined"
was intended rather than "denied"), but the Unions were not afforded any
hearing or other opportunity to establish otherwise According to Packles,
he in effect pointed this out at the parties' initial resumed bargaining
session in December 1969, where he disputed the Company' s alleged
assertion to the Regional Director that the Unions had refused to pay the
cost of an audit, and insisted that the Unions had always been and still
were willing to pay such cost As has been indicated above, Respondent
concedes that on and since the resumed negotiations of December 15,
1969, the Unions have explicitly expressed their willingness to pay the cost
of the audit For reasons explicated in the text, resolution of the parties'
factual dispute as to whether the Unions were also willing prior to
December 15, 1969, to pay the cost of the audit is unnecessary and
academic here
CURTISS-WRIGHT CORPORATION
(C.A. 6), cert. denied 376 U.S. 971; N L R B v. Fitzgerald
Mills Corp, 313 F.2d 260, 265 (C.A. 2), cert. denied 375
U.S. 834, N.L.R.B. v. John S Swift Co., 277 F.2d 641, 645
(C.A. 7); J. I. Case Co v. N.L.R.B., 253 F.2d 149, 153-56
(C.A. 7); Taylor Forge & Pipe Works v. N.L.R B., 234 F.2d
227 230-31 (C.A. 7), cert. denied 352 U.S. 942; Utica
Observer-Dispatch, Inc. v. N. L. R. B., 229 F.2d 575 (C.A. 2);
Boston Herald-Traveler Corp v. N L R.B., 223 F.2d 58,
60-61 (C.A. 1); N.L R B v. Item Company, 220 F.2d 956,
958 (C.A. 5), cert. denied 350 U.S. 836; N.L.R.B. v. Whitin
Machine Works, 217 F 2d 593 (C.A. 4), cert. denied 349
U.S. 905; N.L.R.B v. Yawman & Erbe Mfg. Co, 187 F.2d
947, 949 (C.A. 2). So well-settled does this proposition
appear to be by this time, that it has been stated that "a
union's right to such information cannot be seriously
challenged." International Woodworkers of America v.
N. L. R. B., 263 F.2d 483, 484 (C.A D C.).
A landmark case dealing with the scope of employer duty
to make available to its employees' bargaining representa-
tive data reasonably necessary for informed bargaining, is
N. L. R. B. v. Truitt Mfg. Co., 351 U S. 149 (1956). There the
Court, reversing the Fourth Circuit Court of Appeals
(which had taken a position contrary to that of the Second
Circuit in N. L. R. B. v Jacobs Mfg. Co., 196 F.2d 680), held
that an employer's refusal of a bargaining representative's
attempt through audit or equivalent means to substantiate
the employer's claim of economic inability to increase
wages, may support a Board finding of employer failure to
bargain in good faith under the Act. In reaching that
conclusion, the Court stated, 351 U.S. at 152-53:
We think that in determining whether the obligation of
good-faith bargaining has been met the Board has a
right to consider an employer's refusal to give
information about its financial status. While Congress
did not compel agreement between employers and
bargaining representatives, it did require collective
bargaining in the hope that agreements would result.
... Claims for increased wages have sometimes been
abandoned because of an employer's unsatisfactory
business condition, employees have even voted to
accept wage decreases because of such conditions.
Good-faith bargaining necessarily requires that claims
made by either bargainer should be honest claims. This
is true about an asserted inability to pay an increase in
wages. If such an argument is important enough to
present in the give and take of bargaining, it is
important enough to require some sort of proof of its
accuracy. And it would certainly not be farfetched for a
trier of fact to reach the conclusion that bargaining
lacks good faith when an employer mechanically
repeats a claim of inability to pay without making the
slightest effort to substantiate the claim. Such has been
the holding of the Labor Board since shortly after the
passage of the Wagner Act.
The Court went on to caution that it was not holding that
"in every case in which economic inability is raised as an
argument against increased wages it automatically follows
28 To the same effect, that refusal to supply bargaining data is merely
evidence of bad faith , see N L R B v Insurance Agents ' International Union,
361 U S 477, but cf Curusr-Wright Corp, 347 F 2d 61 (C A 3), that once
it is established that requested data are relevant , refusal to produce the
same is per se a refusal to bargain See also , Puerto Rico Telephone Co v
949
that the employees are entitled to substantiating evidence"
id. at 153); and that (id. at 153-54):
Each case must turn upon its particular facts. The
inquiry must always be whether or not under the
circumstances of the particular case the statutory
obligation to bargain in good faith has been met.28
Data concerning "terms and conditions of employment"
have been required to be supplied or made available for
bargaining purposes on the same basis as wage data. Such
other data have included information regarding insurance,
health and welfare plans, and also pension plans. N.L.R.B.
v. Feed & Supply Center, Inc., 294 F.2d 650 (C.A. 9);
N L.R.B. v. John S. Swift Co., 277 F.2d 641 (C.A. 7);
Industrial Welding Co., 175 NLRB No. 78; The Rangaire
Corporation, 157 NLRB 682; Skyland Hosiery Mills, Inc.,
108 NLRB 1600.
In Sylvania Electric Products, Inc., 127 NLRB 924 (1960;
"Sylvania No 1" herein), the Board held an employer in
violation of Section 8(a)(5) and (1) for refusing to provide
its employees' bargaining representative with data, relevant
to bargaining, concerning the employer's noncontributory
group insurance plan-including the premiums paid by the
employer for the prior two years, and the current premium
rates. The employees' bargaining representative stated it
needed this information in order to make a " `proper re-
evaluation' of the insurance program before contract
negotiations. . . . [and] that it could not intelligently frame
its economic demands without it . . . [since] if it knew the
cost of the new insurance benefits . . . it might prefer
increases in other benefits or wages which would better suit
the employees" (127 NLRB 924-925). In support of its
determination that the employer's refusal to supply the
requested information to the bargaining representative was
violative of the Act's requirements, the Board (127 NLRB
926) quoted from Inland Steel Company, 77 NLRB 1, enfd.
170 F.2d 247 (C.A. 7), cert. denied 336 U.S. 960, a case
involving a pension system:
Regardless of the particular economic considerations
that may motivate the establishment of a pension
system, the fact remains that the employer' s financial
contribution thereto, in whole or in part, on behalf of
the employees provides a desirable form of insurance
annuity which employees could otherwise obtain only
by creating a reserve out of their current money wages
or by purchasing similar protection on the open market.
In substance, therefore, the respondent's monetary
contribution to the pension plan constitutes an
economic enhancement of the employee's money
wages. Their actual total current compensation is
reflected by both types of items.
The Board accordingly concluded that the employer was
required to furnish such data, "relevant to the Union's task
as bargaining agent of Respondent's employees" (id. at
926), to the Union for bargaining purposes under the Act.
