United Aircraft Corp.

National Labor Relations Board - Board Decisions

Oct 11, 1972

199 N.L.R.B. 658 (N.L.R.B. 1972)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Aircraft Corporation, Hamilton Standard Divi-
sion (Boron Filament Plant) and Lodge 743, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 1-CA-7182
October 11, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On April 21, 1972, Administrative Law Judge 1
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel, Charging Party, and Respondent each filed
exceptions and a supporting brief, and each filed a
reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings 2 and
conclusions' of the Administrative Law Judge and to
adopt 4 his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, United Aircraft Corporation,
Hamilton Standard Division (Boron Filament Plant),
i The title of "real Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Although the Administrative Law Judge found that Respondent 's July 9,
1970, letter to the Union, copies of which it distributed to the unit employees,
placed the onus on the Union for its own unlawful conduct and revealed a
motive to disparage and undermine the Union , he did not specifically find
the distribution of this letter to unit employees to be violative of Sec. 8(a)(1)
We conclude that the distribution of the letter was for this purpose and
Respondent thereby violated that section of the Act. Contrary to the dissent,
the Administrative Law Judge did not find that this letter was privileged
under Sec . 8(c), nor do we.
3 The Board's decision in Chevron Oil Company, 182 NLRB 445, is clearly
distinguishable from the instant case . Here Respondent had previously
promised both the specific amount and effective date of the wage increase
but withheld it following the Union's certification without notifying and
offering to bargain with it. In Chevron, the company's policy was to grant to
its unorganized employees the wage and benefit increases negotiated in the
most recent industrywide contract, but there had been no announcement to
the employees and, in fact, the new industrywide agreement had not been
negotiated prior to either certification of the union or the commencement of
bargaining.
° In adopting the Administrative Law Judge's Decision we do not adopt
his speculative remarks concerning the nature and possible cause of the
parties' inharmonious collective -bargaining relationship and the past history
of this Respondent 's violations of Federal labor laws. Not do we adopt this
gratuitous observation of his fn. 9. Nevertheless , we do not find a broader
remedy warranted in the instant case.
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as modified below:
1. Insert the following as paragraph 1(c) and re-
designate the present paragraph 1(c) as 1(d):
"(c) Engaging in conduct designed to disparage
and undermine the Union."
2. Insert the following as the fourth indented par-
agraph in the notice:
WE WILL NOT engage in conduct designed to
disparage and undermine the Union.
MEMBER KENNEDY , dissenting:
In April 1969, Respondent and the Union nego-
tiated a 3-year collective-bargaining contract for one
of Respondent's plants whose employees were repre-
sented by the Union. The contract provided for an
immediate 8-percent wage increase , with additional
3-percent wage increases on successive anniversary
dates. After the signing of this contract, Respondent
posted at another of its plants, whose employees were
then unrepresented, a notice that it would give these
employees the same wage increases which it had
agreed to grant the represented employees. Before the
1970 anniversary date, the Union was certified as the
representative of the theretofore unrepresented plant
employees. Respondent did not put into effect the
promised wage increase for 1970 despite the Union's
insistence that it do so, upon the ground that a wage
increase became a bargainable matter. It therefore
offered to meet with the Union and negotiate a com-
plete collective-bargaining contract, including wages.
Despite Respondent's efforts to arrange negotiating
meetings, no meetings were held.
On July 6, 1970, the Union filed unfair labor
practice charges alleging, inter alia, that Respondent
had unlawfully withheld wage increases customarily
extended to employees. Three days later Respondent
notified the Union that, inasmuch as negotiations for
a collective-bargaining contract had been frustrated
by the Union, it was granting the previously promised
wage increases retroactive to the 1970 anniversary
date. Respondent also sent copies of this letter to the
employees involved. The Administrative Law Judge
found, and my colleagues have adopted his finding,
that by temporarily withholding the 1970 wage in-
crease Respondent had violated Section 8(a)(1), (3),
and (5) of the Act. I disagree.
In Chevron Oil Company, 182 NLRB 445, 449-
450, the Board stated: -
It has long been an established Board principle
that, in a context of good-faith bargaining, and
absent other proof of unlawful motive, an em-
ployer is privileged to withhold from organized
employees wage increases granted to unor-
ganized employees or to condition their grant
upon final contract settlement. Shell Oil Co., 77
199 NLBR No. 68
UNITED AIRCRAFT CORPORATION 659
NLRB 130. As the Supreme Court made clear in
American Ship Building Co. v. N.L.R.B., 380 U:S.
300, the Act accords employees no right to insist
upon their bargaining demands free from eco-
nomic disadvantages, and an employer's use of
economic pressure solely in support of a bargain-
ing position cannot be held unlawful for that
reason alone.
