Litton Business Systems, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1974

209 N.L.R.B. 1006 (N.L.R.B. 1974)

1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Royal Typewriter Company, a Division of Litton
Business Systems, Inc., a Subsidiary of Litton
Industries, Inc., and Litton Industries, Inc. and
Allied Industrial Workers of America, Local 469,
affiliated with International Union Allied Industri-
al Workers of America , AFL-CIO
Litton Business Systems , Inc., a Subsidiary of Litton
Industries, Inc., and Litton Industries, Inc. and
Allied Industrial Workers of America, Local 469,
affiliated with International Union Allied Industri-
al Workers of America, AFL-CIO. Cases
17-CA-3788, 17-CA-3857, 17-CA-3932, and
17-CA-4023
April 2, 1974
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
PENELLO
On August 19, 1971, Administrative Law Judge'
John F. Funke issued the attached Decision in this
proceeding. Thereafter, Respondents Litton Business
Systems, Inc., and Royal Typewriter Company, the
General Counsel, and the Charging Party filed
exceptions and supporting briefs,2 the Charging
Party filed cross-exceptions and a supporting brief,
and Respondents and the Charging Party filed
answering brief s.3
On February 14, 1973, the Board issued an Order
remanding the proceeding for a further hearing
before the Administrative Law Judge for the purpose
of receiving additional evidence relevant to the
single-employer status of Litton Industries, Inc.,
Litton Business Systems, Inc., and Royal Typewriter
Company; the participation, if any, by officials of
Litton Industries, Inc., in the alleged unfair labor
practices; and any other factors relevant to the
appropriateness of requiring Litton Industries, Inc.,
to remedy any unfair labor practices found. The
Board's Order reversed the Administrative Law
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Charging Party also requested oral argument This request is
hereby denied , as the record, including the briefs, adequately presents the
issues and the positions of the parties.
3 Respondents' motion for leave to file a supplement to their brief is
hereby denied, as the material therein , consisting of a stipulation entered
Into by different parties in another proceeding, cannot affect the outcome
herein . Accordingly, we find it unnecessary to pass on the Charging Party's
motion for special leave to file a reply brief
A The only evidence introduced at the reopened hearing was the
testimony of three officers of Litton Industries, Inc, in a proceeding before
the Federal Trade Commission. The Administrative Law Judge, while
admitting the testimony into evidence, refused to consider it in deciding the
issues of single-employer status and participation in unfair labor practices
We find that the testimony was properly received in evidence as an
admission against interest by Litton Industries , Inc We further find that the
testimony was admissible as newly discovered evidence, since much of it
Judge's ruling denying the General Counsel's mo-
tion, made during the hearing, to add Litton Indus-
tries, Inc., as a respondent and granted said motion.
On April 6, 1973, the Board issued an Order further
clarifying the Order of February 14 and denying the
petition for reconsideration filed by Litton Indus-
tries, Inc.. the separate and concurrent motions of
Litton Business Systems, Inc., and Royal Typewriter
Company to reconsider; the Charging Party's motion
to take affirmative action; and the separate and
concurrent motions of Litton Business Systems, Inc.,
and Royal Typewriter Company to expunge the
Charging Party's motion from the record.
Pursuant to the Board's remand Order, a further
hearing was held before Administrative Law Judge
Funke. No evidence was introduced by Litton
Industries, Inc., Litton Business Systems, Inc., or
Royal Typewriter Company, but additional evidence
was introduced by the General Counsel and the
Charging Party.'' On June 15, 1973, the Administra-
tive Law Judge issued his Supplemental Decision,5
finding no single-employer relationship between
Litton Industries, Inc., and the other Respondents,
and no participation by Litton Industries, Inc., in
any unfair labor practices, and recommending that
Litton Industries, Inc., be stricken as a respondent.
Thereafter, the General Counsel and the Charging
Party filed exceptions and supporting briefs, and
Litton Business Systems, Inc., and Royal Typewriter
Company filed separate and concurrent briefs in
support of the Administrative Law Judge's Supple-
mental 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Decision and Supple-
mental Decision in light of the exceptions and briefs
and has decided to affirm the Administrative Law
Judge's rulings,6 findings, and conclusions to the
extent consistent herewith. However, the Board is not
was given after the close of the original hearing herein and the remainder
was given only a few days before the close of said hearing and could not
have been discovered before the close of the hearing by the exercise of due
diligence Having admitted the testimony into evidence , the Administrative
Law Judge should have considered it. We have done so and find that, while
the evidence introduced at the original hearing is sufficient to warrant the
findings made hereinafter , the testimony at the FTC proceeding lends
further support to those findings.
s For reasons stated in fn 7, infra, the Supplemental Decision is not
attached hereto.