Enforcement of Sylvania No 1 was denied by the First
Circuit Court of Appeals, 291 F.2d 128 (1961), which took
the view, contrary to that of the Board, that since the
N L R B, 359 F 2d 983 (C A 1); Timken Roller Bearing Co v N L R.B,
325 F.2d 746 (C A 6), cert denied 376 U S 971, in upholding the right to
the data, the court appears to emphasize its necessity or importance in the
contract administration
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company's group insurance program was noncontributory
it "was neither a wage `nor a term or condition of
employment,' within any generally accepted meaning of the
terms" (id. at 131). In reaching this result, however, the
court drew a distinction between, on the one hand, (1) the
employer's costs (i.e., payments by the employer into the
fund), as to which the court held the union not entitled to
information, and, on the other hand, (2) the benefits paid
out of that fund, as to which the court indicated the union
entitled to information. The court stated, 291 F.2d at 131:
This court held in W. W. Cross & Co. v. N.L.R.B.,
Supra (174 F.2d 875; C.A. 1) That The Benefits
of an Employee group insurance plan were
`wages ' within the meaning of that word as used in the
pertinent sections of the Act since they constituted
emoluments resulting from employment or direct and
immediate economic benefits flowing from the employ-
ment relationship, and hence were matters as to which
the Act required employers to bargain collectively in
good faith with the union representing an appropriate
group of employees. We adhere to that decision. It is
quite another matter, however, to go further and
endorse the Board's broad conclusion that the cost of a
group insurance program defrayed entirely by the
employer also constitutes ` wages ' to employees.
The court took occasion also to state, id. at 131-32:
That is not to say, however, that under no circum-
stances is a union entitled to information as to the cost
of non-contributory programs like the present. The
benefits of plans like Sylvania's constitute "wages" to its
employees. W.W Cross & Co. v. N.L.R.B., supra. Thus
to meet the requirement of good faith in bargaining
with respect to benefits as wages, an employer must
make available to the employees' representative what-
ever facts and data may be relevant and necessary to
informed and realistic bargaining as to benefits.
Yawman and Erbe, 89 NLRB 881, enfd. 187 F.2d 447. See
International Woodworkers of America, etc., v. N. L. R. B.,
2 Cir., 1951, 1959, 105 U.S. App. D.C. 37, 263 F.2d 483;
Boston Herald-Traveler Corp. v. N. L. R. B., I Cir., 1955,
223 F.2d 58, and cases cited therein. It was therefore
incumbent upon Sylvania to disclose the scope and
amount of the coverage afforded by its plan as it did. Its
duty of disclosure does not, however, necessarily stop
there for the Court in N.L.R.B. v. Truitt Mfg. Co., 1956,
351 U.S. 149 . . . [stated] that each case must
be decided on its own particular facts and
that "The inquiry must always be whether or not under
the circumstances of the particular case the statutory
obligation to bargain in good faith has been met"
29
The Board's petition for certionari was denied 368 U.S.
926.
Expressly disavowing the First Circuit's distinction in
Sylvania No. 1 between "costs" and "benefits," the Board in
The Electric Furnace Co., etc., 137 NLRB 1077 (1962), held
an employer in violation of Section 8(a)(5) and (1) for
29 The court then indicated that since during negotiations no issue of
costs was raised which might bear on the employer's willingness to
entertain changes in the plan, the employer had not opened the door to
discussion of cost factors and they accordingly need not be furnished to the
union under Truitt, supra
refusing to supply its employees' bargaining representative
with certain pension plan data concerning both the
employer's financing of and the employees' benefits
accruing or to accrue under the plan, which was a
noncontributory and essentially nonvested plan. The Board
indicated (id. at 1080) that "Lacking this information, the
Union would be hampered in formulating proposals with
respect to benefits .... The Board, while expressly
declining to acquiesce in the First Circuit's distinction in
Sylvania No. I between costs and benefits of a noncontribu-
tory employer plan (id. at 1080), neverless pointed out that
even under the court' s rationale the employer in The
Electric Furnace Co. had failed to furnish pertinent data
essential to "a considered reappraisal of an important
bargaining objective, the protection and determination of
pension rights" (id. at 1080-81). Although the Sixth Circuit
Court of Appeals denied enforcement, 327 F.2d 373 (1964),
it is to be noted that its action was based upon the ground
that under the circumstances-involving attempted reins-
tatement of a withdrawn and dismissed complaint-the
proceeding was barred in view of the expiration of the
statutory period of limitations provided by Section 10(b) of
the Act.3o
In Sylvania Electric Products, Inc., 154 NLRB 1756 (1965;
herein "Sylvania No. 2"), the Board again determined that
Sylvania had violated Section 8(a)(5) and (1) by refusing to
supply to its employees' bargaining agent data concerning
the costs of proposed improvements in its pension and
group insurance plans. Relying on the court's refusal to
enforce the Board's earlier decision in Sylvania No. 1, supra,
the employer appealed. This time the court (358 F.2d 591
[C.A. 1]; 1966), while rejecting the Board' s suggestion that
it reconsider its position in Sylvania No. 1, enforced the
Board's order, upon the ground that the course of the
bargaining showed that the employer had made cost factors
bargainable , thereby coming within the Truitt rule as
pointed out by the court itself in Sylvania No. I (quoted
supra). Costs were rendered a bargainable issue, according
to the court, by reason of the fact that the employer had
proposed as part of a "package" for its employees certain
changes in the plan, thereby giving the union the right to
cost data in order to weigh the employer's improved
pension (and insurance) plan offer against the possible
alternative of increased take-home pay. The court stated,
358 F.2d at 592-593:
.. . the Board says that a party who withholds
information that would significantly aid the bargaining
process, only for the sake of keeping the other in the
dark, may not be, and is not in this case, bargaining in
good faith. We accepted that principle in Boston Herald-
Traveler Corp. v. N.L.R.B. I Cir., 1955, 223 F.2d 58. See
also N.L.R.B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 76
S. Ct. 753, 100 L.Ed. 1027. Its application involves
questions of degree, including degrees of relevance.
An employer is not required to disclose welfare plan
cost information for the purpose of bargaining about
whether he is receiving the best coverage for his money,
30 The court accordingly expressly stated that , in view of its conclusion
that the proceeding was barred by Sec. 10(b), "It therefore is not necessary
for this Court to pass upon the question of whether the Company's refusal
to furnish this pension information constituted a refusal to bargain, in
violation of § 8 (aX5)." 327 F 2d at 376.
