Litton Precision Products, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1966

156 N.L.R.B. 555 (N.L.R.B. 1966)

CLIFTON PRECISION PRODUCTS DIVISION, ETC. 555
dues or initiation fee arises. The Union then, as the Board held in Philadelphia
Sheraton, is bound to inform him fully as to his membership obligations. The failure
of an employee to apply for membership may simply mean that he is not interested
in working for more than 31 days; or having had a free ride for that period, he may
believe he will thereafter be overlooked if he does not file an application, and ride
free for a longer period. Dunn did so for nearly 3 months after the initial escape
period.2
This was the posture of this matter when I granted Respondent's motion to dismiss
for lack of a prima facie case at the end of the General Counsel's case. Dunn, it was
apparent, had never approached the Union. On remand, Respondent adduced the
evidence related above as to the circularization of the Company's employees along the
11-mile worksite. Though not in my opinion required as a defense against a charge
of violation of the Act, in view of Dunn's failure to approach the Union, it neverthe-
less did undertake to inform every eligible employee of his obligations under the con-
tract, specifically the amount of the dues, the manner in which they might be paid, and
the proper time and place of payment. In the absence of any comprehensive list of
employees and their residence, I know of no more reasonable or effective way of
conveying this information.
In my opinion Dunn did not want to join the Union, and played hide-and-seek with
it, much easier to do here than in a factory or in the Philadelphia Sheraton hotel.
Even on the last day of his employment, when he has been advised by his employer
that arrangements have been made with McWade, the Union's International repre-
sentative, to have him reinstated in his job if he will go to the Union's hall the follow-
ing night, he nevertheless deliberately stays away. Even when on the same night he
by chance encounters McWade in another place, he conspicuously avoids asking him
what arrangements he has made for him with Local 98D, and what his financial
obligations are to that organization.
I conclude and find that Dunn at no time had any real intention of applying for
membership in the Union. Whether he had or not he did not apply and tender his
membership dues and initiation fees as required by the provisions of a valid union
shop contract. By reason of this failure Respondent Union could lawfully request
his discharge by the Company.
CONCLUSIONS OF LAW
1. Respondent Local 98D, International Union of Operating Engineers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. Construction Field Surveys, Inc., is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. Respondent Union has not engaged in any unfair labor practices in violation
of Section 8(b)(1)(A) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
2 Dunn testified that as late as May 1, 2 months after his employment, he was not
certain whether he would stay in the community and on his job, and a day or so later
asked Shapiro if the Company was going to send him back to a project he had formerly
worked on. Shapiro told him he could go back to the other project but If he stayed
with the Company he would have to join the Union. The following day he informed
Parker that he had intended to stay with the Company and join the Union.
Clifton Precision Products Division , Litton Precision Products,
Inc. and Local 137, International Union of Electrical , Radio &
Machine Workers, AFL-CIO. Case No. 4-CA-3431. January 4,
1966
DECISION AND ORDER
On September 9, 1965, Trial Examiner Sidney J. Barban issued his
Decision in the above-entitled proceeding, finding that the Respond-
156 NLRB No. 59.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,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 Deci-
sion . He also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
-a supporting brief. The General Counsel filed cross-exceptions and a
supporting brief and Respondent also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
r 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, cross-exceptions and briefs, and
the entire record in this case, and hereby adopts the findings, con-
clusions , and recommendations of the Trial Examiner, with the addi-
tions and modifications noted herein.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Add the following as paragraph 1(c) and reletter paragraph
1(c) as paragraph 1(d) :
["1(c) Refusing to bargain about job posting procedures with the
above-named labor organization and instituting wage increases with-
out bargaining with said labor organization."
[2. Add the following as the third paragraph of the notice :
[WE WILL NOT refuse to bargain about job posting procedures with
the above-named labor organization nor will we institute wage
increases without bargaining with said labor organization.]
'Considering all the circumstances herein, we reject Respondent's claim that its uni-
lateral institution of a job posting procedure gave rise merely to a -matter of "substantive
contract interpretation" and is not properly before the Board in this unfair labor practice
proceeding. See Century Papers, Inc., 155 NLRB 358 Like the Trial Examiner, we
find that the contract did not vest in Respondent the right to take this unilateral action
and we conclude that Respondent thereby violated Section 8(a) (5). Although the Trial
Examiner found, as do we, that the Respondent's unilateral institution of a job posting
procedure and its unilateral grant of a wage increase violated the Act, he failed to pro-
vide a remedy for these violations in the Recommended Order and Notice. We hereby
correct this inadvertent error by amending the Recommended Order and Notice to reflect
these additional violations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on September 2, 1964, and thereafter amended , by the above-
named Charging Party, herein referred to as the Union , the General Counsel of the
CLIFTON PRECISION PRODUCTS DIVISION, E1C. 557
National Labor Relations Board, herein referred to as the General Counsel, by the
Regional Director for Region 4 (Philadelphia, Pennsylvania), issued a complaint
dated November 30, 1964, thereafter amended, against the above-named Respond-
ent, herein referred to as the Respondent. The complaint alleged that the Respondent
had engaged in, and was engaging in, unfair labor practices in violation of Section
,8(a)(1) and (5) of the National Labor Relations Act. Respondent duly filed an
answer to the complaint, which, as amended, admitted certain allegations of the com-
-plaint, but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Sidney J. Barban at
Philadelphia, Pennsylvania, on various dates between February 23 and April 13, 1965.
All parties appeared at the hearing and were afforded full opportunity to participate,
-examine witnesses and adduce relevant evidence. Oral argument was waived. Briefs
have been received from the General Counsel and the Respondent and have been
carefully considered.
Upon the entire record in this case,' and from my observation of the witnesses, I
-make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, is engaged at Clifton Heights, Pennsylvania,
in the manufacture of electrical components? During the year previous to the issu-
ance of the complaint, Respondent shipped from its Clifton plant-in interstate com-
merce manufactured items of a value in excess of $50,000, and in the same period,
received at its Clifton plant in interstate commerce goods and materials of a value
in excess of $50,000.
Respondent admits and I find that Respondent is engaged in commerce within the
meaning of the Act.
II. LABOR ORGANIZATION
Respondent admits and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary
As a result of proceedings initiated by the Union in Case No. 4-RC-5494, an
election was conducted, on June 26, 1963, by the Regional Director of the Board
among the production and maintenance employees at the Clifton plant 3 to determine
whether those employees desired the Union as their collective-bargaining representa-
tive. The tally of ballots shows that there were approximately 660 employees eligible
to vote; 638 employees appeared at the polls; 330 voted in favor of the Union, and
300 voted against; 8 voters were challenged. The Union was certified, on July 5, 1963,
by the Board as the collective-bargaining representative of the unit in which the
election was held. The parties thereafter engaged in numerous collective-bargaining
sessions, during the course of which there was a strike of the employees from Octo-
ber 23 to December 8, 1963.4 The strike was ended with agreement of the parties to
1 Respondent's motion to correct the record, to which no objection has been filed, has
been granted, with certain exceptions, in a separate order, together with certain correc-
tions In the record made on my own motion.
2 The certification of representative issued by the Board on July 5, 1963, was based
upon an appropriate unit of production and maintenance employees at Respondent's two
plants located at Broadway and Marple Streets, Clifton Heights, Pennsylvania, and 557
East Baltimore Pike (Boat House), Clifton Heights, Pennsylvania. It was stipulated
that this continues to be the appropriate unit. The two plants will be referred to together
herein as the Clifton plant.
i The employer was then Clifton Precision Products Company, Inc., herein referred to
as Clifton, which became a division of Litton Precision Products, Inc, herein sometimes
referred to as Litton, on December 10, 1963. No contention is made that the change
in corporate ownership, as such, affected the obligation of Respondent, as the successor
employer at the Clifton plant to deal with the Union as the collective-bargaining repre-
sentative of certain employees at that plant.
* It was estimated that approximately 200 employees worked during the strike, appar-
ently including some employees hired during the strike. It was also estimated by a
union representative that approximately 425 employees were on strike It appears that
about two-thirds of the work force ceased work during the strike. This accords with the
statement in Respondent's brief that "at least one-third of the workforce continued to
work during the strike."
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a collective-bargaining contract effective December 9, 1963, for a period of 1 year,
to December 8, 1964, subject to automatic renewal in the absence of 60-day notice
by either party to terminate the agreement.
The record indicates that the agreement was actively administered by the parties
during its term. Respondent asserts, however, that during this period it was advised
of employee dissatisfaction with the Union and the agreement. Allegedly the tempo
of this employee dissatisfaction increased in June and July, immediately prior to the
plant vacation period (the last week of July and the first week of August), which itself
preceded what may be described as a very active August on the labor relations front
at the Clifton plant.
During August 1964, Respondent, without prior consultation with the Union,
instituted a "job posting" procedure designed to afford "Clifton personnel greater
opportunities to advance their careers with the Company," by publicizing job vacan-
cies to the employees prior to hiring personnel from outside the plant.
Also during August, supervisory and management personnel became involved on
a large scale in activities designed to effectuate employee withdrawal from checkoff
of union dues or union membership, to be effective in the early part of October 1964.
The collective-bargaining agreement, which did not provide for compulsory union
membership, contained a provision for checkoff of dues for those employees who
executed voluntary authorizations dated after December 9, 1963. The contractual
period of escape from the checkoff was a 5-day period in October. However, in
August a number of supervisors, management personnel, and employees became
actively engaged, in advance, in preparing and completing withdrawal letters, many
of which were held by supervisory and management personnel for employees until
just before the escape period in October.5
About this same time, the record shows that a committee of employees initiated a
movement in support of a petition for an election to decertify the Union as the bar-
gaining representative of the employees Such a petition was filed with the Board,
on September 14, 1964, and docketed as Case No. 4-RD-327. Respondent's indus-
trial relations director, Noel England, testified that he was informed by the person
who appears to have been the leader of the group, an employee named Gallagher,
that there were 356 employees who signed in support of this petition 6
By letter dated September 17, 1964, the Union requested that the Respondent bar-
gain with it for changes in the current agreement. On September 24, 1964, the
Respondent replied in a letter advising the Union that Respondent had a "good faith
doubt that you now represent a majority of the employees in the bargaining unit,"
declining to meet with the Union as requested and notifying the Union that Respond-
ent desired "to terminate the existing labor agreement effective December 8, 1964."
