The opinion of the court was delivered by: FRANKEL
On May 9, 1966, the International Union of Electrical, Radio and Machine Workers, AFL-CIO (IUE) filed with the National Labor Relations Board a charge alleging that respondent, General Electric Company, had violated Sections 7, 8(a)(1), and 8(a)(5) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 157, 158(a)(1), and 158(a)(5), by refusing, on and after May 4, 1966, to recognize, meet, and bargain with an IUE bargaining committee. On July 13, 1966, the Board's General Counsel, through Regional Director McLeod, petitioner herein, issued a complaint and notice of hearing on the charge. Two days later, by order to show cause, the Regional Director, for the Board, petitioned under Section 10(j) of the Act, 29 U.S.C. § 160(j), for a temporary injunction restraining the allegedly unlawful conduct. An evidentiary hearing was conducted through the week beginning July 25, 1966. Now, upon the record thus made, and instructed by the able briefs and oral presentations of counsel,
the court reaches the following findings and conclusions.
The respondent is a New York corporation engaged in the manufacture, sale, and distribution of electrical and electronic equipment, chemicals, plastics and other things, including a variety of products for the national defense and atomic energy programs. It has some 290,000 employees, over 60 plants spread through 30 states, and more than 400 other installations (service establishments, warehouses, etc.), so that its physical properties and operations reach into every State in the Union. Approximately half its employees are unionized, and there is a total of about 150 bargaining units. Overall, the Company deals with more than 80 labor unions.
For the most part, respondent bargains, at least formally, in separate negotiations for each bargaining unit. The three exceptions to this pattern are the IUE, the United Electrical, Radio and Machine Workers (UE), and the Pattern Makers' League. With these three Internationals, the practice has been to negotiate national agreements, supplemented by local unit agreements to encompass particular local conditions and problems.
The IUE represents about 80,000 of respondent's employees in some 65 to 70 bargaining units. In a substantial portion of these units, the International Union as such is the certified representative. In others an IUE local is certified. Notwithstanding the individual unit certifications, and the differing designations of the International or a local as representative, the practice, as noted above, has been to conduct national bargaining for a national agreement covering all IUE units, supplemented by local agreements. The local agreements are designed as additions to, not variations from, the national contracts, which cover such basic matters as wages, hours, seniority, and arbitration procedures.
For these national negotiations, the IUE elects a General Electric Conference Board, comprised of representatives from both the International and local unions. The Conference Board in turn elects some 10 to 15 or more members to a Negotiating Committee, which meets at the bargaining table with a group designated by the Company.
In addition to these elected members, the Negotiating Committee has normally included people like the Union's general counsel, publicity workers, the research director, and other technicians. These additional members participate in discussions at the bargaining table and in the Negotiating Committee's internal councils, but they have no voting rights, which are reserved to the elected members. As will appear below, the nub of the present controversy is the extent of IUE's right to designate such additional, non-voting members of its Negotiating Committee - or, conversely, of the Company's right to hold such designees unacceptable or impermissible.
To complete briefly the procedural outlines on the Union's side: the Negotiating Committee is required to report on the progress of bargaining to the Conference Board. From time to time there are minority as well as majority reports. The Conference Board determines the Union's position on any given question, including ultimately whether a proposed national agreement should be signed.
In recent years the Company has developed a fairly uniform course for handling and coordinating its national and local bargaining activities. As described by its Labor Relations Counsel, the practice is to formulate a set of national company proposals for presentation to the IUE and the UE, two of the three unions with which there is bargaining on a national scale. Before these proposals are presented to the unions, the Company's employee relations managers are called to the New York main office, where copies are given and explained to them. The Company then presents the proposals to the IUE and UE. Normally within a day or two thereafter (in one instance, at the IUE's request, there was a five-day delay), upon instructions from the New York headquarters, the same proposals are given by the local managers to the local representatives around the country of all the varying unions with which the Company deals on a so-called local basis - e.g., locals of the International Brotherhood of Electrical Workers (IBEW), International Association of Machinists (IAM), Sheet Metal Workers (SMU), and others. At the same time, and commonly before the unions have announced their acceptance or rejection, the uniform set of proposals is publicized to the Company's employees. This mode of centralized administration, despite the multiplicity of bargaining units and representatives, is rendered feasible in part because the Company's collective agreements, with an insignificant number of exceptions, have uniform expiration dates.