CURTISS-WRIGHT CORPORATION 951
because he is not obliged to discuss this matter with the
union . Sylvania [No. 1], supra. However, when the
union makes the same demand in order better to
evaluate the desirability of an increase in welfare
benefits as against an equivalent increase in take-home
pay31, matters as to which the employer must bargain,
the Board might properly conclude that the informa-
tion, though collateral, was so necessary to effective
negotiation that withholding it without good reason was
inconsistent with the duty to "exert every reasonable
effort to make and maintain agreements ." N.L.R.B. v.
Truitt Mfg. Co., supra, at 152, 76 S. Ct. at 755.
This time the employer's petition for certiorari was denied,
385 U.S. 852 . In referring to the two Sylvania cases, Circuit
Judge Kaufman, speaking for the Second Circuit Court of
Appeals in N. L. R. B. v. General Electric Company, 418 F.2d
736, 750 fn. 6 (C.A 2; 1969), cert denied 397 U.S. 965,
commented that "the second Sylvania case expressly
distinguished the first almost to the point of extinction."
It will have been noted that even under the court's
decision in Sylvania No. 1, (1) an employees' bargaining
representative is entitled to data relevant to bargaining
concerning pension benefits, which is at least in substantial
part the issue tendered in the instant case; 32 and (2) under
certain circumstances an employees' bargaining representa-
tive is also "entitled to information as to the cost of non-
contributory programs . . . to meet the requirement of
good faith in bargaining" as well as to "whatever facts and
data may be relevant and necessary to informed and
realistic bargaining as to benefits" (291 F.2d at 131-132).
The circumstances of the parties' negotiations in the instant
case , as detailed above, including the Employer's opening
of numerous informational doors-including doors which
could appropriately be labelled both "costs" and
"benefits"-in my opinion fairly require that the employ-
ees' bargaining representative be permitted to step further
within those already opened doors, in order to have access
to those raw facts which are not only relevant but which
have been made essential for intelligent and informed
bargaining , as well as proper exertion of its fiduciary
responsibilities to the employees, in the situation presented.
Directly in line with the Supreme Court's admonition in
Truitt, supra, 351 U.S. at 153-154 that "Each case must turn
upon its particular facts. The inquiry must always be
whether or not under the circumstances of the particular
case the statutory obligation to bargain in good faith33 has
been met ," the circumstances here in my opinion reason-
ably conduce to requiring the Employer to make available
the data requested by its employees' bargaining representa-
tive for the purpose of conducting that fair-level, meaning-
ful collective bargaining contemplated by the Act 34
In Curtiss-Wright Corporation, Wright Aeronautical
Division v. N.L.R.B., 347 F.2d 61 (C.A. 3; 1965), the court,
enforcing an order of the Board requiring Curtiss-Wright to
31 Substantial credible evidence establishes this to be the situation in the
instant case and I so find.
32 Respondent here as early as November 22, 1968 supplied the Unions
with some data concerning costs by way of the Employer's annual
contributions
33 As stated, also by the Supreme Court, in N. L R B v American
National Insurance Co, 343 U.S 395, 410, " 'good faith' can have meaning
only in its application to the particular facts of a particular case "
supply wage and related bargaining information to its
employees ' collective-bargaining representative , agreed
that it is an unfair labor practice in violation of Section
8(a)(5) and (1) of the Act for an employer to deny relevant
and therefore reasonably necessary data required for
administration of the employees ' bargaining representa-
tive's obligations to the employees ; and that the employer's
good faith in rejecting the request for such data is not a
defense to the violation . The court further held that wage
and related information touching represented employees is
presumptively relevant in collective bargaining , so that the
employees ' bargaining representative is not required to
establish its precise relevance as a precondition to its
request ; that as to other types of data , the standard of
relevance is to be determined by the circumstances of the
case ; and that the employer 's refusal to produce relevant
requested information is per se a violation of the Act. In the
course of arriving at these conclusions , the court stated, 347
F.2d at 68 and 70;
The Board . . . holds the proper rule to be that if the
requested data is relevant and , therefore reasonably
necessary , to a union 's role as bargaining agent in the
administration of a collective bargaining agreement, it
is an unfair labor practice within the meaning of Section
8(a)(5) of the Act for an employer to refuse to furnish
the requested data . With that conception of the
employer's duty to bargain this court is in agreement.
... Without the disclosure of relevant information
both contract negotiations and the institution of
grievance and arbitration procedures under existing
agreements would be hampered . Merely meeting and
conferring without a prior exchange of requested data,
where such is relevant , does not facilitate effective
collective bargaining and, therefore , does not meet the
requirements of Section 8(a)(1) and (5). Because of the
need to facilitate effective collective bargaining, a
refusal to furnish data is an unfair labor practice
notwithstanding the good faith of an employer in
rejecting the request . This has been the declared policy
of many of the circuit courts. [Citations]
s s :
... It is well within the responsibility of the Union in
the instant case in executing its duty to protect the
interests of the employees in the bargaining unit it
represents to closely scrutinize all facets relating to any
encroachment upon the rights of those unit employees
to the end that a stable employment structure for the
members of the bargaining unit may be maintained."
In the instant case , it is undisputed that the employees'
bargaining representative at the outset of the pension
negotiations advanced and thereafter regularly reiterat-
ed to the Employer its reasons for needing the requested
information, which the Employer has not persuasively
34 Although I believe that this result is consistent with Sylvania No I as
well as with Sylvania No 2 (see also fn . 26, supra), even were it otherwise I
would be required to adhere to the views of the Board rather than to
contrary views of an unaffirmed Circuit unacquiesced in by the Board.
Iowa Beef Packers, Inc, 144 NLRB 615; Insurance Agents' International
Union (The Prudential Insurance Company of America), 119 NLRB 768,
Lenz Company, 153 NLRB 1399.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrated to be not reasonably related to the
subject of the parties' negotiations.
At bar, General Counsel and the employees' bargaining
representatives point out that pensions are a mandatory
bargaining subject (Peter Satort Co., Ltd., 175 NLRB No.
6). They argue tellingly that in order to be able to conduct
informed, intelligent, and meaningful negotiations, in
proper performance of their legal obligations toward the
employees they represent, they must have access to the raw
facts around which bargaining centers and without which
the give-and-take of bargaining cannot effectively occur;
including the Fund's portfolio breakdown (Phelps Dodge
Copper Products Corporation, 101 NLRB 360). They call
attention to the fact that because of alleged unexplained
"losses" and "liabilities" of the Pension Fund, reported in
the most general way, and depending upon what the true
specific underlying facts are, the Unions in their adminis-
tration of their responsibilities including that of collective
bargaining could "very well decide that it isn't worth it to
go for higher benefits in the [pension] fund but to take the
benefits in the form of wages or other benefits"-an
important decision which the bargaining representatives
could not make while in ignorance of "knowing how the
[pension] fund is going, whether there will be enough left of
the fund in case of a plant closedown." They point out that
pension bargaining and results are tied in to more or less
concurrent as well as upcoming and future wage negotia-
tions and are reflected therein, as well as reflected
conversely. And they state that the pending limited equity
discovery proceeding is no solution to the problem here,
which is continuing and resolvable only by an order
governing the style of future bargaining.
