International Association of Machinists

National Labor Relations Board - Board Decisions

Sep 18, 1968

172 N.L.R.B. 2086 (N.L.R.B. 1968)

2086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aerospace Workers, AFL-CIO and Franklin W. Nix and IAM Representatives Association. Cases 10-CA-6680 and 10-CA-6820 September 18, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 8, 1967, Trial Examiner George A. Downing issued his Decision in the above-enti- tled proceeding, finding that Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that Respondent had not en- gaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel, the Charging Parties, and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. The Charging Parties and Respondent filed cross-exceptions and answering briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 Charging Parties' cross-exceptions, the briefs, and the entire record in the case , and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications: 1. From September 8-18, 1964, Respondent held its convention at Miami Beach, Florida. On September 15, the delegates voted to increase the monthly per capita tax from $2 to $2.50, and the initiation or reinstatement per capita tax "when due books are issued by the G.S.T." from $2.50 and $3 to $4. Two days later the delegates voted increases in the salaries of officers and employees which are fixed by the constitution.' Before these increases could go into effect they had to be incorporated in the constitution by amendment approved by the membership. A short time in advance of the November 1964 referendum on the proposed amendments, President Hayes and General Secreta- ry Walker requested the membership to endorse the changes voted by their delegates. In support of their view they stated: Our biggest problem concerns the finances of this union. For some time, your Grand Lodge has operated at a deficit.... Part of the in- crease in per capita will go to offset the deficit that now exists. But that alone will not keep us moving forward. Your field staff and your of- ficers have had no raise in eight years.... Finally, your delegates at the Grand Lodge convention argued for and voted for a stronger union that would provide more services to the membership. Additional services will take ad- ditional finances. In the referendum the membership rejected the proposed increases in per capita tax and salaries. For almost a year after the membership turned down the above proposals Respondent endeavored to reduce its expenses. Included in its efforts was a furlough of 19 staff representatives and a review of per diem, incidental, and travel disbursements to ascertain whether savings would result from certain ' After the hearing several motions were filed by the parties Their con- tents and our disposition are as follows (a) The motions of the Respondent and the Charging Parties for oral ar- gument are hereby denied as the briefs and the record adequately present the issues and the positions of the parties (b) The Respondent 's motion to correct the record , which is opposed by the other parties, is hereby denied , as it contains nothing that could affect our decision herein (c) The Respondent's motion to reopen the record , which is opposed by the other parties, is hereby denied, as the document intended for inclusion therein is not newly discovered evidence and could have been offered at the hearing (d) The Charging Parties' motion to reopen the record to receive in evidence a printed copy of the minutes of the IAM Executive Council meeting of February 8-15, 1966, in Washington , D C , is hereby granted in view of Respondent 's lack of objection thereto (e) In view of our decision herein , we find it unnecessary to pass upon the motions of the General Counsel and the Charging Parties to strike Respondent 's cross-exceptions and answering brief We have not con- sidered the cross-exceptions and answering brief (f) The Charging Parties ' motion to reopen the record to receive in evidence a copy of a settlement agreement in the case of Grand Lodge of 172 NLRB No. 239 International Assn of Machinists v King, 335 F 2d 340 (C A 9), cert de- nied 379 U S 920, is hereby denied. The cited case involved a suit by former officers of Respondent against Respondent alleging that they had been unlawfully discharged because they had supported an unsuccessful candidate in a union election The plaintiffs sought relief under 101 (a)(I), 101(a), and 609 of the Labor-Management Reporting and Disclo- sure Act of 1959 The present proceeding involves an alleged violation of Sec 8(a)(3) of the National Labor Relations Act, a different issue, and dif- ferent plaintiffs Moreover , the settlement agreement specifically provides that " nothing contained herein shall be construed as an admission or con- cession of liability or of the propriety or correctness of any contention, claim, or position of any party to said lawsuits Specifically, defendant does not concede or admit it has committed any act in violation of the Labor- Management Reporting and Disclosure Act of 1959 or otherwise violated any applicable laws " In view of this statement, the settlement agreement cannot in any event be considered as evidence of wrongful conduct by Respondent Cf N L R B v Local 926, Intl Union of Operating Engineers [ArmcoDrainage ], 267F2d418(CA 5) T These officers and employees are International president , general secretary-treasurer, general vice presidents , assistant secretary, grand lodge representatives , and grand lodge auditors INTERNATIONAL ASSOCIATION OF MACHINISTS 2087 reassignment of staff. At-the September 1-2, 1965, meeting of Respon- dent's executive council, it was decided to resubmit the identical increases in salary and per capita tax rejected in the November 1964 referendum for a new membership vote in January 1966. By the terms of its constitution this was the earliest date possible for resubmission of the earlier amendments rejected by the membership. In late October, Inter- national President Siemiller sent a memorandum to the staff on the need for adopting the tax and salary increases. Alluding to the same considerations urged upon the membership by President Hayes in October 1964, Siemiller asserted that "adjustments are needed to better compensate our staff for what is expected of them." In January 1966, the mem- bership approved the tax and salary increase amendments. In accordance with Respondent's constitution the per capita tax increase and the raise in salary for constitutional officers and em- ployees went into effect on April 1, 1966. From February 8-15, 1966, Respondent's execu- tive council met. It was aware of the results of the referendum, and deliberated with the knowledge that additional funds would shortly be flowing into the union treasury. At this meeting the council de- cided to upgrade special representatives to the status of grand lodge representatives, and to in- crease the per diem and incidental expense al- lowances for all officers and field staff effective April 1, 1966. The undisputed testimony of Pre- sident Siemiller reveals that these changes had been discussed in the higher councils of Respondent's or- ganization long in advance of the February meet- ing, but could not be implemented until Respon- dent had obtained the necessary revenue from its members.' On February 24, Respondent's general secretary-treasurer informed the 54 special representatives of their reclassification to the posi- tion of grand lodge representative. In his letter of explanation, the secretary-treasurer said: It is the general consensus of President Siemiller and the Executive Council that this advancement in your case was both deserved and justified, since the duties you were as- signed to do were hardly, if at all, distinguisha- ble from those performed by full-fledged Grand Lodge Representatives on a day-to-day basis. It was generally felt that a long standing inequity ought to be corrected.... Inasmuch as some change has also been approved by the Executive Council in per diem and incidental expenses, also effective April 1st, over and above what it now allowed, this matter will be explained in detail and outlined by a separate communication to our entire Field Staff in the very near future. On March 8, the communication referred to above was sent to "All Grand Lodge Representa- tives, Grand Lodge Auditors, Special Representa- tives and Press Representatives" over the signatures of the International president and the general secre- tary-treasurer. It adverted to "a thorough study and discussion of the expenses incurred by the Field Staff while away from their assigned stations,"' and stated that the increases in per diem and incidental expense allowance would be from $20 to $24, and $7 to $8 per day, respectively. The Trial Examiner found that Respondent vio- lated Section 8(a)(1) of the Act by announcing and granting increases in the per diem and incidental expense allowances of grand lodge representatives, special representatives, and press representatives, by promoting all special representatives to the posi- tion of grand lodge representatives, and by granting wage increases to all special representatives. We do not agree. Whether wage increases or other benefits granted to employees during an organiza- tional campaign are to be deemed violative of Sec- tion 8(a)(1) of the Act are to be determined, ac- cording to the Supreme Court, by the "purpose" for which the benefits were granted.' As the Trial Examiner himself recognized, the wage increases given to constitutional officers, in- cluding grand lodge representatives, in 1966 had been voted as early as September 1964, long before the filing of the representation petition, but could not be put into effect because of the disapproval of the union membership. As soon as this approval was given and the necessary funds provided, the in- ' In contrast to the constitutional amendment and membership referendum requirements for changes in the salaries of constitutional of- ficers and in the per capita tax, changes in expense allowances for all of- ficers and employees and changes in the salaries of nonconstitutional office holders need not be accomplished through the amendment and referendum process ' In the minutes of the February 8-15, 1966, executive council meeting appears the following comment on the subject of increases in expense al- lowances The Executive Council and the field staff have been confronted with increased hotel rates , as well as increases in incidentals , over the past several years on a progressive basis Since no adjustments in the per diem allowance have been made since September , 1952, the following motion was adopted MOTION . That per diem and incidental expense be increased by approximately twenty per cent, but not to exceed the following schedule International President $36 per day General Secretary-Treasurer $ 30 per day General Vice -Presidents $30 per day Assistant Secretary $30 per day Grand Lodge Representatives $24 per day Grand Lodge Auditors $24 per day Special Representatives $ 24 per day Incidental Expense $8 per day S N.L.R.R. v. Exchange Parts Co , 375 U.S. 405 2088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD creases were made effective. The Trial Examiner found that the increase granted to grand lodge representatives was lawful because rooted in this prepetition action. But the 1966 increased remu- neration to nonconstitutional staff employees was rooted in the same prior action. President Hayes' statement to the membership urging approval of the November 1964 referendum referred to the fact that the "field staff and your officers have had no raise in eight years." It was thus clearly understood at that time that, if the membership approved the pending amendments, raises would be given both to the staff and the officers. As a practical matter it could hardly be otherwise. It is illogical to assume that in 1964 Respondent contemplated giving raises to grand lodge representatives, but not to special representatives and press representatives who worked in close association with the former. As to the reclassification of special representa- tives to grand lodge representatives, the evidence is that this change had been considered prior to February 1966 because both classifications per- formed essentially the same work, but could not be adopted because of lack of funds. When these became available, the reclassification was put into effect. The adjustment in the per diem and expense al- lowances of the employees in the unit to compen- sate for the rise in costs since the previous al- lowances were adopted in 1952 seems eminently reasonable in view of the simultaneous increase in the same allowances to the union officers. Further, unless expense allowances were increased together with the increase in wages, much of the gain in the latter might have been illusory. In short, we do not believe that the evidence justifies a finding that Respondent's "purpose" in reclassifying special representatives, and in increas- ing wages, per diem, and expense allowances for employees in the unit, was to induce the employees to reject the Union. Rather, we find that the im- provement in employee benefits resulted from a longstanding decision which could not be imple- mented because of lack of funds, that as soon as these became available the improvements were put into effect, and that the timing of the grants in rela- tion to the Union's organizing campaign was for- tuitous. Accordingly, we find, contrary to the Trial Examiner, that Respondent did not violate Section 8(a)(1) of the Act by granting increases in per diem and expense allowances, and by reclassifying special representatives as grand lodge representa- tives and thereby granting wage increases to them. Accordingly we shall dismiss those portions of the complaint which allege that by such conduct Respondent violated the Act.6 2. The Trial Examiner found that Respondent discharged Grand Lodge Representative William E. Sewell for discriminatory reasons. We do not ap- prove this finding because we are not satisfied that the General Counsel has proved that Respondent's motive for the discharge was unlawful. A longtime grand lodge representative, Sewell admitted that a grand lodge representative is the representative of the International president at all times and that his job is to execute the policies of the International president. In September 1966, the executive council of Respondent voted to submit to the membership an amendment to the Union's con- stitution which would delete the requirement that proposed constitutional amendments be ratified by the membership after approval by delegates to a grand lodge convention. A vote on the proposed amendment was set for January 1967. The Interna- tional president and the executive council strongly endorsed the amendment. On November 16, 1966, the International pre- sident sent to all grand lodge representatives a memorandum enclosing a "fact sheet" setting forth pertinent information and data which could be used in persuading the membership to vote for the amendment. The International president sent the same "fact sheet" to all district and local lodge pre- sidents with a covering memorandum urging that the amendment be adopted. Sewell was present at a meeting in October 1966, at which General Vice President Smith told the assembled individuals that the executive council was going "all out" to secure repeal of the postconvention referendum require- ment and that he expected the local lodges and the grand lodge representatives to support that posi- tion. Sewell acknowledged that he was aware of the importance the executive council ascribed to the referendum. Nevertheless, Sewell, who opposed the amendment, campaigned against its adoption. The International president learned of this opposition and on December 22, 1966, wrote Sewell: It has been reported to this office that you are opposing the January Referendum eliminating the post-Convention Referendum. You are requested to report to this office if you have been advising local lodges to vote against the proposition in January; and if you have been opposing the Referendum, give the reasons for such position. Sewell answered on December 27 admitting his op- In view of our dismissal of this part of the complaint , we do not pass upon Respondent's contentions that these allegations must be dismissed because they are barred by Sec I 0(b) of the Act or because the charge was insufficient to support the complaint