In Chevron, the Board found that the withholding of
the wage increase from organized employees was un-
lawful because it was an integral part of an unlawful
course of conduct. However, the court of appeals re-
fused to enforce this part of the Board's order because
it rejected the Board's finding that the withholding
action occurred in a context of bad-faith bargaining.
"It follows," according to the court, "that the Compa-
ny was within permissible bounds in refraining from
granting the benefits to the Union-represented em-
ployees in the absence of an agreement."5
The Administrative Law Judge attempted to dis-
tinguish Chevron from the present case upon the
ground that here Respondent had decided in 1969 to
grant a wage increase to employees in 1970 thereby
making the increase a condition of employment. In
Chevron, although there was no promise of a specific
wage increase, the Board found that it was "normal
policy" to follow the most recently negotiated indus-
trywide contract in determining the wage and benefit
increases' to be granted its unrepresented employees,
and at plants not covered by that contract to be of-
fered to organized employees. A condition of employ-
ment can as readily be created by a course of conduct,
as in Chevron, as by an explicit promise , as in this case.
The fact that the condition was created by one means
rather than by another does not call for the applica-
tion of different legal principles .6
Respondent's withholding of the 1970 wage in-
crease did not occur in a context of bad-faith bargain-
ing or other unlawful conduct. The administrative
Law Judge found Respondent guilty of no unfair la-
bor practices apart from the aforementioned with-
holding. He did find that Respondent's July 9, 1970,
letter to the Union, copies of which were sent to unit
employees, although privileged under Section 8(c)
nevertheless showed that Respondent's motive in
withholding the wage increase from employees was to
disparage and undermine the Union. I cannot accept
this interpretation of the letter. We can take judicial
notice from the large number of cases which have
come before the Board involving these parties that
disparagement of each other, to put it euphemistical-
ly, has been a regular part of their dealings with one
another. Employees could hardly be unaware of this
fact. In the very letter which the Administrative law
Judge characterized as having a purpose of undermin-
ing the Union, Respondent referred to the unfair la-
bor practice charge which had just been filed by the
Union and announced the granting of the wage in-
crease which had been promised in April 1969. I do
not think the employees could escape the inference,
despite Respondent's attribution of blame to the Un-
ion, that the latter had forced Respondent to grant the
wage increases previously withheld. If the employees
had any doubt of the forcefulness of their representa-
tive, it was clarified and emphasized in the Union's
response to the July 9 letter sent to the Respondent
and the employees on July 21, 1970.
In the absence of a justified finding of unlawful
motive, I consider Respondent's conduct in tempo-
rarily withholding the previously promised wage in-
crease pending bargaining for a complete contract as
not unlawful. I would therefore reverse the Adminis-
trative Law Judge and dismiss the complaint.
5 Chevron Oil Co. v. N.LR.B., 442 F.2d 1067, 1074 (C.A. 5). N.LR.B. v.
Dothan Eagle, Inc., 434 F.2d 93 (C.A. 5), which was earlier decided by the
same court, is distinguishable upon its facts.
6 N LR B v. Dothan Eagle, Inc, 434 F.2d 93, 98 (C.A. 5).
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner: This case presents
questions of whether the Respondent, United Aircraft Cor-
poration , Hamilton Standard Division (Boron Filament
Plant), violated Section 8(a)(1) of the Act by promising and
granting employees wage increases and by warning employ-
ees of the futility of selecting the Union, Lodge 743, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, as their collective-bargaining representative;
whether Respondent violated Section 8(a)(3) of the Act by
withholding a general wage increase to punish employees
for voting in favor of the above-named Union; and whether
Respondent violated Section 8(a)(5) of the Act by unilat-
erally changing existing wage rates. The charge was filed by
the Union on July 6, 1970. Pursuant thereto complaint is-
sued on February 3,1971. On February 15, 16, and 17, 1972,
a hearing was held in Hartford, Connecticut.
Upon consideration of the entire record , including my
observation of the witnesses and the briefs filed by General
Counsel, the Union, and Respondent, I make the following:
FINDINGS OF FACT
I THE FACTUAL SETTING
Respondent is a Delaware corporation with its princi-
pal office at East Hartford , Connecticut, where it is engaged
in the manufacture and distribution of aircraft engines, pro-
pellers , and other accessories and parts. Respondent oper-
ates several plants in the State of Connecticut , including the
plant involved herein which is part of its Hamilton Standard
Division and is known as the Boron Filament Plant.'