5In March of 1963, the first month in which the checkoff was operative, the Respond-
ent checked off dues from 299 employees. In September 1964, the Respondent checked off
dues from 269 employees. The problems of determining the exact number of authoriza-
tions in force, as well as the problems of determining the number of employees in the
unit at critical times will be considered hereinafter
8 Respondent subpenaed the attorney for the General Counsel to produce the list of
employees supporting this petition from the Board's files, but stated that a stipulation
as to the number of names would be acceptable in lieu thereof The General Counsel
refused to stipulate the number of names and filed a motion to quash the subpena, which
was granted by me after full argument and due consideration. Respondent claims that
the ruling was erroneous. In argument on the motion to quash the subpena, Respond-
ent suggested two grounds for the admission of evidence that it was seeking* first, that
it would corroborate England's testimony and second, that the evidence would prove or
tend to prove that the Union was rejected by a majority of the employees As to the
first point, I, as stated on the record, hold that since England asserts that he relied upon
what he was told by Gallagher to be the number, without any investigation on his part
of the actual number supporting the petition, the actual number is of only tangential
materiality The actual number would not support England's testimony as to his con-
versation with Gallagher, upon which alone, he relied. Gallagher's testimony might be
probative for that purpose, but it was not offered In any event, it is not error to refuse
to permit Respondent to subpena Board files for purely cumulative evidence Mak-All
Manufacturing, Inc. v. N.L R.B , 331 P. 2d 404 (C.A 2). With respect to the second
point, contrary to the contention of Respondent, the fact that the petition was filed with
the Board does not authenticate the signatures supporting it To the extent that these
proposed facts might be relevant or material, they were within the possesssion of
Gallagher, who was not called or shown to be unavailable. In these circumstances, I
am convinced that the application in this case of the Board's rule against disclosure of
the Agency's Iles has not prevented Respondent from the full development of its defense
herein.
CLIFTON PRECISION PRODUCTS DIVISION, ETC. 559
This decision was made by Respondent's industrial relations director, Noel Eng-
land. England testified that four basic factors contributed to his doubt that the
Union continued to represent a majority of the employees in the unit. Briefly, these
were (1) the fact that the Union originally was certified on the basis of a favorable
vote of less than a majority of the actual number of employees in the unit (330 voted
for the Union out of a total unit of 660); (2) the receipt of a number of reports of
employee dissatisfaction with the Union; (3) knowledge that the Respondent had
checked off dues for 269 employees in September, which England believed to be less
than a majority of the employees in the bargaining unit; (4) the receipt of Gallagher's
report that 356 employees had executed a document in support of a petition for a
new election , which had been filed with the Board.
At the same time that England advised the Union that Respondent was declining
to bargain with it for a new agreement, Respondent also filed a petition with the Board
for an election, docketed on September 24, 1964, as Case No. 4-RM-497.
The record indicates that the Respondent continued to recognize and deal with the
Union for the purpose of administering the current agreement until its termination
date. In December 1964, after the termination of the agreement, Respondent uni-
laterally granted a wage increase to the employees in the unit.
Both the petition in Case No. 4-RD-327, filed by the employees, and the petition
in Case No. 4-RM-497, filed by Respondent, for an election, were dismissed by the
Regional Director on the basis of the issuance of the complaint in this matter. Upon
appeal, the Board affirmed these actions of the Regional Director.
Respondent, thus, is here accused of refusing to bargain with the Union as the rep-
resentative of its employees in an appropriate bargaining unit in violation of the Act.
Respondent admits that it has refused to bargain, but asserts that it was justified in
this action by its belief in good faith that the Union no longer represented a majority
of its employees.7
Under well settled principles of law, during the first year after its certification,
absent unusual circumstances, a labor organization is conclusively presumed to be
the representative of the employees in the bargaining unit and the employer must deal
with it as such. After the first year of certification, the presumption continues, but is
rebuttable. It may be rebutted at an appropriate time, as at the end of a current
collective-bargaining agreement, by a showing that the union clearly does not represent
a majority of employees in the unit, in which case the employer has no further obli-
gation to deal with the union as the representative of the unit, unless the union's loss
of majority status was improperly caused or contributed to by the employer. The
employer, also, at the end of the certification year, or at an appropriate time there-
after, may be relieved of an obligation to deal with the certified union, if the employer
has a good-faith doubt that the union continues to be the designated or selected rep-
resentative of a majority of the employees in the appropriate unit.
The Respondent does not here contend that the evidence clearly shows that the
Union had lost its majority status, but asserts that it raised the question of the Union's
majority in "good faith," within the meaning of the law. With respect to this issue,
the Board has said in Celanese Corporation of America, 95 NLRB 664, 673:
By its very nature, the issue of whether an employer has questioned a union's
majority in good faith cannot be resolved by resort to any simple formula. It
can only be answered in the light of the totality of all the circumstances involved
in a particular case. But among such circumstances , two factors would seem
7 Respondent agreed at the hearing to the appropriateness of the bargaining unit in
which the election was originally held. Based upon this agreement and the record as
a whole I find the appropriate unit for bargaining pursuant to Section 9(b) of the Act
to be:
All production and maintenance employees, including model shop (prototype) em-
ployees and parttime student employees, and truckdrivers employed by Clifton
Precision Products Division, Litton Precision Products, Inc. at its two plants located
at Broadway and Marple Sts., Clifton Heights, Pa, and 557 E. Baltimore Pike (Boat
House ), Clifton Heights , Pa., but excluding professional and technical employees, in-
cluding engineering department employees ; draftsmen ; tool designers ; methods de-
partment employees , quality control analysis technicians ; environmental test em-
ployees; quality control gauge and instrument employees and quality control receiving
inspection employees ; office production control employees, including expediters and
dispatchers ; office and shop clerical employees ; purchasing department employees ;
personnel department employees ; salesmen ; guards ; and supervisors as defined in
the Act.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be essential prerequisites to any finding that the employer raised the majority
issue in good faith in cases in which a union had been certified. There must,
first of all, have been some reasonable grounds for believing that the union had
lost its majority status since its certification. And, secondly, the majority issue
must not have been raised by the employer in a context of illegal antiunion activi-
ties, or other conduct by the employer aimed at causing disaffection from the
union or indicating that in raising the majority issue the employer was merely
seeking to gain time in which to undermine the union.
The General Counsel asserts that the Respondent may not here assert a claim of
"good faith," because of its alleged unlawful activities in unilaterally establishing a
job posting procedure and other alleged unlawful conduct causing employee disaf-
fection from the Union.
B. Establishment of the job posting procedure
Early in August 1964, Respondent posted a notice to its employees announcing
the introduction of a job-posting procedure, "consistent with Litton' s employee rela-
tions philosophy of providing career advancement opportunities for its employees."
As stated therein, over the signature of James W. Weidenman, a vice president of Lit-
ton Industries and chief executive officer of Respondent:
The chief feature of the plan is that production job vacancies will be publi-
cized to our employees prior to hiring candidates from outside the plant, thereby
affording Clifton personnel greater opportunities to advance their careers with
the Company, consistent with their job interests and abilities.
It is my sincere conviction as well as that of the Litton organization that this
Company's continued growth will be dependent in large measure upon the people
it employs. Not only is it the Company' s aim to provide job security insofar as
possible, but also to offer career opportunities to those who are willing and able
to contribute to the Company's success. In short, it is our hope that as the Com-
pany grows, our employees will grow along with it. The new job posting proce-
dure, I believe, will be one step in that direction.
Later in August, this procedure was confirmed and further details supplied in the
company paper, "The Synchronizer," distributed to Respondent's employees. It was
there explained that the decision to post all production job openings was part of
Respondent's "continuing effort to improve employee relations and encourage employ-
ees to make a career with our company." It was stated that employees would have a
24-hour period to consider and apply for such jobs and that applicants not accepted
would be given the reason for their rejection.
Prior to the institution of this procedure, the filling of job vacancies had been han-
dled by the various foremen, based on their knowledge of the job openings available
and their wishes in filling them. As a result, employees were uncertain of the basis
used by supervisors in determining transfers from one job to another and were particu-
larly concerned because the Respondent appeared to have a policy of filling higher
rated vacant jobs by hiring from the outside, rather than promoting employees from
within the present employee complement.
Because of these concerns on the part of the employees, the Union sought, as part
of its 1963 proposal for a collective-bargaining agreement with the Respondent, a pro-
vision for the posting of certain jobs before new employees were hired: This pro-
vision was included among the clauses in the proposal dealing with the application
of seniority. In pertinent part, the job posting proposal stated that "No new employ-
ees shall be hired until ... employees who have requested transfer to the job have
first been given an opportunity to fill such job. Such job openings shall be posted
for a period of five (5) full working days." Other clauses in the seniority proposal
provided for the application of seniority of employees in the making of transfers and
promotions, and the rates of pay in such situation.
There is a dispute as to whether this job posting proposal, specifically, was dis-
cussed during the bargaining negotiations. Witnesses for the General Counsel assert
that the subject was discussed briefly at one negotiation meeting, at least. Testimony
was adduced by ' Respondent that the Union's seniority proposal became enmeshed
in fundamental and serious differences between the parties over seniority rights gen-
erally, which were finally resolved without specific discussion of job posting. It is
unnecessary to the decision in this matter that this dispute be resolved. It is suffi-
cient to note that the proposal for a job posting provision was rejected by Respondent
and no reference to lob posting is contained in the collective-bargaining agreement
CLIFTON PRECISION PRODUCTS DIVISION, ETC. 561
signed by the Respondent and the Union.8 The final draft of the agreement was
prepared by Respondent's counsel at the request of the Union. Certain changes, not
including job posting, were thereafter requested by the Union and some of these
were agreed to by the Respondent and incorporated into the final agreement.
