Northrop Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1970

187 N.L.R.B. 172 (N.L.R.B. 1970)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northrop Corporation , Ventura Division and Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW
and Northrop Ventura Employees Union , Party in
Interest and Walter E. Kniffen
Northrop Corporation , Ventura Division and Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
UAW, Petitioner . Cases 31-CA-1289,
31-CA-1298, 31-CA-1304, and 31-RC-854
December 14, 1970
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On July 21, 1970, Trial Examiner Maurice M. Miller
issued his Decision in the above -entitled cases,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not
engaged in certain other unfair labor practices and
recommended that the allegations of the complaint
pertaining thereto be dismissed. The Trial Examiner
further recommended that certain objections to the
election conducted in Case 31-RC-854 be sustained
and that the election be set aside and a second
election conducted. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision with
supporting brief; the General Counsel filed an
answering brief; and the Charging Party, UAW, filed
exceptions with a brief in part supporting its excep-
tions and in part supporting the Trial Examiner's
Decision.
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 these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases,' and hereby adopts2
the findings,3 conclusions,4 and recommendations of
the Trial Examiner.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
187 NLRB No. 26
Respondent, Northrop Corporation, Ventura Divi-
sion , its officers, agents , successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the election conducted
in case 31-RC-854 on December 18, 1968, be, and it
hereby is, set aside.
[Direction of Second Elections omitted from
publication.]
i Respondent 's motion for oral argument is denied , as the exceptions,
briefs , and the record as a whole adequately present the issues and the
positions of the parties
2 Chairman Miller would not find that Respondent 's December 16
speech created the impression that support for the UAW was futile In his
view , the rhetorical questioning as to why the Company should give
different bargains to different groups of employees conveyed nothing more
to the work force than the legitimate observation that selection of one
bargaining agent rather than another does not automatically guarantee
superior gains at the bargaining table
3 These findings and conclusions are based , in part , upon credibility
determinations of the Trial Examiner, to which Respondent has excepted
Having carefully reviewed the record , we conclude that the Trial
Examiner's credibility findings are not contrary to the clear preponderance
of all the relevant evidence . Accordingly, we find no basis for disturbing
those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C A 2).
4 in the absence of exceptions , we adopt pro forma the Trial Examiner's
findings that Respondent did not violate Sec. 8 (aX3) of the Act by
changing employee Walter Kniffen's working conditions or by including a
maintenance-of-membership clause in its contract with NVEU
5 The Trial Examiner inadvertently omitted , and we add, the following
to Conclusions of Law 4 "by granting wage and fringe benefits to
technical and office workers, while withholding comparable benefits from
production and maintenance workers to influence their choice in a Board
election,"
6 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, NL.R.B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must he
filed by the Employer with the Regional Director for Region 31 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Case
MAURICE M. MILLER , Trial Examiner : On June 12, 1968,
International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America, UAW,
(designated as UAW, Petitioner, or Complainant Union
herein), filed with the Regional Director for Region 31 of
the National Labor Relations Board (designated as the
Board herein ), a petition for certification as the representa-
tive of certain production and maintenance workers
employed by Northrop Corporation, Ventura Division
(designated as Respondent or Company herein), within its
Newbury Park, California, facility. Thereafter, following a
formal hearing conducted between July 22 and August 9,
the Regional Director issued his Decision and Direction of
Election on November 29, 1968. The election was
NORTHROP CORPORATION
conducted on December 18; company production and
maintenance workers within the facility designated were
given a choice between the Petitioner , UAW, the Interve-
nor, Northrop Ventura Employees Union (designated as
NVEU herein), or no union . Because 43 ballots were
challenged , the vote was not determinative . On December
24, 1968 , Petitioner UAW filed timely objections regarding
the election.
The Complaint Case
On December 26, UAW filed unfair labor practice
charges (Case 31-CA-1289) directed against Respondent
herein; Respondent was charged with Section 8(a)(1), (2),
(3), and (5) violations of the statute. These initial charges
were subsequently amended on January 14, January 27,
March 3, and April 2, 1969, respectively. Thereafter, UAW
filed a second charge (Case 31-CA-1298), dated January 7.
On January 13, 1969, Walter E. Kmffen filed a third charge
(Case 31-CA-1304), directed against Respondent herein.
All charges were duly served.
The Consolidated Cases
On April 8, the General Counsel of the National Labor
Relations Board , through the Regional Director for Region
31, caused an Order Consolidating Cases , Consolidated
Complaint , and Notice of Hearing to be issued and served
upon Respondent herein . Therein, Respondent was
charged with unfair labor practices affecting commerce,
within the meaning of Section 8 (a)(1), (2), and (3) of the
National Labor Relations Act, as amended . 61 Star . 136, 73
Star . 519. On April 18, 1969 , the Regional Director
published a Supplemental Decision , dealing with various
questions raised in connection with UAW's representation
proceeding . Challenges filed with respect to certain ballots
were determined . Further hearing' was directed with
respect to four UAW election objections , the remaining
objections having been withdrawn . The Petitioner's repre-
sentation case was, thereupon consolidated with those
complaint cases which had previously been consolidated,
for the purposes of hearing , ruling, and decision by a Trial
Examiner . The Regional Director , further , directed that
Case 31 -RC-854 should be transferred to Washington,
D.C. for Board disposition , thereafter . Responses filed on
behalf of Respondent and Northrop Ventura Employees
Union were subsequently duly received ; therein , certain
factual statements in General Counsel 's consolidated
complaint were conceded ; Respondent , however , denied
the commission of any unfair labor practices.
Subsequent Proceedings
Pursuant to notice , a hearing with respect to these
consolidated matters was held both at Thousand Oaks and
Los Angeles , California , on various dates between July I
and August 25, 1969 , both dates inclusive , before me. The
General Counsel , Respondent, UAW, and NVEU were
represented by counsel . Walter E . Kniff en represented
himself . Kniffen had, further, requested recognition as the
representative of the Organization of Northrop Employees,
173
Ventura Division , Inc., a labor organization designated as
ONE within this decision . His right to claim recognition as
such a representative was left "open " subject to subsequent
determination in connection with specific rulings which
might conceivably be required . No final determination with
respect to his claim has, however, been found necessary.
Each party was afforded a full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce
evidence pertinent to the issues. Since the hearing 's close,
briefs have been received from General Counsel 's repre-
sentative , UAW, NVEU, and Respondent 's counsel; these
briefs have been duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary eviden-
ce received, and my observation of the witnesses, I make
the following findings of fact.
1. JURISDICTION
Respondent raises no question , herein , with respect to
General Counsel's jurisdictional claims . Upon the Consoli-
dated Complaint's relevant factual declarations, which
have not been controverted, I conclude, therefore, that
Respondent was, throughout the period with which this
case is concerned , an employer within the meaning of
Section 2(2) of the Act , engaged in commerce and business
activities which affect commerce within the meaning of
Section 2(6) and (7) of the Act, as amended. This basic
conclusion rests , further, upon relevant factual determina-
tions detailed within the Regional Director's initial
Decision and Direction of Election in the representation
matter, previously mentioned, with respect to which I have
taken official notice.
With due regard for this Board's presently applicable
jurisdictional standards , I find its assertion of jurisdiction,
with respect to this case , warranted and necessary to
effectuate statutory objectives.
It. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aerospace,
and Agricultural Implement Workers of America, UAW,
and Northrop Ventura Employees Union, concededly
function currently as labor organizations, within the
meaning of Section 2(5) of the Act, as amended; they both
admit certain of Respondent's Newbury Park employees to
membership.
Within their respective answers , Respondent and NVEU
have denied General Counsel's contention that ONE
herein-likewise -constituted a functioning labor organi-
zation, within the statutory sense , throughout the period
with which this case is concerned; they would have me find
that the organization was, for practical purposes, defunct.
The question posed by their suggestion , however , requires
no extensive discussion. The present record, within my
view, more than warrants a determination that, throughout
the period with which this case is concerned, ONE has
remained a viable labor organization, with respect to which
employees have participated -one which continues to exist
1 Certain transcript corrections are duly noted
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose, in whole or in part, of dealing with
Respondent herein , specifically, concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or
conditions of work. I so find. Crane and Breed Casket
Company, 175 NLRB No. 35; Moore Drop Forging
Company, 168 NLRB No. 134; News-Press Publishing
Company, 145 NLRB 803; Dorado Beach Hotel, 144 NLRB
712, 714; Hershey Chocolate Corporation, 121 NLRB 901,
911-912. Compare Universal Tool and Stamping Company,
Inc., 182 NLRB No. 38. Though, conceivably, this
employee group might currently merit a trier of fact's
characterization as dormant, otiose, or etiolated, the record
does not-within my view-call for a conclusion that it
completely lacks ability or willingness to represent Respon-
dent's employees, or that it lacked such ability or
willingness, previously, at material times.
III. THE UNFAIR LABOR PRACTICES
Facts
A. Background
1. The Respondent Company
Respondent, Northrop Corporation, maintains three
major Southern California manufacturing divisions, with
other divisions and facilities located throughout the
country. The corporation's Southern California divisions
compass Norair Division, with headquarters in Hawthorne,
California; Nortromcs Division, with Palos Verdes, Cali-
fornia, headquarters; and Ventura Division, headquartered
in Newbury Park, California. The division last designated
maintains the plant facility with which these cases are
concerned.
Respondent's Newbury Park plant complex consists of
three main buildings-devoted to manufacturing, engineer-
ing, and administration, respectively-plus a maintenance
and test facility. Therein, Ventura Division produces four
basic product lines: radio-controlled drone aircraft,
underwater target activity, subcontracts on Boeing 747s,
and astronaut recovery systems.
These factual determinations, together with some which
will be found set forth below, derive from the Acting
Regional Director's Decision and Direction of Election in
Case 31-RC-854, received for the record herein, with
respect to which I have taken official notice.
The division-which had been located in Van Nuys,
California, previously-was moved to Newbury Park in
January 1963 when it took over the present plant complex
which another firm , Radioplane Company, had previously
maintained . When the current representation matter-with
which this case is concerned-was heard, Respondent's
Newbury Park employee complement approximated some
1800 workers ; about 600 of these were employed within the
Company's engineering department, while some 700 held
manufacturing department classifications.
2. Collective-bargaining history
Between April 27, 1943, and August 18, 1968, wages,
hours, and working conditions for many Newbury Park
workers were governed by collective-bargaining contracts.
During this period, 13 collective-bargaining agreements
had been negotiated. Eleven of these had been negotiated
between Radioplane Company and RPA, Inc., a California
nonprofit corporation functioning as collective-bargaining
representative for that firm's workers. The last two
contracts-effective August 10, 1964, and August 22, 1966,
for 2 year periods, respectively-were negotiated between
Respondent and ONE, functioning as RPA's successor.
Respondent's counsel has conceded that-when Respon-
dent and ONE negotiated their most recent 1966-1968
collective-bargaining contract-the latter was a labor
organization within the meaning of the statute. Though no
replacement contract has since been negotiated, ONE has
not been formally dissolved. Respondent's Newbury Park
workers are still admitted to membership, and the
organization has continued in existence-so I find-for the
purpose of representing these employees, in dealing with
Respondent herein. ONE has filed, with the United States
Labor Department's appropriate section, those documents
which labor organizations are routinely required to file.
These contracts, between Respondent and ONE specifi-
cally, have contained union-security clauses which have
required ONE membership by represented employees after
30 days, together with checkoff clauses . Upon the pre-
sent record-which includes a relevant stipulation
-determination would seem warranted that all Re-
spondent's workers, covered by ONE's most recent
contract, had customarily signed voluntary dues-deduction
authorizations consistent with their representative's con-
tractual checkoff provision; these were routinely delivered
to Respondent, and were "customarily" honored.
The historical bargaining unit defined within ONE's two
successive contracts compassed all of Respondent's hourly
employees, with certain specified exclusions. When the
representation matter with which we are concerned herein,
was heard, some 790 of Respondent's 1800 divisional
employees held job classifications within the historical
bargaining unit. Approximately 470 employees-so I
find-held classifications listed on Respondent's hourly
production and maintenance roster, while some 320 were
listed on the division's technical and office roster. The
designated contractual unit compassed Respondent's
production, maintenance, technical, and clerical workers
within a single bargaining group.
B. General Chronology
1. UAW's organizational campaign
During January or February 1968, ONE representatives
initiated a series of so-called "pre-negotiation" meetings
with Respondent's designated spokesman. These prepara-
tory meetings were, primarily, conducted to determine and
define the matters with which their future contractual
bargaining sessions would be concerned, when ONE's then
- current contract was formally opened for renegotiation.
Between February and May, some eight such prenegotia-
tion meetings were held.
Both Respondent's director of industrial relations, Rex
Fairless, and Bernard Swift, Respondent's chief of
employee relations and compensation, suggested-while
witnesses-that these consultations did not constitute
NORTHROP CORPORATION 175
"bargaining" within the statutory sense, because they were
not conducted formally, like previous negotiations which
had directly preceded Respondent's execution of collective-
bargaining contracts. General Counsel, however, would
have me find that-since wage rates were a subject of
substantive discussion during the last "pre-negotiation"
session -the suggested distinction should be considered
more apparent than real. There can be no doubt, however,
that-throughout the period in question-ONE was a
contractually recognized bargaining representative; I find
no necessity, therefore, to resolve these divergent views.
Meanwhile, during March 1968, UAW commenced an
organization campaign at Respondent's Newbury Park
facility. So far as the record shows, this campaign began
with a union newspaper distribution-conducted on or
about March 15 specifically-with UAW designation cards
attached. Thereafter, on March 26, Respondent's supervi-
sors received a small card-which Swift had
prepared-purporting to provide "Employee Relations
Guidelines For Supervision (in The Event Of Outside
Union Activity)." And the following day, leaflets were
distributed to Respondent's hourly-rated personnel regard-
ing the UAW distribution. Respondent's production and
maintenance ("P & M") workers, together with technical
and office ("T & 0") workers covered by ONE's contract,
were advised regarding their right to sign UAW designa-
tions; they were cautioned, however, to consider carefully
what they signed. Both groups of workers were told, inter
aha, that, should UAW obtain authorization cards from
more than 50 percent of Respondent's personnel within
"the" bargaining unit, that labor organization
could--under current Board decisional doctrine-become
their representative without a secret ballot election. Their
right to freedom of choice with respect to representation
was reaffirmed; Director of Industrial Relations Fairless,
however, suggested that they sign UAW's cards only if they
honestly wanted that organization to represent them.
Subsequently, on April 9 or 10, Respondent distributed a
detailed "Employee Relations Fact Sheet" containing a
lengthy list of "Do's" and "Don't's" for supervisors. The
latter were advised, among other things, that they might
,.with immunity from being charged" with an unfair labor
practice:
Advise employees of your feeling, and that of the
Division, that we would rather deal with them through our
established union organization than an outside organiza-
tion [Emphasis supplied].
Respondent's supervisors were further told that they could
inform workers regarding the division's "strong non-
solicitation rule" which proscribed the distribution of
unauthorized printed material in work areas or verbal
solicitation in work areas during working time. They were
informed that-should they encounter violations of this
rule-- they were to pick up written material being
distributed and bring the distributor to Respondent's
employee relations office; should verbal solicitation during
working hours be discovered, supervisors were requested to
find witnesses , and call Respondent 's employee relations
office.
Thereafter-throughout April particularly-the cam-
paign continued. UAW letters were dispatched to some
workers; small utility gifts , bearing Union emblems, were
provided for workers to use or wear ; various notices were
distributed . One campaign meeting was scheduled.
Late in May , Respondent retained a law firm to conduct
several so-called "instructional" sessions for supervisors.
These sessions-for which all divisional supervisors
concerned with hourly rated personnel were scheduled in
groups-compassed lectures regarding employee relations,
coupled with directives concerned with proper conduct by
supervisors during election campaign.
Respondent 's list of supervisors present during these
various sessions , proffered for the record , included the
names of General Foreman Glen Estes , W. Lange, John
Green , L. J. Sessions , S. Wrubel , R. Burdette , R. F. Byram,
R. K. Snohr , and J . F. Pulver . The significance of their
presence will be noted hereinafter.
Respondent's supervisors were directed to be "absolutely
impartial" regarding their treatment of workers subject to
their supervision . Further , they were advised to be "very
careful" regarding any conversation with such workers,
regarding any matter which might be considered related to
his interest in unionization, or his lack of interest with
respect thereto.
On June 12, 1968 , UAW filed a petition with the Board's
Regional Office, seeking certification as representative of
Respondent's Newbury Park production and maintenance
workers , but excluding Respondent 's hourly -rated techni-
cal and office personnel . Notice regarding the filing of
UAW's petition was received by Respondent the following
day.
2. ONE's reaction
Throughout the period with which we are now concerned,
Walt Kniffen, Complainant herein, was ONE's president.
In that capacity-so his testimony shows-he was responsi-
ble for conducting grievance proceedings , negotiating
contracts, and representing Respondent 's contractually-
covered workers generally, in dealing with Ventura
Division's management and supervisors.
Kniffen's work history with Respondent dates back to his
January 1960 hire date. Between 1960 and 1965, he had
been a full-time milling machine machinist . When first
designated ONE's president, for a term which compassed
calendar years 1965-66 , Kniffen had been notified that he
would be permitted to spend full time servicing his union
post, while retaining his position in Respondent 's hire; the
record will warrant a determination that this arrangement
was consistent with Respondent's previous practice.
Thereafter, Kniffen was reelected as ONE's president for a
successive term ; during the calendar year period with which
we are now concerned , he was serving a term with a
scheduled December 31 termination date.
While a witness , Kniffen testified that UAW's organiza-
tional campaign came to his notice sometime during the
middle of April; he then believed-so he testified-that
UAW was seeking representation rights for Respondent's
complete plant.
The present record, dispassionately considered, provides
some ground for doubt with regard to Kniffen 's necessarily
implied disclaimer that he'really became aware of UAW's
campaign directly following its March commencement;
ONE's March membership meeting minutes reflect a
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presidential reference to some "present" threat. For present
purposes, however, questions regarding the date when
Kniffen became aware of UAW's campaign need not,
within my view, be resolved.
Late in April, Kniffen, together with ONE Vice President
Sklar, met with Swift; they discussed the UAW campaign.
When Swift requested Kniffen to state ONE's position, the
latter disclaimed any position "at this time" because ONE
had no knowledge regarding UAW's strength.
By early June, however, ONE's leadership seems to have
become cognizant of the likelihood that UAW's campaign
would be confined to production and maintenance workers
and would successfully raise a question concerning
representation. With the concurrence of ONE's board of
directors , Kniffen retained the law firm of Loeb & Loeb;
Mr. Alan Friedman, with that firm, was consulted
regarding possible courses which ONE might pursue. On
June 11-so I find-Freedman, together with ONE
representatives, met with UAW spokesmen. The following
evening - during ONE's scheduled June 12 membership
meeting specifically-Kniffen introduced Friedman to
discuss ONE's situation.
The recital which follows, summarizing some relevant
and material developments during the June 12 meeting,
derives primarily from minutes contemporaneously taken
and subsequently transcribed in typewritten form by Jean
Thompson, ONE's secretary. The present record does
contain considerable verbal testimony calculated to convey
a somewhat different picture regarding the meeting's
course; much of it, however, comes from witnesses
concededly given a chance to read and review Thompson's
minute records before being required to take the stand.
Such testimony-though supposedly based upon refreshed
recollection-fails to persuade. To the extent that witnesses
may have proffered purported recollections differing from
Thompson's record, their testimony seemed either tailored
by post facto rationalization or colored by partisan
considerations. Thompson, however-while a witness-
impressed me as dedicated , competent , dispassionate,
and free of guile; ONE's Vice President Sklar, sum-
moned as Respondent 's witness , conceded that her
membership meeting minutes had been reliable, fair
representations of whatever had taken place at prior
meetings during which he had been present. Despite this,
Respondent 's counsel , with whom NVEU's counsel joins,
would have me find her minutes generally deficient, with
respect to both verisimilitude and completeness. Such
contentions are rejected.
Friedman, substantially, reported that UAW seemed
"strong" within the Newbury Park facility's so-called "P &
M" group ; he recommended , for various reasons which he
detailed, that ONE's best interest would be served should it
decide "not to take on a battle" which the organization
would have little hope of winning. Inter alra, ONE's
membership was told that UAW's petition for certification,
limited to Respondent's production and maintenance
workers, had been filed earlier that day. During the floor
discussion which followed , questions were raised regarding
the prospect for Respondent's so-called "T & 0" workers,
with respect to whom UAW was making no representation
claim. Friedman declared, so the minutes show, that most
"T & 0" workers "will not have any union" should the
UAW win representative status for the bargaining unit
defined within its petition, but that "if and when the "T &
0" people show an interest in representation " UAW would
be happy to organize them. When challenged with a
member's comment that Respondent 's technical and office
workers would merely be ignored, Friedman declared his
view that there did not seem to be much support for
unionization, generally, within the "T & 0" group, but that,
if this were not so, such workers could join "this [UAW]
local" later. He noted the possibility that, should such a
development take place, the represented "T & 0" group
would have a separate contract, but declared that both
contracts could be negotiated simultaneously. The discus-
sion continued , with several membership viewpoints, pro
and con, noted, regarding Friedman's suggestion that ONE
would be well-advised to refrain from "fighting" both
Respondent 's management and UAW, concerning the
latter organization's representation claim. One member
noted his "feeling" that ONE's decision "to go on or stay
off the ballot" should be made by a majority of the
members. Thompson's minutes, however, warrant a
determination that no firm decision regarding this sugges-
tion, nor with regard to what further steps ONE might take,
was reached during the meeting in question.
Early the following morning, Don Eldridge, then a ONE
director , sought Fairless ; he declared his concern regarding
these developments . Inter alia, Eldridge reported his
determination to contest Freedman's suggestion , saying, "I
think ONE should stay in existence , and remain the
collective-bargaining representative out here , and I am
going to do everything I can to make sure that takes place."
Fairless commented , so his testimony, which I credit in this
connection, shows , that Eldridge 's problem concerned a so-
called "internal union" matter , and that he (Eldridge)
would probably find it very difficult to counter what ONE's
current leadership seemingly desired.
Almost simultaneously , so I find , during the morning of
June 13, Kniffen and Sklar sought a conference with Welko
Gasich , Respondent 's general manager , purportedly to
define what General Counsel has herein characterized as
their organization's "watch and wait" position . Kniffen told
Gasich that, during their previous night's meeting, ONE's
members had been advised it would be better if they did not
try to challenge UAW's representation claims ; Gasich was
told, therefore, that ONE would take no position regarding
UAW's campaign.
The present record provides no reliable basis for a
determination regarding the date when this Kniffen-Sklar-
Gasich conference took place . Kniffen , while a witness,
first placed it on June 18; Sklar had no recollection;
Gasich , while a witness, was not questioned regarding this
conference. Fairless , though he recalled receiving a
telephone call from Gasich following the conference's
conclusion , could not recall the date ; he declared his
"belief" that Kniffen and Sklar had conferred with Gasich
on June 13, basing that "belief" upon hearsay reports
received from Gasich's secretary. Kniffen, during his
penultimate witness chair appearance, concurred with a
suggestion that June 13 was the correct date. This question,
within my view, really requires no present resolution. Since
narrative presentations , however, must necessarily "march"
NORTHROP CORPORATION 177
pursuant to some consistent chronology, I have designated
June lath the relevant date; the logic of probability
suggests that Kniffen and Sklar would have been most
likely to seek a conference with Gasich directly following
ONE's regular June membership meeting, rather than six
days later.