and amendment thereto. INTERNATIONAL ASSOCIATION OF MACHINISTS 2089 position to the proposed amendment and stating that he had "discussed the Referendum with many individuals in an opposing approach, not with local lodges." and giving his reasons for his opposition. After receiving this reply, the International pre- sident notified Sewell of his discharge for insubor- dination, explaining: Grand Lodge Representatives are on the Staff for the sole purpose of assisting the Ex- ecutive Council, including the International President, in carrying out their duties and responsibilities. Many times it is necessary to make new decisions regarding various subject matters, depending upon the period of time we are living in. In the instant case it was the best judgment of the Executive Council that the time had arrived when we should modernize our Union and do away with post-convention referendum. Your position, as stated in your December 27, 1966 letter, together with admitted actions, is insubordination. Therefore, for this reason, your employment with the International Union is terminated immediately upon receipt of this letter. The Trial Examiner rejected Respondent's con- tention that Sewell was insubordinate, because, as he found, Sewell did not advise local lodges to vote against the proposed amendment, but only in- dividual members, and that in so doing Sewell was exercising his right of free speech as a member of the Union to express his personal views. We believe, however, that the Trial Examiner's view reflects an unrealistic appraisal of Sewell's rights and responsibilities as a grand lodge representative. There is no evidence that Respon- dent tolerated this bifurcating of a grand lodge representative, so that as a member of the Union he could with impunity urge fellow members to vote one way, while as a paid representative of that Union he was under instructions to urge members to vote in a diametrically opposite way. On the con- trary, the International president testified that so long as a grand lodge representative is "employed as the direct representative of the International Pre- sident and employed to carry out a policy, then he forfeits that right to express a personal feeling." We attach no significance to the fact that Sewell did not propagandize against the amendment in local lodge meetings, but only in meeting with individual members. In the latter case no less than in the former, he was striving to defeat a measure which the executive council strongly supported and con- cerning which it had indicated its position in letters and talks to officers of local unions and grand lodge representatives. Apparently, Sewell was the only representative who had any doubt as to what was expected of him or disobeyed instructions. Ac- cordingly, we find, contrary to the Trial Examiner, that Sewell was insubordinate. There remains the question of whether Respon- dent seized on Sewell's insubordination as a pretext to rid itself of a leader in the organizing efforts of its employees. We accept the Trial Examiner's find- ing that Respondent was hostile to unionization of its employees,7 and that it was aware of Sewell's leading role therein. But this of itself is not suffi- cient to support a finding that but for Sewell's or- ganizing efforts he would not have been discharged for his insubordinate conduct. As we have indicated above, Sewell flouted instructions on a matter deemed of prime importance by the executive council. There is no evidence that Respondent tolerated like or related insubordination in other of its representatives.' Nor is there evidence that Respondent did not act promptly on becoming aware of Sewell's insubordinate conduct. Further, Respondent did not discharge him until he admitted on inquiry that he had in fact been engaged in en- couraging members to vote against the amendment. Under the circumstances, there is insufficient basis for inferring that the declared reason for discharg- ing Sewell was a pretext and that the real reason was his organizing activities. Accordingly, we shall dismiss the complaint allegation that Respondent discriminatorily discharged Sewell.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent , International Association of Machinists and Aerospace Workers, AFL-CIO, its officers, agents, ' We do not, however, rely for this finding on the estimony of John Tucker, a local lodge officer, to the effect that in October 1966, when he inquired of International President Stemdler about the possibility of reopening the Atlanta office , Siemiller replied that in the investigation of charges against Watkins , the committee found that the charges were mis- used by the " personnel " who brought the charges and that his only conclu- sion was that the Atlanta office was a "snake pit and a den of iniquity " The Trial Examiner construed this testimony as referring to the organizing ac- tivity in the Atlanta office We do not so regard it Rather the evidence in- dicates that Siemiller 's reference to "personnel " in the Atlanta "snake pit" and "den of iniquity" was prompted by the suggestion of the committee which investigated the Watkins affair that more than one person in the At- lanta office was involved in abstracting Watkins' records in an effort to ruin him It therefore had no necessary reference to Sewell ' Siemdler had received reports that another grand lodge representative, Royal E Butcher, was also urging members to vote against the proposed amendment Siemdler wrote to Butcher as he had to Sewell asking if the re- ports were true Butcher replied that the reports were untrue and asserted that to to the contrary he was recommending to members that they vote for the amendment No action was taken against him e For the reasons stated by the Trial Examiner in his Decision , Chairman McCulloch would find that Respondent discharged Sewell in violation of Sec 8 ( a)(3)and ( I)oftheAct 354-126 O-LT - 73 - pt. 2 - 60 2090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and representatives, shall take the following action: 1. Cease and desist from: (a) Refusing to bargain collectively with IAM Representatives Association concerning rates of pay, wages, hours, and other terms and conditions of employment by refusing to give it advance notice of changes in employee status, by refusing to in- form it of changes in employment policy that have occurred since Respondent's current president took office, and by refusing to give it information relat- ing to the cost of Respondent's pension, group in- surance, and travel insurance plans.10 (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds is necessary to effectuate the poli- cies of the Act: (a) Upon request, furnish to the Association ad- vance notice of changes in employee status, and in- formation relating to changes in its employment policy since President Siemiller took office, and to the costs of its pension, group insurance, and travel insurance plans." (b) Post at its International and Regional Offices and mail to each employee12 in the unit represented by the IAM Representatives Association copies of the attached notice marked "Appendix."13 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall 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 by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the com- plaint herein be, and it hereby is, dismissed insofar as it alleges that Respondent discriminatorily discharged Franklin W. Nix and William E. Sewell, and other violations not specifically found herein. " Id 12 Respondent has excepted to the Trial Examiner 's recommendations that Respondent post the usual notice "in the offices of all locals or districts at which it employs or stations employees " We find no merit in this excep- tion The posting requirement is tailored to furnish the affected group of employees with notice of Respondent 's violations and its promise to remedy them in specific ways In this case , because of the wide geographi- cal distribution of the employees in the unit, the notices must be posted in those " locals or districts at which it employs or stations employees " so that such employees may obtain the information which the notices contain '3 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words " a Decision and Order" the words " a Decree of the United States Court of Appeals , Enforc- ing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with IAM Representatives Association by refusing to furnish it, upon request, advance notice of changes in the status of our em- ployees, and informations relating Ito changes in, our employment policy since President Siel- miller took office, , and to the costs of our pension , group insurance , and travel insurance plans. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL bargain collectively with IAM Representatives Association by furnishing in- formation requested by it and wrongfully withheld by us as found by the Board. The appropriate unit is: All Grand Lodge, Special and Press Representatives employed by us in the United States and Puerto Rico; but ex- cluding all similarly classified employees employed exclusively in Canada, those employed chiefly in unrelated special as- signments at Headquarters, Grand Lodge auditors, office clerical employees, profes- sional and technical employees, guards and supervisors as defined in the Act. 10 If Respondent has none of the information requested by the Charging Parties, or if it cannot furnish such information in the specific form requested without unduly burdening its staff, observance of its statutory duty under Sec 8(a)(5) requires Respondent to communicate to the Representatives Association the fact that it does not possess the requested information or to give the reasons why such information cannot be furnished in the form requested without causing undue burden to the Respondent and to propose a reasonable alternative basis, sufficient to satisfy the Association 's relevant bargaining needs, for furnishing the requested information INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO (Employer) INTERNATIONAL ASSOCIATION OF MACHINISTS 2091 Dated By 8(a ) of the Act as the employer of its own em- (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended, was heard at Atlanta, Georgia, from April 19 to 27, 1967. Separate complaints were issued on November 8, 1966, and March 3, 1967, on charges dated, respectively, September 6, 1966, and Janua- ry 14, 1967, and were consolidated by order of the Regional Director. Those complaints alleged that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) in specified respects (see section III, A, infra). Respondent answered denying said allegations and averring that certain of them were barred by Sec- tion 10(b) of the Act. Respondent 's motion of June 30 to correct the record is hereby granted, no objection having been received. Upon the entire record in this proceeding and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS I conclude and find on factual allegations of the complaint, admitted by answer, that Respondent is engaged in commerce and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. The Labor Organization IAM Respresentatives Association (Association herein ) is a labor organization within the meaning of Section 2(5) of the Act. See 159 NLRB 137. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues This proceeding involves a large International labor organization as an alleged violator of Section ployees; it arose in the familiar setting of organiza- tional activities of those employees in forming a labor organization of their own (the Association) to represent them vis-a-vis Respondent in matters of collective bargaining. Those activities began in July 1965, and were led by Franklin W. Nix, a press representative in Atlan- ta, Georgia (then in Respondent's southern territo- ry), who was also the protagonist in a drama involv- ing his superior, General Vice President George Watkins, against whom Nix initiated simultaneously an unremitting attack. Thus Nix launched his initial attack on Watkins in Washington on July 9 in a meeting which he sought for that purpose but he in- formed Respondent at the same time of his inten- tion also to organize Respondent's employees. Thereafter recognition was demanded before the end of July in a unit of the employees in the southern territory and was refused. On January 26, 1966, Nix filed a representation petition in a na- tionwide unit (of grand lodge, special, and press representatives) following a further conference in Washington, into which Nix again injected l'affaire Watkins, which had been the subject of an intensive investigation by Respondent in September. Follow- ing Board hearings in the representation proceedings in February and March, an election was directed in June, and a mail ballot election was held, with the Association receiving a majority of the votes and a certification from the Regional Director on August 5. Thereafter J. W. Sullivan was elected president of the Association, Nix the secretary-treasurer, and William E. Sewell the chairman of the negotiating committee. Prior to the election Respondent made effective as of April 1, 1966, a general wage increase of all grand lodge representatives, increased certain fringe benefits, and also reclassified all special representatives to grand lodge representatives. Fol- lowing the certification the Association made on November 21 and December 5 and 27 requests for certain information, some of which Respondent supplied and some of which it failed or refused to supply. On September 15, 1966, Respondent discharged Nix, who had been given no assignments for a year, and on January 4, 1967, it discharged Sewell. The issues herein are whether the evidence con- cerning the conduct mentioned in the preceding paragraph is sufficient to establish the complaint al- legations that Respondent discriminatorily discharged Nix and Sewell, that it engaged in inter- ference, restraint, and coercion of employees through the granting of benefits on April 1, 1966, and that it refused to bargain by failing and refusing to furnish requested information.' ' The Association and Respondent engaged in bargaining negotiations after the certification but no contract was reached 2092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We begin with the discharge of Nix since the ac- tivities and events in which he was involved form pertinent background to the entire case. B. The Discharge of Franklin W. Nix Franklin W. Nix was employed from May 1955, until his discharge on August 31, 1966 (to be effec- tive September 15), as a press representative in Respondent's southern territory, comprising some 11 States, with headquarters in Atlanta. Nix received no assignments during the last year of his employment while attached to the staff of Vice Pre- sident Floyd E. Smith of the Cleveland Office,' and President Siemiller's letter of discharge informed Nix that Smith had no need for a press representa- tive and that there was therefore no need for his services. By answer, however, Respondent asserted that Nix was discharged because of stealing Respon- dent's property as well as the personal effects of his immediate superior (Vice President Watkins), and the litigation of that defense involved events which surrounded the launching of Nix's attack on Wat- kins as well as the inception of the organizing cam- paign. Pertinent background events begin, ap- propriately enough , with the arrival of Watkins, who on June 14, 1964, took over the southern terri- tory which had been supervised since December 1963 by Sewell (as acting vice president), who remained as Watkins ' assistant. Watkins kept a diary for each calendar year in looseleaf form in a ring folder. He did not make daily entries but testified that he noted things he wanted to remember or to take special note of. The book ordinarily remainded on his desk, open at the date of the last entry. At the end of each calendar year the sheets were removed, bound, and filed in the bottom drawer of the file cabinet in his secreta- ry's office. On July 8, 1965, Nix called President Siemiller in Washington and in his absence talked with General Vice President Ross Mathews. Nix informed Mathews that he had documentary proof which showed in his opinion that Watkins was engaged in a concerted campaign to "debunk" or destroy Siemiller, Mathews, and General Secretary-Trea- surer DeMore. Mathews authorized Nix to come to Washington On July 9, Mathews and DeMore met with Nix in the latter's hotel