There is no warrant for concluding or assuming that the
Unions desire the requested data for any improper purpose
or use. On the contrary, the evidence establishes and I find
that the Unions justifiably desired the data in order to
formulate their demands and evaluate the Employer's
pension offers during negotiations, and so as to be able to
determine whether their demands were reasonable or
should be scaled down, as well as to be able to consider
whether to shift the costs of the pension proposals to wages
or other more immediate or tangible betterments which
might be deemed more advantageous or appropriate. These
are all legitimate, indeed core, purposes and objectives of
bargaining; it is difficult to comprehend how intelligent,
meaningful, and proper bargaining can take place in their
absence. Employer denial of access to this information may
for practical purposes be tantamount to interposition of a
trench or hurdle which the bargaining representative
cannot leap or surmount, such as to halt the usually
interactive movement of the bargaining process. Further-
more, the employees' bargaining representatives were
thereby reduced to the awkward and even demeaning
position where they could not sensibly report to their own
constituents any comprehensible basis for their actions,
decisions, or recommendations. All of this reduces to a
as This is true even if the pensions are nonvested, although there is
uncontroverted testimony and other indication of record here that some of
the pensions are vested or that the pensions are in certain respects vested.
Even some of the most formal express trusts are subject to all manner of
shambles the good-faith collective bargaining which the
Act contemplates, encourages, and requires.
Parties cannot bargain sensibly about something unless
they have a reasonable idea of what the "something" is that
they are bargaining about. Employees have a very real and
direct stake in their pensions; when, as here, those pensions
are trusteed, employee beneficiaries are in a position at
least somewhat analogous to that of cestuis qui trustent.35
Under these circumstances, there is no reason why they
should have to approach the bargaining table cap-in-hand
and attempt to engage in shadow-box negotiation about a
"mystery package" rather than from knowledge. Lacking
clear data as to the precise nature, contents, and verifiable
values of the securities and unsecured obligations compris-
ing the fund's portfolio, it is difficult to see how a
bargaining representative could conduct informed and
intelligent, let alone sophisticated, bargaining concerning
even the key question of how much the "Fund" can afford
to or should providently expend. No persuasive reason has
been advanced why access to such data, concededly in the
Employer's possession and control, should be denied to the
employees' bargaining representative.
The stability of a fund is directly reflected in negotiating
demands and outcomes relating to the fund. This is because
negotiators on both sides are really concerned with
economic values-both demanded values and paid-out
values. A seller, as well as a buyer, is entitled to know
whether the consideration for a sale or other bargained
result is real dollars or confederate money. The nature of a
negotiator's bargaining demands may directly depend upon
whether he is negotiating for cash dollars, bonds (including
whose), "gold chip" common stocks, speculative securities,
or unsecured obligations of the party (or of a satellite of the
party) with whom he is bargaining. And, except as to real
dollars on deposit with a responsible third party, the value
of "securities"-whatever their form-which comprise in
whole or in part the corpus of a trust, as herein-is
frequently if not invariably subject to differing appraisal by
experts. An employer is no more justified in insisting that
his employees' bargaining representative accept the em-
ployer's alleged expert value opinions than the employer is
justified in demanding that his employees' bargaining
representative accept, for example, the employer's expert's
timestudy opinions and conclusions. Cf. N.L.R.B. v. Acme
Industrial Co., 385 U.S. 432, 435-436; General Electric
Company v. N.L.R.B., 414 F.2d 918 (C.A. 4), cert. denied
396 U.S. 1005; Alba Waldensian, Inc. v. N.LR.B., 404 F.2d
1370 (C.A. 4), enfg. 167 NLRB No. 101, Waycross
Sportswear, Inc. v. N.LR.B., 403 F.2d 832, 835-836 (C.A.
5); Fafnir Bearing Company v. N.LR.B., 362 F.2d
716,720-722 (C.A. 2), quoted with approval in Acme, supra,
385 U.S. at 438 fn. 8; Timken Roller Bearing Co. v.
N.L.R.B., 325 F.2d 746, 750-751 (C.A. 6), CERT. denied
376 U.S. 971; North Carolina Finishing Division of Fieldcrest
Mills, Inc., 182 NLRB No. 115.
Proper representation of employee interests may require
their bargaining representative under certain circumstances
limitations, conditions, and ready defeasance or termination-depending
upon the terms of the trust indenture. See Bogert on Trusts chs. 2, 9, 17,
and passim (3d ed. 1952).
CURTISS-WRIGHT CORPORATION 953
to oppose a proposal by an employer to increase pension
benefits (Truitt, supra); such a case might occur where an
increase would imperil the actuarial soundness of the
pension fund, or where the employer seeks to avert the
necessity for a wage increase by a compensatory "raid" on
the pension fund corpus since the latter (unlike the wage
increase) would involve no expenditure on the employer's
part but merely distribution from an already established
corpus no longer belonging to him. How can the employees'
bargaining representative make the informed evaluations
and decisions necessary for proper collective bargaining
without access to basic facts such as the precise nature of
the assets in the pension fund available for distribution, and
the basis for and accuracy of their valuation? By refusing to
supply the Unions with the requested Pension Fund data,
the Employer here was denying to the Unions access to the
raw materials, within the Employer's control, essential to
rational negotiation . This, in my view , was less than the fair
and hopefully fruitful bargaining concerning vital
"conditions of employment" which the framers of the Act
contemplated and which the Act requires.
As aptly stated in a comparable situation by my learned
colleague Federal Trial Examiner Libbin in B.L. Montague
Company, 116 NLRB 554, 562:
In the circumstances, the Union could hardly formulate
and adjust its demands in the light of economic realities,
and there was no real opportunity to achieve the
statutory objective `of joint participation and responsi-
bility' in the establishment of wages and other terms of
the bargaining agreement. [N.L.R.B. v. Otis Elevator
Co., 208 F.2d 176, 179 (C.A. 2).]
The Union was helpless even to make an informed
report to its own members as to the merits of their
demands; it could not weigh the wisdom or justice of
resorting to strike action, and because it could not
intelligently appraise the picture, it was handicapped in
carrying out its responsibilities to inform and advise the
employees whom it represented. . . . The statutory
scheme of resolving economic disputes peacefully
through collective bargaining is not served if the Union
is not in a position to make such a report to the
employees whom it represents. For, in the absence of
adequate information and explanation , the pressures
are for resort to industrial warfare ... .