6 The General Counsel and the Charging Party have excepted to the
admission into evidence of the testimony given by stoker Earl Murray in a
civil action brought against the Union because Murray had shot a
nonstriking employee's son. After giving such testimony , but prior to the
hearing in the instant case, Murray pleaded guilty to a felony in connection
with the shooting. At the heanng herein , he was called as a witness, but he
invoked his constitutional privilege against self-incrimination and refused to
answer any questions. Respondents' counsel stated that he would have
209 NLRB No. 174
ROYAL TYPEWRITER COMPANY
satisfied with the presentation of the case in the
Administrative Law Judge's Supplemental Decision,
and therefore makes its own findings" and conclu-
sions with respect to the issues set forth in the
remand Order. For reasons set forth hereinafter, we
conclude, contrary to the Administrative Law Judge,
that Litton Industries, Inc., Litton Business Systems,
Inc., and Royal Typewriter Company constitute a
single employer. We further conclude that the record
shows sufficient participation by Litton Industries,
Inc., in the unfair labor practices found herein to
warrant an order requiring it to remedy such unfair
labor practices.
1. Litton Industries is a Delaware corporation
with headquarters in Beverly Hills, California. It is a
giant conglomerate with many wholly owned corpo-
rate subsidiaries. As of April 23, 1969 (the date the
Royal plant was closed), it had 12 directors. Three of
these-the chairman of the board, the president, and
the chairman of the executive committee, a witness in
this proceeding-constituted the executive commit-
tee, which exercised the functions of the board of
directors between meetings. The officers included
approximately nine senior vice presidents and seven
vice presidents. The vice presidents were appointed
by the executive committee, subject to ratification by
the full board of directors.
The directors of Litton Business Systems are the
three members of the executive committee of Litton
Industries. Its officers, most of whom are vice
presidents of Litton Industries, are appointed on the
recommendation of the law department of Litton
Industries, which selects persons who are available to
sign documents. This is their sole function as officers
of Litton Business Systems, which is only a shell
created for tax purposes and has no effect on the
operating divisions or subsidiaries.
The functional structure of Litton Industries
consists of four groups, each of which is headed by a
group executive who is a senior vice president of
Litton Industries. Each group is in turn divided into
several subgroups, each of which has a number of
operating divisions, most of which are unincorporat-
ed. The president and the chairman of the board
asked Murray the same questions which were asked him in the civil action
As Murray had already given the testimony and been convicted at the
time of the hearing in the instant case , we conclude that there was no
effective assertion by Murray of his constitutional privilege against self-
incrimination In any event , Respondents made no effort to follow the
procedure outlined in Sec. 102.31(c) of the Board 's Rules and Regulations.
Accordingly, we conclude that Murray was not legally unavailable as a
witness Since the General Counsel had no opportunity to cross-examine
Murray, the Admmis'rative Law Judge erred in admitting his prior
testimony into evidence . However, the error was not prejudicial , inasmuch
as the Administrative Law Judge did not rely on that poor testimony
At the reopened hearing and in his Supplemental Decision, the
Administrative Law Judge exceeded the scope of his authority under the
remand Order by repeatedly expressing his displeasure at the Board 's action
in remanding the case . As indicated in in. 4 , supra, he ignored the evidence
1007
appointed the group executive, who, in turn, appoint-
ed the head of each division, with the approval of the
president and the chairman of the board. The group
executives spend the majority of their time traveling
to the sites of the divisions for discussions with
division managers . Each division must submit a
financial plan for each fiscal year, setting forth
anticipated income and expenses in detail and
indicating the number of personnel to be employed.
The group executive can approve or reject the plan.
In addition, each division is required, twice a year, to
submit in considerable detail its plan for the next 2
years.
All acquisitions of other companies must be
approved by the executive committee of Litton
Industries. The use of outside consultants for
purposes such as finding a new person to put in
charge of research and development requires the
approval of the group executive. Before a division
head can make an agreement with another company
concerning the use of the latter's patent, he must
obtain the approval of both the group executive and
the patent department of Litton Industries . Division
heads are informed of the opportunity to deal with
other divisions, but are not required to do so, and
reciprocal dealing agreements among subsidiaries
and divisions are prohibited. If divisions do deal with
each other, they have arm's-length transactions, but
payment is not in cash; the price is charged against
the earnings of one division and credited to the
income of the other. The financial statement in the
annual report of Litton Industries shows profits,
losses, assets , and liabilities for Litton Industries as a
whole, rather than for any subsidiaries or divisions.
