International Telephone & Telegraph Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1966

159 N.L.R.B. 1757 (N.L.R.B. 1966)

INT'L TELEPHONE & TELEGRAPH 1757
join, or assist any labor organization , to bargain collectively through representa-
tives of their own choosing , to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any or all such activities.
OWEGO STREET SUPERMARKETS, INC.,
Employer.
Dated------------------- By-------=-----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and mutt not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , The 120
Building, 120 Delaware • Avenue , Buffalo , New York 14202 , Telephone No. 842-
3112.
International Telephone & Telegraph Corporation (ITT Federal
Laboratories) 1 and Local 400, International Union of Electrical,
Radio & Machine Workers, AFL-CIO
Professional Employees of I.T .T. Federal Laboratories, a Division
of International Telephone & Telegraph Corporation , Petitioner
and Local 400, International Union of Electrical , Radio and
Machine Workers , AFL-CIO. Cases 2f-CA-2015, 2131, and 2-
RC-2282.2 June 29, 1966
DECISION AND ORDER
On April 15,1965, Trial Examiner Sidney Sherman issued his Deci-
sion in Cases 22-CA-2015 and 22-CA-2131, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices. Thereafter, the
General Counsel, the Respondent, and the Charging Party filed
exceptions to the Trial Examiner's Decision, together with support-
ing briefs. The Respondent also filed a brief in answer to the
exceptions and briefs filed by the General Counsel and the Charging
Party.
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 and briefs, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations, except as modified below.
' The Respondent's name appears in the caption as amended at the hearing.
2 For purposes of decision , we have consolidated Case 2-RC-2282 with Cases 22-CA-2015
and 22-CA-2131
159 NLRB No. 145.
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found, and we agree, that the Respondent
did not violate Section 8(a) (5) and (1) of the Act by conditionally
refusing to advance the date on which the Respondent and Local 400,
International Union of Electrical, Radio & Machine Workers, AFL-
CIO, hereinafter called the Union, usually commenced their contract
negotiations. Accordingly, we shall dismiss this allegation of the
complaint.
2. The Trial Examiner also found, and we agree that the Respond-
ent engaged in bad-faith bargaining with the Union in the shop-
maintenance and clerical-drafting units from July 20 to Novem-
ber 10, 1964, by entering into and conducting negotiations with a
fixed determination to avoid, rather than reach, an agreement, in
violation of Section 8(a)'(5) and (1) of the Act.3
3. We similarly agree with the Trial Examiner's finding that the
Respondent further violated Section 8(a) (5) and (1) by failing to
disclose to the Union certain financial and other data on which the
Respondent relied in support of its claim that it was losing competi-
tive contracts because of the high cost of its fringe benefits and/or
other labor costs.
4. The Trial Examiner also found that the Respondent violated
Section 8 (a) (1) and not Section 8 (a) (5) of the Act by refusing,
for a period of 9 months, to furnish information requested by the
Union pertaining to the seniority of nonunit employees. While we
agree that the Respondent's refusal indeed violates the Act, we base
our conclusion on grounds somewhat different from those of the
Trial Examiner.'
In this regard, the record shows that the contract between the
parties provided that nonunit employees would accumulate seniority
for time spent in nonunit positions and, upon transfer into a unit,
would be entitled to bump unit employees who had less total senior-
ity. Transfer into a unit could occur if there was a layoff of nonunit
personnel, if the Respondent offered such laid-off employee the
opportunity to go into a unit, and if the employee accepted the offer.
In 1963 the Respondent laid off 600 to 700 unit employees and there-
3 In adopting the Trial Examiner 's finding, that Respondent violated Section 8(a) (5)
and (1 ) by engaging in unlawful "surface bargaining ," we rely not only on the factors
considered by him in reaching that conclusion but also on the Respondent 's unlawful
refusal to provide adequate documentation of its "cost reduction " position throughout
the negotiations . The latter position was one of the principal bones of contention at all
such times . Our colleagues ' disagreement with our finding as to " surface bargaining"
appears inconsistent with their holding , in agreement with us, that Respondent ' s refusal
to provide adequate documentation of its "cost reduction" position was itself a violation
of Section 8(a) (5) and (1).
4 The Trial Examiner found that any union activity which serves or aids employees in
their right to engage in concerted activities for their "mutual aid or protection " is pro-
tected by Section 8 ( a) (1). Based thereon, the Trial Examiner further found that the Re-
spondent 's 9-month refusal to supply the nonunit seniority data frustrated the Union's
discharge of its duty to aid employees to enjoy their Section 7 "mutual aid or protection"
guarantee , in violation of Section 8(a) (1)
INT'L TELEPHONE & TELEGRAPH 1759
after transferred 2 nonunit employees into a unit, one of whom,
because of his seniority, bumped a less senior unit employee. Some
unit employees thereupon questioned the possible effect similar trans-
fers might have on their seniority and job status. Consequently,
the Union requested that the Respondent furnish it with a list of
nonunit, employees eligible for transfer into a unit and also requested
information pertaining to the seniority and job classifications of
m;tnagreanent employees who might be transferred into a unit. The
stated purpose of these requests was to enable the Union to admin-
ister its contract, i.e., to enable the Union to advise unit employees
of these seniority facts and the possible adverse effects such transfers
might have upon their unit seniority, and also to assist unit employees
in making and carrying out decisions regarding their jobs as a result
of such transfers, or possible transfers, into a unit. The Respondent,
However, refused to supply such data for a period of 9 months con-
tending, in effect, that it was under no obligation to furnish the
Union with information ,pertaining to nonunit employees.
The Union's right to such data, however, turns not on whether the
employees to whom the data refers are in a unit, but rather on
whether the data itself is necessary 5 and relevant 6 to the Union's
role as bargaining representative. Where, as here, the requested
information relates to the possibility of unit job displacement by
nonunit employees, we do not see how the Union could properly
detect infractions of the contract or institute grievances in order to
protect the rights of unit employees improperly or adversely affected
by such transfers unless it were given the requested information.
Nor do we see how the Union could intelligently discharge its further
bargaining function of counseling and advising unit employees of
their rights and status under the contract which the Union negotiated
for them unless the Union had access to such data.
lccord ingly, we find that the nonunit seniority information
requested by the Union was both necessary and relevant to enable
the Union to discharge its statutory bargaining function of adminis-
tering its contract and that the parties litigated this matter within
this context. We further find that the Respondent, by refusing to
furnish the Union with the requested nonunit seniority data for a
period of 9 months, violated Section 8(a) (5) and (1) of the Act.
5. The Trial Examiner found that the Board's 1951 certification
in the engineers-technicians unit was void ab initio, that the Respond-
ent was at no time ever obligated to bargain with the Union in this
unit, and that the Respondent, therefore, did not violate Section
8(a) (5) of the Act by withdraWing recognition from and refusing
5 Curttss -Wright Corporation , Wright Aerouauttcal Division , 145 NLRB 152, 15G-157.
Acme Industrial Company, 150 NLRB 1403
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain with the Union as bargaining representative of the pro-
fessional employees in this unit. The General Counsel and the Union'
except to these findings. We find merit in such exceptions.
At the outset, we think it relevant to the resolution of this issue to,
set forth the history of bargaining in this unit. In 1945 the Board
found appropriate, inter alia, in engineering unit' composed of
Respondent's engineers, assistant engineers, engineers' assistants,
junior engineers, laboratory assistants, senior laboratory technicians,
and senior engineers, and directed an election therein.$ This direc-
tion of election, however, did not result in a certification in the,
engineering unit. In 1946 pursuant to a consent-election agreement,.
an election was held in this engineering unit and a bargaining repre-
sentative was certified by the Board. In 1947, as a result of negatia-
tions by these parties relative to job descriptions and classifications
in the unit, modifications in the original unit composition were made
by eliminating the titles "laboratory technicians" and "engineers'
assistants" and the parties created and substituted therefor the titles
"Technicians A, B, and C." In 1948, the contracting parties redesig-
nated the shop unit, and the clerical unit as the shop-maintenance unit
and the clerical-drafting unit, respectively, and also redesignated the.
engineering unit as the engineer-technician unit.
In 1951, la representation hearing was held pursuant to a petition
filed by the instant Union under Section 9(c) of the Act. In that
proceeding, in which the three units, as redesignated, were involved,.
a'll parties agreed, with respect to the engineer-technician unit, that
the engineers (and chemists) were professional employees but dis-
agreed, as to the status of the technicians theretofore included in this-
unit. The Union contended that the technicians were professional-
employees while the Respondent contended that they were not., The-
Board held that it was unnecessary to determine the status of the.
technicians since the record established that the unit 'was composed
predominantly of employees whom the parties agreed were' profes-
sional employees. Upon finding a community of interest and "in,
accordance with established precedent," the Board included the tech-
nicians in the professional unit without, affording the professional
employees a separate vote as provided for in Section 9(b) (1) of the.
Act." Accordingly, the Board, in essence; continued in effect the.
units theretofore created by the parties by finding the aforementionecl'
In this 1945 proceeding , the Board also found appropriate two other units of the
Respondent 's employees , namely , a shop unit and a clerical unit.
8Federal Telephone and Radio Corporation, Fede;ai Telecommunication Laboratories,
Inc, 63 NLRB 947
8 Section 9(b) (1) provides in pertinent part that °. . the Board shall not (1) decide.
that any unit is appropriate . . . if such unit includes both professional employees and
employees who are not professional employees unless a majority of such professional em.
ployees vote for inclusion in such unit . . .
i INT'L TELEPHONE & TELEGRAPH 1761
shop-maintenance, clerical- drafting, and engineer-technicians units
to be appropriate, and, pursuant to an election, certified the instant
Union as bargaining representative of the employees in these units.lo
This matter then lay at rest for over 13 years during which the
parties bargained continuously in this unit. It was revived at the
instant hearing wherein adduced evidence established that the tech-
nicians who were included in the engineer-technician unit in ,1951,
were, indeed, nonprofessional employees.
The Respondent, however, despite the objection raised in the 1951
proceeding, has maintained a continuous relationship with the Union
in these three units through collective-bargaining agreements exe-
cilted in 1951, 1952, 1954, 1956, 1959, and a strike settlement agree-
ment executed in 1961, which, by its terms, expired on September 9,
1964. In addition, the Respondent did not raise any further objection
as to the composition of any unit until October 8, 1964, at which time
employees in all three units, including the professional employees,
were engaged in a strike." On this date, the Respondent withdrew
recognition from, and refused to bargain with, the Union as repre-
sentative of the professional employees in the engineer-technician
unit." On this same day, the Respondent also filed two petitions
under Section 9 (c) of the Act requesting that elections be held either
in a unit limited to professional employees or, alternatively, in the
existing certified unit of professional and nonprofessional employees.
The Respondent grounded its withdrawal of recognition on the
unsupported claim that it doubted that the Union still represented
a majority of employees in this unit because a substantial number of
professional employees had abandoned the strike by October 8, and
because a group of professional' employees in the engineer-technician
unit had, on the previous day, filed a decertification petition seeking
io Federal Telecommunication Laboratories , Inc., 92 NLRB 1395.
n The Trial Examiner found that it was unnecessary to determine whether the strike,
which began on September 9, 1964 , was an economic strike or an unfair labor practice
strike which had been caused or prolonged by the Respondent's unfair labor practice'.
The General Counsel excepts to the Trial Examiner's failure to find that the strike wa,
an unfair labor practice strike either from its inception or from the time of the Respond-
ent's withdrawal of recognition from the Union as bargaining agent for the professional
employees in the engineer -technician unit. At the hearing , however, the General Counsel
did not litigate the issue relative to the cause of the strike but instead took the position
that the strike was an economic strike which became converted into an unfair labor prac-
tice strike by the Respondent's withdrawal of recognition . In any event, in view of the
information received by the Trial Examiner subsequent to the hearing to the- effect that
all of the strikers who had sought reinstatement had been returned to their former fobs
(Trial Examiner ' s Decision , footnote 43), we find it unnecessary to resolve this matter
as no useful purpose would be served by so doing
"There is no controversy as to the Union's representative status with regarq,to, the non-
professional employees in this unit , or as to the other two units, or as to the present
composition of the engineer-technician unit which the General Counsel and the Union
admit contains both professional and nonprofessional employees.
243-084-67-vol. 159-112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an election in a unit consisting of professional employees only."
The Trial Examiner correctly found that the Union represented a
majority of the unit employees at the time of Respondent's with-
drawal of recognition, and, further, that the Respondent at that time
did not have a good-faith doubt of the Union's majority in the unit.
At thy. hea i-ng, tie Respondent, relying mainly on Boyd S. Leedom,
v. William Iiyne, 358 U.S. 184,- contended that its withdrawal of
reco piitloiA'fi•oln and refusal to bargain with the Union with regard
to the 1 rofessioii it employees did not violate Section 8(a) (5) and
(1) of,tlle, Act because the 13oard's 1951 finding that the engineer-
technician unit Avas appropriate was made without affording the
professional employees a separate election as provided in Section
9(b) (1) of the Act, anal that, therefore, the Respondent was not
obligated to bargain with the Union because the Union's certification
as representative of this unit was not binding on the Respond-
ent. The 't'rial Elan}iner upheld the Respondent's contention. We
disagree.