Respondent takes the position that the Unions are
entitled to no more than Respondent's proffered general
"confirmatory" letter from the fund's Employer-designated
trustee or actuary as to the nature and broad-category
classification or composition of the trust corpus constitut-
ing the Pension Fund, without specifics. For reasons
already expressed and unnecessary to repeat, I cannot
agree . Such a broad "confirmation" in general and
conclusory terms-particularly where, as here, the Fund
38 This would certainly appear to be true with regard to the existing
assets of the pension fund itself , to which the Union 's audit request was
limited Under the Curtiss-Wright pension plan (G C Exh 2, p 25, par
51), Respondent has "no right, title or interest" in the fund to which it
alone contributes While it is true that presumably the Employer would
continue to contribute to that fund , no disclosure was or is sought or
requested concerning the Employer 's own finances or ability to make
future contribution to the pension fund
37 It is also, therefore , unnecessary to point out that in appropriate
situation the reminders have been forthcoming that burdensomeness of
contains huge components in unsecured obligations as well
as undefined "securities"-would be of no realistic avail to
a negotiating representative seeking to carry out his legal
obligation of achieving the best possible result for those
whom he represents.
Respondent further urges that it has at no time resisted
data disclosure upon the expressed ground of economic
inability-and, presumably therefore, that the Truitt
requirement is not reached. Again I cannot agree . To begin
with, as has been shown, the pension and wage negotiations
here were necessarily temperospatially interlinked and
interlocked; to regard them in this particular case as
airtightly compartmentalized and unrelated would be an
illusory technical fiction. Cf. Sylvania No. 2, supra; Phelps
Dodge Copper Products Corporation, 101 NLRB 360.
Furthermore, absence of Employer claim of "economic
inability" here is no justification for its refusal to permit
access of the employees' bargaining representative to
relevant and essential bargaining data concerning the
employees' Pension Fund for another reason-viz, the
Pension Fund was and is no longer the Employer's money
or property, since it has been trusteed by the Employer,
with legal title in the trustee and equitable title in the cestuis
qui trustent, or the employees.36
Since no contention is here raised that the requested
disclosure by audit-which I find to be a reasonable,
feasible, and practical method of factual ascertainment
under the circumstances-would, as such, be "burdensome
or time consuming [so] as to impede the process of
bargaining" (Old Line Life Insurance Co., 96 NLRB 499,
503; see also Truitt, supra, 351 U.S. at 151), it is unnecessary
to deal with this as a possible objection to disclosure by
audit as here sought.37
The pending equity discovery proceeding, removed to
and undetermined in the United States District Court for
New Jersey as has been indicated, is by the Union members
of the Pension Boards of Administration (and the Unions
and certain employees) and is concerned solely with
discovery of the current condition of the pension fund. We
are not here concerned with any possible misuse or
improper administration of the pension fund38, but only
with the right of access of the employees' bargaining
representatives to relevant facts concerning it, for use in
collective bargaining-an issue statutorily preempted to the
Board. Under these circumstances, that equity suit is no bar
to the instant proceeding. Cf. N.L.R.B. v. George E. Light
Boat Storage Co., 373 F.2d 762 (C.A. 5); Fafnir Bearing
Company v. N.L.R.B., 362 F.2d 716 (C.A. 2); Lewers &
Cooke, Ltd., 153 NLRB 1542, 1544-46; Metropolitan Life
Insurance Co., 150 NLRB 1478, 1484-85. Nor does the
Union's right of access to the pension fund reports (Form
D-2) to the Secretary of Labor satisfy the Employer's
compliance does not necessarily immunize from the necessity of complying
with the disclosure obligation (Universal Atlas Cement Division of United
States Steel Corporation 178 NLRB No. 75, TXD p 11), and that the fact
that the employer does not have all the information the union seeks is no
bar to the union 's right to receive such information as the employer has
(General Electric Co, 150 NLRB 192, 261, enfd. 418 F 2d 736, 753 (C.A. 2),
cert denied 397 U.S. 1059).
38 No such suggestion or intimation is made or intended by the trial
examiner
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining requirement under the Act. Sylvania No. 2,
supra, 358 F.2d at 592.
Respondent further urges that disclosure would be
impractical since it would or might complicate its
bargaining stance with the 16 or more unions representing
different bargaining units concerned with the pension fund.
Even if this is true, it is by no means unique and is certainly
no answer to a failure to make a statutorily required
disclosure. Relief from what is depicted as an awkward
situation for Respondent could readily be secured in
various ways, including a single disclosure to all of the
unions (or to those desiring it), joint bargaining, or
structural redesign of the pension fund such as by
individual bargaining units or groupments thereof, with or
without fund segregation, allocation, or actual division.39
It is finally to be noted that prior to the parties' December
15, 1969, pension negotiation resumption meeting, a
chief-if, indeed, not the only or real-reason for
Respondent's not acceding to the Unions' request for an
audit was that Respondent was unwilling to bear the
expense thereof. In this position-whether or not factually
justified-Respondent was sustained by the Board's
Regional Director, who in the earlier proceeding (Case
22-CA-3736) declined to issue a complaint based on the
Unions' earlier charge, upon that very ground-i.e., that the
Unions were demanding an audit for which the Unions
were unwilling to pay. However, this basis for refusing the
audit-assuming arguendo it ever was a basis, since the
Unions dispute that they were unwilling to pay for
it-evaporated at the parties' resumed pension negotiation
meeting of December 15, 1969, at which Respondent
concedes the Unions offered to conduct the audit at their
own expense. From that point on, Respondent's only stated
reason for refusing it was the pendency of the Unions'
equity discovery suit-as has been shown, a wholly
insubstantial basis.40
It is, accordingly, under all of the circumstances and for
the reasons shown, found and concluded that the Unions,
Charging Parties here, were and are entitled, in connection
with their conduct of collective bargaining on behalf of
Respondent's employees in the bargaining units which they
serve as exclusive collective-bargaining representatives, to
the pension fund data requested by them, such as by audit
at the Unions' own sole expense; and that Respondent's
failure to provide such data or agree to such audit was and
is in violation of its bargaining obligation, constituting an
unfair labor practice under Section 8(a)(5) and (1) of the
Act.
2. Did the Unions waive their right to pension fund data
disclosure by executing the 1970 pension agreements?