Respondent's industrial relations director, England, who had not been employed
at the Clifton plant at the time of the 1963 negotiations, testified that in July 1964,
because of an anticipated large increase in new job openings, he recommended to
Respondent's management that a job posting system be instituted. He stated that this
was expected to serve the purpose of taking the burden off the foremen to fill job
vacancies and also provide opportunities to employees to advance and better them-
selves. In England's view, the change was purely one of mechanics and did not
provide an additional benefit to employees, because, as he stated, the Respondent had
always provided "an opportunity" for the employees "to get another job."
The job posting procedure was instituted by Respondent without notification to or
prior consultation with the Union. England agreed that it never occurred to him to
consult with the Union about this. He asserted that Respondent relied on "a transfer
clause" in the agreement, which he considered gave the Respondent the right to take
unilateral action in this situation, which will be discussed hereinafter.
Although the Union filed a charge in this matter, alleging, in part, that Respondent
had "promised and made unilateral changes in terms and working conditions," and
also asserted to England that the Respondent's action indicated that Respondent was
not willing to deal with the Union on a fair basis,9 the Union made no request to the
Respondent to bargain concerning this matter after the institution of the job posting
procedure by Respondent.
Respondent contendsrthat General Counsel's claim that Respondent violated the
Act by its unilateral institution of the job posting procedure should be dismissed,
first, "on the ground that the Union did not make a timely request to bargain over the
institution of the job posting procedure" and, secondly, on the basis that "in any event,
the Union clearly waived any right to compel the Company to negotiate about the
job posting procedure by the very terms of the Collective Bargaining Agreement."
The provisions of the Agreement relied upon by Respondent in its brief in support of
the latter position are the following, in pertinent part:
ARTICLE XXIII. MANAGEMENT CLAUSE
23.01 Any of the rights, powers or authority the Company had prior to the
signing of this agreement are retained by the Company except those specifically
abridged, granted or modified herein. Accordingly, the Union recognizes and
agrees that the management of the plant and the direction of the working forces
are vested exclusively in the Company.
23.02 Among the rights and responsibilities which shall continue to be vested
in the Company, which is not intended as a wholly inclusive list, shall be:... to
promote, transfer, and relieve employees from duty because of lack of work or
other legitimate reasons, and to take such actions as the efficient operation of
the plant and the necessities of the business shall, in the opinion of management,
require, provided....... 10
ARTICLE XXV. SCOPE OF AGREEMENT
25 01 The parties acknowledge that during the negotiations which resulted
in this agreement, each had the unlimited right and opportunity to make demands
and proposals with respect to any subject or matter not removed by law from
the area of collective bargaining, and that the understandings and agreements
8It is clear, however, that during the course of the bargaining sessions, one or more of
Respondent's top officials, other than Respondent's counsel and chief negotiator, had
occasion to advise the Union that-they opposed intracompany transfers of employees be-
cause this would be burdensome to Respondent and would require additional training of
employees for jobs vacated in such transfers.
0 Union Representative Martin testified that he made such a statement in a meeting with
England on September 10, which England denied. England, however, admits a discusssion
with Martin and others on November 18, in which a discussion of job posting and the
charges in this matter were discussed Charging Party's Exhibit No 7, a letter from
England to the Union supports the conclusion that the Union did not raise this issue
before November 18. It is found that the comment was made by Martin to England on
November 18, rather than on September 10
10I have also noted in article XIV, "Seniority," paragraph 14 10, "Transfers," provid-
ing: "There shall be no limitation on the Company's right to transfer employees."
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrived at by the parties after the exercise of that right and opportunity are set
forth in this agreement. Therefore, the Company and the Union, for the life
of this agreement, each voluntarily and unqualifiedly waives the right, and each
agrees that the other shall not be obligated to bargain collectively with respect
to any subject or matter referred to, or covered in this agreement, or with respect
to any subject or matter not specifically referred to, or covered in this agreement,
even though such subjects or matters may not have been within the knowledge
or contemplation of either or both or the parties at the time they negotiated or
signed this agreement.
It is now well established that not only is the Respondent under a duty to bargain
exclusively with the chosen representative of its employees concerning the terms and
conditions of their employment, but that the Respondent is under the correlative
obligation not to unilaterally change established employment conditions without con-
sultation and bargaining with the representative of its employees, in the absence of
circumstances excusing us or justifying such unilateral action. N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736. Included within
the terms and conditions of employment upon which the Respondent is required to
consult with the Union are job posting and the application of seniority thereto. The
Perry Rubber Company, 133 NLRB 225; cf. General Electric Company, 127 NLRB
346.
Respondent, however, contends that it was excused from any obligation to bargain
with the Union on the subject of the job-posting procedure, which was unilaterally
instituted by Respondent, because the Union did not make a timely request of
Respondent to bargain concerning the subject The contention is obviously without
merit. One obligated to bargain under the Act may not thus claim that its own uni-
lateral action, in derogation of that obligation, should also, serve as the very excuse for
its failure to bargain. The Court of Appeals for the Fifth Circuit, in rejecting a simi-
lar claim in Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843, a case involving,
inter alia, unilateral wage increases, stated (847, 848):
Good taith compliance with Sections 8(a) (5) and (1) of the Act presupposes
that an employer will not alter existing `conditions of employment' without first
consulting the exclusive bargaining representative selected by his employees, and
granting it an opportunity to negotiate on any proposed changes .... Here, we
think petitioner's action in . . . granting merit increases . . . without consulting
their union as requested, constituted unilateral action which naturally tended to
undermine the authority of their certified bargaining representative, and violated
the above sections of the Act.
We further find no justification for petitioner's action regarding the wage
increases from the union's failure timely to object, or specifically to request
bargaining on these issues, nor can we accept its excuse that the union would
have rejected a similarly offered wage increase as inadequate 11 [Emphasis
supplied.]
Respondent contends, nevertheless, that the Union had waived in advance, by the
terms of the collective-bargaining agreement above noted, any right to be consulted
or to require bargaining with respect to the institution of the job-posting procedure.
It is, indeed, well settled that, in appropriate situations, a union may waive its right
to be consulted in the case of employer unilateral action concerning a bargainable
subject. However, such waiver, in derogation of rights granted by the statute, will
not be lightly implied, but must be clear ,and unmistakable.12 In fact, it has been
held that the employer violates Section 8(a) (5) of the Act if he refuses to bargain or
takes unilateral action on a term or condition of employment, "unless it can be said
from an evaluation of the prior negotiations that the matter was `fully discussed' or
`consciously explored' and that the Union `consciously yielded' or clearly and unmis-
takably waived its interest in the matter." 13
11 See Insulating Fabricators Inc., Southern Division, 144 NLRB 1325, 1332; New
Orleans Board of Trade, Ltd., 152 NLRB 1258; Paris Manufacturing Company, 149
NLRB 15
'2N L R B. v. Perkins Machine Company, 326 F. 2d 488 (C.A. 1) ; The Timken Roller
Bearing Co. v. N L.R.B., 325 F. 2d 746 (C.A. 6), cert. denied 376 US. 971; N.L.R B. v.
The Item Company, 220 F. 2d 956 (CA. 5), cert. denied 350 U.S. 836; Smith Cabinet
Manufacturing Company, Inc., 147 NLRB 1506; Cloverleaf Division of Adams Dairy Co.,
147 NLRB 1410.
' See Proctor Manufacturing Corporation, 131 NLRB 1166, 1169; C & C Plywood
Corporation, 148 NLRB 414; The Press Company, Incorporated, 121 NLRB 976.
CLIFTON PRECISION PRODUCTS DIVISION, ETC. 563
Manifestly, the issue of job posting in this matter was not either "fully discussed"
or "consciously explored" in the negotiations preceding the execution of the agree-
ment here involved. While it is clear that the Union consciously agreed to the elimi-
nation of its own job posting proposal, it cannot also be said, on this record, that the
Union also "consciously yielded" caste blanche to Respondent to institute its own
job posting procedure-at a time when Respondent was clearly opposed to the insti-
tution of any job-posting procedure.14 The mere fact that the Union proposed a job-
posting procedure which was not accepted would not be evidence that it had thereby
consciously conceded its statutory rights with respect to the issue. "To hold that mere
failure under such circumstances operates as a forfeiture of a statutory right would
have the effect of restricting a Union freedom in a legitimate area of collective bar-
gaining. It would greatly lessen the possibility that a union would bring up matters
of this sort ... save in situations where [it] was sure it could achieve its demands or
where it was willing to strike to [achieve] employer concurrence. This would be
`disruptive rather than fostering its effect upon collective bargaining,' and hence con-
trary to the broad policy directives of the Act." See Adams Dairy Co., supra, pp.
1413-1414; Henry I. Siegel Co., Inc., 147 NLRB 594-595; The Press Company, Inc.,
supra, 978.
Indeed if I were to infer any expectation or intent on the Union' s part in agreeing
to a contract here, without a job-posting provision, it would be that the Respondent's
promotion and transfer procedures would continue as in the past, without substantial
change, for there was no showing here that Respondent had indicated any desire to
make changes.15
The fact that the contract confirms certain rights in Respondent to make promo-
tions and transfers does not require a different answer, since the issue as to whether
the Union "consciously yielded" its statutory rights here must be determined not
alone upon the literal language of the agreement, but upon all of the facts in the rec-
ord bearing upon the issues,16 which, as I have noted, militate against such a finding
rather than support a conscious decision on the part of the Union here to concede
its statutory rights
Indeed, the literal language of the Agreement, standing alone, does not evidence
that clear intent upon the Union's part to knowingly relinquish its statutory rights,
which would be required to support a finding of waiver in this matter. See John R.
Peterson, et al. v. S. S. Wahcondah and Ahern Shipping Company, Ltd., et al., 331 F.
2d 44, 48, defining waiver of statutory rights "as the intentional relinquishment of a
known right with both the knowledge of its existence and an intention to relinquish it."