Commerce is not in issue. The complaint alleges, the answer admits, and
660 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union is the bargaining representative of
Respondent's employees at several of its plants, but prior to
the events herein the Boron Filament Plant was unor-
ganized. On March 25, 1970, pursuant to petitions filed by
Respondent in Case 1-RM-765 on January 12, and by the
Union in Case 1-RC-10945 on January 14, an election was
held in a production and maintenance unit of the employees
at the Boron Filament Plant, and on April 16, 1970, the
Union was certified as exclusive representative of such em-
ployees.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Independent 8(a)(1) Conduct
1. The campaign literature
The complaint alleges that during the preelection peri-
od Respondent warned its employees that unionization was
undesirable and unnecessary and that collective bargaining
would be fruitless and could invariably only result in harm
and injury to them. This allegation is predicated upon three
pieces of literature distributed to the employees by Respon-
dent during the preelection period.
The first piece of literature; adverted to the person-to-
person relationship presently in existence between Respon-
dent and its employees, pointed out that a union costs mon-
ey and the employees were receiving the same benefits that
employees working in the other shops of the Company were
receiving under union contracts except for the fact that
Boron Filament Plant employees were working a rotational
schedule and the letter explained the necessity that they
continue to do so.2 The letter further explained to employees
how collective bargaining works; namely, that the Compa-
ny does not have to change anything if it feels that its
present wages and benefits are fair and that the Union's
requests are unreasonable or economically unsound.
The second letter, dated March 17, 1970, dealt with
essentially one theme; namely, the unpleasant subject of
strikes. The letter pointed out to employees that if the union
were unable to fulfill its promises by negotiations, it would
have only two choices, either to back down on the promises
or to go out on strike. The letter described past strikes and
explained the employer's right under the law to hire perma-
nent replacements. The Union herein was charged with the
reputation of frequently striking.
The third letter, dated March 20, 1970, had as its princi-
pal theme the motives of the Union in seeking to represent
Respondent's employees. That motive was spelled out sim-
ply as one to obtain money for the Union's treasury.
In support of the contention that the foregoing litera-
ture was violative of Section 8(a)(I) of the Act, both General
Counsel and the Charging Party cite many cases. Board
decisions in this area are of little value because each case
appears to depend on its own facts. In my judgment, in this
case the statements of Respondent in the campaign litera-
I find that Respondent meets the Board's $50,000 direct inflow and direct
outflow standards for the assertion of jurisdiction.
2 Not all employees worked a rotational schedule , and the letter they
received said , "There is no difference whatsoever between your benefits and
working conditions and theirs."
ture referred to above did not exceed the boundaries of
permissible propaganda, but rather were protected by Sec-
tion 8(c) of the Act. Accordingly, I shall recommend dis-
missal of paragraph 6(c) of the complaint.
2. The wage increases
The complaint alleges that in March 1970, more partic-
ularly in the weeks beginning March 9, 16, and 23, Respon-
dent offered promised, and granted to its employees wage
increases if they refrained from becoming members of the
Union or voting for the Union and in order to induce them
to do so and to demonstrate to them the futility and undesir-
ability of union representation or support.
This allegation has two discrete parts: (1) offers and
promises of wage increases, and (2) the granting of wage
increases. As to (1), the sole item of evidence consists of the
testimony of former employee Martin Orenstein. Orenstein
testified that when he was interviewed for employment on
January 7, 1970, he was told by interviewer Walter Weisse
that under Respondent's policy a new employee was proba-
tionary for 90 days and "that after 6 months of employment,
he would receive a pay raise." He testified that on or about
March 22 or 23, Foreman David Steele called him in, told
him his work was very satisfactory, and that he was getting
a 7-cent-an-hour raise. Orenstein remarked, "Gee, I've only
been here eight weeks ... you people would do anything for
a vote." Steele laughed.
Orenstein's testimony about his conversation with
Steele is uncontradicted. Nevertheless, I deem it insufficient
to support a finding that Respondent offered or promised
employees wage increases to affect the outcome of the elec-
tion scheduled for March 25. Steele did not say a word
about the Union. It was Orenstein who injected the Union
into the conversation and he admitted he did this jokingly.
That Steele did not deny to Orenstein that the raise had any
relationship to the Union is insufficient to support a finding
Respondent offered and promised wage increases to em-
ployees. The Orenstein incident has significance only as it
relates to the second part of the allegation about wage in-
creases; namely, that Respondent granted wage increases to
employees to affect the outcome of the election and to
induce them to refrain from supporting the Union.