For purposes of decision here, we 'assulne that Leedom v. Kine,
although factually distinguishable in at least one respect,14 is appli-
cable to the Board's unit determination in Case 2-RC-2282 and that
the certification which was issued in that case in 1951 was therefore
invalid. But, as we point out below, it does not follow from the fact
that the 1951 certification was a nullity, that the engineer-technician
writ, as it was constituted in 1964 after a lengthy bargaining history,
was either illegal or inappropriate. The issue in this case is not
whether Leedom, v. Kijue is applicable to the Board's action in Case
2-RC-2282. Rather, it is whether the rule -of that case is applicable
to the Respondeent's withdrawal of recognition in 1964, in the middle
of negotiations and after a 14-year history of bargaining. In the
particular circumstances of this case we hold that it is not.
We believe this case to be governed by the same considerations that
guided our decision in Vincent Drugs No. 3, Inc., 144 NLRB 1247.
In that case it was argued that the Board under no circumstances
could consider a combined unit of professionals and nonprofessionals
to be appropriate unless the professionals at some time had been
afforded an opportunity to vote for exclusion as provided in Sec-
tion 9(b) (1). In rejecting that argument, we noted, inter alia, that
nothing in the statute either condemns such a unit as illegal or
is All three petitions were dismissed by the Board because of the pendency of the unfair
labor practice charges filed in the instant cases
14 in Leedom v. Apne. there had been no history of bargaining for a mixed unit of pro-
fessional and nonprofessional employees prior to the Board's certification Here, as men-
tioned earlier, there was already an established engineer-technician unit in existence at the
time of the 1951 certification, and a 5-year history of bargaining in it, albeit with another
labor organization
INT L 1ELEPHONE & TELEGRAPH 1763
declines it inherently inappi opi >ate On the basis of our analysis of
the legislative lustoiy, nne concluded that Section 9(b) (1), although
piechuhng the Board itself fioin initially establishing such a mixed
unit in a representation pioceeding without a self-determination
election, clots not pieclude an einploye7 and a union from voluntarily
establishing and maintaining such a unit as one appropriate for
collective baigai.uing We ieiteiate and ieafliim here %A hat we stated
in Vsncent Drugs on this subject
On the record here, nNe think there can be little doubt that the
mixed unit which both parties recognized as appropriate when they
entered upon their 1964 negotiations was bottomed upon a consen-
sual aniangement rather. than iipon anN mistaken belief by either
patty that the 1951 Board act ion possessed a continuing vitality
The parties' entice course of conduct since 1951, including the nego-
tiation of six collective-bargaining agreements cliiiing this period,
clearly evidences their mutual intent to maintain a baigaiiung i.ela-
tnonship in an engineer-technician unit, without ieleience to the 1951
certification 01 reliance on it This is apparent in part from the
iecoid evidence disclosing the many revisions, amendments, and clari-
fications in classifications that were made from time to time in the
unit composition coveted by the contracts negotiated since 1951
These modifications, although not so substantial as to change the
basic unit, have, however, so altered the 1951 certification as to make
cleai that the parties, at least in recent years, have viewed this rela-
tionship as founded on consent rather than on the Board's 1951
certification
The consensual foundation for the parties' continued dealings in
the engineer-technician unit is even more apparent from other aspects
of the bargaining history Thus, even aftei the Supreme Court
decided Leedom v Fyne in 1958, the pasties continued to bargain
in the engineei-technician unit, just as they had done before, con-
cluding a new agreement in 1959 and again in 1961 Had the
Respondent been unwilling to accept the unit on a vohmtaly basis,
opportunities were available to it to test the unit question at the time
of the 1959 and 1961 ieopenangs It took no steps to do so Its entry
into the 1964 negotiations as a further affirmation of its continued
acceptance of the historically established unit Significantly, it was
not until after such negotiations had been underway for somerme,
and a strike had occurred, that the Respondent decided to withdraw
recognition from the Union as the representative of the mixed unit,
even though, as found above, it then had no reasonable basis to doubt
the Unions continued majority status in that unit The withdrawal
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred in a context of other and still unremedied unfair labor
pi notices, as herein found, which would have precluded an oppor-
tunity for a free and fait election
In view of the foiegoing, we can give no credence to the Respond-
ent's claim that its acceptance of the unit rested on the 1951 certi-
fication rather than upon voluntary consent i On the contrary we
find that the unit which both parties recognized as appiopriate when
they entered into their 1964 negotiations was a product of the agree-
ment of the parties Bearing in mind that such a unit is not inher-
ently inappropriate, and considering particularly the long bargaining
history in that unit, as well as the timing and context of the
Respondent's withdi awal, we hold that the Respondent is estopped
at this time from disputing the appropriateness of the unit which it
itself had accepted as a proper basis for bargaining during the very
negotiations which it later disrupted by its withdrawal of recogni-
tion 15 Accordingly, we find that the Respondent, by withdrawing
iecognition from and refusing to bargain with the Union as bargain-
ing representative of the professional employees in the engineei-
technician unit has violated Section 8(a) (5) and (1) of the Act since
October 8, 196416
6 Based upon his finding that the Respondent as not obligated
to bargain with the Union as representative of the piofessional
employees in the engineer-technician unit, the Trial Examiner also
found that the Respondent did not violate Section 8(a) (5) and (1)
of the Act by refusing to furnish the Union with certain merit
review data pertaining to this mixed unit We do not agree
to Our holding here is not to be construed as foreclosing the professionals in the unit
from seeking self-determination at an appropriate time and in the appropriate proceeding
now is not an appropirate time because of the Respondent ' s unremedied unfair 1 ibor
practices
Our dissenting colleagues argue that because the unit was "illegitimate at birth," it
could not thereafter under any circumstances achieve "respectability "
We think, however , that the honorable nature of the bargaining relationship 's birth in
1946 and of its growth and development by consent in its later life should be given some
consideration as against the stigma of the 1951 certification on the sole basis of which
our dissenting colleagues would illegitimatize the relationship at the option of one of
its theretofore willing participants at a time when it was engaged in interposing other-
unlawful obstacles to good-faith bargaining
As noted above, we recognise that the policy laid down by Congress in Section 9(b)(1)
would in a proper case require the granting of a separate election to processional em ploy
ees at a proper time, notwithstanding that long bargaining history
We hold here only that Congress could not have intended the 9 (b)(1) requirement to-
be applied in such a manner as to provide a shield behind which one patty, after having
benefited from the bargaining relationship for so many years, may with impunity in mid-
negotiations , for whatever tactical adtiantage it hopes to secure , seek to shatter the bat
gaining structure it has itself joined to create
16 We also find that the reasons set forth by the Trial Examiner with reaid to the
Respondents ' bad faith bargaining in the shop maintenance and clerical drafting units
apply with equal force to the Respondents bargaining in the engineer technician unit
Accordingly, we find that the Respondent also engaged in had-faith bargaining with the
Union in the engineer technician unit from July 20 to October 8, 1964, b-, entering into
'tnd conducting negotiations with the Union in this unit with a fired determinat on to
avoid, rather than reach, an agreement , in violation of Section 8(a) (5) and (1) of the let
INT'L TELEPHONE & TELEGRAPH 1765
The record shows that the most recent contract between the
Respondent and the Union provided for the biannual payment of
merit increases to designated professional employees in the engineer-
technician unit from a fund allocated by the Respondent. The fund
itself was divided into two parts, one part consisting of two-thirds
of the fund, and the other of one-third. With regard to the two-
thirds portion, the recipients and amounts of merit increases were
to be determined by the Respondent, and if, after discussing the
Respondent's selections and amounts with the Union "there is no
agreement," the Respondent had the right to grant increases to those
employees selected by it. The designation of recipients and distri-
bution of amounts of the remaining one-third portion was subject to
the Union's acceptance of those selected by the Respondent with the
right to arbitrate unresolved disputes. The Union did not agree
with the Respondents selection and distribution with regard to the
two-thirds fund portion due for 1963, and on June 1 and 3, 1964,
requested the merit review evaluation factors used by the Respondent
to "rate this money." The Union requested this data in order to
submit equitable recommendations as to the proposed recipients of
the one-third portion of the fund due for 1963, but which had not
yet been distributed. The Respondent, however, refused to submit
the requested information to the Union on the ground that the con-
tract contained no provision requiring it to furnish such data.
The merit review data sought by the Union was, like the seniority
data discussed supra, necessary and relevant to the Union's role as
bargaining representative. Thus, the Union required this informa-
tion to enable it to meet its contractual obligation of discussing both
parts of the merit review fund, and, with this same information, to
process any grievances which might arise as to the one-third portion
of the fund. Further, the record shows that the merit evaluation
data sought pertained to merit increases, which, themselves, consti-
tute a mandatory subject of bargaining because they are a part of
the wage structure.11
In view of the foregoing, we conclude that Respondent, by refusing
to furnish the merit evaluation factors requested by the Union, has
violated Section 8(a) (5) and (1) of the Act.'s
7. The Trial Examiner found that the Respondent, by means of
threats and promises, unlawfully solicited 2 of approximately 1,100
striking employees to abandon the strike, in violation of Section
8 (a) (1). In view of the other violations committed by the Respond-
ent, we ,agree with the Trial Examiner that these solicitations were
not isolated but, instead, warrant the issuance of a remedial order.
v E. W. Scripps Company, 94 NLRB 227, 228
18 Curtiss-Wright Corporation, Wright Aeronautical Ditision , 145 NLRB 152, 156-157.
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petition for Revocation of Certification
Case 2-RC-2282
On April 3 , 1965, a group of professional employees in the
engineer -technician unit filed the above -captioned petition which, in
effect, seeks to have the 1951 certification in this unit declared void
ab initio. As we have previously indicated in our discussion of this
unit in the foregoing unfair labor practice cases , the subsequent bar-
gaining history of the parties reflects that the parties have not relied
on the certification and that the certification no longer has any effi-
cacy. Accordingly , we find that the issue raised by this petition is
moot.
ORDER
Pursuant to Sebtion 10(c) of the 'National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
Respondent, International Telegraph & Telephone Corporation (ITT
Federal Laboratories), Nutley'," New Jersey, its 'officers', agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain in good faith with Local 400, Interna-
tional Union of Electrical, Radio & Machine Workers, AFL-CIO,
as the exclusive representative of Respondent's employees in the
engineer-technician bargaining unit and the bargaining units set
forth in Appendixes B and C attached hereto.
(b) Refusing to disclose to the aforesaid labor organization data
in the Respondent's possession pertaining to the seniority of nonunit
employees who have been, or might be, transferred into a unit.
(c) Refusing to disclose to the aforesaid labor organization the
merit review evaluation data relied on by the Respondent in
allocating the two-thirds portion of the merit fund to professional
employees in the engineer-technician bargaining unit.
(d) Refusing to disclose to the aforesaid labor organization such
data as Respondent relied, or may have relied, on in asserting dur-
ing contract negotiations that the relatively high cost of existing
employee benefits is adversely affecting its competitive status or has
caused it to lose competitive contracts.
(e) Offering strikers special inducements to return to work and
threatening them with loss of benefits if they do not return.
(f) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, including
the above Union, to bargain collectively through representatives of
INT'L TELEPHONE & TELEGRAPH 1767
their own choosing, to engage in concerted activities for the purposes
of collective bargaining, or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized by
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain in good faith with Local 400, Inter-
national Union of Electrical, Radio & Machine Workers, AFL-CIO,
with respect to the terms and conditions of employment of the
employees in the engineer-technician unit and in the units described
in Appendixes B and C, attached hereto, and if an understanding is
reached, embody it in a signed agreement.
(b) Upon request, make available for inspection by the aforesaid
labor organization data in its possession pertaining to the seniority
of nonunit employees who have been, or might be,,transferred into
a unit.
(c) Upon request, make available for inspection by the aforesaid
labor organization the merit review evaluation data relied on by it
in allocating the two-thirds portion of the merit fund to professional
employees in ,the engineer-technician bargaining unit.
(d) Upon request, make available for inspection by the aforesaid
labor organization such data as it relied, or may have relied, on in
assenting during contract negotiations that the relatively high cost
of existing employee benefits is adversely affecting its competitive
status or has caused it to lose competitive contracts.
