Moore, Friendly and Feinberg, Circuit Judges.
In the spring of 1966, General Electric Company walked out of a meeting with the International Union of Electrical, Radio and Machine Workers, AFL-CIO (IUE), because the Company objected to the presence on the IUE bargaining committee of representatives of other unions. Since then, the legality of that IUE negotiating technique has been the subject of much litigation, both in the courts and before the National Labor Relations Board, as yet inconclusive. And so three years later, with national bargaining on a new contract about to begin, the basic issue is again before us on the Company's petition for review of a decision of the National Labor Relations Board that the Company's actions in 1966 amounted to refusal to bargain with the IUE in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5). The Board has cross-petitioned for enforcement of its order, which directs the Company to bargain with the selected negotiating committee of the IUE in the future. For reasons set forth below, we modify the Board order insofar as it found a Company violation prior to August 1966, and enforce the order as modified. Of equal -- or perhaps more -- importance, we attempt to clarify some of the rights and obligations of the Company and the IUE in future bargaining.
General Electric is a New York corporation which manufactures and sells electrical equipment and related products, including many for the national defense and atomic energy programs. It employs about 290,000 people in over 60 plants and 400 other installations, such as service shops and warehouses. It operates in all of the 50 states. About half of its employees are represented by more than 80 unions in about 150 bargaining units. Approximately 80,000 employees in some 90 of these units are represented by the IUE.
The IUE is an international labor union which has 600 affiliated local unions with a membership of about 314,000. For some time the Company and the IUE have bargained on a national basis for a contract covering all of the 90 units represented by the IUE or one of its locals; the national agreement is then supplemented by local agreements. The 1963-1966 contract was due to expire on October 2, 1966, and contained the usual provision for notice of not more than 60 nor less than 30 days prior to expiration if either party wished to modify or terminate the agreement. In November 1965, however, the parties began corresponding -- mainly through John Callahan, chairman of the IUE General Electric Conference Board,*fn1 and Phillip D. Moore, manager of General Electric Employee Relations Service -- about the possibility of advance contract discussions. The parties had used this procedure before to lay the groundwork for formal bargaining and had apparently found it useful. Despite the expressed desire of both sides to commence discussions, they were unable to agree even to a meeting to formulate the necessary ground rules for the consideration of various matters by subcommittee. The primary stumbling block was the Company's fear that the IUE was using its request for preliminary discussions as a device to further the desire of IUE and other unions for joint company-wide bargaining.
The Company's apprehension was not without foundation. For some time, the IUE and other unions representing the Company's employees had been concerned over the results of their separate efforts to bargain with General Electric. According to the unions, the Company had successfully followed a practice of divide and conquer in the past by making a separate "fair, firm offer" almost simultaneously to each union and then whipsawing one against the other. In any event, dissatisfied with the results of their prior separate efforts, the unions in 1965 formed a Committee on Collective Bargaining (CCB), consisting eventually of the IUE and seven other international unions whose locals also had agreements with General Electric.*fn2 The avowed purposes of the members of the CCB were to coordinate bargaining in 1966 with General Electric and its chief competitor, Westinghouse Electric Corporation, to formulate national goals, and otherwise to support one another.
The CCB made several efforts to persuade the Company to meet with it for joint informal discussions on various matters; presumably, this would have taken the place of preliminary discussions with the IUE alone. The last such CCB proposal was rejected by the Company on March 25, 1966. On the same day, Moore wrote to Callahan of IUE, stating that the Company was "very receptive to appropriate pre -negotiation discussions with IUE, but . . . [did] not intend to participate in any eight-union coalition discussions or in any other steps in the direction of industry-wide bargaining." On April 13, Callahan responded and suggested that a meeting be called to formulate rules for subcommittee meetings. He stated that the IUE had not intended any formal request for joint bargaining and that the IUE would "abandon any suggestions for any such joint meeting or for joint discussions." Thereafter, Moore agreed to a meeting and the date was set for May 4.
The May 4 meeting never took place. When the IUE representatives arrived that morning, the Company for the first time became aware of the addition of seven members to the IUE negotiating committee, one member of each of the other seven unions that comprised the CCB. The Company representatives attended the meeting only long enough to announce that they would meet "only with . . . IUE people." The Company subsequently maintained its position even after it had been told that the seven new members of the IUE committee were non-voting members who were present solely to aid in IUE negotiations and not to represent their own unions.