In order to evaluate the allegation that Respondent
unlawfully granted wage increases, it is necessary to under-
stand its wage rate system. Respondent has a wage rate
program under which employees are given ratings such as
J (job), R (above average), P (premium), and T (top). Em-
ployees are generally hired at a wage rate less than the J rate,
such as 85 percent of J rate, 90 or 95 percent. In certain job
classifications employees are expected to achieve J rate
within 6 months, and in others within 12 months from the
date of hire. During that 6- or 12-month period, an
employee's work performance is evaluated by his foreman
who at any time during the period may recommend him for
increases from, for example, 85 percent of J rate to 90 per-
cent, then later from 90 percent to 95 percent, until the
employee reaches J rate. After an employee receives J rate,
his work performance is reviewed every 6 months, and, if
deemed qualified by his foreman, he may receive a wage
increase to R rate.
UNITED AIRCRAFT CORPORATION 661
The foregoing is undisputed and General Counsel and
the Union contend that Respondent used this rating system
to grant wage increases to employees for the purpose of
affecting the outcome of the election. The underlying prem-
ise for the contention is that the wage increases granted
pursuant to this system are discretionary and that this de-
cretion was exercised to grant a significantly greater number
of raises in the period preceding the election than were given
in other periods of equal duration.
To demonstrate this point, the Union set up three peri-
ods of approximately 10 weeks' duration: the 10-week peri-
od before the election, January 12 to March 23, 1970
(referred to as the critical period); the 10-week period pre-
ceding the critical period, namely, October 28, 1969, to Jan-
uary 11, 1970; and the 10-week period following the critical
period; namely, March 24 to June 6, 1970. According to the
Union, 52 percent of the bargaining unit employees re-
ceived increases during the critical period, whereas only 25
percent received increases in the preceding period and 21
percent in the succeeding period. In light of these statistics,
plus the fact that Orenstein received a raise after 8 weeks'
employment, after he had been told by Weisse that he would
get a raise after 6 months, the Union contends a finding is
dictated that wage increases were granted in the critical
period with an unlawful purpose of influencing employees
against union representation. I do not agree.
I have already pointed out that there was no evidence
that any employee was offered or promised a wage increase
to affect the outcome of the election. As to all the wage
increases granted, there is no evidence whatsoever that in
granting them Respondent deviated from its regular prac-
tice; there is no evidence that any increase was accelerated
or unjustified, including Orenstein's.3 In short, the sole basis
for finding that the wage increases were unlawfully motivat-
ed is the statistical analysis of the Union which purports to
show a significantly higher percentage of employees receiv-
ing wage increases in the critical preelection period than in
comparable periods. As Respondent points out, however,
the percentages are not quite as disparate as the Union
contends. Thus, the 52-percent figure during the critical
period is arrived at by assigning to the unit during that
period a population of 59 employees as shown by the eligi-
bility list for the payroll period ending February 28, 1970.
However, although the size of the unit was so measured, the
Union included among the discretionary raises those given
to four employees who were not on that list because three
had been transferred out of the bargaining unit and one had
quit. If these four increases are to be counted, the unit size
should be increased to 63 and the percentage reduced from
52 percent to 49 percent. (Of course, this creates the anoma-
lous situation that Respondent granted wage increases to
employees to affect the outcome of the election and then
transferred three of the employees out of the unit so that
they were no longer eligible to vote.)
3 The only employee about whom any evidence was submitted was Oren-
stein and the record does not support a finding that his raise was un justified.
The fact that it came in less than 6 months from his date of hire proves
nothing, because the record clearly indicates a company practice of granting
raises before an employee has worked 6 months. For this reason , I do not
credit Orenstem 's testimony insofar as it suggests he was told he would not
receive a raise until after 6 months' employment . I credit Walter Weisse's
testimony about what he told Orenstein.
Another factor overlooked by the Union is the fact that
although five increases were effective March 23, 1970, they
were not approved until March 31, and, according to Chief
Personnel Adviser Frederic Dustin, it is company policy not
to advise employees of a wage increase until it has been
approved. The Union would have me give no credence or
weight to this testimony because Dustin could not testify
that the policy was followed in the five March 23 increases.
I credit Dustin. It seems to me that if the five employees in
question were told before the election that they were getting
a raise it would have been a simple matter to produce them
to so testify. If five merit increases are deducted from the
critical period that means 26 employees received merit in-
creases during the critical period out of a unit of 63 (59 plus
the 4 added above) for a percentage of 41.
Other permutations of the records on wage increases
could be developed. As a matter of fact, the Union submit-
ted an alternative analysis comparing the percentage of em-
ployees in the unit who received raises in March 1970 with
the percentage receiving raises in March 1969. I find the
alternative analysis no more persuasive than the one dis-
cussed above. The simple answer to the Union's analyses is
that they are totally dependent on artificially structured
data and require acceptance of premises whose validity has
not been established. They overlook the fact that none of
the wage increases which are included in the analyses was
shown to be at variance with Respondent' s wage rating
system. In my judgment, General Counsel has failed to
establish by a preponderance of evidence that wage increas-
es were unlawfully granted and I shall recommend dismissal
of paragraph 6(b) of the complaint.