It is noted that in the instant case the rights reserved to the Respondent to transfer
and promote employees are merely those which "the Company had prior to the sign-
ing of the Agreement" (See article XXIII, par 23.01), which rights "continue to be
vested in the Company" (article XXIII, par. 23.02). Such "prior" rights clearly did
not include the right to take unilateral action concerning a bargainable subject while
the Union was the certified bargaining representative.
Nor does the "Scope of Agreement" clause confer any additional right upon the
Respondent since it is merely a customary "wrap up" clause which "does no more
than express the fact that the collective-bargaining contract was intended to repre-
sent the complete agreement of the parties. See International Union of Electrical,
Radio and Machine Workers V. General Electric Company, 322 F. 2d 485, 489; New
York Mirror, supra.17
11 England testified that he, also, had to overcome opposition in Respondent's own
camp to his proposal to institute job-posting procedures.
11 The Board has held that established past practices, whether to the benefit or
detriment of employees, become themselves conditions of employment, which an employer
is privileged to continue until changed through bargaining with representatives of the
employees, but which the employer is also obligated not to change without consulting the
bargaining representative See Shell Oil Company, 149 NLRB 283; New Orleans Board
of Trade, Ltd., supra.
19 New York Mirror, Division of the Hearst Corporation, 151 NLRB 834
17 The cases cited by Respondent, as well as other cases in which the Board has found
in the language of the bargaining agreement a waiver of the right to be consulted with
respect to changes in working conditions, involve situations in which either the plain
meaning or the necessary implication of such language, or the actions of the parties to
the agreement, indicates a conscious acquiescence in the employer's unilateral action
None of these cases involved a situation in which the Respondent had unilaterally granted
employees benefits. See International Shoe Company, 151 NLRB 693, Ador Corporation,
150 NLRB 1658, General Motors Corporation, 149 NLRB 396, Shell Chemical Company,
217-919-66-vol. 15 6-3 7
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, there is a clear distinction that must be made between contract rights
and statutory rights,18 which has significant application in this situation. Thus,
while Respondent's institution of the job posting procedure involved here may not be
a violation of the agreement, for there is no limit in the agreement on the Respondent's
right in this respect, this is not the issue before us.19 An arbitrator, looking only at
the agreement, might conclude that the job-posting procedure was a permissible
mechanism to effectuate Respondent's contractual freedom to transfer and promote
employees for proper operational purposes,20 as Respondent's industrial relations
director, England, suggested in his testimony. However, it is clear that Respondent
consciously conceived and used the job-posting procedure here not merely as a
mechanism to achieve a proper operational objective, but as a means of endowing
the employees with "career advancement opportunities" involving significant pros-
pects of employee job security-in short, benefits which the Union had sought to
obtain for the employees, but which had been rejected by Respondent.21
Whatever another tribunal might determine with respect to the Respondent's con-
tractual right to take such action, it has long been established that it is a violation of
the statute for an employer to grant unilaterally to employees benefits which have
been denied or not offered to the employees' bargaining representative.22 Both the
Board and the courts have repeatedly had occasion to note that such unilateral
action, or other attempts to bargain directly with employees in derogation of the
bargaining representative, obstruct the policies of the Act favoring collective bar-
gaining 23 and have "as a normal and foreseeable consequence" the "impairment of
the Union's prestige," see Insulating Fabricators, Inc., supra, 1332, and tend "to
undermine the authority of the certified bargaining representative." See Armstrong
Cork Company v. N.L.R B., supra at 847.
In view of the foregoing, it is found that Respondent was under a statutory duty to
notify and bargain with the Union as the collective-bargaining representative of
employees in the appropriate unit prior to the institution of the job-posting proce-
dures involved herein, which duty was not waived by the Union. The failure of
Respondent to fulfill that duty and afford the Union an opportunity to negotiate with
respect to this condition of employment prior to its unilateral establishment by
Respondent violated Sections 8(a)(l) and (5) of the Act.
C. Withdrawal from union checkoff and membership 24
The collective-bargaining agreement which ended the strike at the Clifton plant
went into effect, as has been noted, on December 9, 1963, for a period of one year.
Although the agreement contained no provisions compelling membership in the
Union, it did provide that Respondent would check off dues in favor of the Union
from the pay of any employee, who, after December 9, 1963, executed a voluntary
authorization permitting such deduction. The agreement also provided that such
149 NLRB 298; Kennecott Copper Corporation (Chino Mines Division), 148 NLRB 1653;
Leroy Machine Co., Inc, 147 NLRB 1431. Cf. New York Mirror, supra These cases
are clearly distinguishable from the present matter In other cases involving contract
clauses of a character similar to that involved here, the Board found no waiver of statu-
tory rights See Proctor Manufacturing Corporation, supra; C of C Plywood Corpora-
tion, supra; New Orleans Board of Trade, Ltd, supra; Smith Cabinet Manufacturing
Company, supra; Puerto Rico Telephone Co, 149 NLRB 950
18 See The Timken Roller Bearing Co. v. N L.R.B., supra, 751.
1° See C of C Plywood, supra; Smith Cabinet, supra
20 See Asa Bros. Co., Inc, 31 LA 426, 428; cf. Kaiser Aluminum of Chemical Corp , 31
LA 951.
21 Apparently aware of the problem involved, Respondent's industrial relations director
testified to the opinion that the job posting procedure conferred no benefit upon the
employees, but was a mere mechanism to facilitate promotions. This is not credited
22 Armstrong Cork Company v. N L R B., supra; N L.R B. v. J H Allison Company,
165 F. 2d 766 (C.A. 6) ; Aztec Ceramics Company, a division of Texstar Corporation, 138
NLRB 1178.
23 N.L.R.B. v. Katz, supra, J I Case Company v. N.L R B , 321 U S. 332, Medo Photo
Supply Corporation v. N.L R B., 321 U S 678.
24 About 37 of the witnesses called by the parties testified with respect to some aspect
of this issue. There are many conflicts and some inconsistencies in the testimony. It
would unduly burden this decision to relate all of the instances, reconcile each of the in-
consistencies and resolve all of the contradictions herein. All of these matters have
be carefully considered. Only that part of the testimony and evidence adduced which
is consistent with the findings herein is credited
CLIFTON PRECISION PRODUCTS DIVISION, ETC. 565
authorizations would be automatically renewed unless revoked by notice to the
Respondent and the Union by registered mail, not more than 65 and not less than 60
days prior to the expiration of the agreement, thus making October 5-9, 1964, the
"escape period."
It was stipulated that when the Respondent made the first checkoff of dues in
March 1964, there were in effect 299 checkoff authorizations. There is no evidence
as to the total number of employees at that time. However, the Respondent was still
recalling employees in March 1964, who had been on strike.
Industrial Relations Director England testified that, shortly after coming to the
Clifton plant, he began receiving reports of employee dissatisfaction with the Union,
commencing in January 1964, and running through September. These were, he felt,
unusually heavy in June and July. A number of the other supervisory personnel tes-
tified with respect to their personal experiences in this regard With the exception of
some individuals, however, I do not believe, for reasons discussed hereinafter, that the
evidence shows a crystallized and rooted rejection of the Union among the employees
prior to August 1964 In August, however, a movement to withdraw from the check-
off of dues and, perforce, from the Union, took shape and achieved velocity.
The activities with respect to this movement began shortly after the first week in
August, when the plant vacation period ended, and shortly after a dinner meeting of
Respondent's supervisors and managerial personnel on August 11, at the Alpine Inn,
at which, in answer to a query from the floor, the procedure for revocation of checkoff
authorizations was explained to thse in attendance.
There is no question but that during this period a substantial number of the letters
of withdrawal from checkoff and the Union executed by employees were drafted by
supeivisoiy and managerial peisonnel, in some cases typed on Respondent's equip-
ment by Respondent's personnel using Respondent's materials.25 It apparently
became a standard procedure for these letters to be held by supervisory and mana-
gerial personnel for the employees and were returned to the employees immediately
prior to the October "escape period." All of these activities were apparently carried
on during working hours.
It is suggested by Respondent that "the widespread movement of the employees to
cancel their checkoff and withdraw from the Union" was "touched off" by an "inci-
dent" in the plant division coming under the general supervision of Production Man-
ager David Brown. We shall, therefore, consider this situation in some detail.
Brown is one of three or four production managers at the Clifton plant with approx-
imately 30 persons working under him, including several foremen. In June 1964,
according to Brown, an employee named Donnelly told Brown that he wanted to get
out of the Union and asked Brown how to do this Brown ascertained the procedure
set out in the contract from England and informed Donnelly that such action was then
premature. However, about a week later, Brown states, Donnelly was back again
requesting that Brown write a letter of withdrawal for him. Brown advised England
of this and states that "England told me there was no point. Don't do it now " Also
during the period prior to August, Brown testified, he took four employees, not
including Donnelly, to England for assurance that they would not lose their jobs if
they withdrew from the Union.
After Brown returned from vacation in August, he asserts that Donnelly became
a pest with his insistence that Brown help him write a letter to get out of the Union.
Brown again went to England about this and "was told that [Donnelly] should not
write the letter at this time." However, Biown states that sometime shortly there-
after, he gave in to Donnelly's importunities in this respect and typed the required two
letters of withdrawal for Donnelly, and, at Donnelly's request, agreed to hold the let-
ters for him until the appropriate time for sending them off.26
Brown testified that he reported his action in assisting Donnelly to England, who
was quite upset about Brown's action and asked Brown why he did it, saying "It
doesn't have to be done. It doesn't have to be done now, or something to that effect."