It is hornbook law that a waiver of a right must, if not
express, be at least clear and unequivocal. This well-
established principle has often been iterated in labor
39 It is noted that in Electric Furnace, 137 NLRB 1077, enforcement
denied on other grounds 327 F 2d 373 (C A 6). THE EMPLOYER'S
pension plan likewise included employees in bargaining units other than
the unit in question
40 Even further assuming arguendo that the Unions' offer to pay for the
audit did not antedate the filing of their charge in the instant proceeding,
relations cases under the Act. See, e.g., Timken Roller
Bearing Co. v. N.L.R.B., 325 F.2d 746, 751 (C.A. 6), cert.
denied 376 U.S. 971, and cases there cited. A waiver "is not
to be readily inferred and it should be established by proof
that the subject matter was consciously explored and that a
party has 'clearly and unmistakably waived its interest in
the matter' and has 'consciously yielded' its rights." Tucker
Steel Corp., 134 NLRB 323, 332, and cases there cited;
accord, C&C Plywood Corporation, 148 NLRB 414,
416-417, enforcement denied 351 F.2d 224 (C.A. 9),
reversed 385 U.S. 421. See also General Electric Company v.
N.L.R.B., 414 F.2d 918, 923-924 (C.A. 4), cert. denied 396
U.S. 1005; Fafnir Bearing Company v. N.L.R.B., 362 F.2d
716, 722 (C.A. 2); N. L. R. B. v. Gulf Atlantic Warehouse Co.,
291 F.2d 475, 477 (C.A. 5); N.L.R.B. v. Item Company, 220
F.2d 956, 958-959 (C.A. 5), cert. denied 350 U.S. 836;
Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410,
1412-13; American Smelting and Refining Co., 115 NLRB
55.
Here it is crystal clear that in executing the pension
agreements on and after January 30, 1970, the Unions, far
from waiving the rights here in litigation, expressly
preserved them. The substantial credible evidence over-
whelmingly establishes, and I find, that those agreements
were executed by the Unions at that time and under the
circumstances shown, in order to avoid Respondent's
otherwise threatened withdrawal or cancellation of the
"retroactivity" understanding or feature. Cf. Cone Mills
Corp. v. N.L.R.B., 413 F.2d 445, 449-450 (C.A. 4). Before
those agreements were executed and finalized, in the
presence of able counsel on all sides, each of the Unions
here inserted above the signatures the express proviso that
"In executing this agreement the [Union] expressly
reserves , and does not waive any rights it has under
proceedings pending before the NLRB and the United
States District Court for the District of New Jersey." In
view of this language, it is difficult to see how the Unions
can be said to have waived the rights which they thereby
expressly preserved. Under the circumstances, it is
eminently clear that the Unions not only did not waive their
rights here, but, on the contrary, expressly preserved them,
and I so find and hold. See Sylvania No. 2, supra, 154 NLRB
at 1760, and Electric Furnace, supra, 137 NLRB at 1079-80,
in each of which similar saving provisos were given effect.
3. Do the parties' stipulation of July 20, 1970, for an
audit, and steps taken thereunder, during the pendency
of the instant proceeding, bar findings, conclusions, and
a remedial order herein?
It remains to consider the effect of a stipulation entered
into by the parties on July 20, 1970, during the pendency of
the instant proceeding , calling for an audit of the pension
fund. That stipulation, entered into at an early hearing
session herein with approval of the trial examiner, looked
toward disposition of this proceeding through completion
this likewise would not avail Respondent as a technical defense here, in
view of Respondent's continuing refusal to supply the requested data, such
as by audit , on and subsequent to December 15, 1969 , including
subsequent to inception of the instant proceeding. See Curtiss-Wright
Corporation, Wright Aeronautical Division v N LR.B, 347 F.2d 61, 72-74
(C.A 3)
CURTISS-WRIGHT CORPORATION 955
of an audit of the pension fund at the expense of the Unions
through their accountants, Price, Waterhouse and Compa-
ny, and settlement among the parties themselves of issues if
any remaining thereafter. The hearings were held in
abeyance meanwhile, as expressly provided in the stipula-
tion, and:
Within 60 days after the receipt by the Charging Party
of the aforesaid report [of audit by Price, Waterhouse
and Company], the Charging Party shall notify the
Regional Director whether it desires that the hearing be
continued or otherwise disposed of. . . . Upon
notification, as aforesaid to the Regional Director,
counsel for the General Counsel will advise the Trial
Examiner of his position as to whether or not the
hearing herein should be resumed and the position of
the parties with regard to such resumption. .. .
Together with such notification, any party may on
notice apply to the Trial Examiner for such relief as
may be appropriate."
Although question has been raised by the Charging
Parties-not concurred in by General Counsel-that
Respondent did not permit complete carrying out of the
stipulated audit, I find that this is not so and that the audit
has in fact been carried out and completed as agreed. The
issue concerning completion of the stipulated audit is
limited to items "5" and "6" of the stipulation, requiring
disclosure of any allocations of pension plan funds to the
three specific bargaining units represented by the Charging
Parties here. It is obvious-as, indeed, clearly expressed in
the record by Respondent's counsel-that such
"allocations" could be provided only if they in fact existed
under the fund's design. Since the Unions' audit confirmed
Respondent's testimonial and other assertions that the fund
is an un allocated, undivided and lump asset corpus, no
such "allocations" could be provided since none in fact
existed. The parties' stipulation did not contemplate
construction of a theoretical "allocation" by amount or
otherwise; it contemplated and called for no more than a
thorough review by the Unions' experts of the existing
picture of the pension fund-no less and no more. This was
done. The Unions concede that the completed audit
encompasses all "raw material" in the books of the Pension
fund. Certainly the stipulation in no way required or
contemplated that Respondent would redesign, restructure,
or alter the form, nature or any existing characteristic of the
pension fund, such as by "allocating" any portion thereof
to any bargaining unit or otherwise.
Although the audit described in the parties' stipulation of
July 20, 1970, has in fact been carried out and completed,
unfortunately (and contrary to the trial examiner's hope)
this did not dispose of the proceeding, since notwithstand-
ing the audit the parties remained unable to reconcile their
differences concerning basic issues in this proceeding;
primarily, it would seem, concerning (1) the question of
Respondent's future legal obligation under the Act to
provide data which have already been supplied here, and
(2) the question of whether the pension agreements
executed by the parties in 1970, containing the Unions'
described rights reservation proviso, is now required to be
reopened and rebargained-a question which depends
upon whether Respondent violated the Act in refusing to
provide the requested data prior to execution of those
agreements under the circumstances described, including
Respondent's conceded intention to terminate the
"retroactivity" thereof if not executed by January 31, 1970.
Since for these reasons, and the parties being unable to
resolve their differences by negotiation concerning them,
the settlement envisioned by the stipulation of July 20,
1970, proved abortive, on application of General Counsel
the proceeding was set down by me for further hearing,
which was concluded in February 1971, with briefing and
posthearing motions thereafter.
It is entirely clear from the express terms of the July 20,
1970, stipulation that the carrying out of the audit would
not of itself terminate the proceeding or erase all of the
parties' rights. The issues remaining unresolved and
unsettled after the audit have been enumerated and they
must be dealt with.