Litton Industries acquired Royal-McBee Corpora-
tion in 1965, and Royal Typewriter Company, Inc.,
was formed at that time, but was merged into Litton
Business Systems in 1967. Since then, Royal has been
an unincorporated division of Litton Business
Systems and has been known by several different
names. As of the time of the original hearing herein,
it was the Royal Products Division of the Office
Communications and Equipment Subgroup (OCEG)
of the Business Systems and Equipment Group
introduced at the reopened heanng and, in his Supplemental Decision, also
failed to mention much of the relevant evidence introduced at the original
hearing. In view of the Administrative Law Judge 's utter disregard of the
purposes of the remand Order, we are not attaching his Supplemental
Decision to this Decision and Order.
8 The Administrative Law Judge's Supplemental Decision, while
summarizing some of the testimony on the single -employer issue, does not
contain any explicit credibility findings with respect to such testimony. To
the extent that such findings may be implicit in the Administrative Law
Judge's findings of fact and conclusions of law , they are not based on
demeanor or otherwise explained by the Administrative Law Judge
Accordingly, we are free to disregard such testimony where it is inconsistent
with other evidence in the record. See Cecil J Daggett, et a! d/b/a Allied
Chain Link Fence Company, 126 NLRB 608 , 610, In. 2.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(BEG). The group executive of the OCEG was Berry,
a vice president of Litton Industries and formerly
president of Royal. The head of the BEG, a senior
vice president of Litton Industries, who has authority
to organize the group as he sees fit, in turn
authorized Berry to form this subgroup and to
rearrange the divisions therein as he saw fit. Berry
combined three divisions to form the Royal Products
Division. He could place any plant operated by his
subgroup under any of its divisions. Royal's presi-
dent is appointed by the head of the BEG. At one
time in 1967, the head of the BEG served simultane-
ously as president of Royal. Berry, who had been
financial vice president of BEG, was appointed
president of Royal, and a vice president of Litton
Industries, in March 1968. The Springfield and
Hartford plants were then in separate divisions,
which Berry combined after forming OCEG. In
February 1969, Stewart, who was on Berry's staff at
OCEG as vice president of operations and manage-
ment and had previously served as vice president and
general manager of two other divisions (one of which
was a division of Litton Business Systems and was
later merged with Royal), was made president of
Royal. In April 1970, Stewart was appointed group
executive of another group and a vice president of
Litton Industries.
Royal has its own advertising program and its own
research and development facilities. It has a separate
bank account, but if money is needed for an
extraordinary expenditure, Litton Industries or an-
other division will loan it money at 8-percent interest.
The president of Royal submits an annual budget to
the group executive for its subgroup. Once the
budget is approved, the president of Royal is free to
make expenditures within the limits of the budget. If
he finds it necessary to exceed those limits, he must
obtain the approval of the group executive. Between
1965 and 1970, Litton Industries invested over $16
million in Royal to keep it going.
With respect to labor relations, it is clear that
Royal has autonomy in controlling day-to-day
relations and certain separate benefits. After the
acquisition of Royal-McBee by Litton Industries, the
separate pension plan for Royal's Springfield plant
remained in effect, while the union representing the
Hartford employees agreed, after a strike, to adopt
the Litton Industries pension plan. However, Royal
utilized a number of services provided by the
retirement planning department of Litton Industries
to help administer its pension plan at the Springfield
plant. The committee which administered Royal's
pension plan consisted of four officers of Litton
Industries (including one senior vice president and
one vice president) and one official of Litton
Business Systems, all with offices at the headquarters
of Litton Industries. The annual reports filed with
the Department of Labor concerning the pension
plan listed Litton Industries as the employer. Royal
has its own hospitalization and medical insurance
plans; those of Litton Industries are not available to
employees of subsidiaries or divisions.9 Litton
Industries has a stock purchase plan for rank-and-file
employees which some, but not all, divisions have
adopted; a prospectus listed Litton Business Systems,
but not Royal, among the subsidiaries whose
employees were eligible to participate in the plan.