The record contains some variant testimony regarding
Gasich's rejoinder. According to Kniffen, Respondent's
general manager replied, "If you are not going to fight
them, get the hell out of the way, because we don't want our
plant run from Detroit." However, Sklar's composite
testimony, during direct and cross-examination, would
warrant a determination, rather, that Gasich said, "Well, if
you are not going to fight them, step back out of the way,
because I'm not going to take any orders from Detroit"
Respondent 's general manager , as previously noted, was
never questioned regarding this matter. He may have
declared his position forcefully. Nevertheless, this trier of
fact finds no present necessity to conclude that Respon-
dent's general manager reached for profanity; Sklar's
testimonial recollection , regarding his remark , merits
credence. When Kniffen and Sklar were leaving, Gasich
was asked, by the latter whether Respondent would
consider the situation "advantageous" should there be no
union within the division's Newbury Park facility. Gasich
replied affirmatively; Kniffen and Sklar then departed.
The following Monday, June 17, Kmffen sent Respon-
dent a written notice regarding ONE's "intent" to
"terminate and modify" their current contract. Respon-
dent's management was, additionally, notified that:
We further intend to sign the resulting modified
contract after the matter presently before the National
Labor Relations Board has been settled.
The commencement of negotiations was suggested. On
June 18, Fairless replied. He declared Respondent's
readiness to begin negotiations covering wages, hours, and
working conditions for employees whom ONE represented;
noted Respondent's hope to have a signed contract before
their current agreement's terminal date; but further noted
Respondent's recognition that the pendency of UAW's
representation petition might preclude the "timely" negoti-
ation of such a contract.
Within a few days following his receipt of Fairless' June
18th letter, Kniffen communicated with Swift, requesting
that arrangements be made for the commencement of
contract negotiating sessions. Swift declared, so I find, that
he would try to schedule such sessions; none, however,
have been held.
Sometime during this period, under circumstances never
clarified for the present record, certain of Respondent's
workers began to circulate petition cards to recall ONE's
officers. On the afternoon of June 25, during a meeting of
ONE's board of directors, Kniffen displayed a copy of the
petition card, reported that he had witnessed certain people
from Respondent's engineering and administration build-
ings circulating it within the division 's manufacturing
building during working hours, and complained that
Respondent could properly be charged with statutorily-
proscribed discrimination, because of its seeming permis-
siveness in this respect, since both UAW and ONE
spokesmen had previously been warned not to conduct
such business during normal working hours . One director
present , reported a previously-held private conference of
directors; the minutes , which have not been challenged in
this connection , reflect his declaration that ONE' s directors
had reached a unanimous decision "to keep ONE off the
ballot" should a representation election for "P & M"
workers be directed.
Later that evening, dunng a special membership meeting
which some 150-200 Newbury Park workers attended,
Kniffen read a statement "giving [ONE's] position"
regarding their so-called "current" problem; the present
record warrants a determination that he reported the
director's purported decision "at this time" that ONE
would not participate , should some "P & M" representation
election be subsequently scheduled . During a spirited floor
discussion which followed , conflicting points of view
regarding the wisdom of that decision were presented.
Those opposed criticized ONE's leadership , inter alra, for
presuming to reach such a decision without a membership
vote ; Kmffen defended the propriety of the leadership's
procedure . ONE's membership was further advised that
their directors ' decision "at this time" not to seek a place on
the Board 's prospective representation ballot had been
"based on" legal counsel . Attorney Friedman was, once
more , permitted to address the membership . Substantially,
he recapitulated the considerations which had previously
persuaded him to recommend that ONE refrain from
contesting UAW's representation claims . Secretary
Thompson' s minute record regarding this portion of ONE's
meeting, which I consider worthy of credit, reveals a further
comment by ONE's counsel, substantially as follows:
The T & 0 people do not support unionism . An internal
split now only benefits the Company. If you petition the
Board to represent the T & 0 unit on this election and
lose, you can 't reorganize for a year . When union
backing is apparent in the T & 0 you or the UAW can
go in then and organize.
During the discussion which followed , several members
voiced their dissatisfaction when told that a Board -directed
vote, premised upon UAW 's petition, would necessarily be
limited to "P & M" workers , plus related plant clericals;
Friedman was questioned regarding some possible proce-
dure which might permit "T & 0" workers, likewise, to
register their choice . He suggested, so the minutes show,
that , should such workers desire union representation, they
should "sign cards" calling for a separate election. When
the meeting adjourned , however, no clear-cut consensus
had been reached ; the minutes merely reflect a Kmffen
declaration that "all the people" would be informed later,
regarding ONE's final decision.
Early the next morning, June 26 , Fairless received a
number of reports , both from subordinates and concerned
workers, regarding the decision announced the previous
night that ONE would not seek a ballot place should a
secret vote for "P & M" workers subsequently be
conducted. Two particular workers who conferred with
Respondent 's director of industrial relations , Frances
Martinez and Dale Roepke , declared their purpose to
pursue a course reasonably calculated to protect the
presumed interest of Respondent 's technical and office
workers, who, so they understood , would no longer have
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representation should ONE refrain from seeking a
place on whatever "ballot" might be forthcoming.
While a witness, Fairless declared that when these
developments were brought to his notice he knew that
UAW's representation petition sought a vote within a
bargaining group limited merely to production and
maintenance workers, plus certain "clerical support"
classifications in Respondent's manufacturing, quality
control, warehousing, and storage facilities. Thus, when
Martinez and Roepke conferred with him, he knew, so he
testified , that UAW's petition would leave, unaffected,
some currently represented worker group within Respon-
dent's total employee complement, which had not yet,
however, been clearly defined. Fairless' testimony, with
respect to this matter, merits credence.
Respondent 's director of industrial relations, however,
told Martinez and Roepke that since they were concerned
with ONE matters solely they would not be permitted to
post notices with respect thereto on company bulletin
boards. Fairless recommended that they consult, rather,
with ONE's president. He may have suggested further that
they might visit the Board's Regional Office for consulta-
tions regarding their rights.
3. NVEU's formation
In point of fact, so the record shows, Martinez had
communicated with Kniffen; the previous night, following
the meeting 's conclusion, she had queried ONE's president,
so I find, regarding his willingness to take steps calculated
to protect those technical and office workers who might
wish to retain collective bargaining representation. Kniffen
had suggested that Martinez, together with other concerned
workers, might circulate designation cards within Respon-
dent's Newbury Park facility. Martinez had protested that
she would need help, Kniffen had offered to provide her
with a book for guidance.
The following day, so I find, Kniffen did provide
Martinez with "Organizing and the Law," by Samuel
Schlossberg, UAW's general counsel. Her testimony
regarding Kniffen's book loan stands without contradic-
tion; while a witness, ONE Vice President Sklar reported a
comment by Kniffen, shortly following their June 25
membership meeting, that he had loaned Martinez a union
book dealing with organizing techniques.
On June 26, ONE's president suggested that Martinez
circulate a prepared "ONE" designation card; whether this
suggestion was made before or following her conference
with Fairless the record does not show. Producing a blank
UAW card, Kniffen helped Martinez mask that organiza-
tion's letter initials and seal; the letters "ONE" plus that
designated organization's insignia were substituted. Knif-
fen and Martinez then carried the revised card to
Respondent's reproduction section; there, ONE's president
personally requested a member of Respondent's reproduc-
tion crew to duplicate a small supply of these "ONE"
designation cards, for which Martinez would subsequently
call. This was done.
The following morning, June 27, Kniffen, together with
five fellow ONE spokesmen, directors, officers and chief
steward, met with Fairless and Swift, pursuant to ONE's
request . The union president, so I find, raised two principal
questions. First: ONE's current status as collective-bargain-
ing representative for Respondent's technical and office
workers was discussed. Second: Protests were lodged that
Respondent's management was failing to restrain or forbid
the circulation of so-called "impeachment" petition cards,
directed against Kniffen and three other ONE officers,
during working hours. Respondent's spokesmen, testifying
herein, recalled Kniffen as most perturbed over what he
considered "violations" with respect to Northrop Ventura's
no-solicitation rule; with due regard for the record
considered in totality, however, I am satisfied that
Respondent's policy with regard to recognizing and dealing
with ONE was first discussed.
My factual determinations, regarding this conference,
primarily derive, once more, from Thompson's secretarial
notes, substantially corroborated by Kniffen's testimony.
When queried regarding the conference's course, neither
Fairless nor Swift could recall a discussion, couched in
terms comparable with those set forth in Thompson's
record, regarding ONE's representative status vis-a-vis
Respondent's technical and office workers. Former ONE
Vice President Sklar, summoned as Respondent's witness,
first denied hearing Kniffen's purported comments with
regard to this subject; later , however, he conceded that a
conversational exchange dealing with "T & 0" representa-
tion might have taken place, but testified that he possessed
no witnesschair recollection, despite his prior review of
Thompson's transcribed notes, with respect thereto.
Former ONE Chief Shop Steward Mertus, proffered as
NVEU's witness, conceded a failure of recollection
regarding this particular conference; when queried further,
however, he recalled, vaguely, that during some June
meeting with management representatives Kniffen had
"asked ... to represent" technical and office workers.
With matters in this posture, I am satisfied that Fairless,
Swift, and Sklar could not recall the conference discussion
regarding "T & 0" representation, which I find took place,
presumably because their principal focus of concern may,
then, have been centered upon Kniffen's strong representa-
tions regarding the so-called "impeachment" petition's
circulation. Fairless, while a witness, conceded that he
could not proffer a positive denial, with regard to Kniffen's
testimony on this point, because he had not been "primarily
concerned" with that question at the time. Further, I note
that Thompson's notes do not really reflect any positive
stand taken by ONE's president during this June 27
conference regarding ONE's representative status, so far as
technical and office workers were concerned; neither do
her notes, reasonably construed, reflect any forthright
demand for "immediate" negotiations. The testimonial
denials proffered by Fairless, Swift, and Sklar, therefore,
since they were clearly presented to negate purported
representations and demands which Kniffen did not really
make, must be considered wide of the mark, and,
consequently, lacking in relevance.
Fairless, so I find, first noted that Respondent would
"continue to administer" ONE's contract, for the balance
of its term. ONE's representatives were told, however, that
since they had decided "to keep ONE off the ballot" with
respect to UAW's representation petition management saw
no further need to negotiate a replacement contract. With
NORTHROP CORPORATION
respect to Kniffen 's reply, Thompson 's contemporaneous
notes , which I find completely reliable , read as follows:
P & M unit has been petitioned. We are trying to petition
Eng [sneering] - T & 0 - to be rep [resented] by ONE.
[Emphasis supplied.]
ONE's president then registered his complaint regarding
Respondent 's seeming policy of permissiveness, with
respect to the purported circulation of so-called
"impeachment" petitions during working hours. When
Fairless, thereupon , suggested that they discuss "one item"
at a time , Kniffen first declared ONE 's desire to begin
negotiations. Thompson's notes show Fairless replying,
"OK - rep [resenting] T & 0 people." Despite Fairless'
testimonial failure of recollection , with respect thereto,
determination is found warranted that he proffered the
response noted.
The significance of this conversation exchange will be
discussed , further, in this decision . For the present,
however , we need note , merely, that Thompson's notes will
not really support a conclusion that ONE's president was,
during this conference , presenting any clear -cut recognition
demand ; since his conference remarks, considered in
totality, clearly reflect references to a card solicitation
campaign currently in progress , within the so-called "T &
0" group with respect to which UAW was making no
representation claim , his comment that ONE "wanted" to
begin negotiations could reasonably be considered both
precatory and conditional. And Fairless' reply, therefore -
within my view - may properly be construed as reflective of
nothing more than Respondent 's readiness to begin
contractual negotiations, covering Newbury Park's techni-
cal and office workers, whenever ONE might, thereafter,
present a definite , properly grounded , recognition demand.
I so find.
Thompson's notes reveal a further comment by ONE's
president regarding "authorization cards" from technical
and office workers. These people were "upset" Kniffen
declared; he remarked that they "should" sign ONE cards.
Regarding these comments , Thompson's notes, once more,
reflect Fairless ' mere acquiesence ; within my view,
Respondent's director of industrial relations was signifying
thereby nothing more than his willingness to abide the
result of Kniffen 's presumptive procedure.
The discussion then turned to Kniffen's complaint
regarding the impeachment petition card circulators.
Substantially, ONE's president contended that they were
being permitted to conduct "union" business on company
time, without hindrance, though three-rank-and-file work-
ers within Respondent 's plastics department had recently
been given formal written warning notices ("boom sheets")
because of their suspected participation in conversations,
during working hours, related to UAW's campaign. Fairless
invited Kniffen to file formal complaints regarding the
conduct which ONE considered violative of company rules.
This, ONE's president promised to do.
Such a complaint letter was, subsequently prepared later
during the day and submitted. The record shows that
Respondent's industrial relations department, through
Swift particularly, notified the workers charged regarding
Kniffen's complaint, by letters bearing July 1st dates, and
179
suggested a conference of those concerned , to resolve the
matter . No such conference , however , was ever held.
Responding to Kniffen 's concern , with regard to the
formal disciplinary notices given three plastics department
workers, Fairless suggested that Respondent 's grievance
procedure should be used to handle the matter.
The conference closed , so Thompson 's notes show, with
Fairless' comment that he would re-evaluate Kniffen's so-
called "request" from a legal standpoint only. With due
regard for the record , considered in totality, I am satisfied
that this remark , since its relevance in connection with
Kniffen 's complaint about "petition" circulators can hardly
be considered clear , represented a restatement of Respon-
dent's position with regard to ONE's possible "T & 0"
representation claims.
Within the week which followed , some of Respondent's
workers, their number never specified for the present
record , did sign ONE designation cards . These cards,
presumably the cards produced for Martinez at Kniffen's
request , had been distributed to "all members of the ONE
including office and technical personnel" pursuant to
posted declarations that they would be used "to maintain
ONE as a recognized union" by this Board . The card
signers seem to have been scattered throughout the
corporation 's Newbury Park facility; the record provides
no basis for a conclusion , however, that they were limited to
presumptive technical and office worker classifications.
Early in July, Martinez, together with several other
workers, visited this Board 's Regional Office; the testimoni-
al record, though not detailed with regard to this visit, will
support a determination that some Regional Office
representative was asked whether ONE could be designated
a ballot choice, based upon signed designation cards.
So far as the record shows , those workers who visited the
Regional Office were not , specifically , seeking a separate
representation election for Respondent 's technical and
office personnel not compassed within UAW's current "P
& M" representation claims ; they were , rather, seeking to
determine whether this Board would consider their card
showing sufficient to warrant a ballot designation for ONE,
in connection with any vote which might thereafter be
directed for Respondent 's production and maintenance
workers.
The workers were told, substantially, that since ONE's
duly-constituted leadership had not , formally, made their
organization's position known designation cards solicited
without official sanction could not be relied upon to
promote a ballot designation . This news , so I find,
produced a consensus, within the disaffected ONE group,
that legal counsel should be sought with regard to possible
alternative courses which they might pursue.
On July 8, Respondent sent a four-page letter to each
hourly-rated worker, declaring the corporation's position
regarding UAW's representation petition . (The letter's
primary recipients were Newbury Park production and
maintenance employees, together with most technical and
office workers .) Therein, the workers' need for "giant
international union" representation was decried; certain
results which might flow from UAW's selection as their
bargaining representative were detailed. Most significantly,
however , Respondent 's general manager described the
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers' possible choice , merely, as a choice between
representation or nonrepresentation . ONE was never
mentioned ; nor was any reference , whatever , made to
Respondent 's collective-bargaining relationship with that
organization since its Newbury Park move.
The following day, during their lunch hour , several of
Respondent 's technical and office workers, Frances
Martinez, Grady Means, and Dale Roepke , met near
Respondent 's plant cafeteria . They decided to form a new
union . Later that day, having sought and procured legal
counsel, they determined to designate their new organiza-
tion Northrop Ventura Employees Union, (NVEU),
drafted and signed three designation cards, and authorized
their counsel to notify the Board 's Regional Office
regarding NVEU's wish "to intervene for all purposes" in
UAW's representation proceeding . The letter in question
was, so I find, drafted by Charles H. Goldstein , NVEU's
counsel , on July 9; the record, however , reveals that the
Board 's Regional Office received it 2 days later.
Martinez was presumably delegated to complete arrange-
ments whereby further authorization cards would be
printed , for distribution to Respondent's Newbury Park
workers. This was done . The record reveals a substantial
testimonial conflict as to whether Martinez, following the
conference with Attorney Goldstein noted , arranged to
have NVEU's entire designation card supply prepared by a
small job-shop printer within her home community, or
whether some designation cards were subsequently printed,
pursuant to her request, within Respondent's reproduction
section, during working hours. The testimonial conflict in
this connection will be discussed , further, within this
decision.
During the next 2 days , NVEU's organizing committee
designated their "acting" leadership for the fledgling
organization . Those designated were : President, Grady
Means; Vice Presidents, Don Eldridge and Joe Millner;
Secretary, Frances Martinez ; Treasurer , Dale Roepke. So
far as the record shows . these officers-save for Martinez,
who later became NVEU's business representative-have
continued to serve , pursuant to their designations, through-
out the period with which this case is concerned.
Meanwhile , on July 9, Fairless and Swift had scheduled a
further conference with Kniffen ; various ONE directors
and officers were likewise present . Respondent 's director of
industrial relations told ONE's president that he would,
thereafter, be required to perform his regular milling
machine machinist's work in Respondent 's machine shop,
and that he would no longer be allowed to circulate freely
throughout Respondent's Newbury Park facility. Kniffen
was told further, however , that he would be given whatever
"time off" he might require to police ONE 's contract,
process contractual grievance matters, and transact other
company-union business . Fairless declared, so testimony,
which I credit , shows , that Kniffen's previously -recognized
privilege, whereby he was permitted to spend "full-time"
during working hours performing duties connected with his
union position , was being rescinded because Respondent
did not wish to be considered in violation of the Landrum-
Griffin Act through paying Kniffen's full-time salary for
such union connected services. Previously , during a 2-
month period within calendar year 1967 , Kniffen had
likewise been required to perform shop work. Following
this 2-month stint, however, Respondent's requirement had
been relaxed, and ONE's president had been permitted to
resume full-time service, in connection with his union-
related responsibilities.
The following day, ONE Vice President Sklar and
Thompson sought a further conference with Fairless. Sklar
requested that Kniffen be permitted to work in some
classification other than milling machine machinist, doing
desk-type work, so that he could wear a business suit during
working hours. Respondent's director of industrial relations
conceded that this might be possible.
On July 11, Kniffen did resume work with a manufactur-
ing control coordinator classification. In a letter which he
received that day, ONE's president was told, once more,
that his work assignment was not intended to restrict him in
conducting "Company/Union" business in his presidential
capacity. He was told, further, that while functioning as
ONE's president he would be given any necessary paid
timeoff to conduct company-union business as it pertained
to ONE's current contract. Kniffen was advised, likewise,
that should he experience any timeoff difficulty in fulfilling
his presidential duties he could communicate with Respon-
dent's director of industrial relations.
Meanwhile, before work began that day, letters prepared
by NVEU's organizing committee, with blank authoriza-
tion cards attached, had been distributed at various plant
gates, to Respondent's arriving day shift workers. Respon-
dent's so-called "hourly-paid" workers were told about
NVEU's formation, its plan to provide Respondent's
employees with a ballot choice "other than UAW" during
the forthcoming representation election, and its campaign
for worker support. Interested employees were invited to
submit their authorization cards, signed, between Monday,
July 15, and Friday, July 19; they were told that a table
would be set up in Respondent's cafeteria during lunch
periods, where "signature" cards, whether signed or
unsigned, might be returned.
4. The representation case hearing
On July 22, the Regional Office's hearing on UAW's
representation petition was convened. NVEU, represented
by Charles H. Goldstein, presented a formal "intervention"
motion, supported by some 500 signed designation cards.
When presenting these cards, off the record, Goldstein
declared with dramatic vigor that NVEU's card supporters
would constitute a majority of Respondent's workers,
within "any unit" which might be found appropriate for
collective-bargaining purposes; he "defied" the parties
present, before the Regional Office's Hearing Officer, to
check the cards and question this claim.
ONE's comparable motion to intervene was vigorously
contested; counsel for Respondent and NVEU contended
that the organization's decision not to seek ballot
designation had previously been publicized, and that
ONE's leadership had proclaimed their purpose to go out of
business. ONE's president denied, categorically, that the
organization was contemplating or moving toward dissolu-
tion.
President Kniffen was in attendance throughout the
Regional Office hearing, between July 22 and August 9,
NORTHROP CORPORATION 181
having been granted "leave without pay" status for this
purpose . ONE was, likewise , represented by counsel.
When questioned , regarding his prior comments in this
connection purportedly made during ONE's June 25
meeting, Kniffen first testified that ONE's membership had
then been told that their directors had made a decision "at
this time" that they were "considering withdrawing" their
organization 's name from any possible forthcoming ballot.
The president was then asked whether ONE's membership
had been told, merely, that their board of directors was
"considering" such a decision , or whether they had been
told that such a decision had really been made; ONE's
president conceded that he could not recall his phraseology
precisely, and that the membership "could have" been told
a decision had been reached.
With matters in this posture, ONE was, so the record
shows , permitted to intervene . However, no formal
statement regarding the organization 's desire or lack of
desire for ballot designation was proffered, thereafter, while
the hearing was in progress.
For the most part, the representation case hearing seems
to have been devoted to resolving unit placement questions.
With respect thereto, the Acting Regional Director 's final
Decision and Direction of Election , which I have officially
noted, contains certain factual determinations relevant
herein:
The historical bargaining unit . . . included clerical,
professional , and production and maintenance employ-
ees in the same unit . However, none of the parties contend
that the historical bargaining unit is an appropriate unit at
this time, and the parties are in disagreement both as to
the scope and the composition of the appropriate
bargaining unit . O.N.E. takes no position with respect to
unit placement of any employees. The other parties agree
that the appropriate unit should be comprised of all
production and maintenance employees . The parties
have stipulated that certain employees should be excluded
by virtue of the fact that they are executive, administrative,
or professional employees, and that certain other employ-
ees should be excluded by virtue of the fact that they are
either office clerical employees or guards within the
meaning of the Act . . . Similarly, the parties stipulated
to the inclusion of employees in classifications listed on
the hourly production and maintenance roster of the
Employer . [Emphasis supplied.]
With these matters resolved by stipulation, there
remained some 30 job classifications with respect to which
unit placement was disputed . Considerable testimony
regarding these classifications was taken ; ONE President
Kniffen, so the record shows, testified at length . While a
witness herein , Kniffen declared that ONE's position
throughout the representation case hearing reflected its
purpose "to keep as many of the classifications in the
technical and office category" as could possibly be done.
Reliable, probative , and substantial evidence sufficient to
warrant a conclusion that this. was ONE 's purpose has not,
however , been proffered ; I find no factual determination
necessary in this regard.
On July 26, while the representation case hearing was in
progress , ONE's regular July membership meeting was
held. The present record with respect thereto merits
characterization as limited.
Fairless had been invited to address the meeting, along
with a UAW. representative . Respondent's director of
industrial relations had declined the invitation.
Thompson's notes reveal, however, that Kniffen prof-
fered a statement calculated to clarify what he had said
during ONE's June membership meeting ; that he reported
briefly regarding the Regional Office's representation case
proceeding, and that he read an open letter to ONE's
members. Treasurer Leonard Estes then gave his report.
Among other things, so the record shows, he declared that a
court would decide the disposition of money left in ONE's
treasury after "the" election ; presumably , his reference was
to the forthcoming "P & M" bargaining unit vote, premised
upon UAW's representation petition. I so find.