B. The Alleged 8(a)(3) Conduct
1. The facts
About April 1969, the Respondent negotiated a 3-year
contract with the Union for another of its plants. This agree-
ment provided for three annual wage increases beginning
with April 21, 1969, and on the anniversary of that date in
1970 and 1971. On April 17, 1969, Respondent posted a
notice to the employees of the Boron Filament Plant (which
was then known as the Broad Brook Plant) announcing a
wage increase of 8 percent effective April 21, 1969. The
notice also referred to improvements in several fringe bene-
fits and concluded with an announcement that on April 20,
1970, and April 19, 1971, there would be a 3-percent general
increase subject to a possible cost-of-living adjustment to be
added to the 3-percent general increase.
This promised wage increase was not given to the em-
ployees at the Boron Filament Plant on April 20, 1970. As
noted earlier, the Union was certified on April 16 and on
May 13, 1970, it sent a letter to Respondent requesting a
meeting for the purpose of bargaining and requesting cer-
tain data. The letter also requested that Respondent imme-
diately put into effect for the employees in the bargaining
unit the wage increase which had been placed into effect on
April 20, 1970, at the other plant of Hamilton Standard
represented by the Union, and asking that such increase be
made retroactive to that date. On May 21, the Respondent
replied to the Union's request for a meeting and indicated
its readiness to begin negotiations with the Union at any
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date mutually convenient. Respondent requested that be-
fore any such meeting the Union submit its contract propos-
als. The letter said nothing about this wage increase.
On May 27, Respondent sent another letter to the Un-
ion stating with regard to the request that it immediately put
into effect the wage increase that "we will be prepared to
negotiate wages in the pending negotiations for a complete
contract."
On June 17, the Union replied to Respondent's letter
of May 27, accusing it of an unfair labor practice for refus-
ing to put into effect the wage increase in question.
On July 6, Respondent replied to the last letter of the
Union complaining of the Union's ignoring Respondent's
letter of May 21, offering to begin negotiations promptly,
and requesting that the Union submit its contract proposals.
Respondent again requested that it be advised about dates
in the near future when representatives of the Union could
meet with company representatives to negotiate an agree-
ment, including an agreement on wages.
On July 6, the Union filed the charge herein which
Respondent received on July 8. On July 9, Respondent sent
a letter to the Union accusing it of a lack of intent to bargain
in good faith and of preventing negotiation of a contract.
The letter adverted to Respondent's April 17, 1969, promise
of a wage increase on April 20, 1970, and expressed
Respondent's belief that such increase had become subject
to negotiations as a result of the Union's certification. Since
negotiations had been frustrated by the Union, Respondent
advised the Union that the April 20 increase would be put
into effect retroactively.
2. Analysis and conclusions
The complaint alleges that by withholding the wage
increase scheduled for April 20, 1970, Respondent violated
Section 8(a)(1) and (3) of the Act. On the basis of the facts
recited above , it is evident that the allegation has meet.
It is undisputed that since April 17, 1969 , Respondent
had decided to grant and had scheduled for its Boron Fil-
ament Plant employees a wage increase effective April 20,
1970. In addition , it is clear that between the date of the
decision to grant the increase and Respondent's decision to
withhold the increase the only intervening circumstance re-
lating to the wage increase was the employees ' selection of
the Union as their exclusive representative for purposes of
collective bargaining . That this circumstance was the reason
for the withholding of the promised wage increase is re-
vealed both in Respondent 's letter of July 9 referred to
above , and the testimony of Respondent 's vice president,
Morgan Mooney, who stated,
The reason that we didn't put it into effect was because
we anticipated that we would be bargaining with the
Union subsequent to certification and, at the time, we
had invited the Union to meet with us any time that
was mutually convenient . It was quite clear, on the
basis of my conversation with Mr . Ostro and, in fact,
he so stated, that the question of the rotating shift and
the pay practices in effect at Broad Brook were going
to be a very essential part of these negotiations . He said
that the employees over there did not like the rotating
shift and it was one of the major reasons why they had
sought or agreed to representation by the Union. I
considered, then, that this would be one of the major
items in dispute and that we would be bargaining on
the basis of an entire pay package of some sort or other.