Any subsidiary or division may request assistance
or advice from the labor relations department of
Litton Industries. They are not required to do so, but
cannot use outside consultants without the group
executive's approval. Litton Business Systems has no
labor relations personnel. On several occasions,
officials of divisions have indicated to employees or
their bargaining representatives that Litton Indus-
tries determines their labor relations policies. Thus,
during an election campaign at Louis-Allis, a
division of Litton Industries, the plant manager
wrote a letter to the employees, saying "Litton
Industries has a basic policy with regard to strikes
that you should know about." In addressing the
employees at Royal's Springfield plant on February
7, 1969, in an effort to dissuade them from striking,
Plant Manager Jurras said, "The company is prepar-
ed if need be to produce typewriters elsewhere.
Litton has typewriter plants at its disposal in
Germany, Japan, Holland, England, Hartford and in
the Monroe system also here in the United States." 10
In the 1966 contract negotiations at the Springfield
plant, Jurras said that before making a final offer to
the Union, he had to get approval from Beverly Hills
(where Litton Industries, but not Litton Business
Systems or Royal, had headquarters). On one
occasion, Ingalls Shipyards, a division of Litton
Industries, obtained the approval of the president
and executive vice president of Litton Industries
before seeking a midterm reopening of its contract.
As to the events involved in this proceeding, Irwin,
director of labor relations of Litton Industries,
advised officials of Royal in early 1969, when Royal
was refusing to bargain with the Union, that they
should await the disposition of pending charges
before taking any further action. Subsequently, when
Ellis, the attorney for Royal and Litton Business
Systems, sought to persuade Brehm, an official of the
Charging Party's international union and a member
9 Only 400 persons are employed directly by Litton Industries, while division of Litton Industries , the record indicates that this division does not
about 118,000 are employed by its subsidiaries and divisions produce typewriters.
10 Jurras ' statement was erroneous insofar as it referred to the Monroe
ROYAL TYPEWRITER COMPANY
of the Union's bargaining committee, to agree to an
extension of the expiring contract, he asked Brehm to
meet with him and Irwin. Brehm, however, refused to
meet with Irwin.
When bargaining commenced, Irwin, although not
a member of Respondents' bargaining committee,
was notified of the schedule of bargaining sessions.
He was asked, first by Berry and later by Stewart, to
go to Springfield and report on the progress of
negotiations. Berry was no longer president of Royal,
but was already head of OCEG, when he asked Irwin
to go to Springfield, and no officials of Royal
requested Irwin to do this. Irwin attended four
bargaining sessions (April 8, 15, 22, and 23) and part
of a fifth (April 21). These included the session at
which Ellis announced that the closing of the
Springfield plant was being considered (April 15) and
the one at which Ellis announced that the plant
would be closed (April 23), as well as some of the
sessions when there were negotiations concerning the
decision to close the plant. Irwin took an active part
in the negotiations; at all the sessions he attended
except the last (April 23), he did approximately half
the speaking for Respondents, with Ellis doing most
of the other half. Irwin explained the economic
situation which led to consideration of closing the
plant, and commented at length on the Union's
contract proposals. No officials of Litton Industries
participated in the negotiations after April 23, which
dealt with the effects of the plant closing on the unit
employees.
Both Stewart and Ellis testified that Berry, the
group executive of OCEG, made the decision to stop
production after the shooting incident of March 26.11
As to the decision to close the plant permanently, a
director of Litton Industries, the chairman of its
executive committee, testified that such a decision
was a "fundamental issue" and that if a group
executive disagreed with the division head's decision
on this issue, he would replace the division head.
Stewart, the president of Royal, not only was not
replaced after the closing of the Springfield plant, but
was subsequently promoted. In addition, during the
negotiations between April 15 and 23, Ellis repeated-
ly stated that the decision on whether to close the
plant would be made by "the people in Beverly
Hills" and that they were concerned about the
impact on "the image of Litton" in Springfield. Irwin
said on April 21 that by I p.m. on April 23 "the
meeting will have concluded in Beverly Hills and a
decision reached." The next day Ellis proposed a
termination agreement to take effect if Respondents
and the Charging Party reached agreement on a
contract "prior to the time that the Board of
1009
Directors makes a decision in Beverly Hills on the
termination of this plant." Finally, on April 23, Ellis
stated that he had received the announcement of the
plant's closing "from headquarters of Litton in
Beverly Hills." As noted supra, Litton Industries has
headquarters in Beverly Hills, while Royal and
Litton Business Systems do not, and Royal has no
board of directors.