Even in situations, unlike that here, where the Board itself
considered that in the exercise of discretion a remedial
order would be unwarranted notwithstanding a finding of a
violation isolated or trivial, or where a remedial order
would have at best marginal utility, courts have expressed
the view that a finding of violation mandates a remedial
order. International Union, United Automobile Aerospace and
Agricultural Implement Workers of America [Omni Spectra,
Inc.] v. N.L.R.B., 427 F.2d 1330, (C.A. 6); United
Steelworkers v. N.L.R.B., 386 F.2d 981, 983 (C.A.D.C.);
Eichleay Corp. v. N.L.R.B., 206 F.2d 799, 805 (C.A. 3). See
also Act, Sec. 10(c), and Administrative Procedure Act, Sec.
8(b), 5 U.S.C. Sec. 557. Herein, in view of the enumerated
two important issues remaining unresolved, it is clear that
dismissal would be unwarranted and, indeed, improper. As
Judge McGowan recently stated in International Wood-
workers Local 3-10 v. N.L.R.B., 380 F.2d 628, 631
(C.A.D.C.), "it is one thing for a successful complainant to
end up with a dismissed complaint and quite another to
secure a cease-and-desist order. With the latter, he at least
does not have to start all over again if the violation
continues or is renewed." In Sylvania No. 1, supra, the
parties had also, like here, reached "agreement" on the
pension plan modification, and, also like here, the union
nevertheless pursued the unfair labor practice charges it
had filed based upon the employer's refusal to disclose
relevant bargaining data, since it wanted to know "one way
or the other" whether it was entitled to the data it sought
from the employer.
It is accordingly found and concluded that the parties'
described stipulation of July 20, 1970, and the completion
of the audit called for thereby, do not bar continuation of
this proceeding or findings, conclusions, and a remedial
order herein; and Respondent's motion, upon which
decision was reserved at the hearing, to dismiss this
proceeding upon the basis of that stipulation and
completed audit, is hereby denied.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. At all material times, Curtiss-Wright Corporation,
Respondent herein, has been and is an employer engaged in
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. At all material times, Aircraft Lodges 703 and 974,
International Association of Machinists and Aerospace
Workers, AFL-CIO, have been and are labor organizations
within the meaning of Section 2(5) of the Act.
3. Jurisdiction is properly asserted in this proceeding.
4. At all material times, all hourly rated employees
employed at Respondent's Curtiss Division (Caldwell, New
Jersey), excluding guards, cafeteria workers, foremen,
clerks, time study employees, tool designers and all
supervisors as defined in the Act, constituted and constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. On or before January 1, 1955, a majority of
Respondent's employees in the unit described in Conclu-
sion of Law 4, supra, designated and selected said Lodge
703 as their representative for the purposes of collective
bargaining with Respondent.
6. At all material times, all technical salaried non-
exempt employees, including the Job specifications set forth
in the certification of representative in Case 2-RC-4934,
employed at Respondent's said Curtiss Division, excluding
all executive and administrative, professional, confidential
and clerical employees and time checkers, checker-labor
and piece control employees and all supervisors as defined
in the Act, constituted and constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
7. On or before January 1, 1955, a majority of
Respondent's employees in the unit described in Conclu-
sion of Law 6, supra, designated and selected said Lodge
974 as their representative for the purposes of collective
bargaining with Respondent.
8. At all material times, all hourly rated employees
employed at Respondent's Electronics Division (East
Paterson, New Jersey), except guards, cafeteria workers,
foremen, clerks, time study employees, tool designers, but
excluding office clericals, professional employees, technical
employees, guards, and all supervisors as defined in the
Act, constituted and constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
9. On or before January 1, 1955, a majority of
Respondent's employees in the unit described in Conclu-
sion of Law 8, supra, designated and selected Lodge 703 as
their representative for the purposes of collective bargain-
ing with Respondent.
10. At all times since on or about January 1, 1955, said
Lodges 703 and 974, as aforesaid, have been and are now
the exclusive representatives, as aforedescribed, of Respon-
dent's employees in the units described in Conclusions of
Law 4, 6, and 8, supra, for the purposes of collective
bargaining and, by virtue of Section 9(a) of the Act, have
been and now are the exclusive representatives, as
aforesaid, of all of the employees in said units for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
11. By refusing since at least on or about December 15,
1969, to furnish said Lodges with relevant data relating to
The Curtiss-Wright Pension Fund or to permit said Lodges
to conduct an audit thereof at said Lodges' sole expense,
except to the extent Respondent permitted such audit
during the course of the instant proceeding pursuant to the
terms of a stipulation herein dated July 20, 1970,
Respondent has refused and now refuses to bargain
collectively with said Lodges as required by, and has
thereby engaged and is engaging in unfair labor practices
within the meaning of, Section 8(a)(5) of the Act.
12. By threatening and announcing its determination to
said Lodges on or about and subsequent to December 15,
1969, that if they did not on or before January 31, 1970,
execute Respondent's proposed pension agreement, with-
out complying with said Lodges' requests for said pension
fund data or audit, Respondent would withdraw the
arrangement between Respondent and said Lodges that
any pension plan modification agreement to be negotiated
would be made retroactive to September 30, 1968 (the
expiration date of the then latest pension agreement), and
that Respondent would after January 31, 1970, negotiate on
a current basis only, under the circumstances shown and
found above in Sec. III hereof, Respondent has failed and
refused, and continues to fail and refuse, to bargain
collectively with said Lodges as required by, and has
thereby engaged and is engaging in unfair labor practices
within the meaning of, Section 8(a)(5) of the Act.
13. By said acts referred to in Conclusions of Law 11
and 12, and by each of them, Respondent has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing, its employees and prospective
employees in the exercise of rights guaranteed to them in
Section 7, and has thereby engaged and is engaging in
unfair labor practices within the meaning of Section 8(a)(1),
of the Act.
14. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
15. In view of the findings of fact herein and the
foregoing Conclusions of Law, the first, second, and third
separate defenses contained in Respondent's answer, dated
June 29, 1970, to the amended complaint herein should be
dismissed.
16. Respondent has failed to establish through a fair
preponderance of the substantial credible evidence upon
the record as a whole in this proceeding, its fourth separate
defense contained in Respondent's said answer, and said
fourth separate defense should be dismissed on the merits
and with prejudice.