25 It is clear that the employees and their supervisors equated withdrawal from the
checkoff as withdrawal from the Union. In the circumstances of this case that would be
realistic and I reject the argument of General Counsel that an inference adi erse to
Respondent should be drawn from the fact that some supervisors drafted letters of
withdrawal from the Union for employees who stated only that they isished to be relieved
of checkoff of union dues Cf Movie Star, Inc. et at., 145 NLRB 319, 320
2 "The record is convincing that this occurred during the second week of August (the
first week after return from vacation) Brown placed the writing of the letter and the
Alpine Inn meeting as occurring a week or two after the return from vacation How-
ever, the meeting took place on August 11 Other credible evidence indicates the begin-
ning of the withdrawal movement as a week to 10 days prior to August 21.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown stated that thereafter, beginning about a week after the Donnelly "incident,"
he and his foreman supplied letters of withdrawal to a number of employees, which
were also retained by supeivision for the employees, at their request He stated that
he continued to prepare letters for the employees because, having done so for one
person, he felt he must do the same for the others. However, he asserts that he did
not report these actions, further to England because he did not want to make England
"more unhappy."
England, on his part, testified that the morning after Brown reported Donnelly's
letter to him, he had reports from foremen that Brown's action in supplying the letter
of withdrawal had spread all over the plant, and other employees were asking for
letters England stated that this caused him to change his previous instructions on
the subject, and that he now advised the supervisors they could give assistance in
-respect to such letters, so long as the supervisor (lid not initiate the question of the
employee withdrawing, or hold on to the letters. England stated that this change in
policy, together with his instruction that the supervisors should not hold on to these
letters, was communicated directly to some foremen, but was particularly given to the
"product managers" (among whom, as noted above, was Brown) to pass on to the
other supervisors. It is difficult to understand, therefore, how Brown should have
continued to remain unaware of the change in policy, as his testimony indicates It is
further difficult to comprehend why England's asserted additional instruction to
supervisors not to hold on to the withdrawal letters was not obeyed, for it clearly
was not followed. Indeed, England, rather than attempting to secure compliance
with his instruction, states that he acceded to the procedure of holding these letters,
and ended by holding some of the letters for employees, himself. At the end of
September, England gave instructions to the foremen to return the letters they were
holding to the employees
Respondent argues, in essence, that it was not responsible for the employee with-
drawal movement, that no threats or promises of benefits were made, and that, with
rare exceptions, the initiative for the preparation of withdrawal letters came from
the employees and not from the supervisors. On the basis of the record as a whole,
however, I am convinced that Respondent's involvement with and responsibility for
the withdrawal movement was much more substantial than Respondent concedes.
Nicholas Tecco, a former supervisory employee of Respondent, who impressed
me as a credible witness,27 testified that he and Brown, his superior, talked about
employees withdrawing their checkoff authorizations and speculated as to whether
the employees knew the mechanics of withdrawing from the Union and considered
talking to the unionized employees to see if those who wanted to get out were
familiar with the mechanics of withdrawal. Tecco testified that he and Brown
talked among themselves as to "how this should be handled" and considered saying
to "union employees" that the Union had a year in the plant, and "How about giving
Litton a year in the plant." Tecco further testified that in talking to at least one
employer, himself, he said that the Union had been in a year and he "thought it
would be a good idea if Litton had a year to show what they could do." He further
told this employee that he thought "Litton was a better paying company than
Clifton Precision was" and that "Litton was a better organization to work for than
Clifton Precision was" and suggested that this would be grounds to give Litton time,
perhaps a year or so, to be union free, "to see if things could be better than they had
been when it was owned by just Clifton Precision." 28 There is credible testimony
by a number of employees that other supervisors made similar statements to them.
Thus employee Duffy testified that Supervisor Sachs said Duffy "ought to give
Litton a chance, and they have a lot of benefits and all, and the union wasn't doing
much good ... he says that he made out by Litton paying his hospitalization, on his
bills and all, `they would probably give you benefits,' and all."
Former employee Wick testified that Sachs had stated ". . . the way I recall it, it
was that he actually told me about the benefits we would get not to have a union;
that-like they sold stocks to the-or the supervisor was able to buy stocks; that as
m Tecco appeared to be a disinterested witness, restrained, even reluctant, in his testi-
mony for the General Counsel who called him.
48 It is clear that Tecco was it supervisor within the meaning of the Act at the time
of these occurrences. Although General Counsel relies on Tecco's testimony in his brief,
General Counsel did not allege his activities to be violative of the Act. Brown testified
that he discussed with his subordinate supervisors assisting employees who might not
know the mechanism of getting out of the Union, but denied discussing with Tecco bene-
fits Litton could give or telling Tecco to ask employees if they knew how to get out of
the Union. To the extent that Brown's testimony is inconsistent with that of Tecco,
the testimony of the latter is credited.
CLIFTON PRECISION PRODUCTS DIVISION, ETC. 567
I recall, he even mentioned the Company would have a pension plan in time. He
actually spoke good for the Company if we would not have a union see. And so he
said it would be nice if I would sign a card to withdraw."
Employee Invanocchi testified that Supervisor Malmowski "was telling me about
what Litton's can do for us and what side of the fence I'd like to be on......
Both employees Fanean and Ferrari testified that on separate occasions Super-
visor Rosato argued to them that they had given the Union a year and should now
give Respondent a chance.
Employee Gorman testified that Edward Brink, whose supervisory status is con-
sidered hereinafter, after asking her what the Union had done for her and whether
she intended to withdraw from the Union, "began to tell me about the new company
that had taken over Clifton Precision and the new management and why didn't I
see what they had to offer."
It is clear, therefore, that a number of supervisors, through use of this argument;
i e., give Respondent a chance to show what it could do in comparison with the
Union's past performance, sought to induce employees to withdraw from the check-
off and the Union.
The evidence also supports the conclusion that a number of supervisors took the
initiative in asking employees if they wanted to withdraw and in offering assistance
for the purpose of withdrawal from the Union and the checkoff. Moreover, the
evidence is convincing that this activity was not isolated as the Respondent argues,
but is mdicati%e of a pattern of conduct. Reference has been made to Foreman
Tecco's testimony in this regard. The record also contains evidence of other activity
of the same character, which is either not controverted or is substantially admitted.
Employee Grace Kovacik testified that her supervisor, Edward Porter, approached
her on three occasions to withdraw from the Union. On the first occasion, as stated
by Kovacik, "He said, I guess you know about the paper that's going around to be
signed, and are you interested in signing it. He was very nice, spoke very nice to
me. And that's how he put it." Kovacik asked for time to think it over. Shortly
thereafter, Kovacik states that Porter approached her again and asked whether she
had made up her mind about signing the paper, and later approached her a third
time with the same question, at which time Kovacik told Porter she would not sign.
Porter testified that he did approach Kovacik with respect to withdrawal from
the union checkoff, because he "had heard rumors that she was possibly disgruntled
with the union." Porter further admitted that he approached Kovacik on a second
occasion and asked again if she "wanted to know how to get out." Porter stated
that Kovacik still said she was not positive about this, but that he did not ask
Kovacik about the matter again.
To the extent Porter's testimony conflicts with that of Kovacik, I credit the latter's
testimony. Porter had also assisted two other employees with letters of withdrawal
prior to talking to Kovacik, to the point of having Respondent's personnel office
type up the letters for the employees and had held the letters for those employees.
Since Porter talked to Kovacik, as a result, in part, of these prior conversations and
activities, it is also found that the reference to a "paper" in Kovacik's testimony
referred to letters of withdrawal from union checkoff and the Union, as indicated
by Porter.
Similarly, Foreman Rosato testified that he took employees Fanean and Ferrari,
separately, into the hallway to talk with them because he had heard that they wanted
to talk to him. Again, this arose in a context involving assistance by Rosato to
employees in the preparation of letters of withdrawal from the Union and checkoff.
The record is clear that Rosato had this in mind in approaching these employees,
as evidenced by his testimony that when Ferrari said she did not want to talk to
him, he nevertheless persisted, first asking if she was sure she did not want to talk
to him, and finally asking, "Are you sure you don't want to talk to me perhaps about
withdrawal from the Union checkoff?"
On the basis of the testimony of Ferrari and Fanean, it is found that Rosato urged
these employees to withdraw from the Union and the checkoff. In so doing, Rosato
argued to Fanean that the Union was "falling apart," and that she would be surprised
how many had signed "the paper," while in talking to Ferrari, he compared the
situation to a "sinking ship " Similarly, each testified that he argued that they had
given the Union a year and that Respondent should have a chance. He advised
both he would be available to assist them if they desired. To the extent that
Rosato's testimony conflicts with that of Fanean and Ferrari, the testimony of the
latter two is credited.
Employee Katherine Kelly testified that after she had "let it be known" that she
was interested in getting out of the Union, her supervisor, Dorothy Wiltshire, stopped
her and told her that Wiltshire had heard that Kelly wanted to get out of the Union.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Kelly agreed, Wiltshire supplied her with the necessary letter and held it for
her for a period.29
Employee Josephine Greising testified to a conversation initiated by Joseph Grande,
identified as assistant to the mechanical engineer, or assistant manufacturing engi-
neer, and a former supervisor of Greising, in which he interrogated her with respect
to her opinion of the Union and, when she expressed satisfaction, advised her that
"most everyone" was signing out, showed her some signed letters to that effect, and
suggested that she ought to consider doing so also. Thereafter, on another day,
Grande asked her if she had made up her mind and when Greising stated that she
was not going to sign out of the Union, stated "do you mean you would cut your
own throat?" Greising answered "Yes." 30 A quite similar conversation with
Edward Brink, a methods engineer and former supervisor of Joanna Gorman, was
related in the credible testimony of Gorman. Neither Brink nor Grande denied
this testimony. Respondent contends that neither is a supervisor within the meaning
of the Act and that Respondent is not responsible for their actions. I do not agree.
Both Grande and Brink are former foremen, presently stationed in production
areas where they have responsibilities directly affecting production operations. The
record shows that their status in the Respondent's organization continues to be on a
level at least equal to that which they occupied as supervisors. They continue to be
salaried and attend meetings dealing with production problems which are limited to
management personnel.31 They are not covered by the collective-bargaining
agreement.
While both of these men are presently occupied with production problems mainly
involving contacts with production supervisors, each has significant and regular
contact with production employees, during the course of which they have occasion
to give orders and instructions to such personnel in respect to the work in which
they are involved. It is clear that in such instances, the production employee con-
cerned is expected to carry out the orders and instructions given by these men.