The representation case hearing was concluded on
August 9. On August 14, 5 days thereafter, ONE's counsel
advised the Board's Regional Office by letter that the
organization did not desire a ballot designation in
connection with the forthcoming "P & M" representation
vote . This letter , so the record shows , was sent at Kniffen's
direction ; ONE's official position was stated.
5. ONE's contract termination
On Thursday, August 15, President Kniffen, on behalf of
ONE, sent Fairless another letter . Therein , Respondent's
director of industrial relations was advised that ONE would
continue to represent all of its members , not only until its
current agreement terminated , but thereafter "as permitted
by law" until such time as the Board might certify that
another Union had become their appropriate representa-
tive. The letter continued as follows:
Should the NLRB direct an election in a unit
comprising less than all of our members , and should
another Union be certified to represent employees in
such a unit , it is further our present intention to continue to
represent those of our members who are not in that unit. As
you know, there is a strong possibility that the latter
group will be comprised of Office and Technical
employees. [Emphasis supplied.]
Fairless, though declaring in his prior affidavit that he had
received this letter on August 15, probably received it, so I
find , some time on Friday, August 16 . ONE's president was
not, however , vouchsafed any direct , personal reply. So far
as the record shows, Respondent 's director of industrial
relations merely communicated, promptly, with Lyman
Powell, Respondent 's labor relations counsel . Fairless was
advised that, since NVEU had demonstrated "apparent
majority" status during the Regional Office 's recently
concluded representation case hearing , and since ONE's
declaration of representational interest had not been
substantiated, the division's management was free to
consider that declaration nothing more than a mere "naked
claim" which should be disregarded. With such counsel,
Fairless forwarded Kniffen 's letter to Powell for response.
On Friday evening , August 16, 2 days before ONE's
contract with Respondent was due to terminate, the
organization held a special membership meeting . Thomp-
son's notes with respect thereto, which I credit , reflect a
report by President Kniffen regarding the general course of
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Office's representation case hearing. Those
present were told, inter aka, that, historically, so-called "T
& 0" workers were not properly considered within defined
"P & M" bargaining units; that, so far as Newbury Park
was concerned, the facility's conceded "T & 0" workers
had been stipulated out, while Respondent's conceded "P &
M" workers had been recognized as compassed within the
projected bargaining unit for representation election
purposes, both by UAW's petition and by stipulation.
ONE's members were further advised that the Board would
finally decide the bargaining unit placement of workers in
certain "grey area" classifications. With respect to Knif-
fen's further remarks, Thompson's minute record reads as
follows:
Since NVEU is in competition with UAW and those
people not in one union will not be in the other union
either. [sic] We decided on a course of action that may
be discussed for years to come by labor attorneys. (Pres.
read letter to Fairless.) We will rep[resent] people at NV
until our term of office runs out. We will begin
negotiations for these T & 0 people as soon as possible.
A question was then raised regarding dues-deduction
procedure: ONE's members were advised that dues
deductions, pursuant to their checkoff authorizations
previously filed, would cease with their contract's termina-
tion. Those wishing to maintain dues payment currently
were advised to proffer dues directly to ONE's officers.
These factual determinations rest upon Thompson's
minute record, supplemented by Kniffen's testimony,
which I have credited wherever I have found consistency
with Thompson' s notes. ONE's president did testify,
further, that he told the members present that no one would
be formally deprived of his or her ONE membership for
failure to pay dues. Since Thompson's minute record,
however, reflects no such significant pronouncement,
Kniffen's testimony with respect thereto has not been
credited. Several persons concededly present during this
meeting did proffer testimony which substantially varied
from Thompson's minute record. They described the
meeting as brief, with but a small number of persons
present, and characterized the discussion as subdued. And
their composite testimony, should I consider it worthy of
credence, would warrant a determination that President
Kniffen, following his brief description of the Regional
Office's representation case hearing, stated that "this would
be the last ONE meeting" which would be held; further,
their testimony would warrant a determination that nothing
whatever was said regarding ONE's plan to continue
representing Respondent's technical and office workers.
With due regard for the record, considered in totality, I am
satisfied that the membership meeting now in question was
comparatively brief; that it was attended by comparatively
few ONE members; and that the meeting's general tenor
was, indeed, subdued. Further, I have noted, previously, my
conclusion that Kniffen made no comment that workers
failing to pay dues currently would, nevertheless, not be
deprived of their membership. Within my view, however,
no credence can be given testimony that he characterized
the meeting as ONE's last. I am satisfied that Kniffen may
well have described the session as ONE's last meeting
before their contract's termination date. The record,
however, will, within my view, support a determination that
the meeting had been scheduled, inter alia, to tell
Respondent's workers excluded from the prospective "P &
M" unit what this would mean to them; further, it will
support a determination that reference was made to ONE's
continuing representation claims compassing the division's
"T & 0" workers, for whom negotiations would be
undertaken shortly. Under such circumstances, comments
calculated to suggest that no further membership meeting
would be held could hardly have been proffered responsi-
bly. No such representation was, so I find, made.
Of those present, some eight members proffered their
dues for September, prospectively. The meeting concluded
with several presidential references to working conditions
which would presumably prevail at Newbury Park pending
the forthcoming "P & M" representation vote.
Meanwhile, earlier that same day, H. E. Riggins, Jr.,
Respondent's vice president and assistant general manager,
dispatched a letter bearing a prospective August 18 date,
directed to ONE, but marked for President Kniffen's
perusal, had-wherein reference was made to ONE's prior
June 17 notice regarding its desire "to terminate and
modify" their current contract. Following a further
reference to that contract's "duration" clause, Riggins
declared that:
In compliance with your letter and in accordance with
the provisions of the aforementioned Agreement, this
memorandum will serve as a Notice honoring your
request for termination of the Agreement between the
parties effective midnight, 18 August 1968.
This letter, sent by special delivery, was received by Kniffen
the following day, Saturday, August 17. It contained no
reference to Kniffen's August 15 letter, previously noted,
purportedly because Riggins had neither seen nor been told
about Kniffen's most recent communication before his
"termination" letter was dispatched.
6. NVEU's recognition demand
On August 17, NVEU dispatched a letter to Respondent's
director of industrial relations, which had been drafted
and dated the previous day. Therein, NVEU claimed
representative status for a majority of Respondent's
workers in both production and maintenance ("P & M")
classifications and technical and office ("T & 0")
classifications. With particular reference to Respondent's
technical and office workers, President Grady Means
claimed majority designations within each of two separate
groups. First: he claimed designation by a majority of
Respondent's workers employed in various so-called
"Group A" job classifications; these compassed some 78
workers within classifications which had been specifically
"excluded" from UAW's proposed production and mainte-
nance bargaining unit, during the Regional Office's
representation case hearing, pursuant to stipulation.
Second: he claimed representative status within a so-called
"overwhelming majority of clerical and technical employ-
ees" whose disputed unit placement had been litigated
during the representation case hearing, then recently
concluded. NVEU's president declared his belief that these
workers, designated "Group B" workers for reference
purposes, would finally be excluded from whatever defined
NORTHROP CORPORATION
production and maintenance unit might subsequently be
found appropriate for collective bargaining purposes.
With regard to various classifications of so-called "Group
A" workers, NVEU demanded immediate recognition as
bargaining representative; Respondent was told that
NVEU was prepared to demonstrate its majority status
within this defined group of workers through a card-check,
conducted by a responsible, disinterested person. With
regard to so-called "Group B" workers, Respondent was
put on notice that NVEU was demanding recognition as
their bargaining representative, currently, while conceding
that Respondent could not grant such recognition until
such time as the Board s Regional Director might
determine the propriety of their exclusion from whatever
production and maintenance unit he might thereafter find
proper for collective bargaining purposes. Respondent was
told, therefore, that "when the scope of Group B is defined
by the NLRB by its ruling" with respect to UAW's
representation petition, NVEU would demonstrate its
majority status through a card check of those "Group B"
workers who had "as of the date of this letter" signed
designation cards. The letter continued as follows:
Please treat each request for recognition as the majority
representative of the employees in Group A and B
respectively, as continuing requests; and if you are not
prepared to allow us to prove our majority to you at this
time in some feasible manner - but wish to do so in the
future -please contact me at once by phone or letter at
the above city address and phone number.
Since your contract with the Organization of Northrop
Employees expires August 18, 1968, from our authoriza-
tion card count and other information, no other person or
organization presently represents a majority of Group A or
Group B employees described above. Therefore, we
caution you against entering into any contract or
collective bargaining negotiations with any other
organization presuming to act for or behalf of any such
employees. [Emphasis supplied. I
Respondent's management, should it decide to recognize
NVEU as bargaining representative for the Newbury Park
facility's Group A workers, was requested to bargain
collectively and negotiate a contract to completion. The list
of so-called "Group A" classifications with respect to which
NVEU had requested recognition accompanied President
Means' letter . That list compassed some 49 job classifica-
tions; these represented approximately 24 percent of those
207 classifications with respect to which the representation
case parties had stipulated "exclusion" from UAW's
proposed bargaining unit of production and maintenance
workers.
This letter was, so credible testimony shows, received by
Director of Industrial Relations Fairless through Respon-
dent's normal mail distribution, sometime after 10 o'clock
during the morning of Monday, August 19. It had been
drafted, primarily by NVEU's counsel, sometime during
the daytime hours of Friday, August 16; the letter's final
draft, however, had not been signed and committed to the
mails until Saturday afternoon, August 17, as previously
noted.
Whether Respondent's director of industrial relations
had, nevertheless, received some notice regarding the
183
letter's content, before he received President Means' signed
original copy through the Newbury Park plant' s regular
morning mail distribution, was a subject of testimonial
controversy herein. I note, inter alia, that Fairless' pretrial
affidavit, dated February 11, 1969, reports his receipt of the
latter on August 16th. My factual conclusions in that
connection, however, will be noted, subsequently, within
this decision.
Following the letter 's Saturday dispatch, various NVEU
officers, so I find, had taken a duplicate, separately signed,
copy to a print shop; there they had had letter copies
together with a handbill directed to their fellow workers
prepared for distribution the following Monday morning.
7. ONE's renewed representation claim
Early that morning, August 19, shortly after Respon-
dent's day shift started, Kniffen telephoned Riggins; he
requested a conference to discuss the latter's August 16/18
letter . The requested conference convened at 9 o'clock in
Riggins' office. Kniffen, Sklar, and Thompson, plus one or
two ONE directors, represented that organization; Riggins,
Fairless and Swift were present for Respondent' s manage-
ment.
President Kniffen told Respondent's vice president that
his construction of ONE's June 17 letter had not been
correct; he declared that ONE's letter had been drafted,
with conventional verbiage, merely to initiate contract
negotiations. Riggins was further told that, if Respondent
wished the contract terminated, they should have said so,
without trying to imply that ONE had been responsible.
Riggins, however, characterized the situation as one which
had become a very involved legal matter ; further, he
declared that Respondent was seeking the advice of counsel
before taking any action, and suggested that "this matter"
should be handled through counsel representing the parties.
Regarding the conversation which followed, the present
record once more presents serious testimonial conflict.
With respect thereto, my factual determinations again
derive from Thompson's summary notes; Fairless, Respon-
dent's principal witness in this connection, conceded, both
within his prior pretrial affidavit and during his witness
chair testimony, that he was not "certain" regarding the
substance of Kniffen' s statements . Thompson's notes w1th
respect thereto show a conversational exchange which
follows:
Walt-We intend to continue to represent all the hourly
people at NV until the NLRB tells us otherwise. We also
intend to continue to represent those people who are not
included in the bargaining unit decided upon by the
NLRB. We have had nothing to say about the fact that
a part of our unit has been split off and will be
represented by some other union. We will serve as the
representatives of those remaining people.
Rex - You say you wish to represent these people. We
have received a letter from NVEU saying they also wish to
represent these same people and that they have a majority
of the people signed up indicating their preference for
NVEU. I am not sure how the law reads in a situation
like this and feel this is a matter for the attorney to
settle. [Emphasis supplied]
Kniffen then asked Fairless whether, since Respondent had
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made clear its intention to have no further dealings with
ONE as a union, that organization's plant office would
have to be vacated and its files and equipment removed.
Respondent's director of industrial relations characterized
that as a fair assumption; he requested a schedule stating
how much time ONE would require to accomplish such a
removal. Kniffen was told that any time he spent away
from his job, for which Respondent might pay, would have
to be spent on "company-union" business. When he
reminded Fairless that he would need time to check and
process currently outstanding grievances, plus time off to
meet with ONE's counsel, Riggins declared Respondent's
willingness to "work out" such matters. ONE's president
was told, however, that while Respondent wished to allow
him "ample" time his supervisors would be notified that he
was not to be permitted leave from his work station without
their specific permission, and that any time spent away
from his station would have to be cleared through a
designated industrial relations department representative.
Later the same day, Lyman Powell, Respondent's labor
relations counsel, dispatched a letter to Kniffen regarding
the latter's August 15 letter, previously noted. ONE's
president was reminded that Respondent could no longer
recognize or bargain with his organization on behalf of
production and maintenance workers, legally, while the
current Board proceeding remained pending, since a
question concerning their representation existed:
As to technical and office employees, my client has
reliable information indicating that the vast majority of
such employees no longer desire representation by your
O.N.E., and that they have transferred their allegiance
to and sought representation by, the Northrop-Ventura
Employees Union (NVEU). Accordingly, since you no
longer represent a majority of such employees, we
cannot recognize the O.N.E. as their bargaining
representative.
Powell conceded that while Respondent would have to
decline ONE's request for recognition and bargaining, with
regard to both groups mentioned in Kniffen's letter his
organization might, nevertheless, have certain residual
vested rights to process, through arbitration if necessary,
grievances previously filed, before the termination date of
ONE's collective-bargaining contract. Kniffen was advised,
however, that, save for his privilege to conclude grievance
matters previously initiated, neither he personally nor his
fellow ONE officers or stewards would, thereafter, enjoy
any representative status within Respondent's plant, and
that they would not be considered authorized to conduct
further union business or process new grievances.
8. NVEU's recognition
Sometime during the day now in question , August 19,
Fairless drafted and dispatched another letter, directed to
NVEU President Means , which the latter received "on or
about" that date. Means was advised that Respondent
could not recognize and bargain with NVEU, unless it
could demonstrate representative status for a clear majority
of workers holding positions in listed "Group A" classifica-
tions . Fairless declared , however , that Respondent was
prepared to participate in a cardcheck , conducted by some
impartial third party, for the purpose of determining
whether NVEU did or did not enjoy such majority status:
If the card check of Group A reveals that a clear
majority of such employees have designated your
Union as their bargaining agent, we will honor our legal
obligation and bargain in good faith with your Union
on their behalf.
Regarding NVEU's representation claim for so-called
"Group B" workers, Fairless declared that Respondent
could not recognize such claims "at this time" since the
proper unit placement of workers holding the classifica-
tions in question was currently being litigated. President
Means was told, however, that, when the Regional
Director's decision was handed down, NVEU might "feel
free" to renew its recognition request.
Likewise, sometime during the day in question, Respon-
dent's management distributed a formal announcement
designated "Collective-Bargaining Agreement Termina-
tion" which General Manager Gasich had signed. Respon-
dent's workers were notified that ONE's contract together
with all contractual provisions, including the provision for
union dues checkoff authorizations had terminated. They
were, however, reassured that Respondent's personnel
policies and procedures, which had governed their
employment relationship, would continue "until the
question of employee representation has been resolved"
through Board procedures. New grievance procedures,
patterned upon those maintained for Northrop's two other
Southern California divisions, were instituted, with provi-
sions for terminal arbitration.
Thereafter, during a 2-day period, August 20/21, Bernard
Swift of Respondent's industrial relations department and
NVEU President Means completed their preparations for a
cardcheck of NVEU designation cards, submitted by
workers with so-called "Group A" job classification. A
local minister, who had signified his willingness to serve,
was supplied with a payroll roster, prepared at Swift's
request, which listed the workers currently holding
positions in those "Group A" classifications NVEU
claimed to represent; Means supplied him with NVEU's
purportedly matched authorization cards. The record
contains testimony and documentation that Respondent's
prepared payroll roster contained 78 names. A count of the
actual roster reveals 96 names, with 17 stricken, for a net
total of 79 names. NVEU's president supplied 48 signed
designation cards. The record will warrant a determination,
however, that Reverend Rehnberg, the minister conducting
the cardcheck, was never furnished with sample signatures
for workers listed on Respondent's prepared payroll roster,
nor was he given any directions regarding the necessity of
checking NVEU's card signatures. He merely checked
workers' names on proffered NVEU cards against Respon-
dent's payroll roster; no attempt whatever was made to
compare those job classifications which were shown on
NVEU's cards with those which Respondent's roster
revealed for listed workers. On August 21, Reverend
Rehnberg reported, personally and by letter, that those
workers whose names had been found on NVEU
designation cards, (48), were likewise listed on Respon-
dent's payroll roster. Further, Dr. Rehnberg reported that
61.5 percent of those workers, (78), who had been listed on
NORTHROP CORPORATION 185
Respondent's presumptively relevant roster had been
matched by NVEU cards.
Later that day, August 21, Respondent and various
NVEU representatives signed a recognition agreement;
Respondent, thereby, conceded that NVEU had estab-
lished its right to function as exclusive bargaining
representative for workers holding positions in various
designated "Group A" job classifications, based on
Reverend Rehnberg's cardcheck. Respondent further
agreed to meet NVEU representatives for the purpose of
commencing contract negotiations.
9. Subsequent developments
Within I day following NVEU's August 21 recognition as
collective-bargaining representative for this limited group
of technical and office workers, so I find, the organization's
leadership requested Respondent to provide it with
enclosed bulletin board space, within all buildings through-
out the Newbury Park facility. By August 23, this request
was granted. Glass enclosed bulletin boards; fitted with
locks, were provided.
Previously, during ONE's lengthy tenure as the contrac-
tually recognized representative of Respondent's hourly-
rated workers, that organization had similarly been
provided with glass-enclosed, lock-fitted, bulletin boards.
Three of these had been located in Respondent's manufac-
turing building. On Monday, August 19, Respondent's first
working day which followed ONE's contract termination
date, these bulletin boards had been physically removed.
Within Respondent's manufacturing building, particular-
ly, NVEU's new bulletin boards substantially comparable
in size , shape, and construction with ONE's boards which
Respondent had recently removed - were placed at five
separate, well-distributed, locations. When this was done,
so the record shows, no more than three workers, with
manufacturing building work stations, held job classifica-
tions within the so-called "T & 0" employee group, with
respect to which NVEU had just been recognized.
10. NVEU' s contract negotiations
On September 13, President Means provided Respon-
dent's director of industrial relations with the names of ten
Newbury Park workers who would serve on NVEU's
bargaining committee. Shortly thereafter, contract negotia-
tions started; Respondent's representatives met with
NVEU's negotiators on September 23, for the purpose of
negotiating a collective-bargaining contract which would
cover currently represented "Group A" technical and office
workers.
The negotiators convened in rented quarters within a
motor hotel , located several miles from Respondent's
Newbury Park facility. Most of their subsequent bargaining
sessions , so I find, were conducted, completely or partially,
during Respondent's regular day shift working hours.
During their first session , Attorney Goldstein, speaking
in NVEU's behalf, specifically requested Respondent's
concurrence with a suggestion that the NVEU negotiators
should receive their regular pay for time spent during
normal working hours while participating in bargaining
sessions . Respondent 's director of industrial relations, so I
find, conceded the point. Though the record will not
support a determination that those present during the first
bargaining session were so compensated , determination is
found warranted that NVEU's representatives who attend-
ed subsequent sessions were paid consistently with
Goldstein's suggestion.
On October 16, Riggins , Respondent 's assistant general
manager , notified Respondent 's full employee complement
that a work schedule had been established which would
permit all employees (save for a few scheduled to work
because of critical production requirements) 4 consecutive
days off in conjunction with the forthcoming Thanksgiving
Day holiday. Describing this so-called "nonstandard
holiday schedule" for Respondent's full employee comple-
ment , Riggins declared that it had been negotiated with
NVEU for employees whom that organization represented.
On October 29, Respondent 's labor relations department
distributed a bulletin "announcement" that six bulletin
boards were being installed , throughout the facility, for
postings by parties or persons interested in the forthcoming
representation election . These boards were divided into
four sections, for postings by Respondent, NVEU, UAW,
and Respondent's employees , respectively . So far as the
record shows , these boards were generally used , thereafter,
for posting "pertinent information" designed to assist
Respondent's workers in determining their election choices.
On November 13, thereafter, following eight bargaining
sessions with November 8th the last , Respondent and
NVEU representatives signed a negotiated collective-
bargaining contract, scheduled to remain in full force and
effect for a 3-year term following its November 18, 1968,
effective date , with provisions for annual renewal, thereaft-
er, from year to year, on the contract's anniversary date,
absent timely written notice by either party of their desire
that the contract should be modified , amended, or
terminated . The document, inter alia, contained
"maintenance of membership" provisions , whereby, save
for a right to resign granted members during two
designated escape periods, workers holding NVEU mem-
bership 30 days following the contract 's effective date,
together with present or future employees who might
thereafter become NVEU members , would be required, as
a condition of continued employment , to maintain their
NVEU membership following their first 30 days of
employment. Voluntary checkoff provisions, with respect
to NVEU dues, bottomed upon written dues check-off
authorizations filed consistently with statutory require-
ments, were likewise compassed within the document.
The following day, November 14, Respondent published
and distributed a bulletin setting forth the significant
"economic" provisions of this contractual settlement. The
division 's publication, though it declared the new contract
applicable merely with respect to hourly-rated workers
holding technical and office job classifications for which
NVEU had previously been recognized as collective-
bargaining representative was distributed to all Respon-
dent's Newbury Park employees, not merely those "Group
A" workers whom the contract covered. Respondent's
bulletin , which was lengthy , noted several wage , hour and
fringe benefit "improvements " compared with ONE's
terminated contract , particularly the provision for general
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6.4 percent wage increases with August 19 retroactive dates.
Previously, within this decision, reference has been made to
the fact that, during Respondent's last springtime "pre-
negotiation" session with ONE representatives, wage rates
had been discussed; Kniffen's testimony regarding that
discussion, which I credit in this connection, would warrant
a determination that Fairless had, then, stated ONE could
not reasonably expect more than a general three percent
wage boost.
Further changes, noted in Respondent's bulletin, com-
passed such matters as special skill adjustments for six
labor grades, bereavement pay, changes in group health
and medical insurance programs, and modified retirement
plans plus a new paid holiday.
11. UAW's wage increase proposal
Shortly before Respondent's announcement regarding
NVEU's contract, UAW's volunteer organizing committee
had distributed a leaflet bearing a November 11 date
wherein Respondent was notified that UAW would file no
Board unfair labor practice charge, regarding any wage
increases which the firm might grant, provided such
increases were given promptly and not just before the
forthcoming election in an attempt to buy votes. Within a
reply dated November 15, directed to UAW's Regional
Director Paul Schrade, Respondent's corporate director of
industrial relations and assistant general counsel, Frank R.
Smith, noted that Respondent's general manager had been
advised of his "opinion" that the statutory provisions
governing the conduct of unions and employers during the
period preceding a representation election could not be
legally "waived" by the parties concerned. He declared,
however, that:
Mr. Gasich, despite my legal opinion, is desirous of
finding a legal way to grant wage, skill trade, and fringe
adjustments to Northrop-Ventura employees who are
being denied such adjustments through no fault of their
own.