REMEDY
Although it has been found that Respondent violated
Section 8(a)(5) and (I) of the Act by refusing the pension
information requested by the Unions between at least
December 15, 1969, and July 20, 1970 (the date of the
parties' stipulation, during the course of this proceeding,
permitting the Unions to proceed with the requested audit
of the pension fund), no purpose would be served by
ordering Respondent to do so now in view of the fact that
the requested audit has now been completed pursuant to
the parties' stipulation of July 20, 1970. However, in view of
the fact that the Unions have had no opportunity to bargain
CURTISS-WRIGHT CORPORATION 957
with Respondent since said pension information was
furnished to them-and, indeed, Respondent is refusing to
bargain upon the basis thereof-I shall recommend that,
without prejudice to any employees' rights accrued under
the Pension Agreements of January 30, 1970, and
thereafter, but subject to such revisions thereof as may be
appropriate, Respondent shall resume bargaining in good
faith with the Unions with respect thereto, if the Unions so
request, with a view toward reopening and revising said
Pension Agreements of and after January 30, 1970. Under
like circumstances , a similar remedy was afforded by the
Board in Electric Furnace Co., Inc., supra, 137 NLRB at
1081-82. I shall accordingly recommend that Respondent
be ordered to cease and desist from engaging in the unfair
labor practices found and in other like or related conduct,
and to take certain affirmative action, consisting of the
usual posting of Notice to Employees, designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended: 41
ORDER
Respondent , Curtiss-Wright Corporation , its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Aircraft Lodges
703 and 974 , International Association of Machinists and
Aerospace Workers , AFL-CIO, as the exclusive representa-
tives of its employees in the appropriate units, by failing
and refusing to furnish to said labor organizations, through
audit by the designated qualified agents of said Lodges at
the sole cost and expense of said Lodges , or in other
equivalent appropriate fashion, relevant information and
data concerning the Curtiss -Wright pension fund, including
details of the status of the financial composition and
investments of and comprising said Fund , for bargaining
purposes concerning said employees and for proper
execution of their role as such bargaining agents. The
appropriate bargaining units are:
1. All hourly rated employees employed at Respon-
dent's Curtiss Division , excluding guards , cafeteria work-
ers, foremen , clerks , time study employees , tool designers
and all supervisors as defined in the Act.
2. All technical salaried nonexempt employees , includ-
ing the job specifications set forth in the certification of
representative in Case 2-RC-4934, employed at Respon-
dent's Curtiss Division, excluding all executive and
administrative , professional, confidential and clerical
employees and time checkers , checker-labor and piece
control employees and all supervisors as defined in the Act.
3. All hourly rated employees employed at Respon-
dent's Electronics Division , except guards , cafeteria
41 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, 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.
41 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the Notice reading "Posted
workers, foremen, clerks, time study employees, tool
designers, but excluding office clericals, professional
employees, technical employees, guards, and all supervisors
as defined in the Act.
(b) Threatening or announcing its determination not to
agree to make the effective date of any pension modifica-
tion agreement, arrived at subsequent to expiration of any
subsisting pension agreement, retroactive to the expiration
date of such previous or subsisting agreement, unless said
Lodges enter into a pension modification agreement
without being supplied with relevant information or data,
or without being permitted to make an audit at said Lodges'
own cost and expense, concerning said pension fund,
including the information and data described in paragraph
1, a of this recommended Order.
(c) Refusing or failing to bargain collectively with the
exclusive representatives of its employees by refusing or
failing to meet and negotiate with them after making
available to said representatives the pension information
which it had been obliged previously to furnish.
(d) In any like or related manner threatening, coercing, or
interfering with the efforts of its employees' exclusive
representatives to bargain collectively on their behalf in
accordance with the provisions of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Aircraft
Lodges 703 and 974, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, as the exclusive
representatives of the employees in the appropriate units,
and embody in a signed agreement or signed agreements
any understanding reached. This requirement shall include
reopened bargaining, upon request of said Lodges,
concerning the subject-matter, terms and provisions of the
pension agreements executed by the parties on and after
January 30, 1970.
(b) Post at its Curtiss Division in Caldwell and at its
Electronics Division in East Paterson, New Jersey, copies
of the attached notice marked "Appendix." 42 Copies of
said notice, on forms provided by the Board's Regional
Director for Region 22, shall, after being duly signed by
Respondent's authorized representative, be posted by
Respondent 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 to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps Respondent
has taken to comply herewith.43
IT IS FURTHER ORDERED that Respondent's first, second,
third, and fourth separate defenses contained in its answer,
dated June 29, 1970, to the amended complaint in this
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 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 said Regional Director, in writing, within 20 days from the date of
this Order, what steps Respondent has taken to comply herewith."
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding be and they are hereby dismissed on the merits
and with prejudice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before a Trial Examiner of the National Labor
Relations Board, at which all sides had full opportunity to
present evidence and arguments , it has been decided that
we, Curtiss-Wright Corporation, have violated the National
Labor Relations Act. We have therefore been ordered to
post this notice and to carry out its terms.
WE WILL NOT refuse to bargain collectively with
Aircraft Lodges 703 and 974, International Association
of Machinists and Aerospace Workers, AFL-CIO, as
the exclusive representatives of our employees in the
appropriate units descnbed below, by failing and
refusing to furnish to said labor organizations relevant
information and data concerning, or by refusing to
permit them to audit at their own expense, the Curtiss-
Wright pension fund, for bargaining purposes on behalf
of the employees in said units and in proper execution
of their role as such bargaining agents.
WE WILL NOT refuse to bargain collectively with the
exclusive representatives of our employees by failing
and refusing to meet and negotiate with them after
making available to them the pension information
which we were obligated previously to furnish.
WE WILL NOT threaten to or announce that we will
not make any pension modification agreement retroac-
tive to the date of the last expired pension agreement
unless your bargaining representatives agree to sign it
without receiving relevant information about, or an
audit at their own expense of, the pension fund.
WE WILL NOT in any like or related manner threaten,
coerce , or interfere with your bargaining representa-
tives' efforts to bargain collectively on your behalf in
accordance with the provisions of the National Labor
Relations Act, as amended.
WE WILL, upon request, bargain collectively with the
above labor organizations as your respective exclusive
representatives in the following appropriate units, and
sign any understanding reached . The appropriate
bargaining units are:
All hourly rated employees employed at our
Curtiss Division , excluding guards , cafeteria
workers , foremen , clerks , time study employees,
tool designers and all supervisors as defined in the
Act.
All technical salaried non -exempt employees,
including the job specifications set forth in the
certification of representative in Case 2-RC-4934,
employed at our Curtiss Division, excluding all
executive and administrative, professional, con-
fidential and clerical employees and time
checkers, checker-labor and piece control employ-
ees and all supervisors as defined in the Act.
All hourly rated employees employed at our
Electronics Division , except guards , cafeteria
workers , foremen , clerks , time study employees,
tool designers , but excluding office clericals,
professional employees, technical employees,
guards, and all supervisors as defined in the Act.
Dated By
CURTISS-WRIGHT
CORPORATION
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office,
Federal Building , 16th Floor , 970 Broad Street , Newark,
New Jersey 07102, Telephone 201-645-2100.