Brink has had occasion to reprimand the employee who regularly assists him on a
part-time basis and has been consulted as to his evaluation of this employee's work
by the supervisor for whom this employee also works. Brink has on occasion
replaced this supervisor, in his absence as foreman of the department. The super-
visor to whom Grande is responsible testified that he would expect Grande to
report to him unsatisfactory or commendable conduct on the part of employees with
whom Grande works, but that Grande has not had occasion to do so. He has,
however, criticized some employees' work.
Respondent contends, in essence, that insofar as Brink and Grande have contact
with production employees, their position with respect to the employee is similar
to that of a group leader, who is covered by the contract. I do not agree. Both
Brink and Grande occupy positions in the managerial hierarchy distinctly superior
to that of the group leader. On the basis of the record as a whole, I find that both
Brink and Grande have authority, using their independent judgment, to responsibly
direct employees in the performance of their work, and are thus supervisors within
the meaning of the Act. Indeed, if these two men did not meet the technical require-
ments of a supervisor as defined in Section 2(11) of the Act, it is clear that they are
29 Respondent stipulated that Wiltshire was a supervisor within the meaning of the
Act and it was indicated that General Counsel would amend the complaint to specifically
allege this incident . He did not do so, but relies upon it in his brief. Respondent did
not cross-examine Kelly, and Wiltshire did not testify.
30 During the conversation on the previous day, Grersing testified that when she in-
dicated resistance to revoking her checkoff, Grande asked if she were willing to "wash
her job down the drain 9" Greising's testimony with respect to these remarks by Grande,
which were not denied, are credited. However, since in these conversations both Grande
and her supervisor, Rose, specifically assured Greising that her job did not depend upon
her union status, it is clear that these remarks were not meant as a threat. Both remarks
seem to have been rhetorical questions used as a very strong manner of advising that
Greising did not know where her best interests lay. Taken in that sense, these statements
become compatible with the remainder of the conversation It also becomes more com-
patible with the remainder of the evidence in the case, which is notable for almost com-
plete lack of threats to employees by Respondent
31 Personnel Manager William Wallace first described the invitation to attend these
meetings as a "list of the foremen who were invited to attend " Later Wallace and
Industrial Relations Manager England stated that there were certain persons on the list
who were not foremen Those identified, however, were management personnel and per-
sons employed in the personnel department. Grande stated that he considered that he
attended these meetings " in a supervisory capacity "
CLIFTON PRECISION PRODUCTS DIVISION, ETC. 569
part of the managerial complex in Respondent's operations and were treated by
Respondent as such. Each of these two men, former supervisors of the two employ-
ees involved, respectively, were placed in a strategic position to translate to the
employees the desires and policies of management. Both attended Respondent's
production meeting at the Alpine Inn on August 11, 1965, where advice with respect
to employee withdrawal from the checkoff was given to those assembled. Brink
testified that his knowledge of the "escape period" resulted from this meeting. The
subsequent activities of both these men, in regard to employee withdrawal from the
checkoff and the Union, paralleled that of contemporaneous activities of other
supervisors. Grande, indeed, appears to have had access to letters of withdrawal
left with other supervisors and used them to solicit and encourage employee with-
drawal from the checkoff and the Union. In the circumstances, Respondent may be
fairly held to be responsible for their activities set forth above. N.L R.B. v. Des
Moines Foods, Inc., 296 F. 2d 285 (C.A. 8); N.L.R B. v. Solo Cup Company, 237 F.
2d 521 (C A. 8); N.L.R.B. v. Fiore Bros. Oil Co., Inc. & Amalgamated Union Local
355, 317 F 2d 710 (C.A. 2); see N.L.R.B. v. Mississippi Products, Inc., 213 F. 2d
670, 672-673.
Other testimony confirming the conclusion that supervisors took the initiative in
seeking to induce or assist withdrawals from the Union and Union checkoff was
given by witnesses Palmer, Duffy, Wick, and Ivannochi, which I credit. A detailed
resolution of each incident is not necessary here 32
Further, in regard to Respondent's involvement with the letters of withdrawal,
General Counsel offered the testimony of employee Elizabeth Kilman, who had
previously been quite active in the Union. Kilman testified that on August 25, 1964,
she had a conversation with John Rogacz, one of Respondent's production managers,
during which he asked if she were having "any trouble." Kilman testified, "I said,
'No, no trouble unless the trouble we're having with the Company."' "He stopped
for a second and said 'You mean about the letters and things7' I said 'Yes' .
I hope you don't expect me to sign any. He says, 'No, you won't be asked.' And I
said something about how many were there and he said he couldn't tell me exactly,
but the company had them in the three numbers...." Thereafter Kilman testified
he said about how much better it was going to be with Litton, and I says,
'Well I can't buy it about Litton-they're a new company but we have been dealing
with them since December the 5th.' I said, 'That's what a lot of people have been
told but it's not true'. . . . I said, 'Unless this management changes, you're going to
have another union.' He said that's why they're going to treat us differently because
the next time a union came in it would be ninety-five percent for the union and
they didn't want it."
Kilman was a particularly impressive witness. Her testimony was not denied and
it is credited.33
In support of its contention that the employees sought out supervisors to obtain
assistance in withdrawal of union checkoffs of membership, and that these activities
were not initiated by the supervisors, Respondent adduced testimony with respect
to these matters from at least 11 supervisors. Almost without exception, these super-
visors testified that employees came to them for assistance in preparing letters of
withdrawal, which the supervisor then prepared or had his superior or the personnel
office prepare. In almost every instance the supervisor testified he was requested by
the employee to hold the letters for the employee until the time for mailing and
that he did. Some of the supervisors asserted that they carefully advised the
33 Two points in the testimony, however, require special mention: (1) Because of the
confusing nature of the testimony, I make no finding with respect to a statement con-
cerning employee DiMichael attributed to Supervisor John Sachs by employee Duffy. It
is noted that the General Counsel, also, has not urged the point in his brief (2) There
is testimony by Paul Wick, whom the undersigned finds to be a credible witness, that
when Wick, in a conversation with Supervisor Fiala, questioned the Respondent's right
to let employee Lightcap go for being active in the Union, Fiala replied that it was "just
natural that they would want to get rid of some of the leaders." It is noted, however,
in connection with this testimony, that Fiala was not the supervisor of either Wick or
Lightcap. Fiala further appears to have been on terms of personal friendship with
Wick, and such was the tone of the conversation involved here. Fiala, also, so far as
this record is concerned, was not involved in employee withdrawals from the Union or
checkoff.
"This evidence was offered on rebuttal and General Counsel disavowed any intent to
urge it as independent instance of violation of Section 8(a)(1). There is no allegation
in the complaint naming John Rogacz.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees that the letters could be withdrawn at any time , and, also, upon returning
the letters to the employees , advised them that it was up to the employee whether
or not the letters were sent in. It is clear that instructions to return the letters to
the employees were issued by Respondent's industrial relations manager just before
the date upon which they might properly be sent in by the employees.34
I, although not crediting all of the testimony of these supervisors , find that credible
uncontroverted evidence does support the contention that, beginning with the
middle of August 1964, a number of employees came to supervisors for assistance
in withdrawing from the checkoff and the Union , and that the supervisors gave to
or obtained material assistance for the employee in this respect , including holding
letters of withdrawal for the employees and returning them to employees at the
appropriate time.
However, I cannot agree that the evidence shows that the actions of the employees
in this situation were merely voluntary acts flowing naturally, and uninfluenced by
Respondent , out of a well of discontent and dissatisfaction caused by the Union, as
urged by the Respondent . To do so would require me to ignore the obvious realities
of the matter.
First of all , the question arises as to the reason for the sudden outburst in August
of withdrawal letters which could not validly be used until October. Respondent
suggests the inference of employees bursting from an unwanted captivity of having
to pay dues, triggered by the action of Brown in composing a letter for Donnelly.
This, however, ignores the Respondent's action , just prior thereto, in unilaterally
granting the employees job posting privileges , which was quite significant. The
consequences of this action by Respondent, as it must have anticipated , served to
undermine the prestige and standing of the Union in the eyes of the employees and
thus prepared the way for the actions that followed. See Armstrong Cork Company
v. N.L.R.B., 211 F. 2d 843; Insulating Fabricators, Inc., 144 NLRB 1325.
Nor is the record convincing that the supervisory involvement in employee with-
drawals resulted from a situation which left the management of the Respondent no
reasonable alternative , as Respondent seems to urge . The credible testimony of
former supervisor Tecco shows that Product Manager Brown was engaged in dis-
cussion with his subordinates as to affirmative methods of overcoming employee
inertia and stimulating employee action in the area of withdrawal from union
adherence.
Brown's testimony itself indicates no particular reluctance to become involved in
this area . It is otherwise difficult to explain why one of Respondent 's production
managers should permit a rank-and-file employee to make a pest of himself by
continuing on 10, 15, or 20 occasions to ask for a letter of withdrawal from the
Union after Brown had refused the request . It must be assumed that Brown did
not so much discourage Donnelly from seeking such assistance as to put him off
to a future time. This would be consistent with Brown's testimony as to the instruc-
tions he stated that he received from England. Brown testified that he spoke to
England on at least two occasions about writing a letter for Donnelly. On the first
occasion he states "England told me there was no point. Don't do it now"; on the
second occasion , "I said, `Look I-why can't I help him out and write a letter as I
was asked by him and get him off my back.' I was told that he should not write the
letter at this time " [Emphasis supplied ] This is consistent with England' s testi-
mony that, when foremen came to him concerning the problem of employee with-
drawal, ". . . in the earlier days my reply was it was the sixty-fifth day and it was
certainly not the time to get involved in this sort of thing. This was my general
type of reply to them-just as it was to Mr. Brown." [Emphasis supplied.]