Testimony for the Company indicates that its local managers have some small measure of discretion for handling local problems by means of particularized local provisions. The discretion ends, however, at the point where questions deviate from the routine. At this point, the local managers are expected to seek advice, and evidently consent, from the New York office. Whatever the precise internal definition of these managerial powers may be, the ultimate fact is that all of the Company's offers to the many unions turn out to be substantially uniform in their basic provisions. And the substantial uniformity appears to extend to the agreements eventually concluded.
For some years before the events giving rise to this proceeding, the IUE and other unions representing respondent's employees were growing increasingly restive and self-critical over the results of their separate, mutually isolated efforts to cope with the Company's centralized bargaining strategy. They found themselves outmaneuvered repeatedly when the Company announced that one or more unions had accepted a proposal and used this as leverage to wrest agreement from a more obstinate representative. They believed (although it is unnecessary for present purposes to decide whether they were right) that the Company's technique had tended to divide and conquer them, so that the terms and conditions of employment for General Electric employees had fallen behind others in comparable industries. They concluded that a program of mutually agreed "national goals" was needed to meet the Company's offering of identical national proposals. It was thought moreover, that there should be a means and a program for communication between the interested unions, mutual research assistance, coordinated publicity - in short, a substantial measure of "unity" and joint bargaining.
Acting on such views, the AFL-CIO, through its President, George Meany, called a meeting in October 1965 of a group of presidents or other representatives of international unions which (or locals of which) had bargaining relationships with respondent. Christened the Committee on Collective Bargaining, the group at its initial meeting contained officials of the IUE, IBEW, IAM, United Automobile Workers (UAW), Allied Industrial Workers (AIW), and American Federation of Technical Engineers (AFTE).
It was determined at the meeting that there should be a "coordinated approach" to the forthcoming 1966 negotiations with respondent. A Steering Committee was named, with responsibility for implementing the initial policy determinations, and the structure of some other committees was outlined. It was agreed that there should be a cooperative program of research, education, and publicity, and an effort to evolve a set of "national goals" on wages and other working conditions. It was understood that each individual union, within its own constitutional framework, would control its own bargaining and retain the autonomous power to decide what agreements it might make with respondent. It was also understood, however, at least tacitly, that there would be consultation and an exchange of views if and when any union in the group decided to abandon or deviate from any "national goals" that might result from the inter-union deliberations.
Following the formation of the Committee on Collective Bargaining, and mainly under the leadership of its Steering Committee, a number of steps were taken to implement the "coordinated approach" to bargaining with respondent. At the AFL-CIO convention in December 1965, a resolution was adopted reciting that the unions represented on the Committee had "joined together to form a common collective bargaining front for the negotiations * * * in 1966" with respondent and Westinghouse Electric Corporation. The group, the resolution continued, "plan to develop national goals which they will jointly support and prevent the corporations from playing one off against the other." Reciting the view that respondent (and Westinghouse) had lagged behind other major industries in granting employee benefits, the resolution said:
"The seven unions have expressed their determination, through an insistence upon genuine collective bargaining, to not only secure action in 1966 on pension and insurance problems, but also to assure their membership the benefits of the breakthroughs being made in recent labor-management agreements on other contractual matters.
"Experience has shown that in industries in which a number of unions operate, such coordination of collective bargaining is the only way large corporations can be made to face up to their responsibilities. * * *
" Resolved: We pledge the full support and resources of the AFL-CIO to the efforts of the Committee on Collective Bargaining, representing the seven unions, to secure justice for their membership in these negotiations, and call upon all affiliated unions to join us in this pledge."
Speaking in support of that resolution, IUE President Paul Jennings said:
"As these corporations grow larger and more diversified, it becomes more and more difficult for individual international unions to deal effectively with the corporation's technique of attempting to settle with one union, and then come to the others with an accomplished fact. What we have done, therefore, is recognize the basic fact that we have the responsibility to deal with each other as autonomous unions."