On May 9, 1966, the IUE filed failure to bargain charges with the Board, citing the Company's refusal to meet on May 4. The Board's complaint issued on July 13. However, prior to any hearing thereon, the Board moved in the United States District Court for the Southern District of New York under section 10(j) of the Act, 29 U.S.C. § 160(j), for a preliminary injunction compelling the Company to bargain with the expanded IUE committee. An extensive hearing was held in the district court before Marvin E. Frankel, J., in late July. On August 2, 1966, the IUE formally requested in writing that the Company open contract talks under the reopener provision of the national agreement. The letter, which was received on August 3, asked for meetings on August 15, 16 and 17 to consider IUE's proposals for contract changes. On August 9, Moore replied, accepting an August 15 meeting date but making it quite clear that the Company was agreeing to meet only on the condition that no "representatives of other unions" be present. The Company adhered to this position until August 18 when the district court granted the Board's request for a preliminary injunction compelling the Company to meet with the enlarged IUE committee. McLeod v. General Electric Co., 257 F. Supp. 690 (S.D.N.Y. 1966). Thereafter, the Company did meet commencing on August 23, 1966, although it said it was doing so under protest. Suiting its action to its words, the Company appealed from the district court injunction. On September 8, this court reversed that order on the ground that it would be more appropriate for the case -- which posed a basic and novel question of law -- to "follow the path of Board hearing and decision on the unfair labor practice charges, rather than to short-circuit the established administrative design." 366 F.2d 847, 850 (2d Cir. 1966). Our mandate issued on September 20, and the Company immediately refused to talk to the "outsiders" on the bargaining committee. On the afternoon of September 21, when Mr. Justice Harlan stayed the mandate of this court, 87 S. Ct. 5, 17 L. Ed. 2d 45 (1966), General Electric resumed discussions with the "mixed" committee.
The national agreement expired without agreement on a new contract on October 2. With the aid of a presidential panel, however, agreement was finally reached on October 14. Thereafter, the Supreme Court granted certiorari in the 10(j) case, setting aside the judgment of this court and remanding the matter to the district court to "determine . . . the effect of this supervening event." 385 U.S. 533, 535, 87 S. Ct. 637, 17 L. Ed. 2d 588 (1967) (per curiam). No further proceedings were conducted there, however, the refusal to bargain charge having already gone to a trial examiner for hearing and decision on an amended complaint. In June 1967, the trial examiner found the Company guilty of a refusal to bargain commencing on May 4, 1966, and continuing to and after August 15, 1966. Despite our prior suggestion that the Board handle the controversy "promptly," 366 F.2d at 850, it did not issue its decision until October 1968, 16 months later. The Board found that the Company refused to bargain on May 4 by walking out of the meeting, that this violation continued until August 23, and that it recurred briefly on September 20 and 21. The Board noted that it would find a violation on and after August 18, even if the Company had no duty to bargain prior to that date. 173 NLRB No. 46 (1968). Finally, the Board emphasized its narrow holding, stating:
We need not decide whether Respondent's refusal to bargain might have been justified if, in fact, the participating unions had been "locked in" to a conspiratorial understanding. By walking out of the May 4 meeting, Respondent precluded our consideration of this issue. Nor need we decide whether Respondent could lawfully have suspended negotiations if, during the course of the discussions, it became apparent that the non-IUE representatives were seeking to bargain for their own unions, rather than for the IUE. These situations raise questions which are not presented by the instant case. In this case, we are only called upon to decide whether the mere presence on the IUE Negotiating Committee of representatives from unions other than the IUE justified Respondent's refusal to bargain, there being no evidence that these representatives bargained in bad faith or for employees other than those represented by the IUE. Our dissenting colleague would hold that the mere presence of these "outsiders" did privilege a refusal to bargain, even absent a specific finding of bad faith, because their presence was inherently disruptive of the bargaining process. We disagree.
Member Zagoria dissented in part, finding a violation only on and after August 18. Member Jenkins dissented on the ground that inclusion of members of other unions on the IUE ...