room and there Nix turned over to them a 48-page document. Twenty-seven of the pages were photocopies of handwritten entries which Watkins had made in his diary under the fol- lowing dates: April 25, 1964; January 5, February 20 and 21, May 8, 9, 22, 23, 27, 29, and 30, June 6, 7, 8, 22, 23, 24, 25, 26, and 28, and July 3, 4, and 5, 1965. Eighteen pages were typewritten copies of the handwritten entries which Nix made to facilitate reading, at the foot of some of which Nix had added his own editorial comments. The final three pages consisted of Nix's typed accounts of a conversation he had with Watkins on June 30, 1965. The entries which Nix copied were of two general types, in both of which Watkins had recorded his private and subjective impressions of various events and persons (particularly other In- ternational officers) and of his personal ex- periences. One type concerned political matters at the highest level of the organization and were reflective both of Watkins' personal ambitions and of his dislike for, and feuding with, other Interna- tional officers. The other type, wholly unconnected with Watkins' office, concerned his personal life and experiences, particularly his fondness for skydiving (parachute jumping). In brief Nix's selec- tion was of material which would at the same time suggest that Watkins was both incompetent and psychotic and would place him in extreme political disfavor within the organization, particularly among the other International officers. Nix began his presentation of the material by stating that Watkins was unfit to administer the southern territory,' and proceeded to develop his thesis during a 2-hour discussion of the documents. When DeMore realized that the diary entries em- bodied matters which were of a highly personal na- ture, he began to question Nix as to how he ob- tained Watkins' confidential notes. Nix explained that the documents were on top of Watkins' desk for anyone to see but admitted that he had made photocopies on the copying machine in the office. He denied, however, that it was done during work- ing hours and denied that anyone knew about it. In his testimony, Nix for the first time implicated the female secretaries in the office, and explained that he had not previously disclosed their complici- ty (as in the later committee investigation of his charges against Watkins, for example) because he was afraid they would be discharged if their par- ticipation was disclosed. At a later point, Nix de- nied inconsistently that the question of protecting the girls ever entered his mind and expressed willingness to take the blame. Turning to the second subject he was to discuss, Nix informed DeMore and Mathews that he was heading up a movement to organize a Grand Lodge Representatives Association; and that the an- nouncement, originally intended to be made at the National Staff Conference in June, had been deferred to see who Siemiller was going to assign to the southern territory, but - that Siemiller's an- nouncement that Watkins would continue came too S The southern territory was abolished in September 1965, and the At- lanta Office was closed ' Though Nix denied at the present hearing that he was attempting to have Watkins fired or deposed as a general vice president , the contrary was obvious from the nature of the materials which he selected and from his en- tire course of conduct, including his telegram to Siemiller on January 11, 1966, quoted infra For reasons which will later be more fully stated I have resolved all material conflicts between the testimony of Nix and the International of- ficers by crediting the latter INTERNATIONAL ASSOCIATION OF MACHINISTS late to make the move. Nix gave them a copy of a 12-page organizing letter addressed to the field staff dated July 10, and informed them the letter would go into the mail either that day or the next day to the staff representatives. On July 10 , Nix wrote Siemiller a registered letter informing him of the organizing activities in behalf of the Association and warning him that if Respondent resorted to reprisals , countermeasures might include charges under Section 8(a)(1), (3), and (5) of the Act, as well as picketing in front of the International's offices, and other publicity in the major areas of membership. On July 12, DeMore and Mathews made a full re- port to Siemiller of their conversation with Nix and of their reaction to Nix's conduct in having taken private and confidential notes from Watkins. Mathews expressed amazement at Nix 's actions and DeMore was "quite upset" because he himself had once been the victim of a similar act by a subor- dinate. All three of the officers were in agreement that Nix should be fired for extracting and copying Watkins' diary entries, but decided that in view of Nix's simultaneous organizational activity his discharge at that time would doubtless result in the filing of an unfair labor practice charge , in view of Nix's warnings against reprisals. On July 18, Nix wrote Siemiller requesting recog- nition of the Association as the representative of the field staff in the southern territory. Siemiller de- nied that request on July 26, expressing doubt that the Association represented a majority of the em- ployees in an appropriate unit. On August 13, Respondent's executive council (excepting Watkins) met in Chicago and were given a full report concerning Nix's charges against Watkins and concerning the manner in which Nix had procured his material . Though the opinion was unanimous that Nix should be discharged for his misconduct , Siemiller counseled against it because Nix was the one who was pushing the organizing campaign and because Siemiller feared that an un- fair labor practice charge would be filed if Nix were discharged. The council adopted Siemiller's view. On August 23, Siemiller, Mathews, and DeMore met with Watkins to give him a copy of the material which Nix had delivered. Watkins stated he had not authorized the copies to be made. As to what he thought should be done, Watkins answered Siemil- ler's inquiry by stating that he would fire Nix, but Siemiller again expressed the fear that a discharge at that time would result in an unfair labor practice charge , regardless of the reasons for the discharge. Siemiller did, however, criticize Watkins for the amount of time he was spending away from the of- fice and advised Watkins to stay closer to the office and to get the representatives out in the field where the work was to be done. On August 24, Watkins assigned Nix to conduct an organizing survey in Lubbock , Texas, using as the basis a previously unanswered request for help from Lubbock under date of June 22. Watkins ex- 2093 plained ( as a witness ) that he had not previously had a staff member available for that assignment but added that he wanted to get Nix out of the of- fice because he no longer had confidence in Nix and could not allow him to work in the office. Upon his arrival at Lubbock , Nix mounted a new and more serious attack on Watkins. Knowing of the impending meeting of the executive council scheduled for Los Angeles on September 1 and 2, Nix wrote an eight -page letter addressed to Siemiller there , with copies to all executive council members , in which he accused Watkins of fraud, double charging , and incompetence . As later fairly summarized in the report of the committee which investigated the charges , Nix's letter reduced itself to two direct accusations of fraud and two indirect allegations , one concerning fraud and the other in- volving the administrative incompetency of Wat- kins as vice president . The summary continued as follows: The two accusations of fraud name and document two specific but separate incidents; they are: 1. The double charging of transportation and per diem expense. II. A restaurant check involving local lodge 1303, Houston , Texas on May 14, 1965. The two indirect but implied accusations are. III. Fraud involving physical examination of Vice President Watkins. IV. Vice President Watkins ' incompetency to administer the affairs of the then southern territory. Nix also called to the attention of Siemiller and the council their oaths and duties under the con- stitution and stated that, if they should fail to act, both civil and criminal action would be sought against Watkins and recall action would be in- stituted as provided by the constitution . Nix in- cluded in his letter various comments on the or- ganizing campaign and the progress being made and as usual identified himself as the bellwether. Again Nix supported his charges against Watkins by attaching copies of documents which he took from Watkins ' files . Thus Nix admittedly looked through Watkins ' file of weekly expense statements, extracted the one for the week ending July 24, to which was stapled an Eastern Airlines ' ticket cou- pon, and photocopied the material on the copying machine in the supply room . He removed from the same folder Watkin 's activity report for the week ending July 23, made penciled notes of the entries at Watkins ' desk and later typed those notes. Though Nix claimed that the file was on top of Watkins' desk , Watkins testified to the contrary that he kept his expense statements and activity re- ports in separate folders in the lower left-hand drawer of the desk , so that Nix had to search inside Watkins' desk to find them . I credit Watkins' testimony . As for a copy of a letter of May 18, Nix admitted that he obtained it after his return from his trip to Washington on July 9, from someone 2094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who produced the copy and gave it to him, and he admitted further that he removed another letter dated July 23 from the daily file and had a copy made. Finally, Nix warned Siemiller and the council that the documents he had furnished were only a few of those relating to Watkins, that he had a number of others equally or more serious which could be the subject of court action under the con- stitution, and that he was reserving them for such purpose if necessary, adding, "They are already in the hands of counsel." Nix's letter was discussed at the council meet- ing on September 1 in Watkins' presence. Wat- kins informed the council that he kept his ex- pense statements and activity reports in the lower left-hand drawer of his desk so that in- formation from them could be obtained only by removing them from the inside of the desk. Because of the serious charges of fraud made against Watkins it was decided to relieve him of his assignment over the southern territory and also to divide that territory, adding various portions to other contiguous territories. The portion east of the Mississippi River was added to the Great Lakes territory under the supervi- sion of Vice President Floyd E. Smith, to whose staff Nix was later attached. As concerned Nix's conduct in the removal of documents from the Atlanta office, the council was unanimously of the opinion that Nix should be fired, but was again persuaded by Siemiller's view that the pendency of the organizing campaign would make it imprudent to effectuate the decision at that time. On September 4, Nix wrote Watkins from Lub- bock, requesting permission to visit his home in At- lanta for the coming weekend. He explained in part that he had matters which he desired to discuss with the Board's Regional Office in Atlanta, as well as with counsel and other Federal and state agen- cies , and that the longer he was prevented from seeing those people the longer he would be denied certain rights guaranteed under the law, including freedom from interference in the exercise of those rights. Watkins replied on September 7 that in view of the apparent threats in Nix's letter it merited the personal attention and handling of President Siemiller. Siemiller in turn wrote Nix on September 9, suggesting that as Nix had had ample time within which to make an organizing survey, he should write a complete report and that he was authorized to return to his home station and remain there until he received an assignment from Vice President Smith, who was supervising the portion of the southern territory which lay east of the Mississippi River. Nix returned to Atlanta on September 14 and re- ported the results of his survey by letter on the same date. The nature of the accusations against Watkins was such, in Siemiller's opinion, as to warrant a hearing in which Watkins would have the right to face his accuser and to clear his name if he were in- nocent. Siemiller therefore informed the council that he was appointing a committee from the coun- cil members who would conduct a hearing and make a complete investigation of the charges against Watkins. On September 14, Siemiller ap- pointed Vice Presidents Ross Mathews, Gilbert Brunner , and Floyd Smith as a committee of three "to conduct a full and complete investigation" of the Nix charges and thereafter to make a complete detailed report of their findings of fact. On September 15, Mathews as chairman notified Nix and Watkins that the committe would convene on September 22 at the Washington headquarters and each was requested to bring any and all records, documents, and evidence which each desired to present in support or in defense of their respective positions. Nix was reminded that his letter of August 29 stated that he was submitting "only a few" of a number of documents and was requested to submit in full all documents or evidence which he had. By reply on September 18 Nix refused to furnish any additional evidence or documents on the ground that he was reserving his right to file suit , that the information was for that purpose, and that counsel had advised him it was not of such a nature as would require submission to the committee before filing suit in a court of com- petent jurisdiction, which right Nix stated he would continue to reserve. Nix again wove in references to his organizational activity, claiming in part bad faith on Respondent's part "including reprisals by the employer against the undersigned." Nix also suggested that the committee request Sewell to come before it because Sewell had the best first-hand knowledge of many of Watkins' ac- tions and there could be no investigation at all un- less the committee should seek information from Sewell. Sewell thereafter appeared at the chair- man's request and supported at some length certain of Nix's charges concerning Watkins' administra- tive ineptitude.' The committee hearing went on over some 4 days and was fully reported in a transcript of 562 pages. Witnesses were not sworn, but Nix and Sewell made lengthy statements in support of Nix's charges and Watkins in turn defended himself in similar manner. On November 26 Nix wrote Siemiller requesting a meeting alone and off the record "to discuss mat- ters" before any action was taken regarding Wat- kins. Siemiller replied on November 30 rejecting the request for an off-the-record meeting. He referred, however, to Nix's charges against Wat- ' During a private conversation between Sewell and Vice President Smith on the eve of the committee hearing, Sewell suggested that if Smith would guarantee or agree to eliminate Watkins as a general vice president, Sewell could get a meeting between Smith and the party who was heading up the organizing campaign, and you can get that stopped " INTERNATIONAL ASSOCIATION OF MACHINISTS 2095 kins, to the committee's investigation, and informed Nix that if he had any additional information to submit to the executive council, Siemiller would authorize Nix to travel to San Francisco to appear before the council in a meeting which was scheduled for December 2. Siemiller added that if the information was such that it could await the close of the convention in San Francisco, he would authorize Nix to come to Washington to meet with him and the two other resident council members. Nix replied on December 9, agreeing to the Washington meeting and stating that there were "matters which [he] must keep on an alternative basis for compelling reasons, and which [he] would hesitate to even discuss if [he] thought [Siemiller] would disagree." On December 23 Siemiller responded that since Nix's letter indicated he had additional information to submit, he was authorized to come to Washington on January 6. Testimony concerning the meeting was in con- flict, with Nix's version being disputed in significant respects by Siemiller, Mathews, and DeMore. Aside from the fact that the testimony of the latter was mutually corroborative, I found Nix to