Smith then declared that Respondent would grant all
Newbury Park workers the wage, skill trade, and fringe
benefits negotiated within NVEU's newly-signed contract,
retroactive to August 19, upon receipt of written statements
from UAW, NVEU President Means, and the Board's
Regional Director, respectively, that no unfair labor
practice charges or prospective election objections would
be filed, entertained, or sustained, consequent upon such
grants. Copies of this letter were, likewise, posted on
bulletin boards throughout Respondent's Newbury Park
facility.
With matters in this posture, UAW, seemingly, scheduled
a campaign meeting concerning wage increase prospects for
Respondent's production and maintenance workers; within
a November 21 letter, directed to Respondent's hourly
employees, Fairless mentioned such a prospective UAW-
sponsored meeting. Respondent's workers were told that
UAW's promise not to file NLRB charges, should
Respondent grant the suggested retroactive wage increase,
"was nothing more than a crude attempt to trick and
mislead you" because this Board could not give
"assurances" that charges would not be filed. Respondent's
director of industrial relations, further, declared that:
If the Company could have given you these increases
without violating Federal law, it would have done so
directly-as a decision by the Company . . . The
Company intends to obey Federal law. Unfortunately,
for the time being, changes in wages and benefits will
have to await proper negotiation with your elected
representative, whoever that may be (as determined in
the forthcoming NLRB election).
Thereafter, within a November 22 letter directed to Frank
R. Smith, UAW's counsel notified Respondent's corporate
director of industrial relations of UAW's contention that,
consistently with the statute' s intent , wage increases should
neither be "given or withheld" for the purpose of influencing
any worker's representation election vote. Smith was
further told that:
We have advised the Union that your letter of
November 15, 1968, in which you concede that the
retroactive wages and fringe benefits are due, requires
that you give the wage increases at this time. Your
failure to do so would itself be an unfair labor practice.
We have further advised the Union that unless such
adjustments are immediately made, that it is their
obligation to file unfair labor practice charges for the
protection of the production and maintenance employ-
ees.
Somewhat later, however, Paul Schrade, UAW's western
regional director, within a December 9 letter to General
Manager Gasich, repeated UAW's pledge that it would not
file unfair labor practice charges or objections, with this
Board, provided Respondent made effective promptly for
all production , maintenance , and plant clerical workers
those retroactive wage increases and fringe benefit changes
which "certain office workers" had been granted.
12. The representation case decision
Meanwhile, on November 29, the Board's Acting
Regional Director had issued his Decision and Direction of
Election in Case 31-RC-854; therein, determination was
made that "all production and maintenance employees"
working at Respondent's Newbury Park facility, with
certain designated exclusion, constituted a unit appropriate
for collective-bargaining purposes. With regard to some 30
so-called "grey area" classifications, determination was
made that 22 should be considered compassed within the
defined bargaining unit, while 8 were designated for
exclusion therefrom.
Shortly thereafter, during a Regional Office conference
conducted on December 9, consensus was reached that the
directed election would be conducted on Wednesday,
December 18, at Respondent's Newbury Park facility.
The following day, General Manager Gasich prepared a
letter to Respondent's workers declaring his "deep personal
interest" regarding the prospective election's outcome.
Gasich noted, inter alia, that Respondent's wages and
benefits "have always been very competitive" with other
major aerospace companies. He commented further,
however, that:
Unfortunately, the current NLRB proceeding has held up
the adjustments you would have received through
negotiations in late summer of 1968. [Emphasis
supplied. ]
NORTHROP CORPORATION 187
Praising Respondent for leadership within the aerospace
industry with regard to fringe benefit programs, wages and
freedom from strikes, while reiterating his "personal
concern" for Respondent's workers, Gasich went on to
declare his position regarding UAW's representation
claims. He noted, among other things, that:
I would hate to see a new era dawn at our plant, in
which a giant militant union like the UAW would
constantly stir up distrust and try to pit us against each
other . . . From my observation and talking with
employees, you seem to feel the need for group
representation. In the past, you have achieved this
through your own independent union. I felt, until
recently, that arrangement worked reasonably well .. .
You want wages and benefits that are constantly
improving and that are in line with what you could get
elsewhere in this type of work. You want a pleasant,
secure place to work, a place where you look forward to
coming to work each morning. You want a good
relationship, based on mutual respect. You want the
problems and disputes that come up to be worked out
promptly and fairly. I truly believe that these goals can
be achieved without the drastic step of bringing the
militant UAW into our atmosphere . . . I predict that
you will choose your own independent union to
represent you, rather than the UAW . . .
This letter, so the parties stipulated, was mailed to the
homes of all Respondent's Newbury Park production and
maintenance workers, on or about the date which it bears.
13. NVEU's second recognition
Meanwhile, however, within a letter dated December 2,
NVEU President Means had notified Fairless that his
organization represented a majority of Respondent's
workers excluded from the prospective "P & M" bargaining
unit , pursuant to the Acting Regional Director's Decision
and Direction of Election; NVEU claimed that these
excluded workers constituted an appropriate unit for
collective-bargaining purposes, and demanded recognition
as their statutory representative, based upon a card check
conducted by some impartial third party.
With his letter, Means submitted a list of 45 job
classifications purportedly "released" by virtue of the
Acting Regional Director's Decision. This list was subse-
quently modified, substantially, under circumstances which
will be noted hereinafter.
On December 4, Fairless replied; NVEU's president was
notified that Respondent could not recognize and bargain
with his organization "unless you demonstrate that you
represent a clear majority of employees" holding positions
within the listed classifications. Respondent's director of
industrial relations, however, declared Respondent's will-
ingness to determine NVEU's majority status through card
count procedures. The letter continued:
In Exhibit "A" we have a question on several of the
classifications listed which the Division considers
confidential, and several classifications where the
parties during the NLRB hearings stipulated to the
inclusion of these employees in the Production and
Maintenance Unit.
Also, it is not immediately clear from your letter
whether you propose to represent this new group of
employees as part of your existing contract unit, or as a
separate appropriate unit. If you will contact us at your
earliest opportunity we will clarify these questions and
arrange for the details of the necessary card count
verification by an outside third party.
NVEU was reassured that, should the cardcheck confirm
its representative status, with respect to a clear majority of
designated workers "either as part of an existing unit or as a
separate appropriate unit" the Division's management
would recognize and bargain with NVEU on their behalf.
Thereafter, on December 5, Respondent requested a
second minister, Reverend Le Breton, to perform the
requisite cardcheck; he was supplied, that same day, with
two company personnel rosters and NVEU designation
cards. The minister was requested merely to check NVEU's
cards against the printed rosters; he was never requested to
verify the authenticity of workers' signatures on NVEU's
submitted cards, nor was he supplied with data which
would have facilitated such signature verification. Further,
no request was made that he compare the job descriptions
set forth on NVEU's cards against those listed for workers
on Respondent's personnel roster.
Reverend Le Breton was supplied with Respondent's
previously prepared roster, listing "Group A" workers
holding positions within the job classifications with respect
to which NVEU had first claimed representation rights.
Secondly, he was supplied with a further roster, which
presumably listed "Group B" workers compassed within
NVEU's new recognition and bargaining demand. The
record shows that some names listed on the latter roster had
previously been stricken, presumably pursuant to consen-
sus. The names thus stricken were disregarded, while the
minister was completing his cardcheck.
The following day, December 6, Reverend Le Breton
prepared a letter detailing his card count results; this letter
was hand delivered to NVEU President Means, along with
a company representative, at Respondent's Newbury Park
facility. Therein, the minister reported that he had been
supplied with a position roster containing a total of 258
names; that he had further been supplied with 176 signed
designation cards; that 155 names listed on Respondent's
position roster had been verified as card signers; and that
this latter number constituted 60 percent of the total
number of names listed.
Subsequently, on December 10, Riggins, along with six
NVEU representatives, signed an amended recognition
agreement. Thereby, Respondent recognized NVEU's
representative status for employees within two designated
job classification lists. Respondent further agreed to meet
with NVEU representatives for the purpose of commencing
negotiations looking toward "appropriate amendment"
with regard to their existing collective-bargaining agree-
ment, concerning the accretion of so-called "Group B"
workers under that contract. There were 17 job classifica-
tions for which NVEU was, thus, newly recognized.
As previously noted, NVEU's second recognition
demand, when presented, had compassed 45 so-called
"Group B" classifications. Sometime between December 2
and 5, however, consensus had been reached, presumably
between Swift and NVEU's president that 25 of these
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
classifications should be stricken. Of those stricken, two
classifications , area dispatcher and clerk, stock, were
presumably stricken because the representation case parties
had previously stipulated their inclusion within a production
and maintenance bargaining unit ; five classifications,
manufacturing order planner, manufacturing methods
planner B, material planner, quality control planner senior,
and metrology technician, were presumably stricken
because the Acting Regional Director had specifically
found them properly includable within the production and
maintenance group. Five classifications were stricken
despite the fact that the representation case parties had
previously stipulated for their exclusion from the production
and maintenance bargaining unit; two of these, duplicating
machine operator (engineering) and timekeeper , clerk, were
classifications compassed within the so-called "Group A"
list for which NVEU had initially been recognized; three of
the five, personnel record clerk, security clerk, and
compensation and benefits assistant, were presumably
stricken because Respondent considered them confidential
workers. The further classifications stricken, 13 in number,
were classifications with respect to which no mention
whatever can be found within the Acting Regional
Director's Decision and Direction of Election. NVEU's
December 2 recognition demand, therefore, was finally
limited to 20 classifications. The December 10 recognition
agreement, however, as has been noted, compassed only 17
new classifications . Those deleted when the recognition
agreement was signed were engineering drawing coordina-
tor, which the Acting Regional Director had designated a
production and maintenance classification, draftman,
detail, and technical illustrator both of which had been
covered within NVEU's first "Group A" recognition.
The 17 job classifications with respect to which
Respondent was, thus, newly conceding NVEU's represent-
ative status compassed 6 classifications , development
planner, junior buyer, and manufacturing control coordina-
tor A,-plus three secretarial positions, regarding which the
representation case parties had previously stipulated
exclusion from any production and maintenance bargaining
unit; these classifications, nevertheless , had not been listed
in NVEU's first "Group A" recognition demand. The new
list covered five classifications, procurement clerk, tool
designer, and development laboratory technician, plus two
research technician, electronics positions, which the Acting
Regional Director had found properly excludable from a
defined production and maintenance group; further, it
compassed one classification, manufacturing control
coordinator B, regarding which no decisional determina-
tion had been made. There were, additionally, five
classifications , logistic support specialist , and statistician,
plus three broad clerical classifications with respect to
which no definitive mention can be found within the Acting
Regional Director's Decision and Direction of Election.
The three clerical classification may, conceivably, have
been listed for NVEU contract coverage mistakenly.
The Acting Regional Director had listed several clerical
categories, with comparable titles, as properly includable
within Respondent's production and maintenance bargain-
ing unit. One specialized category of statistician had been
found properly excludable therefrom.
Respondent's December 10 recognition, now under
consideration, did not, however, cover three job classifica-
tions which the Board's Acting Regional Director had
found properly excludable from UAW's proposed prod-
uction and maintenance bargaining group. These were
clerk group---experimental fabrication, spares follow up,
and statistician-productions projects group, specifically.
These classifications had not been listed in NVEU's
recognition demand for so-called "Group B" workers; the
record provides no clue, however, regarding whatever
reason there may have been for NVEU's failure to list them
when presenting its second bargaining demand.
Following Respondent management's extended recogni-
tion, representatives of the parties present reached a
consensus that NVEU's previously signed contract, with its
retroactive wage increase provisions, would be thereafter
construed to cover workers holding positions within the 17
newly-added job classifications previously noted. Respon-
dent's negotiators were told, through NVEU's counsel, that
the workers concerned had been most patient, but that
management was being urged most strenuously to prepare
and distribute their retroactive paychecks as soon as
possible.
Attorney Goldstein had concededly demanded during
earlier bargaining sessions that any wage settlement
reached should be retroactive, and that checks covering any
retroactive payment should be issued as soon as possible
following a contractual consensus.
NVEU's counsel requested, further, that "everything
possible" should be done to insure that Respondent's
retroactive paychecks for covered workers would be issued
before the scheduled representation election. Fairless
replied, so I find, that the possibility of doing so would be
investigated and that he would see "what could be done"
regarding compliance with Goldstein's request. No firm
committment was made. But Charles Hass, Respondent's
director of general accounting and policy, did declare,
either during this meeting or even afterwards, that it was his
intent to get these retroactive checks to Respondent's
concerned workers as soon as feasible and prior to the
holidays.
14. Further preelection developments
In a bulletin dated December 13, distributed to
Respondent's production and maintenance workers, the
division' s management announced that "to encourage all
eligible employees to vote" during the forthcoming
representation election, every eligible employee voting
would receive a ticket for a lottery drawing. Four
merchandise prizes were to be awarded; the retail price
which each would normally command was stated, and was
compared with "one year's" UAW dues.
When the election was held, subsequently, those workers
who were present and eligible to cast ballots were provided
by their supervisors with double-stub lottery chance tickets,
with one stub marked for deposit within a receptacle or
receptacles located in Respondent's manufacturing build-
ing. The promised lottery drawing was held 1 day
thereafter.
The parties have stipulated that Respondent's bulletin,
dealing with this subject, was not, however, mailed or
NORTHROP CORPORATION 189
distributed to workers on sick leave or layoff, or otherwise
absent from the plant. Nor were any provisions made
whereby such workers would be provided with lottery
chance tickets should they present themselves, directly, at
designated polling places on the scheduled election date.
December 13 was Respondent's regular payday. When
the division's production and maintenance workers re-
ceived their regular paychecks that day they likewise
received a fictitious paycheck stub which contained a union
dues deduction notation. This entry was specifically
marked, with the following legend printed nearby:
This is the approximate amount which the UAW would
in all likelihood want us to deduct from your pay each
and every month if the UAW represented you. You
don't need to pay this amount to enjoy the benefits you
have here. Vote against this UAW tax on your family
earnings next Wed., Dec. 18, '68.
The so-called "prize" lottery bulletin previously noted
was followed, the next day, by a letter to Respondent's
employees from General Manager Gasich, detailing "one
of the biggest reasons" why he did not want UAW
representation for Respondent's workers; the reference was
to UAW's strike history, which Gasich summarized,
supporting his summary with an attached BNA special
project report listing UAW's strikes within a previous 2-
year period, plus relevant reproductions from two UAW
publications. Respondent's workers were reminded of
certain possible consequences, should UAW make
"unreasonable" demands which could only be "enforced"
through strike action. In closing, Respondent's general
manager noted once more his "hope" that Respondent's
workers would vote against UAW thereafter.
On Monday, December 16, Gasich delivered a speech to
2espondent's production and maintenance workers, gath-
;red within the Newbury Park facility's cafeteria. The
speech was based, so I find, upon a prepared text, which
Gasich had supplemented with certain marginal notes.
The speech was delivered twice, during each of Respon-
dent's two shifts. The present record contains testimony,
regarding its content, primarily from day shift workers.
This trier of fact is satisfied, however, that Respondent's
general manager delivered substantially the same speech
both times.
First, the division's general manager reaffirmed Respon-
dent's determination to honor its workers' choice; he
declared that Respondent would bargain in good faith with
whichever union they might select. Then, he denied that
Northrop was antiunion, adding that:
In a plant of this size, and with your past traditions, I
think you will probably want to continue to have a
union represent you. The question you will decide is:
which one . . . I feel that selecting the UAW would be a
very bad mistake [Emphasis in original].
Respondent's general manager referred once more to
UAW's previous suggestion that Respondent grant wage
increases before the election, but noted that organization's
refusal to give any written "waiver" of charges, coupled
with its failure to "get [Board] authority" regarding its
suggestion . In this connection, Gasich further declared
that:
The UAW says the NVEU contract is so good that it
should have defied the law and put it into effect for the
Production and Maintenance employees as well. Then
they go even further to say this will only be a "down-
payment" on what the UAW will get if it is elected.
Well, I would like to know why the Company should
make one bargain with one group of my fellow
employees, and a different bargain with another group.
Douglas has 2 unions, and its contracts are almost
identical. Why should I do differently?
Respondent's general manager denied UAW contentions
that Respondent was sponsoring NVEU's campaign; he
declared that he would not "endorse" the latter organiza-
tion. Nevertheless, he praised NVEU's leadership as
"people who have negotiated with my staff in a constructive
manner" fighting hard for what they thought was right, but
without slandering Respondent or trying to tear it down.
Gasich characterized the result as "the best contract and
highest wages" in Northrop history. Conceding that
Respondent's management was not perfect, and that the
Division's Newbury Park facility had problems, Respon-
dent's general manager noted, nevertheless, that the firm's
"T & 0" workers had had many similar problems; that
these problems had been discussed in bargaining negotia-
tions; and that many had been "eliminated" by NVEU's
contract. He decried the possibility that Respondent might
find itself in a situation "where a militant union from
Detroit like the UAW will try to bully the Company and
create hostility" where none had existed previously.
General Counsel has proffered testimony that Respon-
dent's general manager, during the course of his speech,
told each shift that, should UAW win the forthcoming
election, it would get no better contract than NVEU had
negotiated. This testimony, however, has not been credited.
Sometimes a witness ' personal "understanding" with regard
to the thought purportedly conveyed by a speaker becomes
his recollection of the spoken word. With due regard for the
record, considered in totality, this trier of fact is satisfied
that General Counsel's witnesses, in this connection, were
merely placing their subjective gloss upon Gasich's
conceded rhetorical comment that he could see no reason
why Respondent should strike a bargain with one employee
group and then make a different bargain with another
group. Whether Gasich's conceded comment, however,
should be considered, within its context, reasonably
calculated to interfere with, restrain , or coerce Respon-
dent's production and maintenance workers with respect to
their exercise of statutorily-guaranteed rights will be
considered, further, within this decision. The record
contains further testimony, proffered by two witnesses, that
Gasich, during his day-shift speech, stated Respondent
would not be run by Detroit, and that, should UAW
demand more than "he" could give, he would have no
choice but to close the Newbury Park facility's doors.
Respondent's general manager , however, denied any
deviation, save in certain minor respects, from his written
text. His denial is credited. Gasich's prepared text had
previously been drafted, preliminarily, with knowledgeable
professional help; Respondent's labor relations counsel,
further, was present while his speeches were being
delivered. When reviewed with due regard for these
circumstances, General Counsel's proffered testimony that
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's general manager, willy-nilly, departed from
his previously prepared remarks to project a crass, blatant,
clearly proscribed threat strains credulity. Further, nothing
within the present record would support a determination
that Gasich, personally, possessed the requisite authority to
make any plant-closure decision; lacking the power to do
so, he would hardly have been likely, within my view, to
proffer what could only have been considered a supereroga-
tory comment.
In closing , Respondent's general manager reaffirmed his
desire to keep Newbury Park a good place to work; he
requested the support of Respondent's workers in keeping
out the "Detroit dominated" Petitioner-Complainant
herein.
Likewise, on December 16, Respondent's management
distributed "Employee Change Notification Cards" to
some 140 so-called "Group B" workers, with a note
attached. The workers in question were told that their cards
showed their new pay rates, resulting from the December 10
negotiations previously noted. They were further advised
that their negotiated retroactive pay would be distributed
"this week" pursuant to plan.
The following day, December 17, Respondent's second
round of retroactive paychecks was, indeed, distributed to
these "Group B" workers. The date in question was not a
regular payday.
Retroactive checks for the first group of technical and
office workers covered by Respondent's contract with
NVEU previously negotiated had been distributed on
Thursday and Friday, December 12 and 13; the latter date
had been a regular payday for Respondent's workers.
This distribution coincided, so I find, with NVEU's most
ambitious and costly handbill distribution concerned with
the forthcoming election; the handbill in question dealt,
primarily, with Respondent's distribution of retroactive
paychecks, and was headed with a notation that "P & M"
workers would vote December 18 for theirs.
Further, on December 17, Respondent distributed, to
each Newbury Park production and maintenance worker
eligible to vote, through their supervisors, an olive-green
card picturing a simulated Federal Reserve Note with a
$2,100 denomination. The card, likewise, listed 21 employ-
ee "fringe" benefits. These were given a total stated value of
$2,100 yearly equivalent to $1.13 per hour worked.
Respondent's workers were, further, reminded,
"Remember, most of these benefits were negotiated with
your independent union" this legend being printed in large
type.
A review of the benefits listed reveals three; workmens
compensation, unemployment compensation and social
security, which derive from statutes . One, the rest period
provision, derives from a statute, so far as Respondent's
women workers are concerned, but constitutes a negotiated
benefit for male employees. One, suggestion awards,
designates a division sponsored program neither estab-
lished pursuant to, nor confirmed by, contract. Six compass
various facets of Respondent's unilaterally established
group health and medical insurance program, which prior
ONE and current NVEU contracts have merely incorporat-
ed by reference. Three designate benefits which Respon-
dent unilaterally provided, with mere contractual refer-
ences thereto. Six denominate benefits previously negotiat-
ed with ONE, and renegotiated with NVEU for Respon-
dent's technical and office workers. One, bereavement pay,
represents a fringe benefit newly-negotiated in NVEU's
contract.
Distributed at the same time and to the same employees
was a genuine Federal Reserve Note in the sum of $1, to
which Respondent's management had scotch taped 13
cents in coin. On the same date, Respondent's labor
relations department distributed a further memorandum,
detailing the history of a UAW-sponsored strike at
Northrop Nortromcs' east coast precision products facility,
and the consequent difficulties experienced by the UAW
local concerned.
15. The election
On December 18, the election was held. With approxi-
mately 675 eligible voters, 629 cast ballots; of these, 260
were cast for UAW-Petitioner, 314 were cast for NVEU,
and 12 were cast against both participating labor organiza-
tions , while 43 were challenged . Since NVEU, thus, fell one
vote short of bare majority designation , some disposition
would have to be made with regard to challenged ballots.
16. Subsequent developments
On December 24, before UAW's 5-working-days time
limit for filing election objections had passed, Respondent
distributed a so-called "Union Election Status Report" to
Newbury Park workers through supervision. Therein,
Fairless answered a purported series of worker's questions.
Regarding the possibility of retroactive paychecks before
Christmas, Fairless noted that Respondent could not
properly commence negotiations with NVEU pending its
formal certification; that UAW had 5 working days (which
would run until the close of day on December 26) within
which to file election objections; but that UAW could
"eliminate this wait" by waiving its right to file. About
Respondent's failure to grant a retroactive increase without
waiting for the election results to become final, Fairless
noted "some danger" that such unilateral conduct by
management would be considered an unfair labor practice.
Regarding a prospective contract with NVEU, however,
Fairless reiterated, among other things, Respondent's
previously-stated belief that, with regard to wage and
benefit provisions, it would not be right to negotiate one
bargain with one group of employees and a different
bargain with another.
Thereafter, within a January 2, 1969, bulletin distributed
to Respondent's workers, General Manager Gasich pointed
out that UAW's previously filed battery of election
objections and charges would stop Respondent from
"negotiating an improved contract" with NVEU for
production and maintenance workers. He characterized
Complainant-Petitioner's position as "this attempt by the
UAW to punish Northrop Ventura Employees for voting
against the UAW, "further declaring that the designated
organization was "trying to take from you the fruits of your
vote, injure the Company and deprive the hourly employees
of an improved new contract " Respondent's workers were
reassured, however, that, should these pending matters not
NORTHROP CORPORATION 191
be promptly resolved, the division would do "whatever is
necessary" to protect its economic well-being and that of its
employees.
Within a followup bulletin dated January 24, Gasich,
once more characterized UAW's currently pending objec-
tions and charges as "road blocks in the path of
negotiations" belying its claimed interest in making
retroactive wage and benefit increases available to
Respondent's hourly-paid workers.