In effect, the statements in the July 9 letter and
Mooney's testimony above constitute admissions that the
April 20 wage increase was withheld because the employees
selected the Union as their representative for purposes of
collective bargaining. It is true Respondent does not state
its reasons in such terms ; rather, it speaks in terms of eco-
nomic considerations ; namely, that the promised wage in-
crease was based on the assumption that other matters of
compensation would remain as established. But the certifi-
cation did not alter that assumption; it did not change any
matters of compensation. All it did was create the possibility
of a change in matters of compensation , and even as to that
possibility, Respondent itself had stated to employees in its
campaign literature, "The Company, if it feels that its pre-
sent wages and benefits are fair , or if it feels that the union
request is unreasonable or economically unsound, has every
right to refuse. The company doesn't have to change
anything."
In defense of its conduct, Respondent relies on Chevron
Oil Co. v. N.LR.B., 442 F.2d 1067 (C.A. 5), and McGraw
Edison Co., 172 NLRB No. 178. Neither case is apposite.
Both cases dealt with the question of whether an employer
who grants certain benefits to his unorganized employees is
required to grant the same benefits to organized employees.
But that is not the issue here.4 Respondent had decided in
April 1969 to grant a wage increase to the Boron Filament
plant employees and had thereby made the April 1970 wage
increase a condition of their employment .5 By withholding
the increase on April 20, 1970, Respondent affected a
change in conditions of employment.
Respondent contends that there is no proof that its
decision to withhold the April 20 increase was unlawfully
motivated. None was needed. Respondent's conduct was
"inherently destructive" of important employee rights. N.L.
R.B. v. Great Dane Trailers, Inc. 388 U.S. 26. Upon analysis,
it is evident that Respondent's reasons are no different than
those in Metromedia, Inc. (KLAC), 182 NLRB 202, wherein
the Board stated that "Respondent may have believed, even
accurately, that the Union's becoming the employees' exclu-
sive bargaining representative would cost him money, or
cost him the time and effort spent in bargaining. Indeed, if
these kinds of business reasons could justify discrimination,
the proscriptions and protections of the Act would be ren-
dered largely nugatory."
Based upon the foregoing, I find that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by withholding the
wage increase of April 20, 1970. But General Counsel and
A It is true that in requesting that Respondent put the April 20, 1970,
scheduled increase into effect the Union adverted to, and appeared to predi-
cate its request upon, a wage increase placed into effect at other plants of
Respondent's Hamilton Standard Division where employees were repre-
sented by the Union. The proper predicate was Respondent's own April 17,
1969, announcement The fact that the Union was maccurate is no defense,
however, because Respondent was legally obligated to put the increase into
effect even without a request.
5 As the Court stated in Armstrong Cork Co. v. N LRB, 211 F.2d 843
(C A. 5), the definition of "condition of employment" includes not only what
the employer has already granted, but also what he "proposes to grant."
UNITED AIRCRAFT CORPORATION 663
the Union would go beyond the foregoing and argue that
there is independent evidence that Respondent was unlaw-
fully motivated in withholding the wage increase. In support
of this contention, they point to Respondent's campaign
literature adverted to above. However, I have found that
literature to be privileged by Section 8(c) of the Act.
They advert to the statements in Respondent's letter of
July 9 accusing the Union of avoiding negotiations and
delaying any agreement , and that "We do not believe that
this is responsible union conduct, nor do we believe that the
Company and its employees need suffer from its results."
By thus placing the onus on the Union for its own unlawful
conduct, General Counsel and the Union contend Respon-
dent revealed that its true motive in withholding the in-
crease was to undermine and disparage the Union and
discourage employees from supporting it.
At first blush, it was my inclination to brush aside this
argument. After all, the statement was contained in a letter
from Respondent to the Union, and it appeared to be part
of the polemics practiced by both. However, Respondent
was not content to dispute with the Union; rather, it sent
the letter to the employees. By thus communicating to em-
ployees that the Union was to blame for its own miscon-
duct, Respondent revealed that, from the outset, its motive
in withholding the wage increase was to disparage and un-
dermine the Union, and thereby lent further support to the
finding above that the withholding of the wage increase was
violative of Section 8(a)(1) and (3) of the Act.
C. The Alleged 8(a)(5) Conduct
Respondent 's conduct with regard to the wage increase
as described above must be evaluated not only in terms of
Section 8(a)(1) and (3) of the Act , but in terms of Section
8(a)(5).
According to the Union, by withholding the April 20
wage increase Respondent violated Section 8 (a)(5) of the
Act. The difficulty with this contention is that the complaint
does not allege a violation of Section 8(a)(5) based on the
withholding of the wage increase . However, it is well estab-
lished that where the facts have been alleged and fully lit-
igated the Board is not precluded from finding that the
conduct in question violates subsections of the Act other
than those which were alleged as legal conclusions in the
complaint . Laclede Gas Co. v. N.L.RB., 421 F.2d 610 (C.A.