be an unrealiable witness both from his manner of tes- tifying-at times evasive and unresponsive- and from the content of his testimony.' I therefore do not credit Nix's testimony where it conflicts materi- ally with that of the International officers, on whose testimony the following summary is based. Siemiller inquired whether Nix had any addi- tional information pertaining to Watkins but Nix had none. Nix stated that in his opinion he had been practically fired though he was still drawing his pay, and Siemiller commented that Nix could and should have been fired for taking documents from the Atlanta office. Nix replied that if Siemiller discharged him he would take it like a man and there would be no recriminations. Nix then turned to the organizing movement and stated that he had had ample time to think about it while on an inactive status; he had come to the view that the Association would be political in na- ture, detrimental to IAM, that its formation was a mistake, and that he would disband it. Nix ex- plained that all of the money which had been ex- pended was his own, that he could therefore withdraw without being beholden to anyone, and that upon returning to Atlanta he would inform the representatives he was ending his organizational ac- tivity and would refund the money he had received to finance the formation of the Association. Nix suggested alternatively that Siemiller recognize an informal committee through whom the representa- tives could present grievances.' Siemiller refused the request, stating that any of the representatives could discuss any problem with him or the vice pre- sident supervising his territory. Nix continued that since he had achieved his ob- jective of having Watkins removed from the Atlan- ta office, he had lost some of his interest in the or- ganizing campaign and inquired whether Siemiller would guarantee that Watkins would not move against him within or without the organization, as by a suit for slander for example. Siemiller replied that he could make no commitment concerning Watkins but suggested that if Nix would make the first approach to Watkins he (Siemiller) was willing to act as a mediator to help compose their dif- ferences. Nix also made further statements absolv- ing Sewell from participation in the Association and agreed that the division of the southern territory was a good arrangement. On January 11 Nix filed a representation petition with the Board, specifying a national unit of grand lodge representatives, special representatives, and press representatives, and on the same date he wired Siemiller on behalf of the Association claim- ing majority representation, but he also renewed his prior request for recognition in the southern territo- ry as made originally in July. Nix sent simultane- ously another telegram, quoted below, in which he again intertwined the organizing activities and as- sertions of harassment of himself with references to the Watkins matter and threats of legal action: Lack of any concessions whatever, even to a committee which would not have bound you to anything, unacceptable to organizing commit- tee. I am bound to my commitment to them to petition. I have therefore this date filed peti- tion with the Atlanta Board. Your denial of the existence of a commitment, signed by you, A. J. Hayes and Elmer Walker, and which I had personally seen, also convinces me beyond any doubt that oral promises of the "my-door-is- open" type of staff consideration, would be meaningless. Also the treatment to which the undersigned has been subjected and the absence of any assurance whatever that this harrassment and intimidation would not be continued, and that at some convenient time in the future the undersigned would not be fired- completely, or to use the dishonest word for it-"furloughed." On reflection, this is also to inform you that I cannot and will not agree to any whitewash of the Watkins matter. He has violated his oath of office, by his own admis- sions, and is subject to removal from that of- fice. If you condone it, you violate your own oaths of office in an area of cardinal im- s Nix's testimony was at times self-contradictory and at other times it was inconsistent or in conflict with prior oral and written statements (in his let- ters) as well as with the course of action he was pursuing As previously ob- served, his first claim of accomplices in the Watkins matter was made as a witness herein Nix also repeatedly denied that there was any connection whatever between his war on Watkins and the organizing movement That claim was wholly disproved by a number of his letters as well as by his en- tire course of conduct which showed that Nix repeatedly intertwined the two Indeed Nix admitted at one point that both the organizing effort and the Watkins matter were discussed on January 6, and his subsequent tele- gram on January I l (see infra) showed that he continued to enmesh the two c Nix had made a similar suggestion in his letter of August 29 2096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portance and become yourselves subject to suit and petition for removal from office. If you have any changes in your position in these mat- ters, both as to organizing and as to Watkins, they should be conveyed to me, in writing and over your signature , by Saturday, January 15, 1966. In the absence of such communication from you, suitable announcements will be made to the public press regarding both matters, and all possible time limits having expired, petition will be filed in the Georgia State Courts regarding the Watkins matter. On January 12, the investigating committee is- sued a 24-page report covering its investigation of the charges against Watkins. The committee cleared Watkins of the accusations of fraud but found that had he violated IAM policy on two counts, ( 1) in discontinuing a prior practice of re- mitting to the general secretary- treasurer all reim- bursements from the Federal Government, and (2) in establishing an unauthorized "emergency fund." The commitee also rejected the charge of adminis- trative incompetence, finding that the criticisms to which Nix and Sewell testified involved not wrong- doing, but rather a disagreement with the judgment and discretion which Watkins exercised in his post. The committee also commented at length on the role which Nix had played and censored him severely for his conduct in searching Watkins' per- sonal belongings, files, and desk and in surrepti- tiously working to obtain whatever evidence might best dishonor Watkins. Finally the report stated that the committee made numerous requests of Nix that he present the additional evidence which he claimed to have, but none was produced. On January 13, Siemiller reported to the execu- tive council the content of the conversations with Nix on January 6, and on February 9 he discussed with the council the report of the committee. The council concurred in Siemiller 's decision to adopt the committee's report as his own, to continue the division of the southern territory, to return Watkins to active duty, and to defer discharging Nix because of his surreptitious removal of documents due to the coincidence of his organizational activity. The council again unanimously agreed that Nix should be discharged because of his misconduct but that it was imprudent to terminate him at the time because of his continued prominence in the or- ganizational activity. On February 19, Nix wrote Siemiller and all members of the executive council disputing the finding in the committee's report that Watkins was not guilty of fraud. Repeating his charge to the con- trary, Nix called on the council to take action to collect moneys which Watkins had fraudulently withheld and proceeded also to charge that all grand lodge officers had consistently violated the IAM constitution in authorizing the payment of sums in excess of actual and necessary expenses or where no expenses were incurred. Nix concluded with a demand that Siemiller and the council proceed immediately against such persons, includ- ing grand lodge officers and members of the execu- tive council and the sureties on their bonds, to recover the sums so illegally paid in excess of actual and necessary expenses. On July 30, Nix wrote Vice President Smith requesting approval of a week's vacation from Au- gust 7 through 13, stating that he would make a request for the remaining 2 weeks' vacation later in the summer or fall. The letter was answered on Au- gust 3 by Siemiller who expressed surprise that Nix was requesting a paid vacation but who neverthe- less authorized him to take the 3 weeks beginning August 7. Siemiller also instructed Nix that after he returned from his vacation to contact the Interna- tional's office, which in the meantime would at- tempt to find some work that Nix could perform. Siemiller warned Nix, however, that there might be some problem because no one on the executive council who had the responsibility of supervising a territory would agree that they needed or could use Nix's services. On August 4 Nix wired Siemiller withdrawing his request because he was not being allowed to split his vacation. Siemiller replied by wire on August 8, "Your vacation period stands. Take it or leave it." Nix wrote Siemiller on the same date that he was starting his vacation under protest. On August 3 1, Siemiller wrote Nix the following letter that he was being discharged effective on September 15: For approximately 1 year now the Vice Pre- sident who has the responsibility for supervis- ing and assigning the work force in the territo- ry in which you are located, has advised that he has no assignments where he needs a Press Representative. He further advised that he had never worked with a Press Representative and had no desire for one now. Therefore, in view of the fact that there is no need for your ser- vices for our union, this is to notify you that your services are terminated, effective the 15th of September. Siemiller testified that he ultimately discharged Nix because he could no longer justify keeping Nix on the payroll when there was no work for him to do and when Siemiller had no trust in him. Vice President Smith had taken the position from the beginning that he had no use for a press representa- tive and had no assignments for Nix, aside from which he had no trust in Nix because of his conduct in taking documents from the office. Other vice presidents similarly informed Siemiller they did not want anyone on their staffs in whom they had no trust . The lack of trust, Siemiller testified, resulted from Nix's conduct in taking documents that did not belong to him and using them for his personal purposes. Siemiller explained that he kept Nix in an inactive status because he wanted to avoid an un- fair labor practice charge and that he delayed discharging him for that reason; he denied that Nix's role in the organizing activities played any INTERNATIONAL ASSOCIATION OF MACHINISTS part in the reason for firing him. On December 15, Siemiller reported to the staff that Nix had filed a charge and the Board had is- sued a complaint and informed it that Nix was discharged because Respondent had no further use for a press representative in the area and because the executive council had lost complete confidence in Nix. Concluding Findings Viewing the discharge first as postured only in the light of the General Counsel's evidence a prima facie case was plainly made out that Respondent acted discriminatorily. Thus with full knowledge of Nix's leadership in the organizational activities, Respondent gave him an assignment at one of the most distant points in the territory and then placed him in an inactive status for a full year without an assignment of any sort. At the end of that time, dur- ing which Nix continued to spearhead the organiz- ing campaign , Siemiller discharged him on the ground that Vice President Smith had no need for a press representative and Respondent therefore had no need for Nix's services. If the ground assigned were the real basis of Respondent's action it plainly would not have taken Respondent a year to learn that it had no work for Nix, who had in effect been on a year's vacation with pay. Furthermore Nix's testimony, here cor- roborated by other witnesses, showed that he had for years been assigned to various types of organiz- ing work similar to that done both by grand lodge representatives and special representatives which fell outside the normal scope of the job of a press representative. In addition the hiring of many new special representatives, shown by documentary evidence furnished by Respondent, also showed that there was plenty of work available which Nix could do and exposed the spurious nature of the ground assigned in the discharge letter. Since the conclusion is warranted from the foregoing that Respondent's motive was discriminatory, we turn to the question whether Respondent's evidence is suf- ficient to overcome the prima facie showing. It was plain from Nix's various letters and from his entire course of conduct that despite his denials as a witness, he deliberately tied together his attack on Watkins' and his organizational activities, ad- vancing both simultaneously. Whether his motives were purely political (as suggested in the meeting of January 6, 1966), or only partly so, it was ap- parent that Nix so entangled his attacks on Watkins with his organizational activities as to get the max- imum possible protection from the latter against ' Nix endeavored in part to justify his conduct by claiming that in Janua- ry 1965 Siemiller expressed some interest in how Watkins was conducting the office and that Sewell told him of a call in 1964 from then President A J Hayes concerning Watkins Siemiller denied Nix's testimony and denied that he in any manner sought to acquire information concerning Watkins' 2097 reprisals which he feared from the former . Further- more , Nix's own testimony showed full recognition that his misconduct concerning the invasion of Watkins' personal papers and files was such as to warrant discharge . Thus he sought as a witness to explain his earlier failure to name his accomplices by testifying that he wanted to protect them against discharge and that he stood ready " to take the rap." As Nix was the principal , however , his conduct was obviously more blameworthy than that of his ac- complices and more justifiable of discharge. Again in the January 6 meeting Nix's statements con- tained implicit recognition that his discharge, based on taking documents from the Atlanta office, would be warranted. Respondent 's evidence showed that it was fully aware from the start that because of the coin- cidence of the organizing campaign and the attack on Watkins it could discharge Nix for his miscon- duct only at the price of involving itself in an unfair labor practice proceeding . Then and thenceforth the position which its International officers con- sistently took and which its executive council con- curred in was that Nix should be discharged because of his misconduct but that action should be postponed because of the almost certain risk of un- fair labor practice charges as repeatedly threatened by Nix. Thus Nix had so ingeniously ( and success- fully) entangled his two activities , allegedly uncon- nected , that Respondent , though not the tortfeasor in this respect, could not itself safely attempt a dis- entaglement . Cf. Remington Rand , Inc. v. N.L.R.B., 94 F.2d 862, 872 (C.A. 2). In the foregoing setting Respondent 's handling of the Nix situation appeared wholly consistent and understandable . Just cause existed for discharge, but Respondent was effectively stymied from mov- ing because Nix simultaneously interposed his or- ganizational activities and repeatedly issued dire threats of legal action if reprisals were taken against him. When Respondent finally acted , however, it stultified its position and created a major incon- sistency by choosing to tell Nix he was discharged because Smith did not need a press representative and there was no need for his services. The evidence established as previously found that there was work available to which Nix could be as- signed , and as Respondent developed its case it at- tempted to modify the literal position stated in the discharge letter to support the claim that neither Smith nor any other vice president would use Nix because of distrust resulting from his rifling of Wat- kins ' papers and files . That contention was, of course, coordinate with the basic ground of discharge to which Respondent 's officers con- activities Furthermore Nix denied at the committee investigation that any- one directed him to undertake a probe of Watkins' activities and denied that he sought any instruction from Siemiller that he should engage in "such spying activity " I find on the entire evidence that Nix acted on his own initiative. 