On February 25, however, Respondent's general manager
did announce that wage and fringe benefit adjustments
would be made effective for Respondent's production and
maintenance workers. His announcement was confirmed
within a bulletin dated and distributed February 27; therein
the designated wage and fringe benefit adjustments were
described in detail. As described, they were subsequently
made effective March 3, 1969, retroactive to August 19,
1968. The designated adjustments compassed a general 6.4
percent wage increase, along with special skills adjustments,
retroactive to the designated date, plus a number of fringe
benefit changes promulgated prospectively.
Issues
With matters in this posture, General Counsel's Consoli-
dated Complaint, herein, presents a number of closely
related questions. Specifically, General Counsel, with
UAW support, presently contends, while Respondent
herein, with NVEU's concurrence, vigorously denies:
1. That Respondent committed Section 8(a)(1), (2)
and (3) violations when it recognized NVEU as
bargaining representative for a group of Newbury Park
technical and office workers and when it negotiated and
subsequently gave effect to a collective-bargaining
contract with that organization containing union
security and checkoff provisions drafted to cover such
workers since all this had been done while ONE, with its
substantial claim to continued representation of
Respondent's technical and office workers, was raising
a real question concerning their representation.
2. That Respondent's management-for the dual
purpose of countering UAW's campaign to win
representation rights for Newbury Park production and
maintenance workers, and concurrently securing
NVEU's entrenchment as their bargaining representa-
tive, actively supported the latter organization's repre-
sentation campaign: (a) by publicizing various written
and oral announcements reasonably calculated to
reveal its representational preference; (b) by notifying
its production and maintenance workers that, through
NVEU's negotiations with Respondent, they had been
granted an improved Thanksgiving holiday schedule;
(c) by granting retroactive wage and fringe benefit
adjustments to Respondent's technical and office
workers, with respect to whom NVEU's representative
status had been recognized, while concurrently notify-
ing its Newbury Park production and maintenance
workers that comparable increases and benefit adjust-
ments could not be granted them because of UAW's
campaign; (d) by notifying Respondent's production
and maintenance workers that, even should they vote
for UAW representation, Respondent would not
negotiate wage and benefit changes, with that labor
organization, more favorable than those already
provided in NVEU's current contract; (e) by distribut-
ing retroactive paychecks to technical and office
workers whom NVEU purportedly represented 1 day
before the scheduled representation vote for Respon-
dent's production and maintenance workers; and (f) by
declaring that retroactive wage increases for these
production and maintenance workers would be with-
held, thereafter, pending a final resolution of represent-
ation questions which UAW's petition and subsequent
filings had previously raised.
3. That Respondent' s management, during this pen-
od, refused to allow ONE President Kniffen permission
to devote his full working time to administering ONE's
contract, because he and his organization were
purportedly failing and refusing to support Respon-
dent's effort calculated to counter UAW's organization-
al campaign within Newbury Park's production and
maintenance bargaining group.
Considerable testimony and documentary material will be
found, within the present record, proffered both to support
and rebut UAW's contention that for various reasons the
representation election result herein should be vacated.
With respect to certain conduct charged to Respondent's
management and various lower-level supervisors, in this
connection determinations could conceivably be consid-
ered warranted that unfair labor practices were committed.
Respondent's counsel, however, strenuously contends that
UAW's presentation, specifically proffered in support of its
representation case objections herein, cannot properly be
considered a predicate for unfair labor practice determina-
tions beyond those which General Counsel's Consolidated
Complaint, fairly construed, would require. To forestall the
possibility that supplementary unfair labor practice find-
ings might be made, counsel moved, while the present
hearing was in progress, that UAW's testimonial presenta-
tion should be completely precluded, since "otherwise" the
Complainant Union-Petitioner would be permitted to
prosecute, under the guise of proving its basis for
objections, further unfair labor practices which General
Counsel had not, herein, set forth to plead and prove. This
motion, when made, was rejected; my determination with
respect thereto is reaffirmed. Respondent's counsel has,
however, been reassured that UAW's record presentation,
specifically that portion proffered to support its representa-
tion case objections herein, would not be considered a basis
for supplementary unfair labor practice determinations,
beyond those required to resolve General Counsel's specific
contentions, fairly pleaded.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Review and Conclusions
A. Respondent 's Conduct Affecting Technical and
Office Workers
1. Respondent's decision to grant NVEU
recognition
a. Was respondent confronted with substantial rival
claims?
Comparatively few principles can be considered more
firmly established, within the field of labor relations law
than the statutory obligation of concerned employers to
maintain positions of strict neutrality when faced with
conflicting representation claims presented by two or more
rival unions, which have created a real question concerning
representation, within a unit appropriate for collective-
bargaining purposes. Midwest Piping & Supply Company,
Inc., 63 NLRB 1060. Decisional doctrine, first formulated
within the cited case and reaffirmed since with judicial
concurrence, teaches that firms confronted with such
conflicting representation claims violate Section 8(a)(2) and
(1), should they recognize or negotiate a contract with a
concerned labor organization before its right to be
recognized has been determined finally under those special
procedures which the statute provides.
The concept of neutrality with which we are here
concerned, however, necessarily derives from a preliminary
determination that rival representation claims have, indeed,
given rise to some real representation questions. And
decisional doctrine teaches, in this respect, that the filing of
a formal representation petition by one or more of the rival
claimants, something never undertaken herein, so far as
Respondent's technical and office workers are concerned,
may not be considered a sine qua non with respect to raising
a genuine representation question. Novak Logging Compa-
ny, 119 NLRB 1573, 1574, fn. 4, and cases therein cited;
Compare American Bread Company, 170 NLRB No. 20, in
this connection. Most significant, rather, is the character of
the rival claim.
The present record, within my view, clearly warrants a
determination that the situation which Respondent con-
fronted on August 19, with respect to conflicting represent-
ation claims for Newbury Park's technical and office
workers, commanded strict neutrality. Further, well settled
decisional doctrine dictates a conclusion, within my view,
that Respondent's duty to maintain such neutrality was,
herein, breached.
First: There can be no doubt that, when ONE's contract
terminated and notice regarding NVEU's recognition
demand reached management, Respondent was confronted
with rival labor organizations. The division's counsel
contends, with NVEU's vigorous support, that when ONE's
contract ended and Respondent's contractual obligations
with respect to dues checkoff for that organization ceased,
nothing remained but a shell, lacking any desire or capacity
to deal further with Respondent's management as collec-
tive-bargaining representative for Newbury Park's so-called
"T & 0" workers. The contention must be rejected. True,
ONE's leadership had formally declared their organiza-
tion's refusal to contest UAW's representation claim, but
merely with respect to Respondent's production and
maintenance workers. That decision, following hard upon
some lengthy discussion within ONE's directorate, disputa-
tion, and division within the organization's membership,
consultation with legal counsel, and participation in
UAW's vigorously contested representation case proceed-
ing, had clearly disenchanted many ONE members,
sparking NVEU's formation meanwhile. No concrete steps
looking toward ONE's formal dissolution had, however,
been taken.
During the organization's July membership meeting,
Treasurer Leonard Estes did declare that a court would
decide the disposition of whatever money might be left in
the treasury following the forthcoming "P & M" represent-
ation vote. So far as the record shows, however, this was
merely a personal statement. ONE's bylaws provide that
"all corporate powers" shall be exercised by the organiza-
tion's board of directors; these powers would presumably
compass, among others, the power to vote dissolution.
Respondent's management had been notified, in ONE's
June 17 letter, that the latter did "intend to sign" whatever
contract might result from forthcoming negotiations, after
the UAW's representation case, then pending before the
Board's Regional Director herein, was settled; no formal
notice disavowing that intention was subsequently sent or
received. True, Respondent's management representatives
did receive various hearsay reports and rumors, coupled
with statements from concerned workers, between June 13
and August 19 specifically, that ONE would not contest
UAW's representation claim within a bargaining unit
confined to production and maintenance workers; that
some workers were curious regarding "what would happen"
with respect to ONE's treasury, should that organization
cease to function; and that President Kniffen had
characterized their August 16 membership meeting as
ONE's last. No factual determination would be warranted,
however, that Respondent's management ever learned,
from presumptively authoritative sources, that ONE's
dissolution or disbandment, de jure or de facto, was
contemplated. The reverse, rather, was true. Within
President Kniffen's August 15 letter, Respondent was told
that ONE would continue to represent "all of its members"
beyond their contract's termination date, so far as law
might permit. This statement of purpose was reaffirmed, so
I have found, during ONE's August 19 conference with
Respondent's management representatives. No one pres-
ent, so far as the record shows, then raised any question
whatsoever regarding ONE's continued viability. Rather,
ONE's so-called "residual vested rights" with regard to
processing certain still unresolved grievances, were tacitly
conceded. And in Counsel Powell's August 19 letter,
dispatched to ONE's president, those residual vested rights
were specifically acknowledged; the organization's willing-
ness and capacity to function were nowhere questioned.
With matters in this posture, Respondent's present
contention, that management had reasonable grounds to
consider ONE legally "defunct" following the develop-
ments noted herein, merits characterization as strained.
Second: Respondent's management was, indeed, con-
fronted with conflicting claims, regarding the representa-
tion of Newbury Park's technical and office workers.
NORTHROP CORPORATION 193
NVEU's claim , defined within its August 16 letter, was
patent; we are concerned, herein, with ONE's demand for
continued recognition. That demand, with respect to
divisional workers not compassed, presumptively, within the
bargaining unit defined in UAW's recently filed representation
petition, had certainly been subsumed, though not specifi-
cally presented, in Kniffen's June 17 letter. During the
parties' June 27 conference, further, ONE's demand had,
likewise , been prefigured.
Previously, within this decision, Kniffen's June 26
comment regarding his organization's desire to represent
Respondent's so-called "T & 0" workers, and to begin
contract negotiations in their behalf, has been characterized
as precatory and conditional. The record will not, within
my view, really support General Counsel's contention that
Kniffen was , then, definitively claiming ONE still repre-
sented a specifically designated group of technical and
office workers; Respondent's director of industrial relations
was being told, rather, that ONE's leadership planned to
predicate such a claim , thereafter, upon newly-signed
designation cards. Conceivably, some contention might be
made post facto, that Kniffen lacked any properly
cognizable right to make such a representation, since the
designation card campaign then underway had rank-and-
file sponsorship; the fact remains, however, that ONE's
desire to maintain its representative status for technical and
office workers was reaffirmed.
And Fairless' reply, previously noted, reflects Respon-
dent's tacit concession , within my view, that, should ONE,
thereafter, present a definite, properly-grounded, recogni-
tion demand covering technical and office workers, the
requested recognition might be granted. By August 15,
however, following NVEU's formation, ONE's recognition
demand could no longer be predicated upon signed
designation cards; the rank-and-file group responsible for
their circulation had long since shifted course, becoming
NVEU supporters. Nevertheless, Kniffen's August 15
letter , previously noted, reiterated ONE's "present inten-
tion to continue to represent those of our members" who
might be excluded from a prospective bargaining unit
limited to Respondent's production and maintenance
workers. And this demand, so I have found, was verbally
reaffirmed when ONE representatives confronted Respon-
dent's management , during their August 19 conference.
The present record, within my view, fully warrants a
conclusion , therefore, that ONE's finally formulated
position constituted a specific demand for recognition,
timely and properly presented, with respect to Respon-
dent 's workers, previously compassed within a bargaining
unit which ONE had historically represented, who would
presumably be denied representation within the bargaining
unit with respect to which UAW was seeking certification.
Third: The group of workers with which we are now
concerned, subsumed generally within the designation
"technical and office workers" quoted throughout this
Decision , clearly constituted and still constitute a unit
appropriate for collective-bargaining purposes. General
Counsel, within his Consolidated Complaint, so contends;
Respondent and NVEU, within their respective responsive
pleadings, so concede.
Well-established decisional doctrine teaches that con-
flicting claims by rival labor organizations give rise to real
questions concerning representation only when they
concern workers within units which may properly be
deemed appropriate for collective-bargaining purposes. See
William Penn Broadcasting Co., 93 NLRB 1104, 1106, in
this connection.
These workers, save for certain secretarial classifications
with respect to which ONE had never previously been
granted representational rights, constituted the complete
residual group, previously compassed within the historical
bargaining unit herein, which would presumptively be
denied representation within a bargaining unit limited to
Newbury Park's production and maintenance workers.
When ONE's contract terminated, some classifications,
("Group A"), which would fall within this residual group
were known; their exclusion from a prospective production
and maintenance unit had been stipulated during the
recently completed representation case hearing. Regional
Office determinations regarding the prospective unit
placement of some 30 so-called "gray area" classifications,
("Group B"), were pending. With respect to both groups,
however, ONE's timely demand for continued recognition
was comprehensive; no differentiation in Northrop-Ventu-
ra's response was requested. NVEU did demand, in its
August 16 letter, immediate recognition as collective-
bargaining representative for Respondent's workers hold-
ing "Group A" classifications, while proffering a deferred
request, with respect to "Group B" workers, which
Respondent would be expected to grant following that
group's final definition. There can be no doubt, neverthe-
less, that NVEU's request for two-step recognition reflected
no subdivided unit concept, but derived from presumptive-
ly practical considerations merely. Throughout the period
with which this case is concerned, so I find, the latter
organization did consider both groups within a single
appropriate bargaining unit with respect to which "Group
B" classifications would constitute a so-called "accretion"
when ultimately designated.
With matters in this posture, we reach the most
significant question which this phase of General Counsel's
case presents: Did ONE's claim for continued recognition,
when countered by NVEU's card-supported representa-
tional claims herein, create a real question concerning
representation? This Board has held that:
an employer does not violate the Act by extending
recognition to one of the competing unions where the
rival union's claim is clearly unsupportable or specious,
or otherwise not a colorable claim... .
Under such circumstances, so the Board has declared, no
real question concerning representation can be found. The
Boy's Markets, Inc., 156 NLRB 105, 107; The Sinclair
Manufacturing Company, 178 NLRB No. 29. That situation,
so counsel for both Respondent and NVEU contend, must
be considered present here.
Supporting his contention that ONE's claim should be
considered substantial rather than specious, General
Counsel notes, first, that organization's contractually
"incumbent" status when its claim for recognition, with
which we are here concerned, was initially presented. It is
well settled, so General Counsel contends, that contractual-
ly incumbent labor organizations, as such, have
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"substantial" claims to representation . Air Master Corpora-
tion: 142 NLRB 181 , 188; see , particularly , cases cited at fn.
35 there . He would rest , presumably , upon ONE's recent
contractually recognized status, which no one herein
disputes . Recent Board decisions within this field of law,
however , suggest that mere contractual incumbency status,
current or recent , may no longer render a representation
claim , per se, substantial . The Sinclair Manufacturing
Company, supra; Teramana Brothers Coal Mining Company,
173 NLRB No . 93; White Front Sacramento, Inc., 166
NLRB No. 29; The Boy's Markets, Inc., supra. When
representation claims derive from a currently effective
contract , such claims must be rationally supportable and,
therefore , colorable. Compare White Front Sacramento with
Boy's Markets in this connection . With respect to claims
deriving from recently terminated contracts , or from
certifications not followed by contractual recognition
during the certification year thereafter , some current
"representative interest" must still be present. Such a
putative representational interest , however , requires no
showing of majority status. Compare Teramana Brothers
and Sinclair Manufacturing, previously cited . The record
herein , clearly, presents the situation last designated. Upon
due consideration , nevertheless , this trier of fact is satisfied
that ONE 's representative interest within the so-called "T &
0" group during the crucial period which preceded and
directly followed its contract termination , though General
Counsel may not, properly , bottom his contentions with
respect thereto upon the organization 's recent contractual
incumbency merely, has been , prima facie, demonstrated.
That demonstration , within my view , derives from a
rebuttable presumption of continued representative inter-
est, buttressed with positive testimony, which Respondent
and NVEU have not persuasively rebutted.
When a contractual incumbent labor organization,
whether previously certified or merely recognized , charges
a respondent-employer with a refusal to negotiate regarding
a replacement contract , this Board has consistently held
that , absent special circumstances , the complainant union
enjoys a nonrebuttable presumption that its majority status
continues for 1 year from any relevant certification date.
Thereafter , the presumption is rebuttable ; but the con-
cerned respondent-employer , before he can win a determi-
nation that his refusal to bargain was lawful, must
demonstrate by objective considerations that he has some
reasonable grounds for belief that the majority of workers
within the bargaining unit no longer desire union
representation . Nu-Southern Dyeing & Finishing, Inc., 179
NLRB No. 96, fn . 1; Terrell Machine Co., 173 NLRB No.
230, enfd . 73 LRRM 2381 (C.A. 4); Valleydale Packers,
Inc., 162 NLRB 1486, enfd . 482 F .2d 768 (C.A. 5);
Laystrom Manufacturing Co., 151 NLRB 1482, 1484,
enforcement denied on other grounds , 359 F.2d 799 (C.A.
7). See also N. L.R.B. v. The Frick Company, 73 LRRM 2889
(C.A. 3); N.L. R.B. v. Gallaro Brothers, 73 LRRM 2043
(C.A. 2); N.L.R.B. v. The Little Rock Downtowner, Inc., 414
F.2d 1084 (C.A. 8); N.L. R.B. v. Gulfmont Hotel Company,
362 F .2d 588 (C.A. 5). Cf. United States Gypsum Company,
157 NLRB 652; Celanese Corporation ofAmerica,95 NLRB
664, 671-673. The burden of proof , therefore , regarding any
contention that such reasonable grounds for belief were
present, necessarily falls upon the respondent-employer
charged. Further, the respondent-employer charged must
show that the complaintant union lost its majority status
within a factual context free of employer conduct
calculated to cause disaffection. See Fremont Newspapers,
Inc., 176 NLRB No. 63 Firestone Synthetic Rubber & Lattex
Company, 173 NLRB No. 179, in this connection. The
Board's policy, underlying this long and unbroken line of
precedent, has been persuasively stated: Were employers
considered free to withdraw recognition from a contractual
incumbent union pursuant to their unrestricted discretion,
without any requirement that they demonstrate some
reasonable factual basis for doubting that union's contin-
ued support, long established bargaining relationships, and
the collective rights of workers derived from them could be
groundlessly interrupted, while as a direct result, industrial
peace could be seriously jeopardized.
Regarding the present consolidated case, this Board's
previously noted decisional doctrine, that a contractual
incumbent's continued representation claims merit a
respondent-employer's consideration as substantial despite
the fact that they may have been countered with timely
presented rival claims, derives from comparable policy
considerations. The doctrine, therefore, may reasonably be
considered bottomed upon a comparable rebuttable
presumption. And, consistently, the decisional principle
comparably relevant herein may, within my view, reason-
ably be restated as follows: Employers confronted with
conflicting representation claims within units appropriate
for collective-bargaining purposes, where one claim reflects
a contractual incumbent's demand for continued recogni-
tion, may not lawfully undertake to resolve for themselves,
questions with regard to representation raised thereby,
particularly by recognizing the contractual incumbent's
rival, unless their resolutions take place within a context
free of unfair labor practices, and unless such resolutions
are supported by demonstrably objective considerations
sufficient to provide reasonable grounds for belief that the
contractual incumbent no longer possesses a properly
cognizable representative interest within the bargaining
group concerned. Compare Shea Chemical Corporation, 121
NLRB 1027, 1029. Measured by this standard, Respondent
herein has not, within my view, sustained its burden; the
"presumption of continued representative interest" for
which General Counsel really herein contends has not been
persuasively countered.
Respondent contends, substantially, that ONE herein,
during the period with which we are now concerned,
possessed no properly cognizable representative interest
because it was, realistically moribund or defunct. The
record, however, will not support such a conclusion. True,
some Newbury Park workers may have publicly verbalized
their concern regarding the possibility that ONE's leader-
ship might consider winding up that organization's affairs.
Such concern, however, derived so the record shows from
nothing more than speculative projections, based upon
statements made during June 1968 membership meetings,
that ONE would not "fight" UAW's representation claim
covering production and maintenance workers, coupled with
further statements by ONE's attorney suggesting that,
within his view, residual technical and office workers would
NORTHROP CORPORATION 195
no longer be represented. Further, these expressions of
concern though some may have been voiced by ONE
officers or directors, were nonofficial. When ONE's
contract was terminated, that document's union-security
and checkoff provisions did, likewise, become inoperative;
as a result , the organization did, concededly, lose previously
assured financial support.
Whether it lost members may be a disputable question.
ONE's bylaws designate weekly dues payments as that
organization's sole membership obligation. However, no
automatic suspension for dues delinquency is prescribed.
Nonpayment of dues merely constitutes a ground for
charges; such charges, following a hearing, may constitute a
basis for suspension or expulsion. Thus, despite my
determination, previously noted, that President Kniffen did
not specifically promise ONE's members any dues amnesty
during the August 16 meeting their retention of member-
ship status regardless of their possible failure to maintain
future dues payments seems to be theoretically possible.
For present purposes, the question need not be decided.
Nevertheless, the fact remains that until ONE's contract
termination date all Newbury Park's technical and office
workers, within the contract unit, remained paid-up ONE
members. Further, the record shows that some ONE
members, albeit a small number, did pay their September
dues voluntarily. Thereafter, beginning on September 11,
after a September 5 NVEU-sponsored distribution of forms
drafted to constitute ONE membership resignations,
President Kniffen received merely 80 signed resignation
forms from some 790 workers, within the comprehensive
bargaining unit for which ONE had previously been
recognized . No more than 19 of these, so Kniffen credibly
testified, were received from workers holding "T & 0" job
classifications. ONE's board of directors continued to meet,
albeit somewhat irregularly and without formality. Follow-
ing a 4-month lapse, further membership meetings were
scheduled and held. New officers were nominated and duly
designated; though certain proper steps, prescribed in
connection therewith, may not have been taken in timely
fashion, the process was, finally, completed. Most signifi-
cantly, however, Respondent' s management did continue
to deal with ONE's leadership following NVEU's recogni-
tion while processing to conclusion three grievances which
had still not been resolved by ONE's August 18 contract
termination date. With matters in this posture, Respondent
can hardly contend, persuasively, that ONE, throughout
the period with which we are now concerned, clearly lacked
any representative interest among Newbury Park's techni-
cal and office workers.
Respondent's further contention, that no real question
concerning representation remained pending, when NVEU
was first granted recognition, because any such question
which might have been present had been completely
resolved by Reverend Rehnberg's cardcheck, must likewise
be rejected, for several reasons.
First: Respondent's claim misconceives the nature of the
present litigation. We are not concerned, herein, with a
majority issue , but with a possible assistance question. The
gravamen of General Counsel's present charge is that
Respondent's management, themselves, unlawfully deter-
mined the majority issue concerning its so-called "T & 0"
workers in the face of ONE's timely presented claim for
continued recognition. If respondent-employers find them-
selves confronted with rival claims sufficient to establish a
real question concerning representation, the majority issue
can only be resolved, properly, following the free choice of
the workers concerned, revealed through a secret ballot.
The quantity or quality of whatever alternative evidence
Respondent may have chosen to rely upon, therefore, lacks
relevancy; the presentation of rival claims by ONE and
NVEU makes their validity the very question at issue, and
not something which Respondent can, on its own,
determine. See Peter Paul, Inc., Case 20-CA-5000, (TXD.)
in this connection.