8); N.L.R.B. v. Dennison Mfg. Co., 419 F .2d 1080 (C.A. 1);
Frito Company, Western Division v. N.L.R.B., 330 F.2d 458
(C.A. 9); Independent Metal Workers, Local No. 1, 147
NLRB 1573 , 1576. Here , the facts concerning Respondent's
withholding /of the April 20, 1970, increase were alleged in
6 Paragraph 12(a) of the complaint alleged that Respondent had refused
to negotiate and discuss with the Union matters relating to the April 20 wage
increase, but in light of the correspondence adverted to above , it was evident
that Respondent had not refused to negotiate and discuss that issue. To the
contrary, it had offered to do so and the Union had refused to discuss the
matter because it believed Respondent was obligated to put the wage increase
into effect without bargaining in accordance with its April 1969 notice.
Accordingly , at the hearing, I granted Respondent's motion to dismiss para-
graph 12(a). In its brief, In. 3, the Union asserts that paragraph 12(a) alleged
that the unilateral withholding of the wage increase constituted a refusal to
bargain and I should not have dismissed the allegation . Paragraph 12(a) does
not allege unilateral conduct (compare 12(a) with 12(b)) and I adhere to my
ruling dismissing it.
the complaint and fully litigated at the hearing. Actually,
the facts are not in dispute. Respondent, without notifying
the Union, decided to withhold the April 20, 1970, wage
increase and to use the increase as an item in bargaining.
That such conduct was violative of Section 8(a)(5) of the
Act is too clear to warrant any discussion. Suffice it to say
that whatever arguments are made, they are answered by
the court in N.L.R.B. v. Dothan Eagle, 434 F.2d 93 (C.A. 5).
On the facts herein, I find that the withholding of the April
20, 1970, wage increase constituted a unilateral change in
conditions of employment in violation of Section 8(a)(5)
and (1) of the Act.
Although the complaint did not allege that the with-
holding of the April 20 wage increase was unilateral conduct
violative of Section 8(a)(5) of the Act, it did allege that
Respondent violated Section 8(a)(5) when, on July 9, 1970,
it did put the increase into effect. In my judgement, the
allegation is lacking in merit. The reason unilateral conduct
is violative of Section 8(a)(5) of the Act is that it obstructs
bargaining. It often discloses an unwillingness to agree with
the Union. But in this case, it was not Respondent who was
unwilling to discuss the wage increase. To the contrary, it
was unlawfully attempting to inject the issue into the nego-
tiations and the Union was vehemently opposing its at-
tempts. When Respondent belatedly put the wage increase
into effect, it was acknowledging the merit of the Union's
position. True, it sought to make capital of its capitulation
in its July 9 letter which it distributed to the employees. But,
it did not try to make capital of the decision to grant the
increase; rather, it sought to capitalize on the delay in grant-
ing the increase. It was in this respect that it sought to
undermine the Union. Significantly, the Union did not pro-
test about the granting of the increase, nor did it request
bargaining about it. For the foregoing reasons, I find no
merit to the allegations of paragraph 12(b) of the complaint
and shall recommend dismissal of that paragraph.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
By withholding until July 9, 1970, the wage increases
scheduled for April 20, 1970, Respondent deprived employ-
ees of the use of such wage increases . In order to make them
whole, I shall recommend that Respondent pay employees
interest at the rate of 6 percent per annum of the amount
of money which they received as a retroactive payment of
the April 20 increase to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because Respondent has been found guilty of unfair
labor practices in several other cases,' General Counsel and
the Union request that I recommend extraordinary reme-
dies : (1) that a copy of the notice be mailed to each employ-
ee in the bargaining unit; (2) that such notice be posted at
all Connecticut plants of Respondent; and (3) that an offi-
cial of Respondent in charge of Boron Filament Plant read
a copy of such notice to an assembled group of employees
and in the presence of union representatives . I do not deem
such remedies appropriate to the case, nor necessary to
effectuate the policies of the Act.
It is clear that a substantial number of Respondent's
employees are organized. It also appears that this has been
the case for many years and Respondent has been a party
to many collective-bargaining contracts. Under the circum-
stances, it is difficult to understand why Respondent, a
major corporation, has been found guilty of violating Fed-
eral labor laws on several occasions. I sense that the reason
lies in past disputes between Respondent and the Union,8
which have given rise to a mutual distrust exacerbated on
both sides by correspondence and charges and counter-
charges. In my judgment, more reason and less polemics on
both sides could have avoided this entire proceeding. The
remedy sought by General Counsel and the Union would
only exacerbate the situation further. I consider the unfair
labor practices herein distinguishable from those in the
prior cases involving this Respondent and, although I find
the withholding of the wage increase of April 20 violative
of Section 8(a)(3) of the Act, under all the circumstances, I
do not deem the conduct egregious, or reflective of a will on
the part of Respondent to deprive employees of their Sec-
tion 7 rights on any broad scale .9 For these reasons, I shall
not recommend any extraordinary remedies.