Indeed, even Industrial Relations Director England's resistance to supervisory
involvement in employee withdrawals from the Union does not seem to have been
very stouthearted. England very quickly decided to let the bars down once Brown's
action in regard to Donnelly became known Further, even though England asserts
that he instructed the supervisors , if they assisted employees, not to keep the letters
because "that was something the company was not interested in holding on to," it
does not appear that he made any substantial effort to sustain this instruction, and,
in fact ended by holding on to a number of these letters himself.
94 The extent of supervisory involvement in the withdrawal movement is shown by the
fact that among the 16 supervisors who testified ( out of a total of 75 to 80 supervisors),
the testimony shows at least 30 instances of assistance by supervisors in the preparation
and holding of such letters . There were 173 letters of withdrawal received by the Union
between October 5 and 9, 1964.
CLIFTON PRECISION PROD_ CTS DIVISION, ETC. 571
After a protest by the Union that supervisors were engaging in improper activities,
the supervisors were advised by an instruction dated August 21, 1964, that they
should not "encourage , discourage or in any manner interfere with the individual
employee's right to participation in check -off or union membership ," and, further,
that, "If an employee inquires as to how withdrawal from check -off may be accom-
plished, the supervisors may advise the employee of the contractual provisions for
withdrawal and explain how this may be accomplished ." However, as has been noted,
the supervisors had already been instructed by England that they could write letters
of withdrawal for the employees Moreover , by the time the later written instruc-
tion to the supervisors was issued , the supervisory involvement in the movement to
withdraw was already substantial and the movement itself had gained considerable
impetus. It was not until August 27, that Respondent posted a notice to the employ-
ees advising that "Whether or not an employee participates in the checkoff of union
dues or union membership is a matter of personal and individual choice," which
would have "no bearing on his employment."
After the so-called Donnelly `incident ,' the record reveals that it was a matter of
common knowledge among a substantial part of the supervisory force, as well as
the employees , that employees were securing letters from supervisors , without appar-
ent distinction then being made that this was being done only on the initiative of
the employees . 35 In any event , as has been found, supervisors and managerial agents
of the Respondent did, in a substantial number of instances , take the initiative in
interrogating employees with respect to their desire to continue financial support of
the Union and remain in the Union , and in inducing the employees to withdraw
from membership in and support of the Union . In a number of cases this solicita-
tion was accompanied by suggestions that such withdrawal would be in the employ-
ee's best interests , since the new company , Litton Precision Products , Inc., was in a
position to afford the employees more advantageous conditions of employment. In
this context , the idea conveyed , clearly, was that the employees would be more
likely to receive such advantages without the Union. To employees who had very
recently seen the new company unilaterally grant significant protection in job
security , which the Union had been unable to secure for them, these assertions would
have particular impact.36
I therefore find, on the basis of the entire record, that Respondent 's interrogation
of employees with respect to their desire to continue affiliation and support of the
Union, and its solicitation , inducement and encouragement of; and active participa-
tion in employee efforts to withdraw from Union affiliation and support of the
Union constituted interference , restraint , and coercion of employees in the exercise
of rights guaranteed by Section 7 of the Act and therefore violated Section 8(a)(1)
of the Act 37
ss In fact , both management and employees appear to have considered these letters as
"Company letters ." This is evidenced by Rogacz ' conversation with Kilman , Grande's use
of letters apparently being held by supervisors in trying to persuade Greising to sign,
and is also indicated by the testimony of employee i\largaretta Kelly, who insisted she used
her own letter in withdrawing , and did not use the " Company letter" ( a remark she sub-
sequently sought to disavow).
16 i do not find that Respondent engaged in acts of coercion or threats to the employees.
The only evidence of this character involved supervisors Grande and Fiala These were
not only isolated , and out of character with respect to the gencial treatment of employees
shown by the record , but the only such activity linked with the withdrawal movement,
that of Grande , was effectively neutralized , as has been noted
37 Safeway Cabs , Inc , 146 NLRB 1334 , Curtis Mathes iliana[acturing Company, 145
NLRB 473 , Movie Star, Inc , et al., 145 NLRB 319 ; Reilly Tar CC Chemical Coi poration,
151 NLRB 1503 Porter County Farm Bureau Co-operative Association, Incorporated,
133 NLRB 1019 ; Winn-Dixie Stores, Inc., et al , 128 NLRB 574 ; Heaton Furniture Com-
pany, 111 NLRB 342 See Gene Hyde, d/ b/a Hyde's Super Market, 145 NLRB 1252,
1260-1261. See also Edward Fields, Inc v. NL RB, 325 F 2d 754, 759-760, holding
that supervisory assistance to employees in withdrawing from a union, given at the em-
ployees' request, may constitute a violation of the Act The facts in the instant case are
similar to the situations in the cases cited and the holdings in those cases are controlling
here, rather than the readily distinguishable fact situations and holdings in the cases
cited by Respondent * ( Martin Theatres of Georgia ., Inc, d/b/a WTVC , 126 NLRB 1054;
Alice Hazen, et al, d/b/a Hazen d Jaeger Funeral Home, 95 NLRB 1034 ; .N7 L R B v.
West Ohio Gas Company, 172 F. 2d 685 ( C.A. 6) ; Perkins Machine Compaivy, 141
NLRB 697).
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint in this matter was amended at the hearing to allege, as a separate
violation of the Act , that Respondent had discriminatorily maintained and applied
the prohibition in the collective -bargaining agreement against union activity , solici-
tation of union membership or collection of union dues by employees during work-
ing hours . The facts show that , in accordance with that provision , employees were
generally restrained from such interdicted activities. The record also shows that the
activities of supervisory and managerial personnel in respect to employee withdrawal
from union membership and support detailed above was carried on during working
hours.
In his brief , General Counsel does not urge this matter as a separate violation of the
Act, but refers to it only in connection with General Counsel's argument that Respond-
ent supplied substantial , material, and tangible assistance to its employees in respect
to the withdrawal movement Respondent 's brief relies upon N.L.R.B . v. United
Steelworkers of America , CIO (Nutone , Inc.), 357 U.S . 357. However , the Court
there held that whether an employer violated the Act by engaging in activities which
the employer forbade to his employees and the union was a matter to be decided on
the facts of each case 38
It has already been found on the basis of all the facts in this matter that Respond-
ent violated the Act by reason of its involvement in employee withdrawals from union
membership and support . There is no need under the circumstances to also deter-
mine whether each and every aspect of each and every act of Respondent, standing
alone, would also violate the Act. I therefore conclude that the finding of violation
already made is sufficient and no separate finding is required.
D. Respondent 's alleged doubt of the Union 's majority status
Respondent contends that it had good grounds in September 1964, for doubting that
the employees in the appropriate unit desired continued representation by the Union,
and was therefore justified in refusing to bargain with the Union for a new contract.
Four principal bases are asserted in support of Respondent 's position.
It is stated , first, that Respondent relied on the fact that only a bare majority of
the employees voted in favor of the Union originally , indicating that the Union was
never strongly supported by the employees However, in my opinion , this factor is
so signally offset by the fact that two-thirds of the employees shortly thereafter sup-
ported the Union in a 11/2 month strike, as to merit little consideration. It is found
that Industrial Relations Director England was awaie that a substantial majority of
the employees did not work during the strike 39
Secondly, England states that reports of employee dissatisfaction with the Union
"had some influence " on his decision that the Respondent should no longer deal
with the Union . I have given considerable attention to this assertion, par-
ticularly with respect to the situation existing prior to August 1964. Considering
the large group of employees with which we are here concerned. I believe that
the evidence of employees ' dissatisfaction prior to August 1964 is not particularly
impressive and rather illustrates the almost insuperable problem of determin-
ing the desires of a large group of people on the basis of casual reports, over-
heard conversations and the forceful statements of a few outspoken individuals.
Thus, only about 25 employees were identified as expressing dissatisfaction with the
Union at the times that can be placed before August 1964.40 Although England
stated that he "felt" that the reports increased in June and July, reference to the
instances of such reports to which he testified , and to the testimony of supervisors
who England stated gave him such reports , furnish no substantial support for such
assertion . In fact, four of the supervisors ( Rose, Rosato, Porter, and Dougherty)
who England states reported employee dissatisfaction to him in June and July, made
° The Board has held , in appropriate circumstances , that permitting the circulation of
antiunion petitions during working hours while prohibiting prounion activities violates the
Act. See Monroe Auto Equipment Company, 146 NLRB 1267 , 1274; see also Standard
Manufacturing Company , 147 NLRB 1608, 1609
99 England testified that he did not know that substantially more people were on strike
than voted for the Union However , he also testified that he had been informed that
only a little over 200 employees worked during the strike and he was also aware that 660
employees had been eligible to vote in the election
10 While there was some testimony as to talk overheard by supervisors in the cafeteria
and some other generalized recollections of employee statements , these are considered too
vague and indefinite to be reliable See Laystrom Manufacturing Co , 151 NLRB 1482,
footnote 8. Cf. The Randall Company, Division of Textron , Inc., 133 NLBI : 289, 293,
footnote 10.
CLIFTON PRECISION PRODUCTS DIVISION, ETC. 573
no mention in their own testimony of employee dissatisfaction with the Union at
that time.41 It may well be that England was unduly influenced in his judgment
by a few employees who, he recalled, personally expressed their dissatisfaction to
him in June and July, and apparently made a considerable impression upon him.
There was unquestionably some dissatisfaction with the Union prior to August,
but the record is not convincing that there was widespread defection from the
Union prior to that time. Whether this would have occurred in the absence of
action by Respondent undermining the Union and encouraging employee withdrawal
becomes a moot question in the face of the evidence that such action did occur.
Subsequent to August, 1964, Industrial Relations Manager England testified that
he was most impressed, first, by the fact that as of September 13, 1964, the Union
had only 269 employees on checkoff 42 out of a total of 610 employees on that date,
and secondly, by the information received about the same time from employee
Gallagher that 356 employees had supported the decertification petition.