Second: Respondent's contention really begs the ques-
tion. Since NVEU did, so counsel' s argument runs, produce
a designation card majority, finally, within a truncated
group of technical and office workers with "Group A"
classifications, determination should be considered war-
ranted that no real question concerning representation,
with respect to Respondent's technical and office workers,
had previously been presented. The record shows, however,
that ONE's August 15 representation claim reached
Fairless before NVEU's recognition demand; Counsel
Powell's August 19 reply, which specifically rejected ONE's
claim for Newbury Park's technical and office workers,
bottoming that rejection upon purportedly "reliable
information" which indicated that a so-called vast majority
of the workers' group designated had become NVEU
supporters and no longer desired ONE representation, was,
concededly, dispatched before any consensus whatever
regarding the card count procedure, upon which Respon-
dent would now rely, had been reached. Respondent's
purportedly "reliable information" relative to NVEU's
majority status, then, derived from nothing more than
Attorney Goldstein's flamboyant production of some 500
signed designation cards during the previously concluded
representation case hearing, coupled with his challenging
declaration that such cards would demonstrate NVEU's
majority status within "any unit" which might be found
appropriate, therein, for collective-bargaining purposes.
Nothing within the present record, however, would warrant
a conclusion that NVEU's July 22 stack of designation
cards compassed a majority of Respondent's technical and
office employees, working on that date, or that Respon-
dent's management had reasonable grounds for belief that
it did compass such a majority. Before Reverend Rehn-
berg's card-check, so far as the record shows, these cards
had never been reviewed, segregated , or counted on the
basis of their "P & M" or "T & 0" classifications. This trier
of fact notes, further, that NVEU's cards were produced in
connection with a representation proceeding wherein the
scope of UAW's proposed production and maintenance
bargaining unit would be determined. Within such a
context, Goldstein's claim , previously noted, was really
nothing more than a claim that NVEU's cards would
compass a worker majority within any conceivable "P &
M" group which might be found appropriate, thereafter, for
collective-bargaining purposes.
Confronted with Goldstein's declaration, which inciden-
tally, was made off the record, ONE's president, so far as
the record shows, said nothing. Respondent's counsel
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have this Board deduce from Kniffen's silence that
ONE could not have challenged Goldstein's claim. Further,
so counsel's argument runs, those present when the claim
was made were privileged to conclude, from Kniffen's
silence, that NVEU's majority status was being, sub silentio,
conceded. This line of argument, however, fails to
persuade. Within the context of formal representation
proceedings concerned with production and maintenance
workers, ONE's president faced neither a legal nor practical
necessity to counter Goldstein's declaration. His silence,
therefore, reflected no concession. Further, such silence,
maintained despite Goldstein's broadly-stated majority
claim regarding a prospective production and maintenance
unit, could not, reasonably, have been considered a tacit
concession that NVEU, likewise, represented a majority of
Respondent's technical and clerical workers.
With matters in this posture, Respondent's contention
that any "question concerning representation" which the
rival claims herein may conceivably have raised became
fully resolved before NVEU was recognized can hardly be
deemed persuasive.
Third: Respondent's contention, that NVEU's proffered
"Group A" designation cards, when cross-checked with
reference to relevant personnel rosters, resolved the
representation question, lacks merit. This Board has noted
several times that dual designations are common when two
labor organizations are competing for representative status;
with respect to such situations, the Board has held that
designation cards constitute a notoriously unreliable
method for determining a labor organization's majority
status. Midwest Piping and Supply Company, supra, p. 1070;
Sunbeam Corporation, 99 NLRB 546, 551; Novak Logging
Company, supra, 1574-1575. Further, this Board has held,
specifically, that, with respect to competing union situa-
tions, the numerical percentage of workers which one of the
contending labor organizations purportedly represents does
not foreclose the existence of a real representation dispute,
so as to privilege a premature recognition. See Higgins
Industries, Inc., 150 NLRB 106, 119. The present record,
particularly, calls for such a determination, within my view.
Respondent, though on notice that ONE and NVEU were
rivals with respect to so-called "T & 0" representation,
made no effort to determine ONE's representative status;
NVEU was, however, recognized, pursuant to Reverend
Rehnberg's card count, without a question raised regarding
the authenticity of that organization's proffered card
signatures. See Teramana Brothers Coal Mining Company,
173 NLRB No. 93 in this connection.
Fourth: Respondent's management, so I have found,
cannot realistically claim reasonable justification for its
presumptive view that NVEU's designation cards clearly
reflected their signers' desire to be represented by that
organization, within a separate bargaining unit limited to so-
called technical and office workers. Within his brief,
UAW's counsel notes cogently that NVEU was first
organized during July 1968 specifically for the purpose of
challenging UAW's representation claims, within a prod-
uction and maintenance worker's unit which had not yet been
specifically defined. Further, NVEU's designation cards
seem to have been solicited, principally, before the concept
of separate representation for technical and office workers
clearly developed.
President Kniffen's patent June 26 comment regarding
this possibility has previously been noted. The conception,
however, does not seem to have been widely shared. There
can be no doubt that Respondent's rank-and-file workers,
then busily soliciting ONE designation cards, were really
desirous of preserving a single , plant-wide, unit with both
"P & M" and "T & 0" workers compassed therein.
With matters in this posture, there can be no doubt that
Respondent's workers, when they were solicited to sign
NVEU designation cards, were essentially being requested
to signify their desire for representation through a local,
independent union, rather than some national labor
organization. NVEU's cards, therefore, could not reason-
ably have been construed as revealing their rejection of
ONE representation within a conceivable bargaining unit
limited to technical and office workers. Certainly, Respon-
dent's management could not realistically consider such
cards reliably reflective of Newbury Park worker prefer-
ences , choosing between NVEU and ONE particularly. In
short , Respondent 's management could not , reasonably,
consider NVEU's cards "reliable information" sufficient to
resolve the specific representation question concerning "T
& 0" workers with which they were confronted.
Respondent contends, further, that Newbury Park's
management was privileged to consider ONE's claim
"clearly unsupportable or specious" because it was really
nothing more than a calculated ploy conceived pursuant to
UAW's suggestion; proffered without a hope that recogni-
tion would be granted; relegated to limbo promptly
thereafter without serious protest; and revived subsequent-
ly merely to provide collateral support for UAW's currently
pressed representation election contest.
These contentions, within my view, lack merit. First: I
note that ONE's August 15 claim letter antedated NVEU's
recognition demand; the present record, further, will not
support determination that ONE's letter was drafted or sent
merely to counter some foreseen or foreseeable NVEU
recognition demand covering technical and office workers
herein. Respondent's counsel, therefore, can hardly con-
tend, persuasively, that ONE's claim was proffered merely
to forestall some prospective NVEU success. Second:
Respondent cannot contend responsibly that ONE's
previously revealed posture warranted management's
rejection of Kniffen's August 15 letter as nothing more than
sham . In this connection , of course , Respondent presuma-
bly would have this Board note the remarks of Attorney
Friedman during ONE's two June membership meetings;
Friedman did suggest, first, that ONE'S membership,
within his view, would be well advised not to contest
UAW's representation campaign for production and
maintenance workers, and, secondly, that following
ONE's contract termination the division's technical
and clerical workers would, presumably, go unrep-
resented. The record, however, will clearly warrant a
conclusion that Friedman's last noted remark reflected his
legal opinion merely; no decision, chargeable to ONE's
leadership, reveals any formal relinquishment of that
organization 's claim to represent so-called "T & 0"
workers. President Kniffen's June 27 comment, rather,
NORTHROP CORPORATION 197
suggests his readiness to proceed, via the petition route, for
the purpose of establishing ONE's majority status; the fact
that ONE thereafter shifted the stated basis upon which it
was claiming representative status does not, within my
view, warrant a determination that the claim, when
presented finally, was totally lacking in substance. Third.-
Though, concededly, ONE filed no petition for certifica-
tion, covering a proposed bargaining unit of technical and
office workers, following Respondent's August 19 rebuff,
such a failure to file provides no persuasive support for
Respondent's retrospective contention that ONE's presi-
dent had knowingly proffered a baseless claim. Previously,
within this decision, reference has been made to well settled
doctrine that a claimant organization's failure to file a
petition for certification will not preclude a determination
regarding the presence of a real question concerning
representation. Higgins Industries, Inc., supra, Air Master
Corporation, supra,, Novak Logging Company, supra. Re-
spondent's management representatives, therefore, cannot
claim privilege with respect to their rejection of ONE's
repeated recognition demand, merely because no petition
for certification followed. Within his brief, General
Counsel notes cogently that Respondent's management,
itself, could have readily called into play the statutory
election machinery. See N.L.R.B. v. Signal Oil and Gas
Company, 303 F.2d 785, 788 (C.A. 5), fn. 3, in this
connection. Therein the court noted that:
An employer who is faced by rival claims can both
protect himself from possible unfair labor practice
findings and speedily bring an end to the stalemate in
the. bargaining process, for Section 9(cXl) of the Act
empowers him to file a petition for an election under
such circumstances.... Furthermore, until the Board
determines that a question concerning representation
does not exist, an employer faced with "possible legal
jeopardy under the Midwest Piping doctrine" can refuse
to bargain with the incumbent union without violating
its duty to bargain under Section 8(a)(5).
Respondent, therefore, lacks requisite standing to com-
plain, currently, that ONE's failure to file a representation
petition herein reflected some consciousness that a
recognition claim bottomed upon representative interest
would be found lacking in substantiality.
In this connection, Respondent contends, further, that
ONE's more recent history retrospectively reveals the
specious quality suffusing the organization's August
15/August 19 claims for continued recognition. The present
record, however, does not, when considered in totality,
support Respondent's position. True: documentary eviden-
ce, together with testimony, has been proffered which
would probably warrant determinations that President
Kniffen, when told that Respondent's management would
recognize NVEU following its first recognition demand,
made no protest; that he never, thereafter, reiterated ONE's
claim,; that ONE's leadership lodged no subsequent protest
when Respondent's management committee, together with
NVE1J's representatives, began contract negotiations; that
no gauntlet was thrown, or question raised, either when
NVEU's contract was consummated or when it was later
revised. Further, determination might well be considered
warranted that ONE's regular monthly membership
meetings were thereafter suspended ; that voluntary dues
collections fell off significantly ; that ONE's treasury
dwindled . The record, fairly construed, likewise suggests
possible determinations that ONE's chief steward was
never directed to continue servicing Respondent 's technical
and office workers , and that ONE's postcontract financial
disbursement reflects no significant representative func-
tions discharged . Nevertheless , Respondent's management
representatives cannot contend , persuasively , that these
subsequent developments , suggesting ONE's drift toward
innocuous desuetude provided their reasonable ground for
belief that ONE's claim, when made, lacked any good-faith
justification . Further, conceding , for argument's sake, that
ONE's postcontract course did reflect a significant loss of
vitality, responsibility for such loss must , within my view,
largely be laid at Respondent's door . Having rejected
ONE's claim for continued recognition with respect to
Newbury Park's technical and office workers , Respondent's
management necessarily deprived that organization's
leadership of whatever raison d'etre their claim had been
calculated to preserve. Respondent cannot , therefore,
reasonably contend now that post hoc developments with
respect to which it may properly be held responsible
retrospectively validate its prior conduct , challenged herein.
With matters in this posture , determination is found
warranted that Respondent herein , when it granted NVEU
recognition as collective-bargaining representative for a
designated group of technical and office workers, and when
it negotiated and maintained a collective-bargaining
contract with that organization covering the workers
designated at a time when ONE by virtue of its substantial
"representative interest" claim had raised a real question
concerning representation, violated Section 8(a)(1) and (2)
of the Act, as amended.
b. Was NVEU granted recognition within a proper
unit?
This Board has held that rival representation claims,
when presented , create no duty to refrain from selfhelp with
respect to their resolution unless they possess a character
and timeliness which raises a real question concerning
representation . William Penn Broadcasting Company, supra.
And within the cited case , the Board noted, in this
connection, that:
The existence of such a question concerning representa-
tion is determinable by applying the same criteria,
contemplated in Section 9 of the Act , that are uniformly
applied by the Board in finding a "question of
representation" before proceeding to an election. One
of the essential elements for a determination that such a
"question" exists is that the petitioning union , seeking
to displace an incumbent , assert its claim to an
appropriate unit of employees . [Emphasis in original.]
The decision quoted , therefore, concludes that employer-
respondents , when confronted with rival representation
claims , may, without running afoul of the statute, disregard
claims encompassing merely a segment of some worker's
group which this Board would , within a proper case, find
appropriate for collective -bargaining purposes. Such
claims , since they raise no real representation question,
creat no Midwest Piping duty requiring the maintenance of
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strict neutrality. And conversely when employers thus
confronted choose to grant one claimant labor organization
recognition, within some "inappropriate grouping of a
minority of the employees" properly concerned, while
concurrently refusing to bargain with their duly designated
majority representative within some larger, more inclusive,
bargaining group necessarily provide the recognized
claimant with statutorily-proscribed assistance and support
thereby. This Board has so held. Eastern Massachusetts
Street Railway Company, 110 NLRB 1963, 1966-67;
compare Tower Iron Works, Inc., 150 NLRB 298, 302-303,
in this connection.
These cases, within my view, provide a supplementary
alternative justification for my conclusion that Respondent
herein, when it rejected ONE's claim for continued
recognition, and concurrently granted NVEU prompt
recognition for so-called "Group A" technical and office
workers, violated the statute.
The present record, clearly, requires a determination that
Respondent's workers with "Group A" job classifications,
when NVEU first claimed representative status with respect
thereto, constituted "merely a fraction" within a larger
group of Respondent's technical and clerical personnel.
The Regional Director's representation case decision
refers to some 320 workers listed on Respondent's technical
and clerical roster. Within this comprehensively defined
group, 79 workers held so-called "Group A" classifications
when NVEU's demand with respect thereto was presented.
Previously, within this Decision, reference has been made
to Newbury Park's historical bargaining unit. That
contractually defined group, though it did not encompass
Respondent's professional, confidential, or managerial
personnel, did include production and maintenance
workers, together with technical and office personnel,
within a single , plantwide unit deemed appropriate for
bargaining purposes. Necessarily, therefore, when UAW's
representation petition was filed seeking certification
within a limited "P & M" bargaining unit the division's
presumptively excluded technical and office workers were
slated to become a so-called "residual" group, which
Complainant Union-Petitioner or some other labor organi-
zation which might be certified following a Board-conduct-
ed election would not, thereafter, represent. Within this
larger class of prospectively "unrepresented" workers, those
with so-called "Group A" classifications constituted neither
a separate homogeneous craft group with special skills, nor
a functionally distinct department. Determination seems
clearly warranted, therefore, that when Respondent's
management recognized NVEU as their collective-bargain-
ing representative it did not constitute a proper "residual"
bargaining group.
This Board has, consistently, refused to find proposed
bargaining groups limited to residual worker classifications
"appropriate" when they comprise merely a nondistin-
guishable segment within some larger group of unrepresent-
ed workers. Horsehoe Club Operating Company, 172 NLRB
No. 198, 69 LRRM 1048, 1049; North American Aviation,
Inc., 131 NLRB 399, 401-404. Compare Bendix Corpora-
tion, 168 NLRB No. 55, 66 LRRM 1332, 1333-34; Budd
Company, 154 NLRB 421, 428; Swift Company, 127 NLRB
87; Daily Press, Inc., 110 NLRB 573, 578; Jacobs
Manufacturing Company, 99 NLRB 482, 483-488, in this
connection. Conversely, proposed bargaining units which
comprise "all" currently "unrepresented" workers within a
particular plant facility or larger complex have been found
proper for collective-bargaining purposes. Compare Hotel
Employers Association of San Francisco, 159 NLRB 143,
144, 149, 153, and Pennsalt Chemicals Corporation, 119
NLRB 128, 129, in this connection.
The Division's management , when NVEU's August 16
recognition demand was received, must have known that
"Group A" workers constituted merely a segment of
Newbury Park's total clerical and technical personnel.
Further, Respondent may properly be charged with
knowledge, within my view, that some additional technical
and clerical classifications within ONE's historical bargain-
ing coverage, with their prospective unit placement then
being disputed, might subsequently be deprived of
representation previously enjoyed, through their
"exclusion" from UAW's prospective production and
maintenance bargaining group . With matters in this
posture , Respondent's management was on notice, so I
find, that, should NVEU's recognition demand for a
bargaining unit limited to so-called "Group A" workers be
granted, such a decision might well prove precipitate.
Nevertheless, Respondent granted NVEU's request
promptly. Thereby, Respondent 's management realistically
determined at its peril that NVEU's recognition, within a
bargaining unit limited to workers with "Group A"
classifications , would resolve a real "question concerning
representation" for a presumptively appropriate bargaining
group. This, Respondent's management need not have
done.
Previously, within this Decision, reference has been made
to NVEU's August 16 letter, in which Respondent was
requested to treat that organization's concurrent recogni-
tion requests, for both "Group A" and "Group B" workers
respectively, as continuing requests; Respondent's manage-
ment was told that "if you are not prepared to allow us to
prove our majority to you at this time in some feasible
manner - but wish to do so in future" notice of
management 's desire should be communicated promptly by
telephone or letter. With this option freely presented,
Respondent's management could have chosen to defer
recognition, pending a final Regional Office determination
regarding the composition of Complainant Union-Petition-
er's prospective production and maintenance bargaining
group which would necessarily define those "residual"
technical and clerical classifications removed therefrom.
For reasons not specifically proffered, however, Respon-
dent never considered deferral.
Instead, Respondent determined to grant recognition
forthwith. NVEU's representative status was conceded,
following Reverend Rehnberg's cardcheck, within a
purported bargaining unit compassing no more than 79
workers with some 49 job classifications, this, despite
management 's knowledge that a Regional Director's
decision regarding unit placement for some 30 disputed
classifications , with more than 180 workers concerned,
would subsequently be rendered. The present record,
summarized in relevant part, previously, within this
Decision, will, within my view, fully support a factual
NORTHROP CORPORATION 199
conclusion that Respondent, thereby, recognized NVEU
for nothing more than a limited number of so -called "T &
0" classifications, which this Board could not, consistently
with well-settled decisional doctrine, rationally consider a
proper unit for collective-bargaining purposes.
With matters in this posture, further, determination
seems clearly warranted that Respondent's management,
when it purported to resolve a question concerning
representation by granting NVEU recognition within a
claimed unit not appropriate for collective-bargaining
purposes, provided the labor organization designated with
statutorily proscribed assistance and support. Eastern
Massachusetts Street Railway Company, supra; Tower Iron
Works, Inc., supra. I so find.
2. Respondent's contractual union-security
committment
Within his brief, General Counsel contends that Respon-
dent herein since it granted NVEU recognition under
circumstances statutorily proscribed and thereafter negoti-
ated, maintained and effectuated a collective-bargaining
contract with that organization containing union-security
provisions, violated, and continues to violate, Section
8(a)(3) of the statute. This charge, within my view, cannot
be sustained.
Respondent's contractual committment, now in question,
contains no conventional 30-day union-security clause,
comparable with the provision which ONE's recently-
terminated contract had embodied. The division's manage-
ment was, rather, committed merely to effectuate certain
limited maintenance of membership requirements , coupled
with a voluntary dues checkoff provision. General Counsel
has cited no decisional support for his sub silentio
proposition that , when respondent-employers negotiate,
maintain, or effectuate such circumscribed union-security
provisions, they are necessarily committed to discrimina-
tion statutorily forbidden. My own research has revealed
none ; the precise question , indeed , seems never to have
been litigated.
Relevant precedents suggest, rather, that statutory
sanctions predicated upon purportedly coercive union-
security requirements cannot stand:
unless there is support in the evidence that [union
membership status] was induced, obtained, or retained
in violation of the Act ... .
See Local 60, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO v. N.L R.B., 365 U.S. 651, 655-656.
Compare N.L.R.B. v. Adhesive Products Corporation, 258
F.2d 403 (C.A. 2), 42 LRRM 2421, 2425; N.L.R.B. v.
Shedd-Brown Mfg. Co., 213 F.2d 163 (C.A. 7), 34 LRRM
2278, 2283; N.L.R.B. v. Braswell Motor Freight Lines, 209
F.2d 622 (C.A. 5), 34 LRRM 2270; Chun King Sales, Inc.,
126 NLRB 851, 853-854, and cases therein cited. No such
showing can be considered made when the record contains
no evidence whatever that Respondent's technical and
clerical workers were "coerced" to become NVEU
members, or to retain such membership. With matters in
their present posture, I find no determination warranted
that Respondent violated Section 8(a)(3) herein.
B. Respondent's Conduct Affecting Production and
Maintenance Workers
Section 8(a)(2) of the statute proscribes employer
conduct calculated to "dominate or interfere" with a labor
organization's formation or administration, or to
"contribute financial or other support" thereto. The
relevant cases hold, therefore, that "employer support of an
`inside ' or `independent' labor organization , even absent
company domination , constitutes unlawful interference
with employees' freedom of choice" statutorily guaranteed.
Irving Air Chute Company v. N.L.R.B., 350 F.2d 176,
181-182 (C.A. 2). The presence of statutorily proscribed
interference, moreover, must be determined "by careful
scrutiny of all the factors, often subtle, which restrain the
employees' choice" for which a particular employer-
respondent may fairly be considered responsible. Interna-
tional Association of Machinists v. N.L.R.B., 311 U.S. 72, 80.
See, likewise, Harrison Sheet Steel Co. v. N.L.R.B., 194 F.2d
407, 410 (C.A. 7); therein the court stated:
It has repeatedly been held that an employer may not
intrude in matters concerning the self-organization of
his employees . He must refrain from all interference. He
must maintain a strictly neutral attitude . Especially is
this so where the adherence of the employees is being
sought by rival labor organizations.
See, further, Powers Regulator Company v. N.L.R.B., 355
F.2d 506, 509 (C.A. 7); St. Louis Independent Packing Co. v.
N. L. R. B., 291 F.2d 700, 704 (C.A. 7); N. L. R. B. v. Vapor
Blast Mfg. Co., 287 F.2d 402, 404-405 (C.A. 7). The
rationale which dictates strict neutrality for employers
confronted with rival representation claimants has, per-
haps, been set forth most cogently within the Supreme
Court's decision in I.A.M. v. N.L.R.B., previously cited.
Therein, the court observed that:
Known hostility to one union and clear discrimination
against it may indeed make seemingly trivial intima-
tions of preference for another union powerful assist-
ance for it. Slight suggestions as to the employer's
choice between unions may have telling effect among
men who know the consequences of incurring that
employer's strong displeasure . The freedom of activity
permitted one group and the close surveillance given
another may be more powerful support for the former
than campaign utterances.
See, more recently, Alarm Device Manufacturing Co., 175
NLRB No. 104 (TXD). These decisional guidelines, within
my view, provide the touchstone whereby Respondent's
course of conduct, herein, must be tested.
The present record, considered in totality, fully sustains
General Counsel's contention that Respondent's posture
throughout the representation election campaign with
which we are concerned reflected statutorily proscribed
interference, together with contributions of support.
Respondent's determination to mount a campaign of
resistance, with respect to UAW's representation bid, was
foreshadowed within the division's first set of detailed
instructions, distributed to supervisors. These management
spokesmen were told , inter alia, that they might freely tell
employees Respondent would rather deal with them
through their established representative, (ONE), than
through some "outside" labor organization. That determi-
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation , further, was given forceful expression when General
Manager Gasich told ONE's president and vice president,
"Well, if you are not going to fight them , [UAW I step back
out of the way, because I am not going to take any orders
from Detroit ." Thereby, Gasich clearly revealed his
disposition to resist UAW's organizational campaign,
together with resentment generated by ONE's professed
reluctance to join Respondent 's management , behind the
barricades.
These declarations , considered in themselves , cannot be
found unfair labor practices under Section 10(b). They
have , nevertheless , been cited for their background
relevance and materiality; they provide a context, with
relation to which determinations may be reached regarding
Respondent 's motivation , generally , throughout the period
with which this consolidated case is directly concerned.