2098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sistently testified and which had existed since July 1965. Moreover their testimony was in precise ac- cord with the defense which Respondent pleaded in its answer to the original complaint filed only 2 months after the effective date of the discharge, i.e., that Nix was discharged for stealing the proper- ty of Respondent and the personal effects of his im- mediate superior. The pilfering of documents by employees is generally viewed as serious misconduct.8 In Uniform Rental Service Inc , 161 NLRB 187, for ex- ample, the Board found that an employee forfeited her rights to reinstatement because she had pil- ferred a letter from the employer's private office. Cf. N.L.R.B. v. Big Three Welding Equipment Com- pany, 359 F.2d 77, 83-84 (C.A. 5). In a different field the senate committee which recently in- vestigated Senator Thomas J. Dodd, of Connec- ticutt, found reprehensible the conduct of former employees in removing papers from the Senator's office and directed its chairman to refer to the At- torney General for action the matter of the unauthorized removal. To summarize, I conclude and find that Respon- dent's evidence was sufficient in preponderant weight to overcome the General Counsel's prima facie showing that Nix was discriminatorily discharged; it established that Nix's misconduct was such as to warrant discharge, that the decision was first reached as early as July 1965 to discharge him for his misconduct, and that action was withheld only because of Nix's repeated threats to file charges or to take legal action. The assigning of a different ground in the discharge letter, though a suspicious circumstance, was not sufficient to tip the scales again to the General Counsel's side, par- ticularly because within a short 2 months Respon- dent pleaded in formal answer to the complaint that it discharged Nix because of his misconduct. C. The Granting of Benefits The facts concerning the announcement and granting of benefits on April 1, 1966, are not in dispute, the parties being at odds only on their con- clusions. As previously noted, the Association first demanded recognition in July 1965, in a unit of em- ployees in the southern territory, and on January 26, 1966, it filed a representation petition in a na- tionwide unit, on which Board hearings were held in February and March 1966. Respondent announced in the February 24 issue of The Machinist that a referendum election which it held among its members in January resulted in the passing of a proposition which would raise the a Nix's attempts to minimize the extent of his snooping into Watkins' af- fairs were not persuasive The numbers and dates of the copied entries showed that Nix engaged in a systematic perusal of the diary beginning soon after Watkins' arrival in Atlanta and that his searching extended back to a time substantially prior to Watkins ' advent His surveillance thus in- volved more than the casual noting of an entry under a current date There salaries of the International officers, grand lodge representatives, and grand lodge auditors. All of those salaries were fixed by the [AM constitution, amendment of which was necessary to make in- creases. The constitution also provided that amend- ments when adopted by referendum should become operative on the first day of the quarter following publication of the vote, and pursuant thereto the in- creases went into effect automatically on April 1, 1966. The foregoing action was without effect on the salaries of special representatives and other em- ployees or on the per diem and expense allowances of all officers, representatives, and employees, for those matters were not covered by the constitution. However, in a meeting from February 8 to 15, the executive council decided to upgrade all special representatives to grand lodge representatives and to increase the per diem and incidental expense al- lowances of all officers and field staff, also to be ef- fective April 1. On February 24, some 54 special representatives were informed of their reclassification and of their raises, which ranged from $1,000 to $4,000, and were informed further of later increases of $500 each to become effective on October 1, 1966, and April 1, 1967, respectively. The representatives were also informed that the executive council had decided to increase the starting rate of special representatives who received future appointments to a minimun of $10,000, with periodic increase of $500 each 6 months, and with automatic reclassifi- cation to grand lodge representative when an an- nual salary of $14,000 was reached. Finally the representatives were informed that certain changes had also been approved in per diem and incidental expenses concerning which a separate communica- tion would soon issue. On March 8 Respondent notified all grand lodge representatives, grand lodge auditors, special representatives, and press representatives that pur- suant to the executive council's decision on Februa- ry 8, the per diem allowance was being increased from $20 to $24 a day and the incidental expense allowance from $7 to $8 a day, effective April 1. Respondent's defense to the foregoing is based in large part on background evidence going back to its September 1964 convention. At that time the delegates voted for certain increases in the monthly per capita tax of all its members and also voted cer- tain increases in the salaries of the International of- ficers, grand lodge representatives, and grand lodge auditors (fixed by the constitution). The increase in the per capita tax was regarded as necessary to ob- tain the additional revenue which was necessary in was also no need for Nix to check the diary to determine Watkins' whereabouts as he claimed, for Watkins' secretary knew where Watkins could be reached at all times Finally the brazenness of Nix's conduct was exposed by his search into Watkins' riles and records for evidence concern- ing his expense reports INTERNATIONAL ASSOCIATION OF MACHINISTS part to support the increase in salaries. At that time such an amendment to the constitu- tion required submission of the proposals to the membership in a referendum election, and an elec- tion was held in November on both proposals. Respondent through its International officers urged the members to vote for both amendments, inform- ing them that Respondent had operated for some time at a deficit, that part of the increase in the per capita tax would go to offset the existing deficit, and that the field staff and the International officers had had no raise in 8 years. However, both proposals were rejected. The defeat of the per capita tax increase resulted in the reduction of expenditures and in various retrenchments. Thereafter on September 1 and 2, 1965, the executive council decided to conduct in January 1966 a further referendum, resubmitting the same proposals which the membership rejected in November 1964. That was the earliest time at which action could be taken on such a matter under the constitution.9 Thereafter Respondent set in motion the machin- ery for the referendum and distributed among its staff various statements and summaries concerning "the financial crisis" which faced it. It importuned the staff relative to the necessary increase in grand lodge per capita tax and salary increases for their officers and appointed staff, stating that the out- come of the referendum would determine the ac- tion which the executive council would take at a meeting which had been called for February 8. Bal- lots were submitted on the two proposals in sub- stantially the same forms as submitted 14 months earlier , and this time the membership voted in favor of both. The salary increases thereafter went into effect automatically on April 1, pursuant to the constitution. Neither of the proposals contained any provision for the granting of benefits other than the salary in- creases of International officers, grand lodge representatives , and grand lodge auditors. The ex- planation advanced by International President Siemiller as concerned both the reclassifying of spe- cial representatives and the increase in per diem and expense allowances was a simple one: "We did not have the money with which to pay.... We just didn't have the money to do it." Concluding Findings It is readily apparent from the foregoing facts that the increases which the grand lodge represen- tatives received stood on an entirely different foot- ing than the additional benefits which the executive council decided to confer. Action on the former was governed by the constitution and was approved in convention as early as September 1964. The re- 9 The General Counsel, on the other hand, urges significance in the fact that it was at the September meeting that the executive council considered the original request for recognition of the Association in the southern terro- 2099 jection in the first referendum prevented resubmis- sion of the proposal for a year, following which the executive council acted promptly in September 1965. Thereafter, all requisite constitutional procedures were completed with the holding of the election in January, for all that remained was the publication of the results, which made automatic the effective date of the raise. Against that background the General Counsel points to the fact that the executive council made its decision to hold the second referendum in the same meeting at which it considered the Associa- tion's original request for recognition in the southern territory and decided to abolish that terri- tory. However much suspicion might normally arise from that coincidence was largely offset by two facts: One was that the council acted at its earliest opportunity to resubmit a proposal which had been under consideration for more than a year. The other was that the nature of Nix's attack on Vice President Watkins and the situation created in the Atlanta office were such (see sect. B, supra) as to require drastic action. In any event the General Counsel failed to establish by a preponderance of the evidence that Respondent increased the salaries of grand lodge representatives for the purpose of causing the employees to reject the Association as their collective-bargaining representative. Aside from the foregoing, the 6-month limitation contained in Section 10(b) prevents the finding of an unfair labor practice as to the present benefit. Thus under the charge in Case 10-CA-6680, filed September 6, 1966, the cutoff date was March 6, 1966. Prior to the latter date, however, all constitu- tional steps had been completed, including the fix- ing of the date on which the increase was automati- cally to become effective. The mere fact that the increase, previously granted, was first received dur- ing the limitation period cannot be charged as an unfair labor practice, for to do so would require reliance on earlier alleged unlawful conduct. Such time-barred conduct cannot be used to revive a legally defunct unfair labor practice. Local Lodge No. 1424. IAM [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411, 417. The additional benefits which the executive council voted were not rooted in constitutional provisions but involved matters on which the coun- cil was at all time free to act. However, the Council did nothing until after the filing of the representa- tion petition, and there is no evidence that it had under consideration, prior to its February meeting, the granting of such benefits. Respondent's ex- perienced labor organization was obviously aware of its legal obligation in the face of the pending proceeding not to grant benefits which would inter- fere with the free choice of their employees in the event an election was ordered.10 tory and decided to abolish that territory 10 Respondent itself filed an RM petition on February 9 2100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The defenses which Respondent asserts are familiar ones , that the increases were "overdue" and that Respondent had not previously had the money which to pay . Those defenses are the sub- stantial equivalent of those advanced by other em- ployers that increased benefits given during an or- ganizing campaign were made possible by a new balance sheet , or a new profit and loss statement, or a price increase in its product , or by some other improvement in the employer 's fiscal affairs. Here it was the increase in the per capita tax which made the benefits possible. The Board has repeatedly held that the granting of such economic benefits during the course of an organizing campaign constitutes a violation of Sec- tion 8 ( a)(1) since it is conduct which it may reasonably be said tends to interfere with the free exercise of employee rights under the Act. Amer- ican Freightways Co., Inc., 124 NLRB 146, 147; Exchange Parts Company , 131 NLRB 806, 812. The Supreme Court affirmed the Board 's holding in the latter case (N.L.R.B. v. Exchange Parts Company, 375 U. S. 405 , 409, 410) observing that, "The danger inherent in well -timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged ." Furthermore the court did not find it controlling , as the court of appeals did (304 F.2d 368, 372), that the questioned conduct stood in isolation , because, " [ W ]hen as here the motive is otherwise established , an employer is not free to violate § 8(a)(1) by conferring benefits simply because it refrains from other , more obvious violations." See also Crown Tar & Chemical Works v. N.L.R.B., 365 F .2d 589, 590 ( C.A. 10), where the court held that , "The granting of economic benefits by the unilateral action of an employer while union organizational efforts are underway , or while a representation election is pending , is a violation of Section 8 ( a)(1) and 8(a)(5) of the Act." The fact that Respondent may have wished to better the economic condition of its employees did not lessen the impact which its action was reasonably calculated to have upon the employees during the organizational campaign because of its natural tendency to discourage their interest in a union which was promising to aid them in securing additional benefits." Respondent advances , however , two further defenses based on Section 10(b) of the Act, (1) that the allegations are time barred by the limita- tion provision under which the cutoff date was March 6, 1966, and (2 ) that the charge was insuffi- cient to support the allegations of the complaint and the amendment thereto in Case 10-CA-6680. " The promotion of all special representatives was one of the goals discussed by Nix in his initial organizing letter , a copy of which went to all members of the executive council We consider those contentions in order. (1) The complaint and the amendment alleged that both the announcement and the granting of the benefits were unfair labor practices. Though the benefits were granted as of April 1, Respondent ar- gues that the announcements were made in Februa- ry with the exception of the per diem and incidental expense allowance, announced on March 8. It con- tends that the effective act was the announcement and that the institution of the benefits added nothing to the force of the earlier act, being simply a ministerial execution of the earlier determination. On the face of the acknowledged exception, Respondent's argument is without application to the increases in per diem and the expense al- lowance, and I find that both the announcement and the granting of those benefits occurred within the 10(b) period. Also, according full weight to Respondent's argument, I conclude that no unfair labor practice finding may be based on the an- nouncement of the other benefits because that ac- tion was taken before March 6. I reject, however, the remainder of Respondent's argument . The present situation was completely dif- ferent from that which involved the salaries of the grand lodge representatives, over which the execu- tive council had no control and in which all requisite action had been concluded. The council had full control over the present benefits; it was free to decide, to announce, to grant, to withdraw, and to suspend at will. Obviously the earlier events surrounding the