While the number of employees on checkoff is a factor to be considered in assess-
ing Respondent's asserted good-faith doubt, it is by no means conclusive and must
be appraised on the basis of all the facts 43 Of considerable importance here is the
fact that Respondent's employment picture was in a state of considerable flux, as
Respondent was aware. During August and September, Respondent's hiring rate
was four to five times the normal rate . There were 26 new hires in August, 15 new
hires from September 1 through September 14 and 33 new hires from September 14
through 30 Thus, there were 41 new employees as of the date England stated he
made his decision not to further recognize the Union and about 74 new employees
about the time he notified the Union of his decision. Since, under the contract,
these employees were on probation with Respondent for the first 60 days of their
employment (art XIII of the agreement) they could not be expected to execute
checkoff authorizations before the expiration of that period.
During this same period in September, the record shows widely varying reports
and estimates made by Respondent of the total number of employees in the unit at the
Clifton plant One report of the number of employees at the Clifton plant as of
the week ending September 13, 1964, shows 610 in the unit 44 The petition for an
election filed by Gallagher on September 14, 1964, estimated the number of employ-
ees in the unit at 597, a figure supplied to Gallagher by England. Moreover, on
September 24, 1964, when Respondent filed its own petition for an election, England
estimated that there were approximately 585 in the unit
As has been previously noted, as of September 13, Respondent's record shows at
least 273 employees on checkoff, and Respondent was aware of 7 other employees
who were paying their dues directly to the Union. Thus, if the number of employ-
ees in the unit were adjusted by the number of probationary employees at any time
after September 13, it would appear that the Union had close to or an actual
majority of employees known to Respondent to be paying dues.
In my opinion, these figures demonstrate that, based on checkoff records, it cannot
be said with assurance, that the Union did not represent a majority of the employees
at the times that Respondent refused to bargain with the Union.
41 Out of a maximum of 75 to SO supervisors, England identified 28 as having made
reports of employee dissatisfaction with the Union to him Fifteen of these are positively
identified as making such reports in June or July, 2 as making such reports in either
May or June, and 1 "all year long " Of these 18 supervisors only 8 testified at the
hearing Employees who were questioned with respect to this, on cross-examination,
stated that they were aware of criticism of the Union prior to August, but not of any
desire to withdraw from the Union prior to August
4i England obtained this number from a memorandum received as Respondent's Exhibit
No. 8. Reference to that exhibit, however, shows a minimum of 273 checkoffs in force
on that date. 269 employees for whom dues were actually checked off, 3 who did not work
during that period, and 1 on leave The record also raises the possibility, which I doubt,
that there were other employees on leave who were on checkoff and were not counted
43 Compare The Randall Company, supra , holding an employer justified in doubting a
union's continued majority status, even though a majority of its employees continued on
checkoff, with Gulfmont Hotel Company, 147 NLRB 997, holding an employer, in different
circumstances, not justified in believing that a union had lost its majority status, even
'though less than a majority of the employees were on checkoff.
44 Respondent stated that it would not produce an official payroll because of con-
fidential information contained thereon.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As was well stated by the Trial Examiner in Gulfmont Hotel Company, supra
(1001-1002), in a Decision adopted by the Board:
Employees for various reasons unconnected with their desire to have a union
represent them, may fail to execute checkoff authorizations. There may be
some who prefer, as a matter of principle, to pay their financial obligations in
person; there may be others who prefer to decide when and if they can afford
to spare the money for dues and fees; and there may even be some who are
willing to vote for and accept union representation but who decide to be free
riders and enjoy the expected benefits of representation without paying for them
at all. Accordingly, although the voluntary signing of checkoff authorizations
by a majority in the unit may be considered as evidence of a union's majority
status, the converse is not true.
It must further be assumed that the Union's ability to secure additional checkoff
authorizations during this period was adversely affected also by Respondent's actions,
which, as has been found, served to undermine and destroy the Union's status in
the eyes of the employees.4a
For the same reasons, it must be held that the alleged employee support of the
decertification petition relied upon by England was likewise the product of the events
which the Respondent had set in motion, and cannot, therefore, be considered the
voluntary expression of the employees' choice as to representation by the Union.
In his testimony upon redirect examination, for the first time, England asserted
that he was also influenced in his doubt of the Union's status, by the resignation late
in August of the president of the Union, allegedly because he was concerned over
support of the Union by the employees. It was my understanding from England's
original testimony on the point, which is borne out by the transcript, that the resigna-
tion was due to the Union president's concern over employee support for himself,
personally. However, assuming that the resignation was rooted in employee defec-
tion from the Union in August, such defection, as we have noted, was the result of
Respondent's own conduct contributing to that end, and thus does not constitute
a basis for a doubt of the Union's support by the employees
As the Board stated in Celanese Corporation of America, 95 NLRB 664, after the
end of the certification year, an employer may be insulated against a charge that it
has refused to bargain in violation of the Act, by a doubt of the Union's continuing
majority status, only where such claim is made "in good faith," upon "reasonable
grounds," and is not raised "in a context of illegal antiunion activities, or other
conduct by the employer aimed at causing disaffection from the Union or indicating
that in raising the majority issue the employer was merely seeking to gain time in
which to undermine the union "
Assessed against this standard, it cannot be said that Respondent's conduct in this
matter satisfies the requirements of "good faith," or constitutes a valid defense to
the complaint that it has violated the Act by refusing to bargain with the Union.
See Rohlik, Inc., 145 NLRB 1236; Porter County Farm Bureau Co-operative Associa-
tion, Incorporated, 133 NLRB 1019; Laystrom Manufacturing Co., 151 NLRB 1482;
see, also, Moore's Seafood Products, Inc., 152 NLRB 683. It is therefore held that
by its refusal to bargain with the Union on and after September 24, 1964, the
Respondent violated Sections 8(a) (5) and (1) of the Act.46
It follows, therefore, that Respondent's action in unilaterally instituting a wage
increase in December, after the expiration of the agreement, without consultation
with the Union, was also a violation of Section 8(a)(1) and (5) of the Act, and
it is so held.
46 It appears that the Union obtained 16 new checkoff authorizations in July, but none
In August 1964. England first testified that the 16 new authorizations had been sub-
mitted from July through September 1964, but later corrected his testimony to state that
none were received after the vacation period (the last week in July and the first week
to August). I consider this to be further evidence of lack of widespread disaffection for
the Union in July, as contrasted with the situation in August.
Se During the hearing General Counsel adduced evidence apparently intended to show
that Respondent refused to bargain on changes in the agreement with the Union as
early as September 10, 1964 Respondent's testimony denies this General Counsel in
his complaint and brief urges only September 24 as the first date on which the refusal
to bargain occurred For this reason, and because of substantial questions as to Re-
spondent's obligation to bargain on amendments to the agreement at the earlier time,
I have not passed on this matter. In any event, this would make no difference in the
Order hereinatter provided
CLIFTON PRECISION PRODUCTS DIVISION, ETC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
575
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent as 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 Company engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (5) of the Act I shall recommend that
the Respondent cease and desist theiefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire case, I make
the following •
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 137, International Union of Electrical, Radio & Machine Workers, AFL-
CIO. is a labor organization within the meaning of Section 2(5) of the Act.
3. The unit appropriate for collective bargaining within the meaning of Section
9(b) of the Act is that set forth in footnote 7 above.
4. On September 24, 1964, and at all times thereafter the Union was, and con-
tinues to be the exclusive representative of the employees in the appropriate unit
for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
5. Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) and (5) of the Act.
6 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that Clifton Precision Products Division,
Litton Precision Products, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from.
(a) Refusing to recognize and bargain collectively with Local 137, International
Union of Electrical, Radio & Machine Workers, AFL-CIO as the exclusive bargain-
ing representative of its employees in the unit herein found appropriate.
(b) Soliciting, urging, and assisting employees to withdraw from the Union or
revoke checkoff authorizations in favor of the Union
(c) In any like or related manner interfer!ng with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of
the Act •
(a) Upon request bargain collectively with the above-named labor organization as
the exclusive representative of the employees in the unit herein found appropriate
with respect to rates of pay, wages, hours of employment, and other terms or condi-
tions of employment, and, if an agreement is reached, embody such understanding
in a signed agreement.
(b) Post at its plants at Clifton Heights, Pennsylvania, herein referred to as the
Clifton plant, copies of the attached notice marked "Appendix." 47 Copies of the
said notice, to be furnished by the Regional Director for Region 4, shall, after being
signed by Respondent's representative, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter,
S7 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in writing, within 20 days from
the date of the receipt of this Decision, what steps have been taken to comply with
the Recommended Order herein made 48
w In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Local 137, International
Union of Electrical, Radio & Machine Workers AFL-CIO, as the exclusive bar-
gaining representative of all our employees in the appropriate bargaining unit,
with respect to rates of pay, wages, hours of employment, and other terms and
conditions of employment, and if an agreement is reached, embody such under-
standing in a signed agreement.
The appropriate bargaining unit is:
All production and maintenance employees, including model shop (proto-
type) employees and part time student employees and truck drivers
employed by Clifton Precision Products Division, Litton Precision Prod-
ucts, Inc. at its two plants located at Broadway and Marple Streets, Clifton
Heights, Pennsylvania, and 557 E. Baltimore Pike (Boat House), Clifton
Heights, Pennsylvania, but excluding professional and technical employ-
ees, including engineering department employees; draftsmen; tool design-
ers; methods department employees; quality control analysis technicians;
environmental test employees; quality control gauge and instrument employ-
ees and quality control receiving inspection employees; office production
control employees, including expediters and dispatchers; office and shop
clerical employees; purchasing department employees; personnel department
employees; salesmen; guards and supervisors as defined in the Act.
WE WILL NOT Solicit, urge, and assist employees to withdraw from the Union
or revoke checkoff authorizations in favor of the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist Local 137, International Union of Electrical
Radio & Machine Workers, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their choosing or to engage in con-
certed activities for their mutual aid or protection.
All our employees are free to become, remain or refrain from becoming or remain-
ing, members of Local 137, International Union of Electrical, Radio & Machine
Workers, AFL-CIO, or any labor organization.
CLIFTON PRECISION PRODUCTS DIVISION, LITTON
PRECISION PRODUCTS, INC.,
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 compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612.