(e) Post at its plant in Nutley, New Jersey, copies of the attached
notice marked "Appendix A." 19 Copies of said notice, to be fur-
nished by the Regional Director for Region 22, after being duly
signed by an authorized representative of the Respondent, shall be
posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 22, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
1e 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, Enforcing an Order 11
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBERS FANNING and JENKINS, concurring in part and dissenting
in part:
We agree with the majority that the Respondent violated Section
8 (a) (5) and (1) of the Act by failing to disclose to the Union cer-
tain financial and other data on which the Respondent relied in
support of its claim that it was losing competitive contracts because
of the high cost of its fringe benefits and/or other labor costs, and
by refusing, for a 9-month period, to furnish information requested
by the Union pertaining to the seniority of nonunit employees. We
would also find, like our colleagues, that the Respondent did not
violate the Act by conditionally refusing to advance the data on
which the parties usually began their contract negotiations. We do
not agree, however, that the Respondent did not otherwise bargain
in good faith or that the engineer4echnician unit is an appropriate
bargaining unit within the meaning of the statute.20
1. We do not believe that the iecord warrants holding that the
Respondent entered into and thereafter conducted negotiations with
a fixed determination to avoid rather than reach an agreement with
the Union in any unit whatsoever. In reaching a contrary conclu-
sion, our colleagues have failed to consider the entire course of bar-
gaining. Instead, they have adopted the Trial Examiner's limited
findings that the Respondent's entry into negotiations was predicated
on bad faith because of certain statements made by the Respondent's
labor relations manager prior to the commencement of negotiations,
and that the Respondent thereafter engaged in surface bargaining
because the Union's proposals for improvements in existing fringe
benefits were met by the Respondent's counter proposals for reduc-
tions in such benefits. More specifically, the Trial Examiner found
illegality in the Respondent's proposal to reduce severely existing
pension benefits and in an alleged "package" offer proposal. We do
not subscribe to these conclusions.
With regard to the prenegotiation statement, the record shows
that on two occasions prior to the commencement of negotiations,
Carey, the Respondent's labor relations manager, and a union stew-
ard became embroiled in heated disputes concerning certain griev-
ances and that, on both occasions, Carey stated that the Respondent
could no longer live with some of the current contract provisions and
was preparing contract proposals of such a nature that it would take
a long strike in order to condition the Union to accept them.
20 Member Fanning would , in view of the other violations, also find Respondent 's effort
to induce 2 of 1,100 striking employees to abandon the strike to violate Section 8(a) (1)
Member Jenkins would , in view of the fact that there is no other independent violation of
Section 8 ( a) (1), find this conduct of Respondent to he isolated and insufficient basis for
a finding of a separate violation of Section 8(a) (1) Cf. Middletown Manufacturing Com-
pany, Inc., 141 NLRB 234, 244; Twin-See Manufacturing Co, 130 NLRB 614, 016.
INT'L TELEPHONE & TELEGRAPH 1769
The contract negotiations began on July 20, 1964. The record
establishes that the theme dominant throughout the ensuing 16 bar-
gaining sessions' was quickly established at the second meeting when,
in answer to the Union's demands for increased fringe benefits, the
Respondent informed the Union that it was seeking a reduction in
overall labor costs, and, therefore, sought specifically to reduce fringe
benefit outlays. Although the Respondent repeatedly iterated this
position throughout the bargaining, the Union also remained firm
in its position. Neither party conceded anything to the other until
the 11th meeting held on September 8, 1964. Union President Laird
testified, in effect, that at that time, the Respondent agreed to modify
many of its positions with regard to the Union's demands and made
fringe and nonfringe concessions ; the Respondent also presented a
pension proposal which, while granting some items sought therein
by the Union'21 also proposed to severely reduce existing pension
benefits. The Trial Examiner found, on the basis of Laird's testi-
mony, that all these proposals were rejected because they were pre-
sented as a package proposal which the Union was obligated to
accept or reject in toto.22
On September 9, 1964, the current contract expired and the Union
called a strike in which approximately 1,100 employees represented
by the Union participated. It was admitted at the hearing herein
by the General Counsel, and was not otherwise litigated, that the
strike was economic in nature and was not caused by any unfair
labor practices. Despite the strike, however, the parties continued
to bargain, and, at meetings held on September 19, 28, and October 10,
1964, the Respdndent attempted to move toward an agreement by
making further modifications and concessions in fringe and non-
fringe items. The Union, however, which had presented 71 original
demands at the first meeting held on July 20, 1964, (and also joined
a Although the record is not clear as to which items the Respondent granted, it is
clear that the Union sought certain vesting rights , the elimination of social security deduc-
tions , the elimination of age requirements , and a bonus for early retirement
ra Wbether Respondent 's proposals were presented as a package or not seems to have
little relevance to "good faith " in the bargaining , since there is nothing inherently objec-
tionable to package proposals . However, to the extent it is material , it would appear that
the Trial Examiner 's finding of a package offer is against the weight of credible evidence.
Laird, because of his inability to recollect the events which there took place, was permitted
to testify on this matter from notes which he took at the meeting . On cross-examination,
Laird admitted that he had given an affidavit to the General Counsel which stated that
"these proposals were somewhat softened in an effort to induce the IUE not to go out
on strike at the expiration of the contract on the following clay " Laird also admitted
that after he had completed the affidavit for the General Counsel , he took it to the office
of the Union 's attorney. Although there is no evidence to show that this attorney had
attended any of the bargaining sessions or that he was authorized to administer oaths,
the record shows that he struck out the above statement from the affidavit and substituted
therefor the following : "These proposals were presented in a package We were told
they had to be accepted or rejected in toto and we couldn ' t accept some and reject some "
Laird further admitted that the notes from which he testified contained no reference what-
soever to a package deal.
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other two unions not here involved in presenting 20 joint propos-
als), also presented 46 additional demands at the 12th meeting held
on September 19, 1960. Of these, 32 were apparently new, and it
presented 25 more demands , some of which were new, at the 16th
session held on October 10, 1964. Moreover, during this entire
course of bargaining, the Union apparently did not modify any of
its positions except to change its demand for a 35-hour (from the
established 40-hour) workweek with no loss of pay to a 371/2-hour
workweek with no loss of pay.
It is clear, therefore, that throughout the entire course of nego-
tiations, the Respondent consistently sought to decrease its overall
and fringe costs and submitted proposals to this effect for considera-
tion by the Union and in answer to the Union's proposals for
increased benefits. This is also precisely what happened with regard
to the Respondent's pension proposal.
On the basis of the foregoing, it would appear that the reasons
relied on for finding a violation are without -foundation, and that,
consequently, Carey's prenegotiation statements cannot be construed
as a forecast that "Respondent's bargaining strategy-was to take
positions calculated to avoid, agreement, and to provoke a prolonged
strike that would so weaken the Union that it would be forced to
capitulate." We do not believe that Carey's statements can be con-
strued as anything more than mere intemperate remarks totally unre-
lated to the subsequent bargaining, or at worst, bluster designed to
induce the union negotiator to believe in the Employer' s firmness in
bargaining. Moreover, if the Respondent's negotiating conduct in
general, and its September 8 pension proposal and alleged package
proposal in particular, constituted bad-faith bargaining, then the
strike which began on the following day would, perforce, be an
unfair labor practice strike. Yet, it was admitted by the General
Counsel at the hearing, and was not otherwise litigated, that the
strike was an economic strike. Finally, we find no record support
for the Trial Examiner's conclusion that despite fringe and non-
fringe concessions made by the Respondent at the meetings of Sep-
tember 19, 28, and October 10, 1964, the net result of all of the bar-
gaining was that "the parties were further apart than ever." We
would find, instead, that the Respondent' s concessions , even if unac-
ceptable to the Union, and particularly when considered in context
with the Union's increasing demands, clearly show that the Respond-
ent was bargaining in good faith and was, in fact, endeavoring to
reach an agreement.
2. Unlike our colleagues, we would find, in agreement with the
Trial Examiner, that the Respondent did not violate Section 8(a) (5)
INT'L TELEPHONE & TELEGRAPH 1771
and (1) of the Act by withdrawing recognition from and refusing
to bargain with the Union as the bargaining representative of the
professional employees in the engineer-technician unit.
As related above, in 1951 the Board found that it was unneces-
sary to decide whether the technicians in this unit were professional
employees, did not allow a self-determination election therein, and
found that the unit was appropriate because it was composed pre-
dominantly of professional employees. Accordingly, the Board, fol-
lowing an election, certified the Union as representative of both the
professional and nonprofessional employees in this unit.
Although the Respondent objected to this procedure, it neverthe-
less entered into and, until October 8, 1964, maintained contractual
relationships with the Union in this unit. On October 8, 1964, sub-
sequent to the filing of petitions under Section 9(c) of the Act by
the Respondent and by a group of professional employees in this
unit, the Respondent withdrew recognition from, and refused to bar-
gain with, the Union as representative of the professional employees
in this mixed unit.
Section 9(b) (1) of the Act specifically states with regard to the
unlit appropriate for the purposes of collective bargaining that,
". . . the Board shall not (1) decide that any unit is appropriate for
such purposes if such unit includes both professional employees and
employees'who are not professional employees unless a majority of
such professional employees vote for inclusion in such unit . . . ."
The legislative history of Section 9(b) (1), moreover, shows a con-
sidered congressional purpose to, restrict the power of the Board with
regard to mixed unit determinations., The committee reports reflect
that "When Congress passed the National Labor Relations Act, it
recognized that the community of interests among members of a
skilled craft might be quite different from those of unskilled employ-
ees . . ." The reports further reflect that corresponding recognition
should be afforded to the "special problems" of professional persons
who "have a great community of interest in maintaining certain pro-
fessional standards." 23 The House conference report explains the
adoption of Section 9(b) (1) as a restriction imposed on "the Board"
and designed to provide "substantially larger protection of [the pro-
fessional employees' self-determination] rights when bargaining
units are being established than has .heretofore been the practice." 24
The obligation which Congress imposed on the Board is defined by
Congress as being that ".. . the Board is required to afford such
[professional] groups an opportunity to vote in a separate election
23 S Rept. 105, 80th Cong., 1st sess., p 11 , 1 Leg Hist LMRA (1947) 417
24 H Conf. Rept. 510, 80th Cong, 1st sess., p . 147 ; 1 Leg. Hiet LMRA (1947) 551.
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to ascertain whether or not they wish to have a bargaining represent-
ative of their own." 25 From the foregoing, it seems clear that the
intent of Congress when it enacted this provision was to prohibit the
Board from finding appropriate mixed units that heretofore had
been or in the future would be established by the Board, unless com-
pliance was first had with the provisions of Section 9 (b) (1).
This conclusion is, of course, supported by the Kyne case in which
the Supreme Court overturned the Board's finding that a mixed
unit was appropriate in the absence of a self-determination election.
There the Court held, in effect, that such an election should have
been conducted because "Section 9(b) (1) is [ a] clear and manda-
tory" provision which prohibits the Board from deciding that any
mixed unit is appropriate unless a Section 9(b) (1) election is first
had. The Court further held that professional employees could not
be deprived of this election "right assured to them by Congress" by
an attempted exercise of power that had been specifically withheld"
by Congress.
Our colleagues seek to distinguish Kyne on the ground that the
issue presented in this case is not governed by the precepts contained
in Kyne, but rather by the rationale contained in Vincent Drugs.
We discern nothing in the statutory language or legislative history
or even in the rationale set forth in Vincent Drugs, although the
facts therein are inapposite to support this distinction, and the
Court's description of the Board's action in Kyne as "in excess of its
delegated powers and contrary to a specific prohibition in the Act"
(358 U.S. at 188) reinforces our conclusion.
Our colleagues, however, have determined that despite the invalid-
ity of the 1951 certification, the provisions of Section 9(b) (1) have
no relevancy to the contested issue and that the limited considera-
tions attendant in Vincent Drugs have application to the circum-
stances present in the instant case. In reaching this conclusion, the
majority has impliedly found that at some undefined time during or
prior to 1964, the parties disestablished the certified unit, ceased rely-
ing on the 1951 certification, and tacitly entered into a new, volun-
tary, consensual arrangement.2G These results, however, not only
relegate to private parties the public powers possessed only by the
Board, but also ignore the specific provisions of the statute and the
congressional intent manifest therein, and unduly extend the applica-
tion of the Vincent Drugs doctrine to circumstances which even Vin-
cent Drugs itself would exclude.
25 S. Rept. 105 , 80th Cong , 1st secs , p. 11 ; 1 Leg. Hist LMRA (1947) 417.
23 In this connection , it should be noted that as the result of a dispute concerning clas-
sification in the engineer -technician unit, the matter went to arbitration , and that in his
opinion rendered on July 11, 1960 , the arbitrator stated that ". . . I would be less than
judicious if I ignored the certification upon which the contract recognition clause rests "
INT'L TELEPHONE & TELEGRAPH 1773
That doctrine was established in a case which arose because of the
Union's attempt to enforce a union-security clause and thereby cause
the discharge of a professional employee who was included in a mixed
unit which, 6 years previously, the parties had initially voluntarily
established without the benefit of a Section 9(b) (1) election. Pred=
icated on the findings that Section 9(b) (1) of the Act does not pre-
clude the voluntary establishment of mixed units which, in them-
selves, are not inherently inappropriate, and in consideration of the
long bargaining history between the parties, the Board dismissed
the complaint. Thus, in Vincent Drugs, the mixed unit was never
certified by the Board nor was a representation election in the mixed
unit sought. Both of these factors, however, are present in the
instant proceeding and comport fully with the Board's interpretation
of the limitations of the Board's powers as expressed in Vincent
Drugs, namely, that Section 9(b) (1) "circumscribes the Board's
discretion to determine the appropriate unit where an election is
being sought in a unit including professional employees," and that
Section 9 (b) (1) is applicable when "a representation election is
sought in a unit including professional employees and others."