consideration of the benefits and the announcement thereof shed light on the character of the actual granting. The present situation was thus illustrative of one of the two of which the Supreme Court spoke in N.L.R.B. v. Bryan Manufacturing Co., supra, 362 U.S. 411, 417. Agreeing there that Section 10(b) does not prevent all use of evidence relating to events transpiring more than 6 months before the filing and service of a charge, the Court observed that there were two different kinds of situations to be distinguished. The first one was where occur- rences within the 6-month limitation in and of themselves would constitute as a substantive matter unfair labor practices. The Court held that in that situation the earlier events may be utilized to shed light on the true character of matters occurring within the limitation period and that Section 10(b) ordinarily does not bar such evidentiary use of an- terior events. Cf. Axelson Manufacturing Company, 88 NLRB 761, 766. In the second situation, how- ever, conduct occurring within the limitation period could be charged as an unfair labor practice only through reliance on an earlier unfair labor practice. The increase of the grand lodge representatives was an illustration of the second situation as previ- ously found, for all conduct which was necessary to effectuate that raise occurred outside the limitation period and the council was without power to prevent the raise from taking effect. The granting INTERNATIONAL ASSOCIATION OF MACHINISTS 2101 of the present benefits , however , itself constituted an unfair labor practice concerning which the earli- er conduct was merely "evidentiary ." Thus the use of the latter does not have the effect of converting "what is otherwise legal into something illegal." N.L.R.B. v. Bryan Manufacturing Co., supra. (2) The charge in Case 10-CA-6680 alleged that Respondent discriminated against Franklin W. Nix in regard to hire and tenure of employment on and after August 31 , 1966, and contained the further allegation that , "By these and other acts and conduct , the above -named employer interfered with , restrained and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act." Unfair labor practices were claimed under Section 8(a)(1) and (3). The original com- plaint and the amendment covered not only the al- leged discriminatory discharge of Nix but also the announcement and granting of benefits as indepen- dent violations of Section 8(a)(1). Respondent 's answers did not raise the present defense (through pleading other affirmative defenses), but its counsel moved orally at the opening of the hearing for a dismissal of the complaint on the ground that the charge was insufficient to support the allegations concern- ing the granting of benefits . The motion was denied and the hearing proceeded with full de- velopment by Respondent of its evidence in sup- port of its defenses on the merits and without claim of any prejudice resulting from a failure to preserve all relevant evidence . Indeed, as previously noted there was no dispute concerning the facts surrounding the announcement and grant- ing of benefits. The Board and the courts have many times upheld the sufficiency of charges of the present type to support allegations of independent viola- tions of Section 8(a)(1). Holdings directly to the contrary are in a decided minority and their reason- ing has been rejected . Respondent relies, for exam- ple, on Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749, 754 (C.A. 4). But the holding in that case was examined and specifically rejected in N.L.R.B. v. Kohler Co., 220 F.2d 3, 6 (C.A. 7), where the court characterized Joanna as one of the "early cases" whose holding had not been followed in later court decision.12 Respondent cites other cases which comment on the need of the alleged violator "to preserve the evidence relating to the matter ," as in N . L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696 (C.A. 8); cf. N.L.R.B. v. Bryan Mfg. Co., supra, 362 U.S. 411, 419. There was plainly no prejudice to Respondent here on that score. Finally Respondent argues that the present point was expressly reserved by the Board in Lorben Corp. 146 NLRB 1507, 1508, fn. 1, 1509, and that the question is therefore open to the Trial Ex- 12 Significantly, the wording of the charge in Kohler was substantially identical with the instant one aminer's determination. Lorben, however, is distin- guishable from the present case both in the wording of the charge involved and in the situation which surrounded the litigation of the issue. Furthermore, Respondent here was fully apprised by complaint allegations of the conduct alleged to be unlawful, the issues were fully litigated, and there was no showing of prejudice to Respondent through the failure to preserve relevant evidence. To summarize, I conclude and find that by an- nouncing and granting the increase in per diem and in the incidental expense allowance, by promoting all special representatives to the position of grand lodge representative, and by granting wage in- creases to all special representatives, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. D. The Refusal To Furnish Information On August 5, 1966, the Association was certified in a unit consisting of all grand lodge representa- tives, special representatives, and press representa- tives employed by Respondent in the United States and Puerto Rico, but excluding those employed in Canada and excluding grand lodge auditors as well as certain other employees, guards, and supervisors. On December 5, William E. Sewell in his capacity as chairman of the negotiating and grievance com- mittee wrote International President P. L. Siemiller informing him of the composition of the negotiating committee and requesting a meeting for the pur- pose of negotiating a contract. On November 21 and December 5 and 27, the Association made requests that Respondent furnish it certain information for use in the bargaining negotiations and repeated some of those requests on January 11 and 22, 1966. The requests of November 21 and December 27 and the renewed requests in January were made by Sewell and the request of December 5 was made by Nix as secreta- ry-treasurer of the Association. By and large as will be seen the information sought was of types which are commonly requested by certified labor organizations (including Respon- dent) for the purpose of conducting bargaining negotiations. Some of the information was supplied and some of it was not. As Respondent by brief finally summarizes its position it has furnished the Union with all the information needed to com- mence negotiations and the requests otherwise either sought information which the Association al- ready had or which Respondent did not have or which was clearly irrelevant or premature (if rele- vant) because it involved negotiable matters. First consideration will be given to the Nix request, concerning which the facts and the issues are considerably less complicated than those presented by the Sewell requests. 2102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Nix request On December 5 Nix wrote Siemiller requesting that the Association be notified prior to the change of status of employees covered by the certification and that Respondent negotiate with the Association concerning all changes affecting wages, hours, and other terms and conditions of employment. Nix requested that the information include "layoffs, re- calls, promotions, demotions, furloughs, termina- tions, transfers of home station or assignment, retirements, and any and all changes that affect or could affect the employees' wages, hours and con- ditions of employment." Siemiller replied on December 13 stating that Respondent would furnish only such information as was required by law, "nothing more," because it was reluctant to furnish information to nonmem- bers and did not desire voluntarily to give informa- tion to individuals in whom it had no confidence and who had shown by past performance that they would betray any trust placed in them. Respondent made no attempt to supply any of the information and made no explanation, prior to the hearing, of its failure to make good its represen- tation of willingness to furnish what the law required. The sterility of that representation, fully exposed by the record, made it readily apparent that Siemiller intended his letter as an outright re- jection of the request-a rejection which Respon- dent does not now seek to justify by reliance on Siemiller's references to lack of confidence and betrayal of trust. Though as Respondent argues, Siemiller was obviously right in proposing to go no further than the law required, it was just as obvious that he made no attempt to meet his legal obliga- tion aside from the barren statement of his legal right. The justification which Respondent now asserts is based largely on explanations which were made and information which was supplied for the first time at the hearing. The first point, obviously based on a misreading or misconstruction of Nix's request, was that changes in daily work assignments would number a hundred a day and that it was an impossi- bility to keep the Association informed. A fair read- ing of the request, however, reflected that it did not relate to day-to-day work assignments of employees but to more formal transfer of home station or as- signment.13 The point thus presents a spurious issue. Furthermore, assuming the misinterpretation were made in good faith, Siemiller could, in good faith, easily have removed all question (and met his legal obligation) by making to Nix the same explanation he testified to as a witness. As for change of status actions, Respondent as- " The General Counsel readily concedes that the Association had no right to bargain over day-to-day assignments and that Respondent was not required to notify it about them "The General Counsel contends that there were other status changes, particularly in new hires, concerning which the Association was not tn- serts first that the only ones which have occurred outside of those within the Associations's knowledge were " miniscule " and insignificant and, second, that the Association's contract proposal contained a provision under which the information would be given at regular periods of time, a matter on which Respondent was willing to negotiate. In support of the first contention Respondent points to testimony that there have been no layoffs, promotions, demotions, or furloughs. There was only one termination, William E. Sewell, who as chairman of the negotiating committee needed no separate notice of that. A list furnished (to Sewell) on December 2 contained the retirement dates of all unit employees and only one other retirement took place preceding the request. Transfers of home stations were made in the case of J. W. Sul- livan and Justin Ostro, but Sullivan, as president of the Association and a member of the bargaining committee, was well acquainted with his own transfer. That left only the transfer of Ostro's home station as the sole item on which the Association was not informed. The basic fallacy in the foregoing argument is that it requires the assumption that since the As- sociation knew who was involved in most of the status changes , it would know just as well who the others were or that there were no others. As the General Counsel points out, however, Respondent's farflung organizational setup was such that the As- sociation could not possibly learn of status changes affecting individual employees stationed throughout the country. Moreover, assuming again a genuine desire to meet its legal obligation, Respondent could easily have satisfied Nix's request in the present respects by informing him there were no changes except those the Association knew about. To delay the explanation until forced by litigation obviously failed to meet the obligation to supply in- formation which was necessary to impending bar- gaining negotiations. 14 The remaining point concerned Respondent's willingness , testified to by President Siemiller, to negotiate for incorporation in a contract of a provi- sion for the furnishing of information and the argu- ment that any prior request would be premature. That contention ignores the fact that the informa- tion was being sought for the purpose of enabling the Association to bargain intelligently for, and to represent properly, the employees for whom it was the certified representative. The submission of a proposal which incorporated a provision by which Respondent would recognize a contractual duty to furnish information could in no wise effect Respon- dent's statutory obligation nor did it constitute a waiver by the Association of its right to obtain data formed 1 am receiving in evidence G C Exhs 30 , 31, and 32, on which rul- ing was reserved at the hearing and which tend to support the General Counsel's position Reception of that evidence , however, adds only cumu- latively to the weight of the entire evidence and in no way affects the scope of the remedial order which will be recommended INTERNATIONAL ASSOCIATION OF MACHINISTS which was necessary to the negotiations themselves. N.L.R.B. v. New Britain Machine Co., 210 F.2d 61, 62 (C.A. 2), and cases there cited. I conclude and find that by failing to furnish to the Association the information requested in Nix's letter of December 5, Respondent refused to bar- gain within the meaning of Section 8(a)(5) of the Act. 2. The Sewell requests On November 21 Sewell wired International President Siemiller requesting that Respondent furnish information regarding the classification and pay of the employees in the unit and data, policies, and procedures relating to hire , tenure, and all other information affecting working conditions and terms of employment . Sewell also requested information and data on the group insurance plan and the pension plan. Siemiller replied on December 2, accepting Sewell 's telegram "at face value ," and, though questioning the value of the material , furnished a purported list of classifications which noted also sa- lary, date of hire, and retirement date . The other information was contained , Siemiller stated, in the IAM constitution and in booklets concerning the pension plan and the insurance program , copies of which Sewell already had. The information con- cerning policies for hiring , layoff, and so forth was also unnecessary , Siemiller stated, because Sewell was fully familiar with those matters under his own testimony at the Board hearing based on Sewell's experience as acting vice president in the southern terriory and as assistant to former Vice President McGlon . Therefore , Siemiller concluded, he saw "no reason to fill up paper by enumerating each and every incident and reason therefor." On December 5 Sewell wrote Siemiller two let- ters over his rubber stamp signature in one of which he notified Siemiller formally of the composition of the bargaining committee and requested a meeting for bargaining and in the other of which he questioned the sufficiency of the information furnished and repeated requests for specific infor- mation , including the hiring of new representatives. Sewell also pointed out that the booklets and the constitution did not cover requested information concerning costs of the insurance and pension plans and he added a request for information on the cost of Respondent's travel and liability policy, includ- ing the cost of the liability insurance which each employee was required to carry at his own expense. Sewell also repeated his request for information re- garding policies and practices of employment "as they are currently being applied"; and, though agreeing that he was familiar with such policies and practices prior to Siemiller 's administration, he stated that the Association was not familiar with such changes as might have been made. Despite the fact that Siemiller had accepted 2103 Sewell 's earlier telegram without question, he returned Sewell 's letters of December 5 for per- sonal signatures. On December 27 Sewell wrote Siemiller making a "continuing request" for the information requested in his former wire and letter. Included were specific requests for information concerning the basis of rate determination for all employees in the unit , as well as changes of status and informa- tion regarding the cost of the group insurance plan, the cost of funding the pension plan, and the cost of travel insurance and of automobile liability in- surance. On January 11 Sewell wrote Siemiller he expected to receive the requested data despite his discharge on January 4. In reply on January 18, Siemiller stated that he had already furnished on December 2 information on "names, hire dates , rates of pay , and basis of rate determination ," and would therefore not duplicate that information . As for the group in- surance plan , Siemiller specified three reasons why he would not furnish the information : ( a) He did not have the information and saw no reason to break it down ; ( b) the plan covered , in addition to employees in the bargaining unit , officers , auditors, and grand lodge employees , and all employees in Canada; and (c) Respondent was not pleading poverty or inability to pay. As for requested infor- mation on costs of the pension plan , the travel in- surance plan, and automobile liability insurance, Siemiller repeated that Respondent was not plead- ing poverty or inability to pay. Reminding Sewell again that he was aware of the benefits of the plans through the booklets and the insurance policy and that the costs were wholly paid for by Respondent , Siemiller stated that he therefore saw no reason to furnish any additional information . As for information on the cost of in- dividual automobile liability insurance carried by staff members , Siemiller stated that many em- ployees carried more coverage than was required by Respondent and suggested that if Sewell wanted the information he solicit the members of the As- sociation , who would have the information requested. On January 22 Sewell wrote Siemiller disagreeing that Respondent had furnished the requested infor- mation and made "a continuing request ." Sewell testified as a witness that he made a final request for the information in a negotiation meeting with Respondent on February 24. Concluding Findings I shall set forth separately my findings and con- clusions concerning the various types of informa- tion which Sewell requested. Classifications of unit employees: There was no substance to Sewell's claim that he was unable to determine the classifications of the employees on the list which Siemiller furnished on December 2. 