Proceeding consistently with this policy, Respondent's
management clearly welcomed NVEU's formation;
throughout the representation election campaign which
followed , Respondent 's written and verbal pronounce-
ments directed toward Newbury Park workers generally
featured statements calculated to magnify NVEU's pres-
tige , while denigrating UAW's worth. These statements
compassed more than "slight suggestions" or "trivial
intimations of preference" within my view.
Respondent's first significant contribution , so the record
shows , became manifest when management determined to
grant NVEU's August 16 recognition demand covering a
limited group of technical and clerical workers . Northrop-
Ventura 's determination to proceed in this connection,
considered without regard to questions of legality , necessar-
ily vested NVEU with substantial prestige which Respon-
dent's several spokesmen , subsequently , confirmed. Any
conclusion that Respondent 's August 19/August 21 course
of conduct, previously noted herein, developed without
management 's conscious awareness that NVEU's concur-
rent campaign for worker support within a prospective "P
& M" bargaining group might be strengthened thereby,
would be naive . Within his brief, General Counsel suggests,
specifically, that:
Respondent seized upon NVEU's demand for recogni-
tion in a unit of office and technical employees as a
means of defeating the UAW's effort to organize
Respondent's production and maintenance employees.
This contention , within my view, possesses merit . This trier
of fact notes , first, that promptly following NVEU's
recognition that organization was provided with five
substantial , glass-enclosed , lock-fitted, bulletin boards
within a plant facility which housed most Newbury Park
production and maintenance workers , but no more than three
(3) technical or clerical employees . Further, the present
record shows that when Respondent 's contractual negotia-
tions with NVEU culminated in consensus management
publicized the significant "economic" provisions of
NVEU's contractual settlement with a bulletin distributed
throughout Respondent 's Newbury Park facility, not
merely to those "Group A" workers whom the contract
covered.
Previously , before their contractual consensus, noted,
was reached, Respondent's management and NVEU
representatives had negotiated a revised work schedule
calculated to permit workers represented by the latter 4
consecutive days off, in conjunction with their forthcoming
Thanksgiving Day holiday. Respondent 's bulletin with
respect thereto , when distributed, did point out that the
schedule in question had been negotiated with NVEU for
workers whom that organization represented. Nevertheless,
the negotiated holiday work schedule was "established" for
all Newbury Park workers , with certain limited exceptions.
Nothing within Respondent 's published bulletin suggested
that such a revised holiday work schedule had been
"established" for nonrepresented workers pursuant to
management 's decision ; Respondent 's production and
maintenance workers were , rather, permitted to deduce that
NVEU's negotiators had functioned , effectively, for their
benefit.
True, Respondent had previously notified Newbury Park
workers generally that a comparably modified Fourth of
July holiday work schedule had been "established" for
"all" employees through negotiations with ONE pursuant
to contract . The messages conveyed within these several
bulletins, however , cannot be reasonably compared. When
ONE's leadership negotiated the modified Fourth of July
schedule, they were functioning , pursuant to contract, for a
large constituency . NVEU's representatives, however,
could claim no contractual standing for work schedule
negotiations ; further, they then represented no more than
79 technical and clerical workers . NVEU's negotiators,
nevertheless, were credited, subtly but sufficiently, with
obtaining, through bargaining, the publicized Thanksgiving
Day holiday schedule for all facility workers, even the
production and maintenance workers whom they did not,
yet, represent.
General Counsel would have me find, with matters in this
posture , that, the "intended and calculated" thrust of
Respondent's bulletin was to promise production and
maintenance workers that they stood to gain special
consideration through NVEU representation . With due
regard for the record , considered in totality, such a
determination may not be warranted . There can be no
doubt, however , that Respondent's bulletin , with which we
are now concerned , did vest NVEU with significant
prestige . Within its relevant context, therefore, Respon-
dent 's announcement may properly be characterized as
reasonably calculated to promote NVEU 's campaign,
thereby necessarily countering UAW's thrust. I so find.
Respondent 's November 14 published bulletin wherein
various substantive terms, set forth within NVEU's newly-
negotiated contract , covering technical and clerical person-
nel, were detailed has been noted. Respondent 's Newbury
Park employees generally, but production and maintenance
workers particularly, were told, therein , that contractually
covered workers would receive a wage increase retroactive
to August 19, directly following ONE 's contract termina-
tion date . Within a short time thereafter , so the record
shows , the division 's production and maintenance workers
were being told , however, that Northrop-Ventura could not
then grant them a comparable retroactive wage increase,
because statutory provisions governing the conduct of
concerned parties during the period directly preceding a
representation vote would bar such a managerial decision.
Setting aside , for the moment, those questions which have
NORTHROP CORPORATION 201
been raised regarding the latter statement's propriety,
determination seems clearly warranted , consistently with
General . Counsel's contention , that Respondent 's signifi-
cantly contrasted pronouncements , per se, provided
powerful support for NVEU' s representation election
campaign ; they suggested, clearly , that Newbury Park's
production and maintenance workers , could blame man-
agement 's deferral policy, with regard to their possible
retroactive raises, upon UAW's meddlesome presence.
In reaching this conclusion , the present Trial Examiner
does not , consistently with Respondent counsel's colorful
phraseology , consider the collective -bargaining relationship
with which we are concerned herein as constituting "some
ghastly conspiracy being hatched by shriveled little men
wearing green eye shades in the depths of bat caves ." True,
NVEU was throughout this period the beneficiary of
statutorily proscribed assistance and support . My determi-
nation with regard to the present matter , however , does not
derive from that factual conclusion . It derives , rather, from
my determination that Respondent 's purportedly straight-
forward publicity program with regard to retroactive wage
increase grants possessed a reasonably foreseeable tenden-
cy to interfere with , restrain , and coerce Newbury Park's
workers , with respect to their choice of collective -bargain-
ing representation . Respondent's counsel would have this
Board note that UAW first broached the question of
retroactive wage and fringe benefit adjustments for
production and maintenance workers ; he suggests, with due
regard for Respondent's successive rejoiners, that "the
whole affair" should be considered nothing more than a
series of "propaganda parries and thrusts " with both sides
striving to shift blame for a distressing situation. This
contention , within my view , lacks meet . Respondent's
repeatedly declared position , regardless of the purpose
which may have motivated its declarations , was, clearly,
calculated to promote NVEU's stature while concurrently
denigrating UAW's purported "dog-in-the-manager" pos-
ture . Further , Respondent 's publicized claim that UAW's
representation petition created a legal "stymie " for "P &
M" raises derived from a misconception ; further discussion
with respect thereto will be found , subsequently, within this
Decision.
Respondent 's position was reiterated, subsequently, with
varying phraseology and within varying contexts , through-
out bulletins and correspondence directed to Newbury
Park workers generally on November 21 and December 10
before the representation vote , and, further , on December
24, January 2, 1969 , and January 24 thereafter . I find,
consistent with General Counsel's contention , that Respon-
dent management, thereby, breached its professed posture
of strict neutrality , provided NVEU with potent forbidden
support , and, contrary to law, has interfered with its
workers' freedom of choice.
I find merit , further , with respect to General Counsel's
contention that Respondent 's general manager , for the
purpose of counteracting UAW's organizational campaign
and securing NVEU's entrenchment, conveyed a message
to Newbury Park 's production and maintenance workers
that, should they designate UAW their representative,
Respondent would not strike a bargain with that organiza-
tion different from NVEU's contractual settlement. My
determination derives from Gasich' s version of his
December 16 cafeteria remarks . His speech , despite its
seeming "rhetorical question" phraseology , was reasonably
calculated to convey the thought that Respondent's
workers would derive no measurable benefit should they
designate UAW their collective -bargaining representative.
More particularly , General Manager Gasich was, essential-
ly, pointing out that Respondent's production and
maintenance workers would find their UAW support
productive of futility, since , should that organization win
certification , the division's management contemplated
granting nothing more than wage and fringe benefit
changes matching those which NVEU's contract contained.
Standing alone , such comments might well be considered
statutorily privileged "argument" merely . However , within
their context , which included several references to UAW's
strike record , together with that organization 's purportedly
militant , potentially "bullying" posture , which Gasich
contrasted with NVEU's so-called "constructive" negotia-
tions , there can be no doubt that Respondent general
manager 's proclaimed stance was reasonably calculated to
derogate UAW's goals while proclaiming that organiza-
tion 's prospective powerlessness with respect to winning
further benefits ; thereby Gasich was necessarily conveying
the thought that Newbury Park's workers would find it
futile to designate UAW, rather than NVEU, their
collective-bargaining representative . I so find.
Previously , within this Decision , reference had been
made to Respondent 's December 17 distribution of
retroactive paychecks for "Group B" workers , some 140 in
number. The record, within my view, will support a
conclusion , consistent with General Counsel's contention,
that this felicitously timed distribution was not fortuitous,
but that Respondent's personnel, responsible for payroll
check preparation , made a special effort to prepare these
retroactive paychecks for distribution before the scheduled
December 18 representation vote.
The record shows that following the November 13
signing of NVEU's first contract the work required to
prepare and process retroactive paychecks for "Group A"
workers did not really begin until November 22. Thereafter,
through coordinated efforts which involved both Respon-
dent's payroll accounting department and Northrop
Corporation's data processing section , retroactive pay-
checks for these workers were prepared and distributed
within 21 days , on December 12 and 13 respectively. These
were Respondent's regular weekly paydays . By contrast,
the procedure required to process Respondent 's second
batch of retroactive paychecks was initiated promptly,
following the December 10 bargaining session during which
contractual coverage for so-called "Group B" workers was
negotiated . Their checks were ready for distribution within
6 days; distribution was effectuated on the seventh. Prima
facie, this temporal discrepancy suggests that the processing
of "Group B" workers ' checks must have been expedited.
Respondent's director of general accounting and policy,
Charles Hass, proffered detailed testimony regarding this
time differential . He declared that the first group of
retroactive checks constituted the division 's "first proof"
with respect to the computer program , previously estab-
lished, whereby the requisite data for retroactive pay
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computations had been accumulated. Therefore, so Hass
testified, the computer data printout and consequent
checks were reviewed carefully. The second group of
checks, so Hass claimed, were derived from less detailed
data, requiring a shorter computer printout and, conse-
quently, less detailed checking and verification. Hass'
testimony, nevertheless, warrants a determination, within
my view, that work on Respondent's second batch of
retroactive paychecks was hastened. The requisite payroll
department calculations, thought initiated promptly, could
not be completed for transmittal to Respondent's data
processing section before Respondent's normal daytime
Friday, December 13, shift terminated. These calculations
were thereafter carried to conclusion before midafternoon
on Saturday, December 14, specifically, with several
volunteers working overtime. Respondent's data processing
section, which received these check calculations Saturday
afternoon, completed its task of check preparation by
Monday, December 16; the checks were, therefore,
necessarily processed sometime during the weekend period.
Though Respondent's data processing section normally
works 7 days per week, Hass concededly had requested that
department to realign its work schedule, so that these
retroactive paychecks could be processed promptly follow-
ing their Saturday transmittal.
Though Hass subsequently stated, while a witness, that
he had been primarily concerned with facilitating the
distribution of Respondent's second batch of retroactive
paychecks before the Christmas holidays, he conceded that
this concern could have been satisfied through their
distribution on December 20, Respondent's next regular
payday. Respondent's director of general accounting and
policy then testified, when questioned by Respondent's
counsel, that his determination to facilitate a check
distribution before the forthcoming representation vote,
promptly following their preparation, derived from his
"feeling" that such promptness was required, since the
money "belonged" to the workers concerned; Hass
contended that he was, therefore, obligated to get it to them
as quickly as possible. The contention, within my view,
lacks persuasive thrust; the record shows that Respondent's
payroll department normally holds regular paychecks for 2
days following their preparation, regardless of some
supposed duty dictating their prompt distribution. Respon-
dent's proffered rationale for its preelection distribution of
retroactive paychecks on December 17, within my view,
must be rejected.
Though Respondent maintains that no special effort was
made to distribute the second group of retroactive checks
before the scheduled vote; that NVEU's representatives
received no committment, during their December 10
bargaining session, with respect thereto; and that no one
knew, before December 16, that the distribution could be
made before the representation vote, these defensive
contentions lack record support. Clearly, the procedure
followed in connection with check data preparation was
hasty. The checks were distributed immediately following
their preparation; they were not held until Respondent's
next regular payday. And, finally, this trier of fact notes
that NVEU's preparatory work for a final campaign
handbill, drafted particularly to feature the "second
distribution of retroactive paychecks , had begun several
days before the checks were distributed.
The handbill , which proved to be NVEU's most costly for
the campaign , featured pictures of numerous "Group B"
workers purportedly holding their retroactive paychecks;
these checks , however , had been borrowed from various
"Group A" workers . The pictures were , so the record
shows , made before Respondent 's December 17 retroactive
paycheck distribution.
The contention , suggested herein , that NVEU's leader-
ship would have prepared this costly propaganda coup
solely on the basis of some speculative hope that a
preelection retroactive check distribution would take place,
strains credulity . Within his brief , General Counsel
suggests , contrariwise, that Respondent 's management
timed the second retroactive paycheck distribution , deliber-
ately, to permit NVEU's reference thereto within its so-
called last hour campaign leaflet . The contention, however,
seems somewhat strained ; upon the present record,
determination can hardly be considered warranted that
Respondent 's management was privy to NVEU's campaign
plan, or that Respondent 's personnel , with knowledge,
proceeded to rush a check distribution specifically to
validate that organization 's planned propaganda appeal.
This trier of fact is satisfied , nevertheless , that Respon-
dent 's management did make a special effort to get the
second batch of retroactive paychecks distributed before
the scheduled election and that Respondent's hurried
program in this respect derived , not from business
considerations , but from its previously noted purpose to
provide NVEU with prestige , countering UAW's represent-
ation campaign thereby . I so find.
Well settled decisional doctrine teaches that employer-
respondents violate Section 8(a)(3) and ( I) of the statute
when, for the purpose of influencing a Board election, they
withhold , from workers within the prospective voting
group , pay raises granted other employees . N.L.R.B. v.
Great A & P Company, 166 NLRB 27, 29 , enfd . 409 F.2d
296, 298 (C.A. 5). Accord: Russell-Newman Manufacturing
Co. v. N. LR.B., 406 F .2d 1280 (C.A. 5). The withholding of
a pay raise , granted to other workers , from those within the
prospective voting unit, constitutes statutorily proscribed
discrimination against those workers who are distinguisha-
ble only by their participation in protected activity, since
such discrimination may "to some extent" discourage
membership in a labor organization by inducing deprived
employees to vote against the union . N.LR.B. v. GreatA &
P Company, supra. Though it may be necessary to prove the
particular employer's purpose to discriminate so as to
discourage union membership, specific evidence of such
motivation is not required . See Russell-Newman Manufac-
turing Co. v. N.L.R.B., supra , in this connection.
General Counsel 's burden, with respect to this aspect of the
matter, will be considered satisfied by proof that the
particular employer-respondent had specifically directed
his workers' attention to the so-called union aspect of their
situation. Stating the matter shortly : When employers
declare their desire to grant immediate wage or fringe
benefits to employees, but then shift , to the labor
organization concerned , the blame for their failure to grant
such benefits promptly , determination is considered
NORTHROP CORPORATION 203
warranted that they have been seeking to discredit that
labor organization, and to discourage membership therein.
McCormick Longmeadow Stone Company, 158 NLRB 1237,
1242. Accord: Big Three Industrial Gas & Equipment Co.,
181 NLRB No. 180 (TXD); The Deutsch Company, Metal
Components Division, 178 NLRB No. 95. Within the
Deutsch Company case last cited, this Board recently stated
the relevant decisional principle positively: When confront-
ed with a labor organization's representation campaign,
concerned employers must determine whether to grant or
withhold benefits just as they would normally, absent the
labor organization's presence.
These principles, clearly, must be considered determina-
tive herein. Respondent, when confronted with UAW's
November suggestion that a wage increase was warranted,
which the labor organization coupled with a promise that
no unfair labor practice charge would be filed should such
wage increase be granted promptly, declared its desire to
find some "legal way" to grant retroactive raises, matching
those negotiated within NVEU's contract, to workers who
were purportedly being denied such benefits through no
fault of their own. This last reference, within my view, was
clearly calculated to convey the thought that, but for
UAW's presence and their support for that organization,
Newbury Park's production and maintenance workers
would have been scheduled to receive their wage raise. And
Respondent's further comments, both its November 15
letter and November 21 bulletin previously noted, defined
three conditions which under current circumstances would
have to be satisfied before retroactive raises could be
granted ; UAW, NVEU President Means , and the Board's
Regional Director , respectively, would have to provide
Respondent with written statements that no unfair labor
practice charges or prospective election objections would
be filed, entertained, or sustained, consequent upon such
grants . Despite this conditional proffer, Respondent's
workers were concurrently told that UAW's waiver promise
constituted merely a "crude attempt to trick and mislead"
since the Board's Regional Director could not give
assurances that relevant unfair labor practice charges
would not be filed or entertained. With matters in this
posture, Respondent's management, through its several
"propaganda parries and thrusts" respectively, had first
created the requirement of written consent or reassurance
for this Board's Regional Director, knowing full well that
Board officials do not normally give such consent or
reassurance ; then Respondent had blamed UAW for
supposedly proffering something (the proposed waiver of
unfair labor practice charges) which UAW knew it could
not deliver. Thereby, Respondent's management had
"made it appear" that Northrop-Ventura stood ready,
willing, and able to grant the retroactive raises in question,
but that UAW could not fulfill its promise Respondent
would be saved harm. On December 10, before the
scheduled representation vote, Respondent reaffirmed
its position that the "current NLRB proceeding" had held
up the wage and benefit adjustments which Newbury Park
workers "would have received" previously. Thereafter,
following the election, in Respondent's December 24,
January 2, 1969, and January 24 bulletins, this theme was
repeated, with particular reference to UAW's election
objections and pending unfair labor practice charges.
Complainant Union-Petitioner , particularly, was clearly
blamed for purportedly "punishing" the Division's workers,
by depriving them of pay increases through its resort to
Board processes.
In a recent Board decision, which dealt with a situation
closely paralleling that presented herein, the determinative
legal principle previously noted, stands reaffirmed, The
Gates Rubber Company, 182 NLRB No. 15. Therein, the
Board has noted that:
It is uncontradicted that unit employees expressed a
keen interest in the timing of the wage increase , and it is
undisputed that, were it not for the union election, the
print-shop employees would have received the wage
increase comparable to and at the same time as that
negotiated by the Respondent and the Rubber Workers.
In these circumstances, neutrality is not maintained by an
announced withholding of a wage increase because of a
pending Board-conducted election. It is well-settled that
the employer's legal duty is to proceed as he would have
done had the union not been on the scene. Here the
Respondent withheld increases which would normally
have been granted but for the presence of the Union
and pendency of the election and advised employees
that their wage increases were being withheld for this
reason.
Consistent with this rationale, determination is found
warranted that Respondent herein , when it withheld
retroactive wage increases from Newbury Park's prod-
uction and maintenance employees , which their fellow
technical and clerical workers were contractually scheduled
to receive, provided NVEU with statutorily proscribed
support, and interfered with employee free choice. I so find.
C. Respondent's Conduct Affecting Kniffen's
Working Conditions
The Consolidated Complaint herein charges Respondent
with statutorily proscribed discrimination plus derivative
interference , restraint, and coercion because Director of
Industrial Relations Fairless rescinded the privilege
previously given ONE President Kniffen to spend his full
working time policing ONE's contract. General Counsel
contends that Respondent's July 9 decision, in this
connection, constituted a calculated reprisal for Kniffen's
failure and refusal to provide support for Respondent's
effort to keep UAW from organizing Newbury Park's
production and maintenance workers.
Traditionally, ONE's president, so the record shows, had
been permitted to devote his full working time to ONE
business. Johnny Via, President Kniffen's predecessor, had
been permitted to do so; Kniffen had, likewise, been
granted this privilege, save for a 2-month span, approxi-
mately 1 year before the period with which we are now
concerned.
At that time, ONE's president had been told that
Respondent 's reason for directing his resumption of milling
machine machinist work derived from Fairless' concern
that paying a labor organization's president, for full-time
service in that capacity, would violate the Landrum-Griffin
Act. When Fairless renewed his directive that Kniffen
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should resume shop work, during their July 9 conference,
he proffered the same reason for his decision.
Substantially, General Counsel contends, therefore, that
Respondent 's directive significantly changed Kniffen's
working conditions; that Respondent's contemporaneously
proffered rationale for directing the change was pretextual;
and that Fairless' restrictive direction had really been
motivated by President Kniffen's refusal to marshall his
organization's manpower, prestige, and resources for
resistence to UAW's representation campaign.
With due regard for the present record considered in
totality, however, this contention, within my view, cannot
be considered sustained. True, General Counsel has
proffered evidence calculated to sustain a determination
that , when UAW's campaign began , Respondent's manage-
ment was preparing to mount a counter campaign
calculated to preserve ONE's representative status. True,
ONE's June 1968 tentative declaration, that no resistance
would be proffered with respect to UAW's representation
claim for Respondent's production and maintenance
workers, may have disappointed, even angered, Respon-
dent's management. And Fairless did learn, sometime
before July 9 certainly, that ONE's posture of nonresistence
with regard to UAW's campaign had disenchanted,
alienated, or worried many ONE members. With matters in
this posture, some merit could, arguably, be found with
respect to General Counsel's contention, set forth within his
brief, that:
In short, by July 9, Respondent not only knew that
ONE was not going to aid in its campaign against the
UAW, but believed that Kmffen, ONE's president, was
responsible for ONE's decision.
Such a record showing, however, will not, without more,
sustain a conclusion that personal hostility toward
President Kniffen developed consequentially within Res-
pondent's management, or that Respondent's July 9
directive derived from such managerial hostility or
resentment.
First: Nothing in the present record, within my view,
would warrant a determination that Respondent's July 9
directive reflected calculated harrassment. Kniffen was first
directed merely to resume productive work within his
regular classification; when subsequently requested to
provide Kniffen with work within a different classification,
however, which would permit him to wear a business suit
during working hours, Fairless complied. Kniffen was told,
further, that he would, upon request, be given whatever
paid "time-off" he might thereafter require to police ONE's
contract, process contractual grievance matters , or transact
other company-union business. With matters in this
posture, General Counsel can hardly contend, persuasively
that Respondent's directive significantly restricted Knif-
fen's capacity to function, effectively, regarding ONE's
business. Second: This trier of fact is not persuaded that
Kniffen's reassignment to productive work, per se, consti-
tuted discrimination statutorily proscribed. The fact that he
may, thereby, have been denied further "unrestricted"
freedom with respect to transacting ONE's business on
company time and property hardly qualifies as discrimina-
tion with regard to his working terms or conditions; the
withdrawal of privileges or perquisites bearing no relation-
ship to Kniffen 's regular "work" assignment , within my
view, cannot be considered a statutorily proscribed
depravation.
Further, General Counsel's present contention that
Respondent's motivation , with respect to Kniffen's reas-
signment , derived from resentment generated by his refusal
to marshall resistance toward UAW's campaign rests,
primarily upon mere surmise. The record shows that
Respondent's director of industrial relations had previously
directed Kniffen to resume productive work approximately
I year previously, long before UAW's campaign had begun.
Some question might be raised , conceivably , whether
Fairless' proffered rationale for this first directive had been
legally well-founded. For present purposes, however, the
question need not be decided.
General Counsel can hardly contend, therefore, that
Fairless' motivation for the directive in question , pursuant
to which Kniffen did perform machinist work for some 2
months, derived from antiunion considerations . Counsel
would have this Board note, however, that Respondent's
director of industrial relations , while a witness herein, chose
to proffer a different reason for restricting Kniffen's
freedom to pursue ONE business on company time.