We would find, therefore, that the 1951 certification is the basis of
the entire relationship between the parties and that the limitations
within which they governed their entire relationship was and is bot-
tomed exclusively on that certification which only the Board and not
the parties can modify. The theory of self-help advocated by our
colleagues can result only in interminable confusion with regard to
bargaining units in particular and collective bargaining in general.
Accordingly, we do not agree with the majority that the Respond-
ent and the professional employees are now estopped from disputing
the appropriateness of a unit which was admittedly illegitimate at
birth and which could not, in our view, thereafter achieve the
respectability now sought to be thrust upon it. Having reached
this conclusion, we would further find that the Respondent and the
professional employees have not abrogated their respective rights to
contest the appropriateness of the unit because of their acquiesence
and participation in a long-established bargaining relationship, even
though they did not do so until several years after Kyne was
decided. There is no statute of limitations either proscribed or
authorized to be imposed by Section 9(b) (1), nor can the public
policy inherent in a self-determination election for professionals be
the subject of waiver or estoppel of the parties.
We share our colleagues' apprehension that industrial stability
achieved through long established bargaining units may be disturbed
by voiding the certification here. However, we must also adhere to
the legislative requirements manifested in Section 9(b) (1) of the
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act until such time as Congress directs otherwise. Accordingly, we
would find that the 1951 certification in the engineer-technician unit
is void • ab initio, that the Respondent was at no time ever obligated
to bargain with the Union in this unit, and that the Respondent did
not violate the Act by withdrawing recognition from and refusing to
bargain with the Union as representative of the professional employ-
ees in the unit. Correspondingly, it follows, of course, that the Peti-
tion for Revocation of Certification should be granted in Case
2-RC-2282.
3. Having found that the Respondent was never obligated to bar-
gain with the Union in the engineer-technician unit, we would further
find that the Respondent's refusal to furnish the Union with merit
review data pertaining to this mixed unit is also not violative of the
Act, and would, therefore, also dismiss this related allegation.
APPENDIX A
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 bargain- collectively, upon request, with Local 400,
International Union of Electrical, Radio & Machine Workers,
AFL-CIO, as the- exclusive representative of our employees in
the engineer-technician unit and, in the shop-maintenance and
clerical-drafting units with respect to rates of pay, wages, hours
of employment, and other conditions of work, and,. if an under-
standing is reached, embody it in a signed agreement.
WE WILL furnish to said labor organization, upon request,
information concerning any personnel action taken, or event
occurring, since October 13 or 22, 1964, that is relevant to a deter-
mination of the seniority that would be acquired by nonunit
personnel, if transferred into the foregoing bargaining units pur-
suant to applicable contract provisions.
WE WILL disclose to said labor organization, upon request, the,
merit review evaluation data on which we relied in allocating the
two-thirds portion of the merit fund to professional employees in
the engineer-technician bargaining unit.
WE WILL disclose to said labor organization, upon request, all
data in our possession on which we relied or may have relied in
asserting during contract negotiations that the relatively high
cost of existing employee benefits is adversely affecting our
competitive position or causing us to lose competitive contracts.
WE WILL NOT offer to strikers special inducements to return to
work or threaten them with loss of benefits if they do not return.
INT'L TELEPHONE & TELEGRAPH 1775
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such
rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
INTERNATIONAL TELEPHONE & TELEGRAPH CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 614 National Newark Building, 744 Broad
Street, Newark, New Jersey 07102, Telephone 645-3088.
APPENDIX B
(CLERICAL-DRAFTING UNIT)
All employees at Respondent's Nutley, New Jersey, plant, in the fol-
lowing classifications, excluding supervisors :
Buyer A Typist A Layout
Buyer B Typist B Draftsman A
Buyer C Vari-Typist A Layout
Planner A Vari-Typist B Draftsman B
Planner B Statistical Typist Detailer
Planner C Clerk Detailer-Trainee
Technical Clerk A Reproduction A Senior Designer-
Technical Clerk B Clerk Telephone
Photographer A Reproduction B Designer-
Photographer B Clerk Telephone
Photographer Reproduction C Technical Illustrator
Helper A Clerk A (Artist) Senior
Photographer Clerk B Technical Illustrator
Helper B Clerk C Senior
Secretary Junior Clerk Technical Illustrator
Stenographer A Telephone Operator (Artist)
Stenographer B Senior Designer Technical Illustrator
Designer
1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
(SHOP-MAINTENANCE UNIT)
All employees at Respondent's Nutley, New Jersey, plant, in the
following classifications, excluding supervisors :
Sr. Laboratory Mechanic
Exp. Tool & Die Maker
Exp. Machinist
Machinist A
Machinist B
Inspector A
Inspector B
Exp. Glassblower
Glassblower A
Glassblower B
Exp. Engraver
Exp. Sheetmetal Worker
Sheetmetal Worker A
Sheetmetal Worker B
Sheetmetal Worker C
Exp. Painter
Exp. Welder
Welder A
Exp. Assembler-Mechanical
Assembler A-Mechanical
Exp. Assembler-
Vacuum Tube
Mounter Assembler
Mounter Assembler B-
Vacuum Tube
Exhaust Operator A
Exhaust Operator B
Wireman A
Wireman B
Wireman C
Inspector Equipment
Inspector Tester-
Transformer
Wireman and Transformer
Workers
Inspector-Process
Inspector-Receiving
Stock Clerk A
Stock Clerk B
Receiving and Shipping
Clerk
Warehouseman
Carpenter A
Carpenter B
Electrician A
Electrician B
Plumber Mechanic A
Plumber Mechanic B
Maintenance Mechanic A
Maintenance Mechanic B
Machine Repairman
Painter A
Painter B
Maintenance Helper
Cleaner
Chauffeur
Chauffeur's Helper
Aircraft Mechanic
Potter
Helper, Laboratory
TRIAL EXAMINER'S DECISION
The initial charges herein were served upon Respondent' on July 19 and Octo-
ber 12. 1964.2 The amended complaint issued on November 10, and the hearing was
held on various dates between December 16, 1964, and January 8, 1965. The
issues litigated related to alleged violations of Respondent's duty to bargain with
the Union and to furnish information to it, and to alleged unlawful solicitation to
strikers to return to work. After the hearing, held before Trial Examiner Sidney
Sherman, all parties filed briefs.
Upon consideration of the entire record,3 I adopt the following findings and
conclusions:
1. RESPONDENT'S BUSINESS
International Telephone & Telegraph Corporation, hereinafter called Respondent,
is a corporation organized under the laws of Maryland, and it operates, through a
1 Respondent 's name appears as amended at the hearing.
2 All events hereinafter related occurred in 1964, unless otherwise stated.
3 For corrections of the transcript of testimony taken herein , see page 452 of the trans-
cript , and Appendix D. [Trial Examiner's Appendix D omitted from publication.]
INT'L TELEPHONE & TELEGRAPH 1777
division known as ITT Federal Laboratories, plants at Nutley and Clifton, New Jer-
sey. At these plants, Respondent is engaged in the manufacture, sale, and distribu-
tion of communications equipment electronic devices and related items, and it annu-
ally ships from its Nutley plant to out-of-State points goods valued in excess' of
$50,000. The Nutley plant is the only one involved herein.
Respondent is engaged in commerce under the Act.
R. THE LABOR ORGANIZATION INVOLVED
Local 400, International Union of Electrical, Radio & Machine Workers, AFL-
CIO, hereinafter called the Union, is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint, as amended, alleges that Respondent violated Section 8(a) (5)
and (1) of the Act by the following conduct:
A. By refusing to furnish to the Union data relating to (1) seniority of employ-
ees outside the bargaining units here involved, (2) the basis for Respondent's alloca-
tion of merit increases, and (3) certain financial data.
B. By bargaining in bad faith since July 20.
C. By withdrawing recognition from the Union as the representative of one of
the three units involved herein-namely, the engineer-technicians' unit, hereinafter
called the "mixed" unit.
The complaint also alleges that Respondent independently violated Section
8(a)(1) of the Act by offering inducements to strikers to return to work.
The answer denies the substance of the foregoing allegation, and, in addition,
pleads certain affirmative defenses. ,
A. Sequence of events
On January 17, 1951, the Board found appropriate three separate units of the
employees involved herein, and directed elections in those units .4 Pursuant to such
elections, the Union was certified as the bargaining representative for all three units.
From 1951 to September 9, 1964, the parties had virtually continuous contractual
relations, and the events hereinafter related occurred during the term of a contract
effective from November 19, 1961, to September 9, 1964. This contract contained
a provision that under certain circumstances nonunit personnel, including super-
visors, who were transferred to unit jobs, were entitled to seniority from their date
of original hire by Respondent rather than from the date of their transfer into the
unit. The Union became concerned about the implications of this provision early in
January 1964, and requested Respondent to furnish it with certain data relating to
the seniority of current nonunit employees, generally. It is undisputed that Respond-
ent refused for 9 months to furnish the data to the- extent, and in the form,
requested by the Union, but finally did so in October, after the instant charge had
been filed.
In the current agreement there is also a provision for merit increases for engi-
neers and other categories of employees in the mixed unit, and the contract confers
on the Union certain responsibilities in connection with the administration of this
provision. On June 3, the Union, by letter, asked Respondent for certain informa-
tion which it considered necessary to aid it in discharging its foregoing responsibili-
ties. On June 5, Respondent replied that no provision of the contract required
disclosure of such information and none has been furnished.
Bargaining for a new contract began with a meeting on July 20, and negotiations
were still in progress at the time of the instant hearing .5 In the negotiations,
4 Federal Telecommunication Laboratories, Inc., 92 NLRB 1395 The employer in that
case was a wholly owned subsidiary of the Respondent, which subsidiary has since been
dissolved , Its operations being continued as a division of Respondent at the Nutley plant,
among others. There Is no contention that this change In the legal identity of the em-
ployer has any bearing on Respondent 's obligation to honor the Board's certification of
the Union In 1951.
5Two sister locals of the Union (Local 447 and Local 1703), which represented two
units of employees of Respondent's Federal Laboratories Division at a plant in Clifton,
New Jersey, bargained jointly with the Union for provisions of common concern to all
three locals.
243-084-67-vol. 159-113
1778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent proposed various reductions in fringe benefits, pleading, inter alia, that
they were excessive in comparison with those granted by its competitors, and were
adversely affecting its competitive position. The Union on several occasions
requested that Respondent substantiate its foregoing position by furnishing detailed
financial data and information on a number of other items, including contracts
allegedly lost by Respondent and the cost of existing fringe benefits in relation to
other costs. On August 21, Respondent suggested that the Union reduce such
request to writing. This was done in a letter of October 13. On December 10
Respondent refused, in effect, to furnish the bulk of the data requested by the
Union.
Meanwhile, on' September 9, upon the expiration of the existing contract, the
Union had called a strike at Respondent's plant, and most of the employees had
ceased to work. However, contract negotiations with respect to all three units at
the Nutley plant continued until October 8, when Respondent announced that it
was withdrawing recognition of the Union for the professional employees in the
"mixed" unit and was filing petitions with the Board for elections in such units
This announcement was made the day after a petition had been filed with the Board
to decertify the Union as the representative of the engineers in such mixed unit,7
and was allegedly prompted by such petition. On December 9, all three petitions
were dismissed by the Regional Director, because of the pendency of the instant
charges.
On January 8, 1965, when the instant hearing was concluded, the strike was still
in effect and no contract had yet been negotiated.
B. Discussion
1. The seniority data issue
This issue arose early in 1964, long before the commencement of contract nego-
tiations, and was unrelated to such negotiations. The existing contract provided
that, under- certain circumstances, not here 'relevant, persons transferred to the bar-
gaining units from positions outside such units would be credited with seniority for
time spent in such positions and thus would be entitled to "bump" employees
already in the units who had less total seniority. In 1963, the Respondent laid off
600 to 700 unit employees, and late in December 1963, a supervisor, Cammarata,
accepted a nonsupervisory position in the production and maintenance unit, thereby
"bumping" a unit employee. This appears to have been the first instance of such a
transfer under the foregoing contract provision. A few weeks later, in response to
an inquiry by Laird, the president of the Union, concerning the possibility of other
similar transfers into the units, Atkinson, Respondent's labor relations supervisor,
stated only that the matter was under consideration, whereupon Laird asked Atkin-
son for a list of all individuals eligible for transfer into the units and for informa-
tion as, to Cammarata's seniority. Atkinson declined to furnish any data (other
than that relating to Cammarata), contending that the Union was not entitled
thereto. A letter dated January 22, from Laird, requesting specific data as to
"management employees" in order to enable the Union to "administer its contract"
was not answered. Early in February, when Laird asked whether Respondent
would reply to his letter, Atkinson rejoined that the only seniority information that
the Union would receive with respect to any individuals involved in a' transfer
would be that contained in a semimonthly bulletin issued by Respondent announc-
ing personnel actions already taken.9
Laird testified further that when, shortly thereafter,9 he solicited a reply to his
letter from Carey, Respondent's manager of industrial relations, he asserted that no
information would be forthcoming other than that contained in the semimonthly
bulletin. However, according to Minogue, Respondent's director of industrial rela-
tions, Carey, on this occasion proposed that, in the future, whenever it decided to
transfer anyone into the bargaining units, Respondent would, before effecting such
transfer, furnish the Union with the pertinent seniority data as to such individuals.