2104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The three separate alphabetical groupings were ar- ranged in the same order as those which Respon- dent furnished in June 1966 in compliance with the rule in Excelsior Underwear Inc., 156 NLRB 1236. All that was omitted were the respective headings, grand lodge representatives, special representatives, and press representatives. However those classifica- tions were self-evident from comparison with the Excelsior list and were otherwise readily identifiable to one of Sewell's tenure by the salary ranges within each grouping. Basis of rate determination: As found in section C, supra, the salaries of grand lodge representatives were fixed by Respondent's constitution and deter- mined by a referendum vote of its members. The basis of the salary determination of special representatives was fully set forth on February 24, 1966, in the letters which were sent to all special representatives and was known to the president of the Association. The salary of a press representa- tive was the same as that of a grand lodge represen- tative, as both Sewell and Nix knew. I therefore find that there was no necessity for Respondent to furnish the present item of information. Policies and procedures of employment: Respon- dent contends that the Association already had the information called for under this item, citing Siemiller's testimony that the officers of the As- sociation were fully acquainted with Respondent's policies concerning employment and that Sewell in particular had full knowledge thereof because as an acting vice president he had sat in on meetings of the executive Council. Furthermore, Sewell had testified in the representation hearing concerning Respondent's administrative and personnel setup and both then and during the testimony at the present hearing showed that he was fully informed concerning most if not all of the working conditions and terms of employment of employees in the unit. Respondent also points to the statement in Sewell's letter of December 5, acknowledging that he was familiar with Respondent's policies and practices. Respondent's argument, however, ignores the qualification which Sewell added, i.e., that his familiarity concerned such matters prior to Siemil- ler's administration and that the Association was not familiar with any changes which had been made, concerning which information was necessary in order to bargain effectively. As Sewell thus limited his request it was both reasonable and easily answerable, for Siemiller needed only to tell Sewell what changes of policy had taken place during the relatively short period of Siemiller's incumbency or to tell him that no changes had been made. There was plainly no harassment involved as Respondent argues. The requests for cost information: Respondent ad- vanced a number of similar contentions concerning the various plans included in Sewell's requests, with variations which will later be noted. One com- mon ground was that the Association had the infor- mation as contained in the various booklets descriptive of the benefits and/or coverage. That claim ignores the fact that Sewell was seeking infor- mation on costs, not benefits, so that the Associa- tion could determine whether to seek higher benefits or increased wages. The fact that the plans may have been noncontributory or that Respondent was paying the entire cost does not avail Respon- dent as a defense in view of the obvious relevance of the information to the purpose for which it was sought.15 Respondent's disclaimer of poverty or inability to pay was also wide of the mark and was premature in any event. It asserts a matter which would become relevant (if at all) only after Respondent might reject during negotiations a demand for higher benefits or increased wages. Cf. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 152-153. It was also no defense that the plans covered em- ployees outside the unit unless that fact somehow made it impossible for Respondent to supply meaningful figures. Though Siemiller's letter did not assign the latter reason,'6 he gave testimony at the hearing that it was not feasible to break down the information to a bargaining unit basis or an in- dividual employee basis. Siemiller made no at- tempt, however, to explain that to Sewell and he withheld until the hearing a simple fact which might well have satisfied the Association concerning the cost of funding the pension plan. Thus Siemiller testified that Respondent was pay- ing into the fund 15 percent of the salary of each employee, and he sought to explain his failure to so inform the Association by stating his opinion that, "It would not be a meaningful figure." Siemiller thus erred both in setting himself up as the arbiter and in concluding that the information was meaningless. Indeed under his testimony the 15- percent contribution of the salary of each employee was an exact measure of the cost to Respondent of funding the plan, which was precisely one item of the information which Sewell requested. As for the group insurance plan, Respondent contends that the Association had the information, and it introduced in evidence semiannual audit and disbursement reports which reflected the amounts which Respondent paid in premiums. Siemiller did not suggest to Sewell, however, that those reports contained the only information which Respondent had, and though he testified that it was almost im- possible to break down the figures to a bargaining unit or individual basis, he again made no explana- tion to Sewell concerning the matter. The same was "The Board has continued to adhere to its holding in Sylvania Electric Products Inc , 127 NLRB 924, enforcement denied 291 F 2d 128 (C A I), cert denied 369 U S 926, that the amount of premium paid to maintain a noncontributory group insurance plan must be furnished to the representa- tive on request See, e g , Electric Furnace Company, 137 NLRB 1077, and General Electric Company, 150 NLRB 192 16 It was contradictory for Siemiller to say as he did that he did not have the information and saw no reason to break it down INTERNATIONAL ASSOCIATION OF MACHINISTS true as to Respondent's travel insurance plan con- cerning which Siemiller testified, "It would be al- most impossible to dig out the cost." A different conclusion is required, however, as to the cost of automobile insurance. Although Respondent requires its staff to carry certain public liability and property damage coverage on their personal automobiles used on organizational busi- ness and to furnish to it a certification of such coverage, it did not seek, and was not generally given, information as to the amount of premiums paid by the employees. I therefore find, as Siemiller informed Sewell, that Respondent did not have the information. To summarize, I conclude and find that by failing and refusing to furnish on Sewell's requests infor- mation concerning changes in Respondent's poli- cies and practices of employment and in the cost to Respondent of its group insurance plan, travel in- surance plan, and pension plan, including the cost of funding the latter, Respondent refused to bargain with the Association within the meaning of Section 8(a)(5) of the Act. Standard Oil Co. of California, 166 NLRB 343, and cases there cited at footnotes 2 and 3. See also International Telephone and Tele- graph Corporation v. N.L.R.B., 382 F.2d 366, 370, et seq. (C.A. 3). I find further that there was no need for Respondent to furnish information con- cerning the classifications of unit employees, the basis of rate determination, or the cost of automo- bile insurance carried by individual employees. E. The Discharge of William E. Sewell Prior to his discharge on January 4, 1967, Wil- liam E. Sewell was employed by Respondent for some 15 years, 12 of which he served as a grand lodge representative. Sewell's stature was such that he was thrice named as acting vice president in charge of the southern territory, serving in that capacity for over a year in the aggregate during absences of the International vice president who su- pervised the territory. Sewell also served as an ad- ministrative aid of the vice presidents of his territo- ry, including General Vice President Watkins, who testified that he considered Sewell to be a com- petent administrative representative and that he in fact championed Sewell for the position of vice pre- sident of the southern territory before he himself was assigned to it. Sewell joined the Association at the inception of the organizational activities and thenceforth took an active part. Though Nix repeatedly sought to as- sure Respondent that Sewell was not involved in the organizational movement, the evidence showed that Respondent believed the contrary. Thus as early as September 1965, Vice President Smith formed the opinion that Sewell was involved in the Association because of a statement which Sewell made to him concerning the need for that organiza- tion for the protection of the representatives. In addition Sewell testified to two telephone con- 2105 versations with Siemiller in which the organiza- tional activities were discussed. In the first one, in the latter part of July 1965, Sewell testified that Siemiller stated among other things he understood that Sewell was "a Grand Mogul." Sewell denied it, but Siemiller continued that everyone understood that Sewell was. The second call, on or about August 12, was made by Sewell as a result of a visit to the Atlanta office by a Mr. Vito Mezzaccano (now deceased) who came in at a time when Vice President Wat- kins was on vacation. Knowing that Mezzaccano had no business in the office, Sewell inquired why he was there and Mezzaccano replied that he wanted to talk with Sewell about the union activity. Sewell asked if Siemiller had sent him, and Mezzac- cano responded, "Well, you said it." As the conver- sation continued, Mezzaccano urged that Sewell call Siemiller at his apartment in Washington. When Sewell finally reached Siemiller , Siemiller de- nied that he had instructed Mezzaccano to call on Sewell, stating that it was Mezzaccano's own idea, but that Siemiller did want to talk with Sewell about the union activity and asked if Sewell knew the names of any of the employees who had signed up with the Union. Sewell replied that he did not know and if he did know, he would not tell Siemiller. Siemiller continued that so far as he was concerned, those who had anything to do with the Association were traitors to the Machinists and there was no place for them on the staff. Bearing further on the issues of knowledge and motivation was the testimony of John R. Tucker, a local lodge officer of Anniston, Alabama, who testified that in October 1966 he discussed with President Siemiller the future of the southern terri- tory in the presence of some 40 members of IAM during a state labor convention at Mobile. Tucker inquired about the possibility of reopening the At- lanta office and Siemiller replied that on investiga- tion of the charges against Watkins, the committee found that the charges were missed by the "per- sonnel" who brought the charges and that his only conclusion was, "That the Atlanta office was a snake pit, a den of iniquity and personnel who went into private files to get their information, that further action was to be taken on the personnel which worked out of the Atlanta office and that he saw no reason for reopening it." Siemiller made no denial of Tucker's testimony, but denied both of the conversations to which Sewell testified. The credibility issue thus presented is resolved in Concluding Findings, infra. Sewell first openly identified himself with the As- sociation by appearing and testifying in its behalf at the representation hearing in February 1966. Finally, of course, his official connection with the Association was made known by his telegram of November 21 and his two letters of December 5 (see sec. D, supra) in his capacity as chairman of the negotiating committee. Respondent's reaction to that formal disclosure 354-126 O-LT - 73 - pt. 2 - 61 2106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD followed almost immediately. Prior to that time Sewell had never received any criticism of his work from any of his superiors. On December 13, how- ever, President Siemiller wrote Sewell a sarcastic and sharply critical letter based on Sewell's regular weekly report of December 3. Specifically the criti- cism was directed at the brief and general state- ment or description which Sewell made of his or- ganizing activity during the week, with Siemiller's suggesting that such generalizations were resorted to only to cover up Sewell's lack of performance. Sewell testified without dispute, however, that he had used the same type of language in submitting his weekly reports ever since September 1951, without any prior question or criticism. Further- more, Siemiller had been president for approxi- mately 18 months, during which time some 75 weekly reports had been received from Sewell, mostly from the field. Siemiller followed shortly with a letter dated December 22 in which reference was made to re- ports that Sewell was opposing a proposal to eliminate the postconvention referendum on which a referendum was scheduled for January. Sewell was requested "to report to this office if you have been advising local lodges to vote against the proposition in January; and if you have been oppos- ing the Referendum, give the reason for such posi- tion." Sewell replied on December 27, informing Siemiller that he had discussed the referendum with many individuals, "in an opposing approach," but not with local lodges. Sewell's letter continued as follows: This view of mine, is because I believe we should have the post-Convention Referendum. This has been a right that IAM members have had, to my knowledge, since I have been a member. This was also the position of the Ex- ecutive Council in September 1964, at the Miami Convention, after a change of views. You, as part of the Council voted to do away with the Referendum in the Executive Council meeting of March 1964, and then you, as part of the same Council took the opposite position with the committee before their report to the Convention in Miami. I believe that the committee's report as given by Delegate Schiavenza, found on pages 322 and 323 of the proceedings of the Convention, supports