On March 15, 1966, the cooperating unions, now totalling eight, published a document entitled "Program for Progress." On its cover it bore a symbol consisting of a circle of links connecting boxes showing the initials by which the eight internationals are known. Within the circle appeared the legend: "We unite for a greater measure of justice." The text of the paper was preceded by a heading announcing "Joint Union Collective Bargaining Demands for GE-Westinghouse 1966 Negotiations," further characterized by a subheading that said: "National goals adopted by over 300 delegates from the 8 International Unions at the Conference on National Collective Bargaining Goals in Washington, D.C., on March 15, 1966." The document then proceeded to list, and later to elaborate upon, a series of three "economic issues"
and six "non-economic contract clauses"
the unions proposed to press in the forthcoming negotiations. The paper concluded with a "Resolution on Unity" which said, inter alia :
"It is now time for us to convey the details of this program to the membership of our local unions. At the same time we must communicate with the public in a manner which will create sympathetic understanding of our program and of our objectives. * * *
"We have developed a sound basis for coordinated negotiations as the result of the spirit of mutual respect and confidence which has been developed to new levels during recent months. * * *
"While we come together as representatives of eight different unions accustomed to negotiating with the GE and Westinghouse Corporations on a union by union basis, the companies' representatives have dealt with us and will continue to attempt to deal with us, either locally or nationally, under a centrally controlled program. The fact is that even though the companies have opposed company-wide bargaining on any issue they have, in fact, insisted upon the implementation of company-wide policies during contract negotiations.
"By the action we have taken here today we intend to confront company-wide policies with a union-wide program.
"Our members will know and the companies will know that all bargaining units will be directing their energies toward the same national goals.
"Of course, in addition, each union will have an opportunity to pursue additional goals necessary to meeting its own problems. * * *
"In the light of these simple and common-sense principles, it is a matter of deep regret, that at least twice in recent weeks, General Electric officials have launched bitter, yet, totally unfounded, attacks upon our efforts. They accuse us of wanting to carry on meetings with the company 'in secrecy' and of wanting to take away the rights of bargaining units to carry on their negotiations; the company charges that our activities will lead to 'industry-wide bargaining' with 'strikes and unsound settlements' and 'economic strangulation,' which, of course, is not true. * * *
"Not only do we reject this obvious attempt to confuse and divide us, but we pledge to each other our mutual cooperation, our mutual understanding and our mutual support."
At the meeting in which the foregoing Program and Resolution were adopted, IUE President Jennings observed that the cooperative effort gave the lie to those who had deemed such a thing inconceivable because of inter-union jealousies, rivalries, suspicion, and mistrust. He rejected as misleading propaganda the management view that the joint effort would impair the power of individual unions to bargain for themselves. He said: "What concerns these corporations, is that each group as it bargains will have the confidence that all the other bargaining groups are going to be asking for the same national goals."
Implementing the decision to publicize the joint program and educate the memberships of the several unions, the Committee on Collective Bargaining created a publication called "Unity," the first issue of which (dated March 1966) announced that it would "be distributed to all GE and Westinghouse workers from time to time during the eight-union drive." To the same end, a series of so-called "grass roots meetings" was scheduled and held for the companies' workers in various places around the country, with one or another of the cooperating unions acting as "host" on each occasion.
In the course of these collaborative efforts, people identified with IUE said, or were quoted as saying, on two or three occasions that there was an intention under the unity program "for no one to sign a contract with General Electric until all parties sign." The quoted words are from a one-page mimeographed "flyer" distributed by IUE Local 320 (Syracuse, N. Y.), and produced in evidence by respondent from the full dossier it keeps of such documents. A newspaper reporter for a Fort Wayne, Indiana, newspaper, called as a witness by respondent, quoted a similar statement of March 3, 1966, attributed to John Callahan, Chairman of the IUE's General Electric Conference Board and Negotiating Committee. Although it filed such statements, and later gave them in evidence here, respondent never mentioned them to anyone in IUE responsible for negotiations, deeming it a waste of time to make any direct inquiry into the Union's position.
Despite the foregoing statements, it seems clear, and I find, that there was never any agreement, express or implied, among the cooperating unions that none would sign with respondent unless all signed. It was tacitly understood that before any of them varied or abandoned any of the agreed "national goals," they would inform and consult with each other. The cooperative arrangements were instinct with the objective of approaching, as nearly as possible, the kind of unitary stance respondent regularly took vis-a-vis the several unions. But each union retained the "autonomous" status affirmed in the AFL-CIO resolution of December 1965, so that each was free at all times to sign with respondent on terms it deemed acceptable for its members. Moreover, as will appear ...