Laird denied that Carey made any such proposal. 'Carey, himself, was not called
as a witness. On the basis of demeanor, and, in view of Respondent's failure to
6 Cases 22-RM-191 and 22-RM-192.
9 Case 22-RD-175.
8 The Union received the information it sought as to Cammarata in such'a bulletin issued
late in February, about 2 months after his transfer had been effected
0 Laird variously placed this incident in late February or mid-March
INT'L TELEPHONE & TELEGRAPH 1779
call Carey to corroborate Minogue, I credit Laird and find that Carey did not make
even the limited offer of advance disclosure ascribed to him by Minogue.
It is undisputed however, that the Union's blanket request of January 22, 1964,
was finally honored on October 13 and 22 when the information sought was
supplied.10
The General Counsel contends that the Respondent's refusal for about 9 months
to furnish the seniority data requested by the Union violated Section 8(a) (5) and
(1) of the Act. While conceding in its brief that the Union "was entitled to certain
seniority information prior to an individual's return," Respondent denies that it was
required to make the blanket disclosure sought." The brief elaborates on this point
as follows:
It is Respondent's position . . that the information as requested was unneces-
sary and of no value to Local 400, that it only took on some importance when
an individual was about to return, and that this was the only time seniority
information could be effectively used to advise bargaining unit employees.
Respondent contends further, relying on Minogue's aforecited testimony, that Carey
offered to furnish the Union with the requested data as to any individual whose
transfer to the unit was contemplated, and before such transfer was effected. How-
ever, for reasons stated above, I have refused to credit Minogue, and have instead
credited Laird's testimony that the only data offered by Carey or Atkinson was that
continued in the semimonthly, personnel bulletin, which reported transfers only
after they had been effected.
Thus it appears that Respondent concedes that the Union was entitled to a lim-
ited advance disclosure of the seniority data in issue, and I find that for a period of
9 months Respondent, contrary to its contention, did not make, or offer to make,
even such limited disclosure.
The question remains whether, as the General Counsel contends, the Union was
entitled to the more comprehensive advance disclosure sought by it. The Union's
position was that it needed the seniority data as to nonunit employees so that it
could compile a more realistic seniority list, and advise individual members of the
bargaining unit to what extent their seniority rights would be adversely affected if
all persons outside the unit who were eligible for transfer into the unit were so
transferred. According to Laird's uncontradicted testimony, the extensive layoffs
effected in 1963, coupled with the transfer of Cammarata into the unit, late in
December 1963, with the resultant bumping of a member of the unit, created con-
cern among the employees, who were besieging the Union with questions about the
possible effect of any like transfers in the future on their job status.
The foregoing contention raises a question which does not appear to have been
heretofore considered by the Board. It is now well settled that a Union is entitled
to information that is necessary and relevant, to the discharge, not only of its bar-
gaining function, but also of its function of administering a contract. While the
complaint alleges, and Laird's January 22 letter explains, that the Union needed the
data to "administer" the contract, it is clear from the context of the complaint and
the letter, and from Laird's testimony, that "administer" was there used, not in the
usual sense of detecting and protesting infractions of the contract, but rather in the
narrower sense of maintaining more realistic seniority rosters for the benefit of the
unit employees. Moreover, had the Union desired the data for grievance purposes,
there appears to be no reason why the Union could not wait until, as a result of a
transfer, a unit employee suffered some adverse effect which could be the subject of
a grievance. And, at that time the Union would have been entitled only to the data
relevant to such grievance and not to the blanket disclosure here sought.
As for the relevance of the data sought to contract negotiations, there is a sug-
gestion in Laird's testimony that the data would have enabled him to determine
whether to seek in contract negotiations a modification of the existing contract pro-
visions permitting transfers into the unit with accrued seniority.12 However, Laird
10 This disclosure was made after the initial charge here was filed and pursuant to a
tentative settlement agreement, which was not, however, consummated. Such e', entual
compliance with the Union's request does not make the issue moot The Electric h urnace
Co., 137 NLRB 1077
11 Respondent's brief, page 21.
12 In fact, a clause limiting such transfers was proposed by the Union on July 28, in
negotiations for a new contract.
243-084-67-vol. 159-114
1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not assert that he had this purpose in mind when he made his various oral and
written demands for the seniority data; 13 and the instant case was, moreover, liti-
gated solely on the theory that the Respondent's refusal to furnish the data violated
Section 8(a)(5) and (1) of the Act because the data was needed by the Union to
enable it to "administer" the contract by maintaining proper seniority rosters.14
Under all the circumstances, I find that the issue of the effect of Respondent's non-
disclosure of the seniority data on the Union's contract-negotiation function was
not adequately litigated.
There is, thus, insufficient basis for finding that the data was sought or needed to
aid the Union's discharge of its grievance prosecution or contract-negotiation func-
tion, and it has been established only that the Union's request was prompted by a
desire to advise the unit employees of the potential impact of the Respondent's new
transfer policy on their seniority and job tenure. So far as I am aware, the Board
has not yet had occasion to pass on the duty of disclosure under such circumstances.
However, the foregoing "advisory" purpose of the Union would seem to be as much
an integral part of its statutory role as the prosecution of grievances or negotiation
of contract. Section 8(a)(1) of the Act protects the light of employees to engage
in concerted activities, not only for the purpose of collective-bargaining, but also
for "other mutual aid or protection." It follows that, subject to exceptions not here
relevant, any activities of a union which serve this purpose of "other mutual aid or
protection" are protected by Section 8(a)(1), and the furnishing by a union to
employees of advice as to matters which bore some reasonable relation to their job
security would seem to be such an activity 15 The question remains what was the
legal effect of Respondent's refusal to furnish such information When an employer
refuses to furnish data necessary to enable a union to discharge its bargaining func-
tion, and thereby impedes the union in the prosecution of the collective-bargaining
activities protected by both Section 8(a) (5) and Section 8(a) (1) of the Act, he is
held to violate those provisions. By analogy, it seems proper to hold that where an
employer refuses to furnish data desired by a union in order to enable it to dis-
charge some other function which falls within the ambit of Section 8(a) (I) of the
Act, and thereby frustrates the union's discharge of that function, he violates. that
provision of the Act. Respondent, itself, does not seriously dispute this, since, as
already noted, it concedes that it owed the Union some duty of advance disclosure.
The only difference between it and the General Counsel here is as to the exact tim-
ing and scope of the disclosure: the Respondent contending that the Union was
entitled to advance disclosure only when a particular transfer into the units was
imminent and only with respect to the individual about to be so transferred, and the
Union contending that it was entitled to discosure, upon request, of seniority data
as to all individuals eligible for transfer into the units. When asked what use such
disclosure would be to a unit employee unless a transfer affecting his seniority was
imminent, Laird answered that such an employee would be in a better position to
,decide whether to accept an offer of other employment, if he knew just how firm
his seniority ranking with Respondent was. Thus, a unit employee who would not
otherwise consider such an offer might welcome it if he knew that there were
enough nonunit employees with higher seniority eligible for transfer to jeopardize
his tenure. It cannot be said that the "early warning" system which the Union thus
sought to establish was not reasonably related to the "mutual aid or protection" of
the employees
Moreover, even if one accepts Respondent's position that there was no duty of
disclosure until a transfer was impending, and then only with respect to the indi-
vidual about to be transferred, it would still be necessary to find a violation, as it
has been found that Respondent did not make even such limited disclosure.
13 Laird's reference to the possible usefulness of the data in connection with contract
negotiations was made in response to a question as to what function such data might serve
(apart from that of up -dating the seniority rosters ), and not as a statement of Laird's
reason for seeking the data (As to the circumstances under which this question was
asked, see next footnote )
14 Neither the complaint nor the briefs of the General Counsel and the Union allude to
any other reason for requesting the data. Laird 's reference to the possible usefulness of
the data in connection with contract negotiations ( see preceding footnote ) was made only
when , both parties having rested, he was recalled as a witness for the Trial Examiner
over Respondent 's objection
15 Cf. Boeing Airplane Company, Seattle Division , 110 NLRB 147, set aside 238 F 2d
188 (C.A. 9).
INT'L TELEPHONE & TELEGRAPH 1781
For all these reasons, I find that Respondent's refusal for a period of 9 months
to disclose the seniority data requested by the Union violated Section 8(a) (1)
(although not Section 8(a) (5) ) of the Act.
2. The nondisclosure of merit review data
The current agreement contained a provision for periodic merit review for engi-
neers, chemists, and spectroscopists, and contemplates recommendations by the
Union with regard to the distribution of one third of any moneys allocated by
Respondent for merit increases to employees in the foregoing classifications. The
complaint alleges that Respondent violated its bargaining obligation by refusing to
furnish the Union with certain data requested by it to enable it to formulate appro-
priate recommendations for merit raises. However, the job classifications here
involved fall within the mixed unit, and the question whether the refusal to furnish
data sought constituted a breach of the duty owed by Respondent to the Union as
the statutory representative of the employees in the mixed unit cannot be resolved
without first disposing of the Respondent's contention that such unit was inappro-
priate. Accordingly, the nondisclosure issue with respect to merit reviews for the
mixed unit will be deferred, and treated below as part of the larger issue of the
Union's legal status as the representative of the mixed unit.
3. The solicitation of strikers
Two of Respondent's engineers, who joined the strike called by the Union on Sep-
tember 9, testified without contradiction, and I find, that late in September Respond-
ent's laboratory director, Dr. Panter, solicited them to abandon the strike and
return to work. According to one witness (Goldshine), after pointing out that a
number of engineers had already abandoned the strike, Panter told him that
Respondent "would remember its loyal employees at merit review time." Accord-
ing to the other engineer (Patterson), Panter on September 18, in urging him to
return to work, appealed to his loyalty to Respondent, and on September 23, prom-
ised the witness that if he was among the first employees to return to work he could
"expect a raise and a promotion," but that if he returned "after the fifty per cent
point, it won't count anymore," adding, "we will remember those who were loyal to
us during the strike and those who were not."
Respondent does not dispute the veracity of the foregoing testimony, which I
credit. At the hearing Respondent contended only that Panter was not a super-
visor, and that Respondent was therefore not responsible for his conduct. In its
brief, Respondent appears to have abandoned even this contention, referring to
Panter as a "supervisor," and arguing only that the incident was "an isolated case
and not part of any pattern of conduct."
In any event, it is clear from the record, and I find, that Panter was a supervisor.
He directed the work of 30 or 40 employees, including about 25 engineers, and was
assisted in that task by a "deputy" and 6 "group leaders." It is undisputed, more-
over, that Panter participated in meetings with the Union concerning grievances
over the failure of engineers to receive merit increases, and acted for Respondent in
resolving such grievances.
While the Board has held that mere appeals to strikers to return to work are
not per se unlawful,16 we are not dealing here with such appeals as were involved
in those cases, but with solicitation which was reinforced by threats of reprisal
and promises of benefits.
As to the "isolated" nature of the Panter incidents, it is true that his solicitation
of the two engineers was the only such action shown to have occurred in a strike
which involved 1,100 employees at the plant here involved, as well as 1,700 more
at another plant 17 (who also struck on September 9), and that the strike up to
the time of the instant hearing had been in effect for more than 3 months. It is
also true that the Board has held that even coercive utterances, such as are here
involved, while unlawful, do not warrant a remedial order where they were addressed
to relatively few employees and the respondent engaged in no other unfair labor
16 The Texas Company, 93 NLRB 1358 , 1361 ; Celanese Corporation of America, 95
NLRB 664
11 The one at Clifton. See footnote 5, above.
1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices.18 However, in view of the other violations found herein, such cases
are clearly not apposite.19
Accordingly, I find that, by Panter's threats and promises to induce employees
to abandon the strike, Respondent violated Section 8(a)(1) of the Act.
4. The withdrawal of recognition with respect to the "mixed" unit
As already related, in January 1951, the Board in a representation proceeding
determined, inter alia, that the mixed unit was appropriate and, on the basis of
The ensuing election, certified the Union as the representative of such unit. In
that proceeding Respondent had contended that the mixed unit was not appropriate
because it would include certain classifications designated "technicians A, B, and C,"
in a unit which otherwise consisted of professional employees-engineers and
chemists. In so contending, Respondent relied on Section 8(b)(1) of the 1948
amendments to the Act, which provision precludes the Board from finding appropri-
ate for the purposes of collective bargaining a unit which "includes both pro-
fessional employees and employees who are not professional employees unless a
majority of such professional employees vote for inclusion in such unit." At that
time, however, it was the Board's policy, notwithstanding the foregoing provision,
to find appropriate a unit consisting of both professional and nonprofessional employ-
ees, without affording the professional employees an opportunity to vote on the
issue of separate representation, provided that such unit was composed predomi-
nantly of professional employees 20 In view of this policy, the Board held in the
foregoing representation case as follows:
Under the circumstances, we need not decide whether technicians are pro-
fessional employees within the meaning of the statutory definition. As all the
parties are agreed that the engineers and chemists are professional employees,
and the record clearly shows that . . . the bargaining unit as proposed by the
[petitioners] . is composed predominantly of professional employees within
the meaning of Section 2(12), we find in accordance with established prec-
edent, that the technicians may appropriately be included in the [unit sought].