my reason for opposing the January Referendum. On January 4, Siemiller discharged Sewell by the following letter: I have before me your letter dated December 27, 1967, wherein you advise that you refuse to carry out the decision of the Ex- it Though Siemiller had addressed a somewhat similar inquiry to CLR Royal E Butcher on December 27, there is no basis for comparison with Sewell's case, for Butcher denied that he had advised the members to vote ecutive Council in supporting the forthcoming Referendum. Grand Lodge Representatives are on the staff for the sole purpose of assisting the Ex- ecutive Council, including the International President, in carrying out their duties and responsibilities. Many times it is necessary to make new decisions regarding various subject matters, depending upon the period of time we are living in. In the instance case it was the best judgment of the Executive Council that the time had arrived when- we should modernize our Union and do away with the post convention referendum. Your position, as stated in your December 27, 1966 letter, together with admitted actions, is insubordination. Therefore, for this reason, your employment with the International Union is terminated immediately upon receipt of this letter .... Sewell as a witness affirmed the admission in his letter that he had opposed the referendum in discussions with many individual members of Respondent but denied again that he had advised local lodges to vote against it. Sewell admitted further that he knew that both Siemiller and the ex- ecutive council expected him to support their posi- tion, which was to eliminate the postconvention referendum.17 Relevant also to Respondent's defense was a provision of its constitution that subject to the ap- proval of the executive council the International president has full control of all grand lodge representatives and the testimony of Siemiller that grand lodge representatives are the personal representatives of the International president to carry out the duties and responsibilities delegated to them and that their relation to the executive council is the same. Sewell himself admitted that a grand lodge representative is the representative of the International president at all times and that his job is to execute the policies of the International president. Respondent offered a mass of cumulative evidence concerning the basis of its desires for eliminating the postconvention referendum and the communication of those desires to the grand lodge representative. As Sewell's admissions made that evidence largely immaterial, the following brief summary will suffice. Prior to the January referendum the constitution had provided a two-step process to effect an amendment where the amendment was initiated by convention action. After approval of the amend- ment by the delegates at the convention a further submission of the proposal to Respondent's mem- bers was required in a referendum to be conducted against the referendum and asserted to the contrary that he was recom- mending that they vote "Yes " INTERNATIONAL ASSOCIATION OF MACHINISTS by a secret ballot vote of the members at a meeting of each local lodge called for that purpose. How- ever, the constitution provided for amendment otherwise by direct referendum, unrelated to any convention action, and that was the method fol- lowed here in seeking to eliminate the requirement for a postconvention referendum to ratify conven- tion action. On September 7, 1966, the executive council ap- proved Siemiller's proposal to effect such an amendment and on November 1 the general secre- tary-treasurer issued to local lodges a circular in- itiating the procedure and recommending that the lodges arrange for discussion of the proposed change at all lodge meetings prior to the vote. On the same date Siemiller informed the executive council of a recent decision in Local No. 12, Inter- national Brotherhood of Telephone Workers v. Inter- national Brotherhood of Telephone Workers, 362 F.2d 891 (C.A. 1), cert. denied 385 U.S. 947, and expressed fear that if the procedure approved by the court were upheld by the Supreme Court it would require drastic changes in Respondent's constitu- tion, which constituted a further reason for eliminating the postconvention referendum. On November 16 Siemiller sent to all grand lodge representatives and others a nine-page fact sheet which contained pertinent information and data which could be used in discussing with membership the elimination of the postconvention referendum, and on November 30 the same fact sheet was sent to all district and local lodge presidents. On November 15 the general secretary-treasurer sent to local lodge secretaries letters which summarized the instructions and which expressed the desire of the executive council that the vote reflect "the thin- king of the majority of our members." The General Counsel in turn calls attention to the fact that none of the literature contained an order that either grand lodge representatives or other employees must support the referendum though all of it was directed at soliciting support. Furthermore Sewell was not informed that he must personally support the referendum.18 Those omis- sions were in direct contrast with the instructions which Sewell received concerning the earlier referendum (see Sec. C, supra). Thus in his letter of October 22, 1965, to all grand lodge representa- tives and other employees, Siemiller emphasized the need for their support in urgent language: "[L]et there be no misunderstanding regarding the forthcoming referendum. It must be passed!" Furthermore Vice President Smith personally in- structed Sewell to attend local lodge meetings and "to promote and push" that referendum. As a final footnote, the present referendum resulted in the elimination of the postconvention referendum by a vote of 48,300 to 41,400. 18 Vice President Smith admitted that he did not talk with Sewell per- sonally about the referendum though he had "asked for support" of it from CONCLUDING FINDINGS 2107 Though Respondent had long been aware that Sewell harbored prounion sentiments, the extent of his attachment did not become apparent until his telegram and letters disclosed his connection in an official capacity, one in which Respondent would be required to deal with him as the representative of the Association. Respondent's almost instant reaction showed how distasteful to it Sewell thereby became. Suddenly a grand lodge representative of long and distinguish tenure was charged-for the first time in his career-with "covering up his lack of performance." Even more illuminating was the basis of the criticism, the generalized statements in Sewell's last weekly report, which under Sewell's undenied testimony was phrased in terms identical with language he had used for some 15 years. Though such resort to baseless criticism-an ob- vious step in building a record of ostensible "cause" for a discharge soon to follow-would alone support an inference of disciminatory moti- vation, we consider the earlier testimony reflective of Siemiller's animus against employees connected with the Association. On the issue of credibility as between Sewell and Siemiller I found the "demeanor" factors to be evenly balanced, with both being equally credible, so that the issue must be resolved by an analysis of the testimony and by resort to such other evidence as will tip the scales. Respondent argues that the remarks which Sewell attributed to Siemiller were inherently in- credible and were too crass and unsubtle for an ex- perienced union representative of Siemiller 's intel- ligence, sophistication, and integrity. I do not find that argument to be persuasive in the light of hun- dreds of Board decisions in which similar coercive statements were found to have been made by management representatives of some presumable intelligence, sophistication, and experience. It is noteworthy too that at that time Siemiller obviously assumed that Sewell would be on management's side in view of his service as an acting vice presi- dent. Furthermore , analysis of Siemiller's testimony disclosed inherent weaknesses. Not con- tent with making a flat denial of both conversa- tions , Siemiller attempted to corroborate himself through an alleged checking of Sewell's reports which reflected that Sewell made no calls to him from Atlanta at the times Sewell specified. Or- dinarily, however, Sewell's activity reports would not show any telephone call made from a regional office to headquarters in Washington. Moreover, Sewell testified that he made one of the calls from the Atlanta office to Siemiller's apartment telephone number which was supplied by Mezzac- cano. both grand lodge representatives and local lodge representatives during an Alabama State Council meeting in October 1966 2108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Siemiller's testimony was also questionable in failing to explain the odd circumstance of Mezzac- cano's visit to Atlanta, which fact under Sewell's testimony alone accounted for the second conver- sation. The fact of Mezzaccano's visit in Watkins' absence stands undenied and Respondent made no effort to establish that Mezzaccano came there without authority or without direction.19 Finally, Tucker's undenied testimony showed that Siemiller's sentiments were in full accord with those to which Sewell testified. Though Respondent would infer that Siemiller's statements in Mobile referred only to Nix and to Nix's misconduct in rifling Watkins' files, his language was plainly not limited to a single employee but referred to a situa- tion involving more than one. Thus his use of the terms "personnel," "snake pit," and "den of iniqui- ty," with their connotations not only of plurality but also of conspiracy. Aside from that if only Nix were considered as involved, the Atlanta situation had been effectively corrected for some months by closing the office and by immobilizing Nix. It is also to be noted that as early as February 1966 Sewell openly identified himself with the Association by appearing as a witness in its behalf at the represen- tation hearing and thereby also had identified him- self with the situation in the Atlanta office in which, as Respondent well knew, the whole organizing movement was centered. I therefore credit Sewell's testimony concerning his telephone conversations with Siemiller, and I conclude and find that the General Counsel's evidence plainly established a prima facie case that Sewell's discharge was discriminatorily motivated. Turning now to Respondent's evidence and to the "cause" which it assigned, it is to be noted ini- tially that what Siemiller directed Sewell to report on was whether he had been advising local lodges to vote against the referendum. Sewell denied that he had done so and Respondent at no time disputed that denial Sewell explained, however, that his per- sonal view was in opposition to the referendum (and in accord with the earlier position of the ex- ecutive council at the 1964 convention) and that he had expressed his opinion to individuals. Siemiller nevertheless proceeded on the basis of that admis- sion alone to charge Sewell with insubordination and summarily to discharge him. As a member of IAM Sewell was plainly entitled to vote as he saw fit and was presumably entitled, in the exercise of the right of free speech, to state his personal view as a member where not speaking in his official capacity as a grand lodge representative. Indeed, Respondent's counsel argued orally that Respondent was not taking the position that Sewell was obliged to support the referendum as an in- dividual member of IAM but only to support it as a 1' Sec 10 (b) plainly does not bar the utilization of the background evidence supplied by the foregoing in evaluating Respondent's subsequent conduct Being plainly relevant to the issue of motive, it can properly be considered for the purpose of elucidating and explaining the quality of the grand lodge representative. Siemiller testified, how- ever, that an employee did not have the right to ex- press his personal opinion on a referendum: Q. (By Mr. Uehlem). Mr. Siemiller, do you believe a person has the right to express a per- sonal opinion about how he is going to vote in referenda? ... A. As long as he is employed as the direct representative of the International President and employed to carry out a policy, then he forfeits that right to express a personal feeling. Q. In other words Mr. Siemiller ... if some member of the IAM asked a GLR how the GLR is going to vote, he cannot say, "I am going to vote against this referendum" if the Executive Council is in favor of this referendum? A. He would not be carrying out his duties and responsibilities if he did .... With whatever sincerity those views are held, the evidence here did not establish insubordination as such, for Sewell did not disobey either specific or- ders on the referendum or general orders pertaining to all referenda or the requests contained in the literature distributed to the field. Even were it assum emed, arguendo, that Sewell's actions warranted the characterization of insubor- dination, the evidence as a whole established that it was not the real, the moving, cause, but that Respondent seized upon it as furnishing ostensible cause to shield its dominant motive, so readily ap- parent from the General Counsel's case-in-chief, of antiunion discrimination. Cf. N.L.R.B. v. C & J. Camp Inc., 216 F.2d 113, 115 (C.A. 5). Indeed as previously found the search for ostensible cause began immediately upon receipt of official notifica- tion of Sewell's connection with the Association, as reflected in Siemiller's critical and sarcastic letter. It was thus evident that Sewell was doomed to go if not for one "cause" then for another. Siemiller's animus as previously reflected in the characteriza- tion of "traitors" which he assigned to those who supported the Association plainly applied to one like Sewell, who had sat from time to time in management's highest councils and whose officials' desertion of the management side was so bitter a pill. I therefore conclude and find on the entire evidence that Respondent discharged Sewell because of his membership in and activities on be- half of the Association, including particularly his designation as chairman of the latter's negotiating committee. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: later alleged discriminatory discharge, Armco Drainage & Metal Products, Inc , 106 NLRB 725, 730 , for it is neither given independent and con- trolling weight herein nor determinative significance Nens Printing Co, Inc. 116 NLRB 210, 212 INTERNATIONAL ASSOCIATION OF MACHINISTS 2109 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act and is an employer of em- ployees within the meaning of the Act. 2. IAM Representatives Association is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By discharging William E. Sewell on January 4, 1967, because of his union membership and ac- tivities , Respondent engaged in discrimination to discourage membership in the Association, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. All grand lodge , special , and press representa- tives employed by Respondent in the United States and Puerto Rico; but excluding all similarly clas- sified employees employed exclusively in Canada, those employed chiefly in unrelated special assign- ments at headquarters, grand lodge auditors, office clerical employees, professional and technical em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 6. At all times since August 5, 1966, the As- sociation has been and now is the exclusive collec- tive-bargaining representative of all the employees in the above-described unit for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 7. By failing and refusing to furnish to the As- sociation requested information as found in section 111, D, supra, Respondent refused to bargain and thereby engaged in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent did not engage in unfair labor practices by discharging Franklin W. Nix. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action as specified below which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the poli- cies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease- and-desist order. Upon the foregoing findings of fact and conclu- sions of law and the entire record, and pursuant to Section 10(c) of the,Act, I hereby issue the follow- ing: [Recommended Order omitted from publica- tion. ]