CONCLUSIONS OF LAW
1. United Aircraft Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Lodge 743, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at the
Employer's Broad Brook, Connecticut, Boron Filament
Plant, but excluding salaried office and salaried factory
clericals, salaried technicians, salaried laboratory techni-
cians, foremen's clerks, medical employees, first aid em-
ployees, plant protection employees, watch engineers, truck
drivers, group supervisors and all other supervisors as de-
' In United Aircraft Corp., 179 NLRB 935 and 180 NLRB 278, enfd. 440
F.2d 85 (C.A. 2), Respondent was found to have violated Sec . 8(a)(1) and (3)
of the Act by discharging and suspending employees and by certain acts of
interference , restraint, and coercion . In United Aircraft Corp, 181 NLRB 892,
enfd . 434 F.2d 1198 (C.A. 2), Respondent was found to have violated Section
8(axl) and (5) of the Act by refusing to furnish to the Union the names and
addresses of employees in units represented by the Union. In United Aircraft
Corp., 188 NLRB No. 86 , Respondent was again found to have violated
Section 8(a)(l) and (3) of the Act by suspending a union steward.
8 See United Aricraft Corp v N.L.R.B., 434 F.2d 1198 (C.A 2).
9 Apparently General Counsel did not consider the unfair labor practices
to be too serious , else the complaint would have been brought to hearing
much sooner than it was.
fined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
4. Lodge 743, International Association of Machinists
and Aerospace Workers, AFL-CIO, is the exclusive repre-
sentative of the employees of Respondent in the above-
described unit within the meaning of Section 9(a) of the Act.
5. By withholding the wage increase scheduled for
April 20, 1970, without notifying the above-named Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(5) and (1) and
2(6) and (7) of the Act.
6. By withholding the wage increase scheduled for
April 20, 1970, because its employees selected the above-
named Union as their exclusive representative for purposes
of collective bargaining, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
7. General Counsel has failed to establish by a prepon-
derance of evidence that Respondent violated the Act as
alleged in paragraphs 6(b) and (c) and 12(b) of the com-
plaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER10
Respondent, United Aircraft Corporation, Hamilton
Standard Division (Boron Filament Plant), its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding scheduled wage increases because its
employees select Lodge 743, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any oth-
er labor organization, as their exclusive representative for
purposes of collective bargaining.
(b) Refusing to bargain with Lodge 743, International
Association of Machinists and Aerospace Workers, AFL-
CIO, by unilaterally changing conditions of employment by
withholding a scheduled wage increase.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist the above-
named labor organization, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
any or all activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Lodge 743,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of all
employees in the unit described above, and, if an under-
") In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions , and order, and all objections
thereto shall be deemed waived for all purposes.
UNITED AIRCRAFT CORPORATION
standing is reached, embody such understanding in a signed
agreement.
(b) Make whole all employees employed in the Boron
Filament Plant whose wage increases were withheld until
July 9, 1970, by payment of 6 percent per annum on the
amount of wages which they received as a retroactive pay-
ment of the April 20 increase in accordance with the rec-
ommendation set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
National Labor Relations Board and its agents, for exam-
ination and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports, and
all other records relevant and necessary for a determination
of the amounts of interest on delayed wage payments due
under the terms of this recommended Order.
(d) Post at its Boron Filament Plant at Broad Brook,
Connecticut, copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced , for cov-
ered by any other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.12
IT IS FURTHER RECOMMENDED that the allegation of para-
graphs 6(b) and (c) and 12(b) of the complaint be dismissed.
11 In the event that the Board 's Order is enforced by a Judgment of a
United State Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgement of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
12 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 1, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
665
WE WILL NOT withhold scheduled wage increases
because you have selected Lodge 743, International
Association of Machinists and Aerospace Workers,
AFL-CIO, as your exclusive representative for pur-
poses of collective bargaining.
WE WILL NOT withhold scheduled wage increases
without notification to, and bargaining with, Lodge
743, International Association of Machinists and Aero-
space Workers, AFL-CIO.
Because the wage increase scheduled for April 20,
1970, was unlawfully withheld until July 9, 1970, WE
WILL make employees whole by paying them interest at
a rate of 6 percent per year on the amount of wages
which were withheld.
UNITED AIRCRAFT CORPORATION,
HAMILTON STANDARD DmsioN
(BORON FILAMENT PLANT)
(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 direct-
ed to the Board's Office, Bulfinch Building, 15 New Char-
don Street, Boston, Massachusetts 02114, Telephone
617-223-3300.