Fairless did testify that his most recent decision had been
made in view of the fact that ONE was, within his
judgment, moving off the scene.
Contrary to General Counsel's contention, however, this
trier of fact does not find Fairless' present testimony
regarding his July 9 rationale "inconsistent" with the reason
Kniffen was given; rather, I find it supplementary.
Therefore , even assuming , arguendo, that Fairless' proffered
witness chair recollection, regarding his reason for directing
Kniffen's return to part-time work, may be credited,
nothing therein would, within my view, warrant a
determination that ONE's president was being subjected to
reprisal.
With matters in their present posture, this Trial Examiner
concludes and finds General Counsel has not provided
reliable , probative , and substantial evidence sufficient to
warrant a determination that Respondent 's management
changed Walter Kniffen's working terms and conditions for
statutorily proscribed reasons.
IV. OBJECTIONS TO THE ELECTION
Respondent's general course of conduct following the
filing of UAW's petition , herein found to compass several
unfair labor practices, provides more than sufficient
justification for a Board order vacating the challenged
election results. Complainant Union-Petitioner has, howev-
er, proffered testimony and documentary material suggest-
ing numerous bases upon which the representation vote
could be set aside . Some of these encompass conduct herein
found statutorily forbidden.
For example , UAW contends that the challenged election
results should be vacated because Respondent 's manage-
ment provided NVEU with proscribed assistance, violating
Section 8(a)(2) thereby:
1. Through NVEU's initial recognition as collective-
bargaining representative for a group of workers
excluded by stipulation from the prospective prod-
uction and maintenance workers unit.
NORTHROP CORPORATION 205
2. Through NVEU's subsequent recognition as collec-
tive-bargaining representative for a further group of
workers excluded by Board determination from the
production and maintenance workers unit.
Further , UAW contends that Respondent herein unlawful-
ly interfered with statutorily guaranteed rights , provided
NVEU with proscribed assistance , and discriminated
against Newbury Park 's production and maintenance
workers , violating Section 8 (a)(1) and (3) thereby , when it
withheld retroactive wage and fringe benefit adjustments
from such workers , under the circumstances revealed
within the present record.
These contentions , herein sustained , do provide a
sufficient basis for vacating the challenged election results.
This Board will not certify the representative status of labor
organizations found to have benefitted from statutorily-
forbidden assistance or support . Reliance Steel Products
Co., 135 NLRB 730, 731 ; Compare Weather Seal,
Incorporated 161 NLRB 1226, 1229 in this connection. This
Board has , likewise , held that when a respondent-employer
withholds wage increases which would normally have been
granted but for some labor organization 's presence and the
pendency of a representation election , with concerned
workers being told that their increases have been withheld
for such reasons , such workers have suffered interference
with their statutorily guaranteed right of free choice, The
Gates Rubber Company, supra; Big Three Industrial Gas &
Equipment Co., supra. Compare Dan Howard Mfg. Co., 158
NLRB 805, 813 , 818, enfd . as modified in other respects,
390 F .2d 304 (C.A. 7) in this connection.
Complainant Union contends , further , that Respondent
herein provided NVEU with statutorily proscribed assist-
ance , sufficient to warrant vacation of the election results:
(a) By providing NVEU with five union bulletin boards
throughout the Newbury Park facility 's manufacturing
building ; (b) by permitting NVEU spokesmen to use
company facilities , materials , and time while conducting
that organization 's representational campaign ; and (c) by
allowing NVEU supporters unrestricted time to campaign
on company property while enforcing a publicized no-
solicitation rule against UAW supporters.
Previously in this Decision , Respondent 's provision of
five glass-enclosed , lock-fitted bulletin boards , for NVEU's
use, within Newbury Park's manufacturing building has
been noted ; Respondent 's favorable reaction, when
presented with NVEU 's request for bulletin board space,
though not specifically designated a proscribed unfair labor
practice herein , has been considered relevant and probative
with respect to General Counsel's presentation regarding
Respondent's disposition to provide NVEU with unlawful
support . And the present record , within my view, will
support a further determination that management's con-
duct , now in question, likewise constituted forbidden
interference with the employees' free choice , providing a
further warrant for setting aside the challenged election
results herein.
With respect to UAW's further objections , previously
noted, detailed testimony and documentary evidence has
been herein proffered:
1. That disciplinary warning notices ("boom sheets")
were given three suspected UAW supporters believed to
have been involved in campaign related conversations
during scheduled overtime working hours ; that , there-
after , different UAW supporters were subjected to
questioning , harassment , and threats of discharge,
reasonably calculated to interfere with or restrain their
participation in protected concerted activity on compa-
ny premises.
2. That various NVEU supporters , by way of contrast,
were permitted to campaign on company premises,
while on their own , or other employees ', worktime,
without significant restraint , through designation card,
button , leaflet, and contract copy distributions , posting
of publicity materials , plant conversations , and verbal
controversy with UAW supporters; that Respondent's
supervisors , when cognizant of such conduct , either
raised no question regarding its continuance , or merely
admonished the workers concerned to desist , or resume
work , without giving warning notices or threatening
penalties.
3. That John Green , Respondent 's departmental
supervisor , within a few days following NVEU's
formation , distributed designation cards for that
organization to workers in his department , requested
these workers under his supervision to sign such cards,
and suggested their subsequent delivery to Respon-
dent's Superintendent W. Lange , his middle manage-
ment superior.
4. That , before NVEU 's formation , Respondent's
supervisors denied UAW supporters permission to post
prounion material on their Company 's general purpose
plant bulletin boards , despite the fact that antiunion
materials were being freely posted , and were being
permitted to remain.
5. That R. F. Byram , Respondent 's departmental
supervisor , had knowingly permitted several NVEU
leaders to meet , presumably with respect to nonbusiness
related matters , during working hours, within a plant
area subject to his supervision.
6. That Steve Wrubel , Respondent 's departmental
supervisor , had, during working hours , provided a draft
copy of NVEU 's first contract for one worker to review
during his "break" time, while permitting other workers
to review the self-same document during their working
hours.
7. That Delbert Hills, Respondent 's departmental
supervisor , told a worker whom he supervised, Kenneth
Clint , that he (Clint) might lose his "general machinist"
classification , should UAW win representative status.
8. That NVEU supporters , concurrently with that
organization's formation and the commencement of its
campaign for worker support , were knowingly permit-
ted to complete arrangements for having some NVEU
designation cards printed during working hours on
company presses located within Respondent 's repro-
duction department.
9. That Respondent 's management, while negotiations
for NVEU's first contract were in progress , provided
NVEU's officers and directors , even those not holding
job classifications within Respondent 's recognized
technical and clerical workers' group, regular pay for
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working time spent by them in collective-bargaining
sessions.
The matters listed, further, have been thoroughly litigated.
With due regard for the record herein considered in totality,
however, their present disposition hardly seems necessary
or warranted.
With respect to some matters, for example, UAW's
contention that Respondent unlawfully paid certain NVEU
negotiators their regular rates of pay for time spent in
collective-bargaining sessions during their normal working
hours, the legal premise for Complainant Union-Petition-
er's complaint seems debatable. With respect to further
matters , particularly some UAW testimonial proffers
regarding the permissiveness purportedly displayed by
Respondent's supervisory personnel when confronted with
NVEU campaign activity on company time and property,
the presence of company supervisors cognizant relative to
the particular NVEU campaign activity has not been
convincingly shown.
With respect to Foreman Green's purported card
distribution, significant testimonial conflicts are presented;
their resolution would require both a detailed record review
and difficult credibility resolutions, together with some
deduction bottomed upon logical probability merely.
To illustrate: UAW's several witnesses proffered both
coherent and consistent recitals sufficient to warrant a
factual determination that Foreman Green did, indeed,
distribute NVEU designation cards within his department;
that he suggested workers who had received such cards
should study and sign them during free time; and that he
finally suggested such cards, when signed, should be
delivered to Superintendent Lange, Respondent's middle
management supervisor with a position two levels higher
than the departmental foreman's. This trier of fact might
well consider testimony believable that Green, really a
rank-and-file worker holding down a foreman's post
temporarily, did distribute NVEU designation cards. Since
the record shows, however, that NVEU's leadership had
from the outset publicized a cafeteria location where signed
designation cards could be deposited during nonworking
time , testimony that Foreman Green had nevertheless
suggested their delivery to some middle management
supervisor, specifically, can hardly be considered credible.
Such a suggestion would certainly strike most people as
senseless , even bizarre; the persistent of UAW's witnesses
in charging Green therewith, within my view, significantly
weakens their testimony. However, Respondent's counter
witnesses , with respect to significant portions of their
testimony, likewise lacked credibility. Green, and several
departmental workers, did deny the card distribution. The
foreman's testimony, however, was vague with respect to
various relevant dates; further, he revealed significant
failures of recollection. And Respondent's corroborative
witnesses , Frances Rush and Doug Main particularly, were,
within my view, significantly impeached. Their testimony
weakened, rather than strengthened, Respondent's rebuttal
presentation.
With matters in this posture, disposition of UAW's
present contention regarding Foreman Green's purported
card distribution would now require more detailed
consideration and treatment herein than such subject
matter warrants. No disposition with respect thereto will be
made.
Regarding a further matter, Foreman Hill's conversation
with Kenneth Clint regarding his questionable general
machinist classification, some disposition consistent with
UAW's contention might, conceivably, be considered
warranted. The conversation in question, however, seem-
ingly dealt with a rather unique situation; since my
determination with respect thereto would add nothing of
significance herein, the factual and legal questions raised
thereby will not be resolved.
There remain for disposition, two UAW contentions;
these relate to Respondent's so-called "bribe" calculated to
dramatize the value of Respondent's various fringe benefit
programs and Respondent's prize lottery purportedly
conceived merely to stimulate a large December 18 vote.
Within two recent Board cases, similar employer conduct
standing alone has been found insufficient to warrant a
representation election's invalidation. Hollywood Plastics,
Inc., 177 NLRB No. 40; Buzza-Cardozo, A Division of
Gisbson Greeting Cards, Inc., 177 NLRB No. 38. The
present record, however, reveals Respondent's prize lottery
and monetary gifts as part of a sustained campaign which I
have found reasonably calculated to interfere with
employee free choice. With matters in this posture, I
consider the cited cases distinguishable, and conclude that
Respondent's prize lottery and monetary gift programs,
within their relevant context, provide further justification
for a Board order setting aside the challenged election
results.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's course of conduct described in section III,
above, since it occurred in connection with Respondent's
business operations, described in General Counsel's
Complaint and concededly described correctly therein,
had, and continues to have, a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States; absent correction, such conduct would
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE REMEDY
Since I have found that Respondent did engage, and
continues to engage, in certain unfair labor practices which
affect commerce, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative
action, including the posting of appropriate notices,
designed to effectuate the policies of the Act, as amended.
Specifically, I have found that Respondent recognized
Northrop Ventura Employees Union and negotiated a
contract with it while a real question concerning represent-
ation existed with respect to the workers covered thereby.
Further, I have found, in the alternative, that this contract
was first negotiated and given effect with respect to a
particular group of Respondent's workers constituting a
purported bargaining unit not appropriate for collective-
bargaining purposes. I shall recommend, therefore, that
Respondent be ordered to withdraw and withhold all
NORTHROP CORPORATION 207
recognition from Northrop Ventura Employees Union, and
to cease giving effect to the contract mentioned, or to any
renewal, modification, supplement, or extension thereof,
unless and until the designated labor organization shall
have been certified by the Board as the exclusive
representative of Respondent's technical and office work-
ers, following a Board-conducted election, within a unit
determined to be appropriate for collective-bargaining
purposes. Nothing within these recommendations, howev-
er, should be construed to require that Respondent vary or
abandon any term or condition of employment provided
pursuant to the contract mentioned, or currently enjoyed
by the workers concerned.
I have further found that Respondent's management, for
the dual purpose of countering UAW's campaign to win
designation as the collective-bargaining representative of
Newbury Park's production and maintenance workers, and
concurrently securing NVEU's entrenchment as their
bargaining representative, provided statutorily proscribed
assistance and support for the last designated organization,
thereby interfering with, restraining, and coercing the
workers concerned, with respect to their exercise of rights
statutorily guaranteed. It will be recommended, therefore,
that the Board specifically require Respondent to cease and
desist therefrom.
Within this Decision, it has been found that Respon-
dent's maintenance , implementation, and enforcement of
its November 13/December 10, 1968, contract, negotiated
and signed with Northrop Ventura Employees Union, did
not cause discrimination with respect to hire or tenure of
employment, or terms and conditions of employment, for
Respondent's technical and office workers. It has, however,
been found that Respondent's management, when it
withheld from Newbury Park's production and mainte-
nance workers retroactive wage and fringe benefit adjust-
ments equivalent - to those which had been granted
Respondent's technical and office workers did engage in
statutorily proscribed discrimination. Before this case was
heard, Respondent's policy decision with respect to such
withholding was reversed, and Newbury Park's production
and maintenance workers did receive wage increases and
fringe benefits adjustments, retroactive wherever applica-
ble, comparable to those previously granted Respondent's
technical and office workers. No make whole remedial
order, therefore , now seems necessary; Respondent should
merely be required to post appropriate notices declaring
that no such disparate treatment will be accorded the
workers concerned hereafter.
In the light of the foregoing findings of fact, and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Northrop Corporation, Ventura Division, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce, within the meaning of Section 2(6) and (7) of the
Act, as amended.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, Nor-
throp Ventura Employees Union, and Organization of
Northrop Employees, Ventura Division, Incorporated, are
labor organizations within the meaning of Section 2(5) of
the Act, as amended, which admit certain employees of
Northrop Corporation, Ventura Division, to membership.
3. Respondent herein, by recognizing Northrop Ventu-
ra Employees Union as collective-bargaining representative
for a group of Newbury Park technical and office workers,
and thereafter by signing and giving effect to a collective-
bargaining contract with that organization, at a time when
ONE, by virtue of its substantial claim to continued
recognition, had raised a real question concerning repre-
sentation with respect to the group of workers designated,
has interfered with, restrained, and coerced these employ-
ees with respect to their exercise of rights statutorily
guaranteed, and has assisted and contributed support to
Northrop Ventura Employees Union herein. Thereby,
Respondent has engaged, and continues to engage in unfair
labor practices affecting commerce, within the meaning of
Section 8(a)(1) and (2), and Section 2(6) and (7) of the Act,
as amended.
4. Respondent herein, by recognizing Northrop Ventu-
ra Employees Union as collective-bargaining representative
for Newbury Park's technical and office workers, under the
circumstances herein found; by thereafter signing, main-
taining, and giving effect to a collective-bargaining contract
with that organization; by making various written and oral
announcements reasonably calculated to reveal its prefer-
ence for Northrop Ventura Employees Union over
Internation Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, in connection
with their respective campaigns to win representation rights
for Newbury Park's production and maintenance workers;
by notifying such workers that, consequent upon NVEU's
negotiations with Respondent's management, they would
be granted a favorably modified Thanksgiving holiday
schedule; by granting retroactive wage and fringe benefit
adjustments to Newbury Park's technical and office
workers, pursuant to contract, while concurrently notifying
their facility's production and maintenance workers that
comparable increases and benefit adjustments could not be
granted them because of UAW's representation campaign;
by notifying the workers concerned that, even should they
designate UAW their representative, Respondent would
not negotiate wage and benefit changes with that
organization other than those provided for in NVEU's
current contract; by distributing retroactive, paychecks to
technical and office workers, whom NVEU represented, I
day before the scheduled production and maintenance
workers' representation election; and by declaring, there-
after, that retroactive wage increases for production and
maintenance workers would be withheld pending a final
resolution of the representation question which UAW's
petition raised, has interfered with, restrained, and coerced
Newbury Park's production and maintenance workers with
respect to their exercise of rights statutorily guaranteed, has
contributed assistance and support to Northrop Ventura
Employees Union in connection with its campaign to win
representation rights for such workers, and has discriminat-
ed against such workers with regard to their terms and
conditions of employment, to encourage their NVEU
adherence and discourage their support for UAW's
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation claims . Thereby, Respondent has engaged,
and continues to engage , in unfair labor practices affecting
commerce , within the meaning of Section 8(a)(1), (2), and
(3), and Section 2 (6) and (7) of the Act, as amended.
5. General Counsel has not provided reliable , probative
and substantial evidence sufficient to warrant a conclusion
that Respondent's management changed Walter Kniffen's
terms and conditions of work for reasons which would
render such changes violative of Section 8(a)(1) and (3) of
the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and
upon the entire record in the case, it is recommended that
the Board, pursuant to Section 10(c) of the National Labor
Relations Act, as amended, order that Respondent,
Northrop Corporation, Ventura Division, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Assisting or contributing support to Northrop
Ventura Employees Union, or any other labor organiza-
tion, by recognizing such labor organization as the
exclusive representative of technical and office workers
within its Newbury Park facility, for collective-bargaining
purposes, unless and until said labor organization has been
certified by the National Labor Relations Board as the
exclusive representative of such workers within an appro-
priate bargaining unit;
(b) Giving effect to its November 13/December 10, 1968
contract with Northrop Ventura Employees Union, or to
any renewal, modification, supplement, or extension
thereof, unless and until said labor organization has been
certified by the National Labor Relations Board as the
exclusive representative of the workers covered thereby;
provided, however, that nothing herein shall be construed
to require that Respondent withdraw, vary, or abandon any
wage , hour, seniority, or other terms and condition of
employment which may have been established or con-
firmed through collective bargaining with the labor
organization designated, or to prejudice the assertion by
Newbury Park employees of any rights which they may
have derived as a result of membership in or representation
by the said labor organization;
(c) Assisting or contributing support to Northrop
Ventura Employees Union in connection with its campaign
to win representation rights covering Respondent's New-
bury Park production and maintenance workers, by
recognizing the designated labor organization as collective-
bargaining representative for any Newbury Park employ-
ees, except pursuant to the special procedures which the
Act, as amended, provides; by signing, maintaining, or
giving effect to any collective-bargaining contract with that
organization; by declaring its preference for NVEU over
UAW or any other labor organization, within a context of
2 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "POSTED BY ORDER OF
conduct further calculated to provide assistance and
contribute support to NVEU, comparable to the course of
conduct herein found statutorily proscribed; by giving
NVEU credit for favorable changes in working conditions
promulgated for particular groups of concerned workers
pursuant to management -determined decisions ; by grant-
ing wage or fringe benefit adjustments to workers
purportedly represented by NVEU, while concurrently
notifying workers not so represented that comparable
adjustments cannot be granted them because their choice of
a collective-bargaining representative remains unresolved
within a pending Board representation proceeding; by
notifying such workers that, should they designate a labor
organization other than NVEU their collective-bargaining
representative , Respondent would not negotiate wage or
benefit changes with that organization different from those
granted workers pursuant to negotiations with NVEU
herein; or by distributing paychecks incorporating wage
rate changes for workers purportedly represented by
NVEU before a representation election, while concurrently
withholding comparable wage rate changes from the
workers scheduled to participate in the election;
(d) Interfering with, restraining, or coercing its employ-
ees, in any like or related manner , with respect to their
exercise of rights which Section 7 of the Act, as amended,
guarantees.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act, as amended:
(a) Withdraw and withhold all recognition from Nor-
throp Ventura Employees Union as representative of any of
its employees for collective-bargaining purposes, unless and
until that labor organization shall have been certified by the
National Labor Relations Board as the exclusive represent-
ative of such employees within a unit determined to be
appropriate for such collective bargaining;
(b) Post at its plant facility in Newbury Park, California,
copies of the notice attached to this Decision as an
appendix.2 Copies of the notice to be furnished by the
Regional Director for Region 31, as the Board 's agent, shall
be posted, immediately upon their receipt, after being duly
signed by Respondent's representative. When posted, they
shall remain posted for 60 consecutive days thereafter in
conspicuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that these notices are not
altered, defaced, or covered by any other material;
(c) File with the Regional Director of Region 31, as the
Board's agent, within 20 days from the date of service of
this Trial Examiner 's Decision, a written statement setting
forth the manner and form in which it has complied with
these recommendations.3
IT IS FURTHER RECOMMENDED that the results of the
representation election held December 18, 1968, in Case
31-RC-854 be set aside, and that said case be severed and
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
3 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
NORTHROP CORPORATION 209
remanded to the Regional Director for Region 31 of the
Board , for such further proceedings as may be appropriate;
including the holding of a new election at such time as he
deems the circumstances will permit the employees to freely
express their wishes with respect to a bargaining representa-
tive.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing , during which all sides were afforded
opportunities to present their evidence , it has been
determined that this company violated the National Labor
Relations Act. In order to remedy such conduct, we are
being required to post this notice.
WE WILL NOT assist , or contribute support to,
Northrop Ventura Employees Union or any other labor
organization by recognizing , negotiating or contracting
with such labor organization as the exclusive represent-
ative of Newbury Park 's technical and office workers,
or any other employees , unless and until said labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of such
employees , comprising a group appropriate for collec-
tive -bargaining purposes.
WE WILL NOT give effect to our November
13/December 10, 1968 , contract with Northrop Ventura
Employees Union , or to any renewal , modification,
supplement , or extension thereof , unless and until the
said labor organization has been certified as the
exclusive representative of the technical and office
workers covered thereby . However, we are not required
to withdraw , vary, or abandon any term or condition of
employment which , may have been established or
confirmed within that contract , as the result of
collective bargaining . The workers covered thereby will
not be prejudiced with respect to their assertion of
rights derived from the contract designated.
WE WILL NOT assist or contribute support to
Northrop Ventura Employees Union, in connection
with its campaign to win representation right covering
our Newbury Park production and maintenance
workers , by engaging in the conduct described below:
1. Recognizing or contracting with that organi-
zation as collective-bargaining representative for
any Newbury Park employees , unless and until
that organization has been certified following the
procedure for such certification which the Nation-
al Labor Relations Act provides.
2. Declaring our preference for that organiza-
tion over any other labor organization, while
engaging in further conduct calculated to provide
Northrop Ventura Employees Union with assist-
ance or support which the National Labor
Relations Act forbids.
3. Giving that organization credit for any
favorable modification of working conditions
promulgated for particular groups of employees
pursuant to management decisions.
4. Granting wage or fringe benefits adjustments
to workers purportedly represented by that
organization , while concurrently telling workers
not so represented that comparable adjustments
cannot be granted them because a question of
representation pending with respect to them
remains unresolved.
5. Declaring that, should our employees desig-
nate a labor organization other than Northrop
Ventura Employees Union their collective-bar-
gaining representative , we will not negotiate wage
or fringe benefit changes with that organization
different from those previously negotiated with
Northrop Ventura Employees Union.
6. Distributing paychecks with wage rate
changes to workers purportedly represented by
Northrop Ventura Employees Union before any
representation election, while withholding compa-
rable wage rate changes from workers scheduled
to participate in the election.
WE WILL NOT interfere with , restrain , or coerce our
employees, with respect to their exercise of rights which
the National Labor Relations Act guarantees, in any
like or related manner.
WE WILL withdraw and withhold all recognition from
Northrop Ventura Employees Union , as the collective-
bargaining representative for Newbury Park technical
and office workers , or any other employees , unless and
until that labor organization has been certified as such,
by the National Labor Relations Board , for workers
comprising a group appropriate for collective -bargain-
ing purposes.
NORTHROP CORPORATION,
VENTURA DIVISION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office,
Federal Building, Room 121000 , 11000 Wilshire Boulevard,
Los Angeles , California 90024 , Telephone 824-7357.