[Federal Telecommunications Laboratories, Inc., 92 NLRB 1395, 1398-1399.]
After the certification of the Union for the mixed unit, as well as the other
two units here involved, the Respondent, as already related, recognized the Union
as the representative of such units and entered into a series of contracts covering
all three units, which contracts extended from 1951 to September 9, 1964. Even
after the expiration of the last such contract on September 9, 1964, Respondent
continued to recognize the Union for all three units, until October 8, when, citing
the fact that a petition had been filed the day before to decertify the Union as the
representative of the professional employees in the mixed unit, and asserting that
it entertained doubt as to the continuing majority status of the Union in such unit,
Respondent withdrew recognition of the Union as the representative of the pro-
fessional employees, offering, however, to continue to recognize the Union as the
representative of the balance of the unit 21
is Middletown Manufacturing Company, Inc., 141 NLRB 234 ; Tivin-Kee Manufacturing
Co., Inc, 130 NLRB 614.
As the strike activity of the engineers was protected, concerted action, regardless
of the legal status of the Union as their representative, any determination of such status
adverse to the Union cannot affect the result here reached as to the unlawfulness of
Panter's solicitation.
20 Boeing Airplane Company, 86 NLRB 368; Westinghouse Electric Coiporation, 89
NLRB S.
21 Respondent also pleaded In its answer, as an affirmative defense, that because of the
decertification election, and the abandonment of the strike prior to October 8 by a sub-
stantial number of engineers. it entertained a good-faith doubt on that date that the
Union still represented a majority of the employees in the mixed unit However, as Re-
spondent offered no testimony that it in fact entertained any such doubt, this defem,e was
stricken at the hearing on motion of the General Counsel, which was not opposed by
Respondent In any case, since Respondent conceded at the hearing that on October 8
a clear majority of the employees in the mixed unit were still on strike on October 8. I
would find no merit in this defense. It is not credible that Respondent could in good faith
assume that any persons abandoning the strike were defectors from the Union, without
at the same time assuming that those remaining on strike were union adherents
INT'L TELEPHONE & TELEGRAPH 1783
The General Counsel contends that by such withdrawal of recognition Respond-
ent violated Section 8(a)(5) and (1) of the Act. Respondent rejoins that the
1951 finding of the Board with respect to the appropriateness of the mixed unit
was invalid because of the Board's failure to afford the professional employees a
separate election as required by Section 9(b)(1) of the Act, and that the ensuing
certification of the Union for such unit was not legally binding for that reason
alone.
Respondent's main reliance here is on Boyd S. Leedom v. William Kyne,22 where
the Supreme Court affirmed a district court finding that the Board had exceeded
its statutory powers in finding appropriate a unit of professional and nonprofes-
sional employees, without consulting the wishes of the professional employees as
required by Section 9(b) (1) and, even though, as in the instant case, the profes-
sional employees predominated numerically 23
While it is well settled that only under exceptional circumstances may a respond-
ent relitigate in an unfair labor practice case a Board unit finding made in a repre-
sentation case, such exceptional circumstances appear to be present here. Clearly,
the Board's 1951 unit finding, insofar as it joined professionals with nonprofes-
sionals, was invalid when made, as tested by the rule later announced in the K) ne
case. What effect should be given to that ruling here necessarily raises questions
which were not considered by the Board in the 1951 representation case and which
Respondent would seem to be entitled to raise at this time,24 unless, as contended
by the General Counsel, this right has been waived or otherwise forfeited by
Respondent.
We turn now to the foregoing "waiver" contention of the General Counsel. He
points to the fact that Respondent had for 13 years acquiesced in the Board's
mixed-unit finding, and that such acquiescence continued even for 6 years after the
1958 ruling of the Supreme Court in Leedom v. Kyne, and the General Counsel
asks, ". . after how many years of bargaining in such a unit could Respondent
validly raise the argument of Kyne v. Leedom :..?"
No authority on this point has been cited by the parties, and the issue seems to
be one of first impression. If one looks at the statute alone, it appears that, while
Section 9(d) contemplates the relitigation in unfair labor practices cases of the
validity of Board action in representation proceedings, the Act nowhere prescribes
any period of limitations within which such Board action may be challenged by
a respondent. However, the General Counsel's argument seems to imply that the
Board should for policy reasons impose some period of limitations on the relitiga-
tion of representation case issues in unfair labor practice cases, no matter how
meritorious the grounds for such relitigation.
It may seriously be doubted that the Board may lawfully take such action on
policy grounds absent any specific authority therefor in the Act 25 Moreover, it
is an exceedingly rare case where an employer will, as here, first bargain with a
union and later question the validity of its certification. Indeed, if the apparent
absence of any decision dealing with such a situation is any criterion, the instant
case may well be the first of its kind in the 30 years of the Board's history. I am
not convinced therefore, that there are compelling policy reasons for adopting
any rule of limitations in the area under consideration. As for the General Coun-
sel's reliance on some legal rule of waiver or estoppel, those doctrines may ordi-
narily be invoked only on behalf of a party who has changed his position to his
22 358 U.S. 184
23 In the Supreme Court, the Board, contrary to its position in the district court, did
not dispute that it had exceeded its statutory power and defended only on the ground that
the matter was not properly before the courts The Court rejected this defense
24 See American Broadcasting Company, a Division of American Broadcasting-Paramount
Theaters, Inc., 134 NLRB 1458, 1459, where the Board, in a refusal-to-bargain case deter-
mined that the Union's certification was invalid because of a supervening Supreme Court
ruling in a different case, and dismissed the complaint for that reason. The Board major-
ity there stated. " . . we believe that public confidence in the administrative process
requires a tribunal to admit its errors and not push a matter to its erroneous conclusion
under the guise of procedural regularity "
z, See Leedom v. Kyne, supra, Colgate-Palmolvve-Peet Co. v. N.L R.B., 338 U.S. 355.
In the latter case, page 363 Court said:
To sustain the Board's contention would be to permit the Board under the guise of
administration to put limitations in the statute not placed there by Congress.
1784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
detriment in reliance on some conduct of the adverse party. Here, it has not been
shown that the unions lost anything by Respondent 's acquiescence in the Board's
unit finding or by the negotiation of contracts on the basis of such finding.
In sum, I find no merit in the contention that Respondent 's attack on the mixed
unit comes too late.
In a somewhat different but related vein, the General Counsel contends that,
even if Respondent is not estopped to attack the Board's unit finding by its pro-
longed acceptance thereof, the incorporation by Respondent in the various con-
tracts negotiated with the Union of the unit found appropriate by the Board,
together with substantial modifications thereof effected by the parties, renders inap-
plicable the provisions of Section 9(b) (1), as construed in the Kyne case. Here,
the General Counsel relies on the case of Vincent Drugs No. 3 , Inc.,26 where the
issue was whether a union had violated Section 8(b)(2) of the Act by seeking
to enforce a union-shop contract covering a mixed unit. The General Counsel
there contended that the union-shop clause was invalid under Section 9(b)(1)
of the Act because the unit was rendered inappropriate by the intermingling of
professionals with nonprofessionals , without affording the professionals an oppor-
tunity to vote for a separate unit. In fact, there had been no election at all in
that case , as the unit was one voluntarily established by the parties. After a
review of the legislative history of Section 9 ( b)(1), and Board and court deci-
sions (which antedated Leedom v. Kyne ), the Board concluded that Section 9(b)
(1) was not applicable because there had been no prior resort in that case to a
Board representation proceeding and the unit was purely consensual. The Kyne
case was distinguished as follows:
. . the Kyne case was not concerned with the validity of an existing contract
covering a unit of both professional and nonprofessionals that had been estab-
lished by the parties, based on an established collective -bargaining history
which preceded the making of the contract. The precise issue presented in
the Kyne case was whether such a combined unit could be established initially
by Board action in a representation proceeding without first affording the
professional employees a self-determination election to authorize their inclu-
sion in such a unit. We therefore find the cited case distinguishable and
inapposite.
Thus, Vincent Drugs would seem to hold that Section 9(b)(1) applies only
where the mixed unit is the creature of the Board , and not where it is the creature
of the parties . Recognizing this, the General Counsel contends that the instant,
mixed unit , although initially created by the Board, was transformed into a crea-
ture of the parties by the long history of bargaining with respect to such unit and
the extensive alterations of the unit by the parties , and that Section 9 ( b) (1) is there-
fore inapplicable under Vincent Drugs . However, it is not clear how such negotia-
tions and changes in the unit can cure the basic legal defect in the Board's unit
finding-namely , the joinder of professionals and nonprofessionals without a self-
determinative election for the professionals . It is not contended that the changes
in the unit resulted in the elimination of all professionals or all nonprofessionals.
Counsel concedes in his brief that the unit is presently mixed. An attempt to
analogize the instant case to Vincent Drugs might be more appropriate if the
Respondent were relying solely on the voluntary accretions to the unit as the basis
for its attack thereon. The fact is , however, that Respondent 's attack - on the unit
is directed , not at the addition thereto by the parties of any particular category,
but rather at the principle of joinder of professionals with nonprofessionals, which
was sanctioned by the Board in the representation case, over Respondent's objec-
tion . As it is thus clear that Respondent is challenging only the foregoing non-
consensual aspect of the unit, and not the consensual ingredients thereof, I deem
Vincent Drugs inapposite.
Finally, the General Counsel contends that the Board did not expressly find in
the 1951 representation case that the "technicians " there involved were not pro-
fessional employees , dedming it unnecessary to decide that question , since under
the Board 's then policy it would not have affected the result.
While it is true that the Board made no affirmative finding in the 1951 representa-
tion case as to the professional status of the "technicians " included by the Board
in the mixed unit, it would seem to be implicit in the language of Section 9 (b)(1),
as construed in the Kyne case , that such a finding is mandatory where the issue
=G 144 NLRB 1247.
INT'L TELEPHONE & TELEGRAPH 1785
is appropriately raised, as it was here, else there would be no basis for deter-
mining whether the limitations of Section 9(b)(1) were applicable.27 It follows
that the Board's omission to make such a finding was, in itself, error and that the
1951 unit determination is invalid for that reason alone, if for no other reason.
In conclusion on this point, I find that the Board's 1951 determination as to the
appropriateness of the mixed unit was invalid under the Kyne case, that such
defect was not cured by Respondent's subsequent conduct, and that Respondent
was therefore not obligated, at any time here material, to bargain with the Union
with respect to such unit 28 I will therefore recommend dismissal of the allega-
tion of the complaint that Respondent violated Section 8 (a) (5) and (1) of the Act
by ceasing to recognize the Union on October 8 as the representative of the mixed
unit , as well as the related allegation that Respondent violated its bargaining duty
by refusing to furnish the Union certain merit review data pertaining to the mixed
unit.
5. The issue of bad-faith bargaining
a. Appropriate unit
The complaint, as amended, alleges that since July 20, Respondent negotiated
with the Union in bad faith concerning the terms and conditions of employment
of the employees in the three units here involved. As it has been found that one
of these units-the mixed unit-was inappropriate, and Respondent was therefore
under no statutory duty to deal with the Union as the representative of such unit,
it will be recommended that the complaint be dismissed insofar as it alleges a
failure to bargain in good faith with the Union as the representative of such unit.
As to the other two units-referred to in the record as the "shop-maintenance"
and "clerical-drafting" units-it was agreed at the hearing, and I find, that they are
appropriate for the purposes of collective bargaining.29
b. Majority status
It was agreed at the hearing, and I find, that at all times here material, the Union
represented a majority of the employees in each of the foregoing two units.
c. The negotiations
The negotiations under consideration were for contracts to replace those which
were due to expire on September 9. The history of these negotiations begins with a
meeting in the fall of 1963 between representatives of Respondent and the Union to
discuss problems relating to the implementation of certain clauses in the 1961 con-
tract-the so-called "transfer" clause 30 and the "two-cent" fund provision.31 At this
meeting, Respondent's director of industrial relations, Minogue, stated that, if those
problems could be satisfactorily resolved, Respondent would be amenable to "early
negotiations" for a new contract. On December 31, 1963, Laird, the Union's presi-
dent, informed Minogue that agreement had been reached between the Union and
r Moreover, I am satisfied from evidence adduced before me that the "technicians" in
the mixed unit did not satisfy, at any time here material the statutory definition of pro-
fessional employees. (The General Counsel appears to contend that such evidence shows
only'that the unit is now mixed, but not that it was mixed from its inception However,
the evidence adduced before me related to technicians A, B, and C, who were included in
the unit as initially established by the Board )
28As already noted, on October 8, Respondent offered to continue to recognize the Union
as the representative of the nonprofessionals in the mixed unit However, the Union did
not accept the offer nor did it propose bargaining on any basis other than the certified
units.
z As to the composition of such unit,,, see Appendixes Ii and C. [Tiial Examiner's
Appendixes B and C omitted from publication 1
30 This clause related to procedures to be followed by Respondent in transferring ein-
ployees from the instant plant to the bargaining units in the Clifton plant of Respondent,
represented by IUE Locals 447 and 1703
ii This clause provided for the establishment of a fund in an amount to he computed by
multiplying by 2 cents the number of man-hours worked in a designated week in the
Nutley and Clifton plants, which fund was to be used to correct wage inequities in both
plants
1786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1703 regarding the transfer clause,32 and inquired whether, in view of this, the
Respondent would engage in "early" negotiations. Minogue promised to give the
matter consideration. At a meeting in April, Respondent's representatives volun-
teered that there would be no early negotiations unless the Union's parent withdrew
a law suit recently filed by it to compel Respondent to establish the "two-cent" fund.
When the Union responded that it had no control over the law suit, and urged that
the parties "sit down" and negotiate, Respondent adhered to its position that there
could be no negotiations until the suit was withdrawn. Late in May 1964, the
Union's renewed plea for early negotiations was again rejected because of the pend-
ency of the fund litigation. On June 11, Laird gave formal written notice to
Minogue of the Union's desire to terminate the existing agreements and asked
Minogue to communicate with Laird to arrange a meeting date. When, on June 23,
Laird broached the matter of early negotiations to McNeil, Respondent's vice presi-
dent for industrial relations, he replied, in effect, that he did not believe in begin-
ning negotiations earlier than was required by the contracts-namely, 30 days before
the September 9 contract expiration date.33 The next day, when Laird pointed out
to Minogue that, if, pursuant to McNeil's edict, negotiations did not begin until Au-
gust 10, and 2 weeks were lost theieafter because of vacations,34 only 17 days would
remain for actual negotiations before the contracts expired. In response , Minogue
merely indicated that he would not overrule his superior, McNeil, and when, on
June 25, Minogue finally acknowledged Laird's aforementioned letter of June 11, he
stated, with regard to a meeting date, only that meetings would be held in accord-
ance with "Article XXIV of the current . agreements," which contained the
30-day provision alluded to by McNeil. On July 13, Laird again wrote Minogue,
proposing deferral of vacations in order to enlarge the time available for
negotiations.35
A few days later, Respondent announced that negotiations would begin on
July 20, and the first bargaining session was held on that date.
Before discussing the actual negotiations , it may not be amiss to refer to two
incidents, which the General Counsel contends afford an insight into the Respond-
ent's approach to the 1964 negotiations. Both of the incidents involved an exchange
between Carey, Respondent's labor relations manager, and LaGana, one of the
Union's chief stewards. The first such incident occurred in March 1964, when, in
the course of a rather heated dispute over certain grievances Carey taxed LaGana
with being unreasonable and declared that management could no longer "live with"
some of the clauses in the current contract and was "preparing a set of proposals of
such a nature that it would take a 14-week strike to condition" the Union to accept
them, adding that, if LaGana served on the negotiating committee, "it would take
a 28-week strike." On June 9, when, in the course of another dispute over the same
matter, Carey indicated that Respondent would seek a change in the relevant con-
tract provision, LaGana asked, "you mean you are sending out proposals like you
told us . . . and you are going, to put us out in the street for 14 weeks?" When
Carey- answered in the affirmative, LaGana announced that he had been elected to
the Union's negotiating committee, which he took to portend a 28-week strike, in
view of Carey's prior prognostication. To this, Carey retorted that, when the strike
was over, LaGana might not even have a job.
Returning to the bargaining, at most of the sessions the Union bargained jointly
with its two sister locals for provisions common to all five units represented by the
three locals. In the other sessions, the Union bargained separately for provisions
peculiar to the Nutley plant. At the first meeting, on. July 20, the three unions sub-
mitted their joint contract proposals, which included demands for improvements in
32 The transfer clause and the 2-cents clause apparently contemplated agreement by Local
1703 and Local 447, as well as the Union, on the manner of their implementation.
ss See article XXIV of the 1959 contracts, as amended by the 1961 "Strike Settlement
Agreement."
34 In 1964, Respondent initiated a policy of suspending negotiations for 2 weeks in
August to permit all the members of the negotiating committee to take their vacations
at the same time The former practice had been one of staggered vacations throughout
the negotiations, which deprived the committee of the services of particular individuals
at a time when their advice was needed. Laird did not dispute the wisdom of the new
policy, but in a letter of June 3, proposed that Respondent compensate for the resulting
loss of 2 weeks' negotiating time in August by starting to bargain 2 weeks earlier. For
further discussion of this point, see footnote 38, below
as This proposal was rejected by Respondent on July 27.
INT'L TELEPHONE & TELEGRAPH 1787
fringe benefits. In discussing these demands, Respondent referred to the adverse
effect on its competitive position of the cost of existing fringe benefits, and an-
nounced its determination to reduce such costs. In this connection, Respondent
asserted that it was "in a fight for survival," and that Respondent was losing many
contracts because of the "cost factors." And in the counterproposals submitted by
Respondent on July 31, it not only ruled out any improvement in existing fringe
benefits but even proposed downward revision of such benefits. At the next meet-
ing, on August 21, in rejecting a demand for an increase in group insurance cover-
age, Respondent reiterated its position that the negotiations would have to result in
reduction of Respondent's costs to enable it to become competitive. Between Au-
gust 21 and October 13, Laird made various requests for data bearing on Respond-
ent's contention that the excessive cost of existing fringe benefits was impairing its
competitive positions. These requests, and Respondent's reply thereto, will be con-
sidered in more detail below.
Although there were several meetings later in August and early in September,
there were no significant developments until the meeting of September 8. On that
date, Respondent submitted revised proposals, which represented some softening of
its original written demands for reduction in fringe benefits, together with a new
pension proposal. Laird testified and, I find, that these proposals were submitted as
a package, which the Union was required to accept, or reject, in toto .36 The pen-
sion proposal, moreover, called for a drastic reduction in existing benefits. By way
of illustration, Laird stated that in his case his monthly pension in case of retire-
ment after 20 years of service, would be reduced from $140 to about $55. The
Union rejected all the foregoing proposals. At another meeting on September 9,
Respondent withdrew or further modified some of the demands it had scaled down
on September 8. On September 9, at midnight, both plants involved in the negotia-
tions were struck. Bargaining continued thereafter with respect to all three units at
the Nutley plant, until October 8, when Respondent announced its decision not to
bargain further with the Union for the mixed unit. On October 10, the Union sub-
mitted revised proposals, and Respondent rejected all except some which related
merely to retention of past practices and clarification of existing contract language.
At the time of the instant hearing, the strike was still in effect, and no agreement
on a contract had as yet been reached.
Evaluation of the Negotiations
(1) The time factor
It is clear from the foregoing that Respondent resisted pressure by the Union that
negotiations begin unconditionally at a date earlier than that normally adopted by
the parties in their past bargaining,37 and that Respondent conditioned any such
acceleration of negotiations on settlement of the dispute over the transfer clause and
on the withdrawal of the IUE's suit over the 2-cent fund.
It is well settled that a respondent may not condition compliance with a proper
request for bargaining upon the happening of some extraneous event. However, it
may be noted that here, unlike the usual case of a conditional refusal to bargain,
Respondent did not say that it would not bargain at all until the stipulated condi-
tion was met, but merely'refused conditionally to advance the normal date for bar-
gaining. Moreover, although in their contract the parties had stipulated that bar-
gaining would begin "as soon as practicable" after receipt of new contract proposals
(but not less than 30 days before the contract expiration date), the Union did not
in fact submit any contract proposals until the first bargaining meeting, on July 20.
Had the Union wished to force the issue of early negotiations, it needed only to
submit its proposals and invoke the foregoing contract provision.
80 Respondent points to certain matters in the recoid, which it contends reflect on the
credibility of Laird's testimony that the September 8 proposals were presented as an
indivisible package However, I deem more significant than the matters cited by Re-
spondent the fact that Carey, Respondent's labor relations manager, to whom Laird at-
tributed the statement that the offer was a "package," did not take the stand to dispute
Laird's testimony.
a7 Respondent made an offer of proof that in the past negotiations for renewal of con-
tracts expiring in the month of September had begun in July or August While I ruled
such evidence as to the exact dates involved to be irrelevant, it is inferable from the record
that the Union's purpose in proposing "early" negotiations was to begin them on a date
earlier than that established by past practice
1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, and perhaps most significant of all, we are not dealing here with a situ-
ation where the parties are bargaining for a first contract. On the contrary, the
record shows that the parties had on six occasions in the past successfully negotiated
contracts, and had done so without resorting to "early" negotiations. Under these
circumstances, Respondent's refusal to start negotiations on a date in the spring of
1964, as proposed by the Union, would not, in itself, seem to reflect on its good
faith.38
(2) Carey's strike threat
I find merit, however, in General Counsel's contention that Respondent's basic
approach to the 1964 negotiations and its bad faith are demonstrated by Carey's
warnings to LaGana early in 1964, cited above, that Respondent was preparing con-
tract proposals which were so stringent that the Union would not accept them with-
out a prolonged strike. The fact that Carey was provoked to utter these warnings
by LaGana's obduracy in grievance sessions does not necessarily prove that they did
not accurately reflect management's intentions. Moreover, I am compelled to infer
from Carey's failure to take the stand that, had he been called as a witness, his
testimony would not have been favorable to Respondent on this issue. Finally, I
am struck by the fact that Carey's prognostications as to the course that the nego-
tiations would take proved singularly accurate. Thus, union proposals for improve-
ments in existing fringe benefits were met by Respondent with insistence that there
be substantial reductions in such benefits. While Respondent softened its position
somewhat on September 8 and 9, the effect of this was more than offset by two
circumstances: (1) Respondent's insistence that the Union could not accept some of
its proposals and reject others, but must treat all of them as a package, and (2) the
Respondent's injection into the negotiations on September 8 of its proposal for a
reduction in existing pension benefits by more than 50 percent. The net result was
that, despite Respondent's apparent conciliatory movement in certain areas on Sep-
tember 8 and 9, the parties were further apart than ever; and the ensuing strike
had at the time of the close of the instant hearing continued for 4 months. The
conclusion is inescapable, therefore, that Carey, in his exchanges with LaGana, inad-
vertently let the "cat out of the bag," and gave LaGana an accurate blueprint of
Respondent's bargaining strategy, which was to take positions calculated to avoid
agreement, and to provoke a prolonged strike that would so weaken the Union that
it would be forced to capitulate. And, so far as appears from the present record,
Respondent adhered to that blueprint throughout the negotiations.
It is well settled that it is incompatible with the statutory requirement of good-
faith bargaining to negotiate, as here, with a fixed determination to avoid, rather
than reach, agreement. Accordingly, I find that Respondent from July 20 to
November 10,39 bargained with the Union in bad faith with respect to contracts for
the shop-maintenance and clerical-drafting units, thereby violating Section 8(a)(5)
and (1 ) of the Act.
6. The financial and contract data issue
The complaint alleges that on various occasions during the 1964 negotiations, the
Union requested certain data relating to Respondent's financial position, income,
and costs; that Respondent has refused to furnish such data; that such data was
necessary to enable the Union to bargain intelligently with regard to certain pro-
posals by Respondent for reduction in employee benefits; and that by such refusal
Respondent violated Section 8(a)(5) and (1) of the Act.
As already related, early in the negotiations (on July 24), Respondent struck a
note which pervaded the later bargaining-namely, that its objective in the negotia-
tions was to secure reduction of its labor costs, particularly employee fringe bene-
fits, which it contended were higher than those of most of its competitors, and
thereby were adversely affecting its competitive position, and resulting in the loss
of contracts awarded on the basis of competitive bidding. When, on August 21,
3' The General Counsel contends that Respondent impeded the 1964 negotiations unduly,
when as noted above, it instituted a practice of suspending negotiations entirely for 2 weeks
in August, and refused to compensate therefor, as suggested by the Union, by commencing
them 2 weeks earlier than usual However, it may be that Respondent's decision to start
negotiations on July 20 rather than on August 10, as had been originally contemplated by
McNeil, was in deference to the foregoing request
39 This is the cut-off date alleged in the complaint, as amended at the hearing
INT'L TELEPHONE & TELEGRAPH 1789
Laird asked Respondent for more details as to the relative cost of employee fringe
benefits and the contracts allegedly lost because of the cost of such benefits, Respond-
ent suggested that he put his request in writing, for consideration by Respondent's
legal counsel . When Laird orally renewed his request on August 25, Respondent
proposed that he take the matter up with its comptroller, Kaploe, at the meeting
scheduled for August 27. However, Kaploe did not appear at that meeting nor, so
far as the record shows, at any subsequent meeting; and, according to Laird,
Respondent vouchsafed no reply, when , on October 10, he orally asked for informa-
tion on various items, including a profit and loss statement , and the names of
Respondent 's competitors . Finally, on October 13 , Laird addressed a letter to
Respondent requesting the following information as to the operations of its Federal
Laboratories Division:
1. The names of major competitors.
2. Auditor's reports for the past 2 or 3 years with regard to income, profit
and loss, net sales, cost of sales, selling and administrative costs, pay-
roll and fringe benefit costs , ratio of such costs to net sales, ratio of
other costs to net sales , overhead costs not properly chargeable to the
Nutley plant, profits before and after taxes , current and total assets and
liabilities, depreciation , surplus, and net worth.
3. Total compensation of management personnel.
4. Comparison of costs and prices of each of its major competitors.
5. Contracts lost during the last 2 or 3 years because it was not competitive.
6. The record of the Division as a separate entity and its relation to that of
Respondent's other divisions.
7. The accuracy of a newspaper report that it had on hand military con-
tracts valued at $150 million dollars, and whether such contracts had
been awarded to it because it underbid its major competitors.
8. The ratio of fringe benefits to total costs.
9. All factors considered by Respondent in determining competitive position.
10. Cost of certain management fringe benefits.
11. All other information in Respondent 's possession on which it based its
contention regarding its competitive position.
The letter concludes with an offer that, to facilitate compliance with the Union's
request, the pertinent books and records of Respondent be examined by a mutu-
ally acceptable certified accountant.
By letter of December 10, Respondent replied that it had been advised by coun-
sel that it was not obligated to furnish the data requested, and it is implicit from
the balance of the letter that this position was based on the view that Respondent
had already divulged certain of the requested data in the course of the negotia-,
tions and that the Union was not entitled to any further disclosure, as Respondent
was not pleading inability to pay. In this connection, the letter recites the fol-
lowing information, requested by the Union, and already supplied to it:
1. The names of nine competitors.
2. Two contracts lost by Respondent because it was not "competitive."
3. The fact that Respondent's net income after taxes was less than one per-
cent of sales.
4. The total cost of each of 10 fringe benefit items.
Laird admitted at the hearing that Respondent in the negotiations disavowed
any plea of inability to pay, professing only a desire to improve its competitive
position ; that Respondent informed him that its competitors were "every big elec-
tronic company in the United States," and gave him the names of at least some
of its competitors who were thought to have less liberal fringe benefits than
Respondent; and that he knew of one contract lost by Respondent to a
competitor.
Respondent defends mainly on the ground that it had no obligation to furnish
any of the requested data because , in justifying its proposals for reduction in fringe
benefits, Respondent did not claim inability to pay the existing benefits but only
that lowering of its labor costs would improve its competitive position in bidding
for contracts, and that its relatively generous fringe benefits had been responsible
for loss of contracts in competitive bidding. While it appears that Respondent,
early in the negotiations , linked its demand for lower fringe benefits with the
1790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue of job security and with a reference to a "fight for survival," I am satisfied
from Laird's own testimony that Respondent made it sufficiently clear during the
negotiations that it was not claiming that it lacked the wherewithal to continue
to pay the cost of the existing fringe benefits, but only that it deemed its fringe
benefits to be so far out of line with those of its competitors as to be responsible
for its loss of contracts to them. In any case, it is clear from Respondent's
December 10 letter that that is its present position. Even so, it is well settled that
an employer may be required to document not only a plea of inability to pay, but
also a plea that his competitive position is adversely affected by his high labor
CoStS 40
In any case, it is clear that the Supreme Court's rationale in the Truitt case 41
that good-faith bargaining requires that a bargainer's claim "be honest claims," and
that he be willing to support them by proof of their accuracy-is not in terms lim-
ited to a plea of inability to pay but would seem to apply with equal force to any
assertion by a party in support of a bargaining demand, which is susceptible of
documentation by data available to it and not available to the other party.
Respondent's claim here of the worsening of its competitive position by its past
liberality in the matter of fringe benefits was such an assertion and was susceptible
of such documentation. It may be pointed out, however, that the nature of the
data that a respondent may be required to produce may well be different when he
pleads that he does not have the present means to pay certain benefits and when,
as here, he complains only that the payment of existing benefits has caused him to
lose contracts to competitor s. While, in the former case, the union would be enti-
tled to an order requiring disclosure of all books and records relating to the respond-
ent's financial status, in the latter case it would seem that the appropriate remedy
would be to compel disclosure of only such data as the employer relied on in assert-
ing that his competitive position had been so impaired by his generosity to his
employees that he had lost out in bidding for contracts. Applying those princi-
ples here, I find that the Union was entitled to disclosure of the names of those
competitors of Respondent whose fringe benefits were alleged to be lower than
Respondent's and of the identity of all contracts allegedly lost during the term of
the expiring collective-bargaining agreements because of underbidding by such com-
petitors, together with any other data in Respondent's possession on which it relied
in reaching the conclusion that such contracts were lost because of its relatively
high fringe benefits or other labor costs 42
I find further that in its letter of October 13, if not before, the Union made an
adequate, albeit inartistic, request for disclosure of such data as it was entitled to
receive. (See particularly items 1, 5, and 11 of that letter, as set forth above.)
I find, finally, that, even if it be assumed that Respondent, as it claims, had
already furnished to the Union all the data set forth in its letter of December 10,
such disclosure would not satisfy the requirements of the Act, and that, by failing
40 The Celotex Corporation, 146 NLRB 48 (while this aspect of the Celotex case is not
discussed in the Board's Decision, it was litigated before the Board on exceptions to the
Trial Examiner's Report, and the issue is now before the United States Court of Appeals
for the Fifth Circuit (Case 21994)); Peerless Dzstribnting Company, 144 NLRB 15510,
Cincinnati Cordage & Paper Company, 141 NLRB 72, 77; 'Wheeling Pacific Company, 151
NLRB 1192
Respondent cites Charles E. Ilonaaer, 147 NLRB 1184 However, in that case the
Board held only that there was no duty to furnish financial data where the Respondent
did not plead inability to pay, and, where, although professing a desire to "remain com-
petitive" with similar operations in the area, Respondent meant theiebv only that it did
not wish to pay more than the prevailing rate (there being no real competition between
it and the other like operations in the area) While there is some support for Respond-
ent's position in Taylor Foundry Co., 141 NLRB 765, enfd 338 F 2d 1003 (C.A. 5), the
Board's statement therein cited by Respondent is mere dictum, and must be deemed in
any case to be superseded by the square holdings to the contrary in the later cases cited
above.
Finally, I find no merit in Respondent's contention that the Union forfeited any right
it may have had to the data in question by not pressing its demand therefor with suf-
ficient diligence. See the Celotex Corporation, supra at page 6 of Intermediate Report
41 N L.R.B. v. Truitt Mfg. Co., 351 U S 149.
42 The foregoing should not be construed as relieving Respondent entirely of the obliga-
tion to furnish any data as to its financial position, but as requiring that it furnish only
such financial data as entered into its determination that its fringe-benefit expense was
responsible for its inability to underbid its competitors
INT'L TELEPHONE & TELEGRAPH 1791
to make adequate disclosure , Respondent violated Section 8 (a)(5) and (1) of
the Act 43
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and desist therefrom and
take certain affirmative action necessary to effectuate the policies of the Act.
I shall recommend, inter alia, that Respondent be required to make available
to the Union such data as Respondent may rely on in asserting in contract nego-
tiations that the relatively high cost of existing employee benefits is adversely
affecting its competitive position or causing it to lose contracts.44
It has been found that Respondent violated Section 8(a)(1) of the Act by its
delay in furnishing the seniority data relative to nonunit employees, requested by
the Union. As such data has already been furnished, no useful purpose would
be served by requiring that the same data be furnished again. However, I shall
recommend that Respondent be required, upon request, to advise the Union of
any personnel action taken, or any events occurring, since such data was sup-
plied that are relevant to a determination of the seniority rating that would be
acquired by nonunit personnel, if transferred into the appropriate bargaining unit
pursuant to applicable contract provisions.
CONCLUSIONS OF LAW
1. The bargaining units set forth in Appendixes B and C, are appropriate for
purposes of collective bargaining under the Act.
2. At all times here relevant the Union has been the statutory representative of
Respondent's employees in the said bargaining units.
3. From July 20 to November 10, 1964, Respondent failed and refused to bar-
gain in good faith with the Union as the representative of Respondent's employ-
ees in the foregoing units, thereby violating Section 8(a)(5) and (1) of the Act.
4. Since, at least, December 10, 1964, Respondent has refused to disclose to
the union data necessary to enable it to verify Respondent's claim that the level
of existing fringe benefits was adversely affecting Respondent's competitive posi-
tion , and to enable the Union to bargain intelligently with regard to proposals
for reduction of such benefits. By such refusal Respondent has violated Section
8(a)(5) and (1) of the Act.
5. Between January 15 and October 22, 1964, Respondent violated Section
8(a) (1) of the Act, by refusing to furnish the Union with certain data requested
by it relating to the seniority that would be acquired by nonunit personnel, if they
were transferred into the foregoing bargaining units.
6. By coercively soliciting strikers to return to work, Respondent violated Sec-
tion 8(a)(1) of the Act.
7. The "mixed" unit for which the Union was certified by the Board in 1951,
was not, and is not now, appropriate for collective bargaining, because of the
joinder therein of professional and nonprofessional employees, without affording
the former an opportunity to vote for separate representation. By refusing on and
+a The complaint, as amended at the hearing, alleged that the strike called on Septem-
ber 9 was caused or prolonged by Respondent's unfair labor practices However, after
the hearing counsel for the Union and for the Respondent advised me by letter that the
strike had ended, and that they were informed by their respective clients that all strikers
who sought reinstatement had been restored to their former jobs The General Counsel
does not dispute this (see Trial Examiner's Exhibits 5, 6, and 7). As there, accordingly,
no longer appears to be any `issue concerning reinstatement of the strikers, I do not deem
it necessary to determine whether the strike was caused or prolonged by Respondent's un-
fair labor practices or was merely an economic strike.
43 However, in complying with this requirement, Respondent need not supply the Union
with the names of all its major competitors, as it already did so in its letter of Decem-
ber 10, if not before.
1792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after October 8, 1964, to recognize the Union as the representative of such unit,
and by refusing to furnish the Union with merit review data relative to the employ-
ees in such unit, Respondent has not violated Section 8(a)(5) and (1) of the Act.
[Recommended Order omitted from publication.]
Adams Furnace Co., Inc.; A-Air Heating & Cooling Co., a/k/a
C. F. Jacobs & Co.; Acme Heating & Ventilation Corp.; C. & R.
Heating & Service Co., Inc.; Downtown Heating & Sheet Metal
Works; Droste Heating & Sheet Metal Co.; Eveready Heating
& Sheet Metal Co.; Grossmann Contracting Co.; Shocklee
Heating & Sheet Metal Co.; Shure-Richardson, Inc.; Sodemann
Heat & Power Co.; Harster Heating & Air Conditioning Co.;
T-W Heating & Sheet Metal Co.; J. F. Higgins & Co.; Tharpe
Heating & Sheet Metal Co.; Hopmann Cornice Co.; Weis Heat-
ing & Cooling Co.; Welsch Furnace Company; Nunez Heating
& Sheet Metal Co.; Western Blow Pipe & Sheet Metal Co.;
Wheeloc Engineering Co.; Lackland Sheet Metal Works; D. F.
Dewards Heating Co.; Consolidated Engineering & Sheet Metal
Co.; Mound Rose Cornice & Sheet Metal Works, Inc.; R. F.
Meeh Co.; Merritt Heating & Air Conditioning Co.; Meyer Bros.
Automatic Heating & Cooling Co.; Puhl & Hepper Manufactur-
ing Co., Inc.; St. Louis Blow Pipe & Heater Co.; St. Louis Fur-
nace Supply Co.; Lyon Sheet Metal Works, Inc. ; Lucas Sheet
Metal & Furnace Co.; Lasater Heating & Air Conditioning Co.;
and Maplewood Sheet Metal Co. and Sheet Metal Workers In-
ternational Association, AFL-CIO, Local 36, Petitioner
Sheet Metal & Air Conditioning Contractors Association of St.
Louis,' Employer-Petitioner and Sheet Metal Workers Interna-
tional Association, AFL-CIO, Local 36. Cases 14-RC-5392,
5393, 5395 , 5396, 5397, 5398, 5399 , 5400, 5401, 5402, 5403, 5404, 5405,
5406, 5407 , 5408, 5409, 5410, 5411, 5412, 5413, 5414, 5415, 5416, 5417,
5418, 5419, 5420, 5421 , 5422, 5423, 5424, 5426, 5427, and 5428, and
14-RM 310. June 29,1966
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, as amended, a consolidated hearing
was held before Hearing Officer Philip L. Curd. The Hearing Offi-
cer's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. No briefs have been filed by the parties.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
The name of the Association appears as amended at the hearing.
159 NLRB No. 148.