In the FTC proceeding, in which Litton Industries
was a respondent, Berry filed an affidavit saying,
inter alia, "Even if Litton had not acquired Triumph-
Adler, in my opinion, it would have been necessary
for Litton to close the Royal plant at Springfield,
Missouri." In his testimony at the hearing in that
proceeding, Berry went further, saying that, if the
acquisition of Triumph-Adler were not permitted,
"my . . . recommendation would . . . be that Litton
should dissolve Royal and get out of the [typewriter]
business." Gray, the former head of the BEG,
testified to the same effect, as did the president of
Litton Industries , who also testified that Litton
Industries had, in fact, closed some unprofitable
businesses and had, in at least one instance, closed a
major product line of a subsidiary without closing
the entire company.
The foregoing facts make it clear that far more
than mere common ownership is present here. They
show that Litton Industries can, and does, exercise
complete control over basic decisions concerning
Royal's operations in general , and its labor relations
in particular. They further show that officials of
Litton Industries played a major role in the unfair
labor practices found hereinafter.
At the outset, it may be noted that Royal is not a
legal entity; it cannot sue or be sued in its own name,
and thus cannot, in a legal sense , be regarded as the
sole "employer" of its employees. Litton Business
Systems, on the other hand, is a legal entity, but does
not, in a practical sense , either produce typewriters
or employ anyone; it is admittedly only a shell
created for tax purposes. In contrast, Litton Indus-
tries is both a legal entity and a functioning one. Its
officials have created, abolished, and rearranged
divisions, including Royal, at will. These same
officials, the group executives, appoint the heads of
the divisions and retain control over their activities.
They hold frequent discussions with the division
managers , and their approval is required for each
division's overall budget and detailed plans. At the
top of the pyramid is the executive committee of
Litton Industries, whose members are also the sole
directors of Litton Business Systems and have
ultimate authority to appoint the group executive
and approve or disapprove his actions, including the
11 See In 6, supra
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appointment of division managers. Thus, although
the various divisions may have nominally separate
management, it is clear that real authority over all
divisions is in the hands of high officials of Litton
Industries-the executive committee and the group
executives-who functioned, in the words of the
president of Litton Industries, as a "management of
managers." In our view, the exercise of authority by
these officials is sufficient to show common manage-
ment of the parent corporation and its subsidiaries
and divisions. The identity of successive presidents of
Royal even more clearly shows that there was, in
reality, common management. At one point, the
group executive of Royal's subgroup actually served
simultaneously as president of Royal. Later, this
position was occupied by Berry and Stewart, both
career officials of Litton Industries (Berry was
already a vice president of the parent company), who
subsequently moved on to still higher positions with
Litton Industries. It is evident that, for them, the
presidency of Royal was simply another manage-
ment position with Litton Industries. Thus, common
management, as well as common ownership, is
clearly present here.
The integration of operations, and actual control of
the divisions' operations by Litton Industries, is also
clearly shown by the record. As has been noted, the
very existence of each division, as well as the scope
of operations under it, is controlled by the group
executive, in practice as well as in theory. Similarly,
the group executive must approve each division's
annual budget, thereby setting a limitation on
expenditures which the division manager cannot
exceed without the group executive's approval. This
requirement of approval clearly reflects actual
control, not merely the possibility of exercising
control. The same is true of the requirement that
each division submit a detailed plan of its expected
operations; the testimony of the president of Litton
Industries before the FTC indicates that monthly
evaluation of data is made to compare results with
expectations, and corrective action is taken if
necessary. Furthermore, the group executives exer-
cise control by frequent visits to the divisions and
discussions with the division managers. Finally, we
note that in its reports to stockholders-the annual
report and notice of annual meeting-Litton Indus-
tries characterized itself, not as a holding company
for divisions engaged in separate operations, but as
an active, integrated enterprise which operates in a
wide variety of industries. The financial statement
gives figures for Litton Industries as a whole; the
total amount of property owned or used by Litton
Industries as a whole is given; the major plants and
offices are listed by location, with no separate list for
those of each subsidiary or division; and it states that
Litton Industries (Royal is not even mentioned)
manufactures numerous products, including electric
and manual office and portable typewriters and
accessories. It is thus apparent that the management
of Litton Industries recognized what this record
shows: that there was but one integrated enterprise.
Similarly, as to labor relations, while day-to-day
matters were of necessity left to the separate
divisions, there is ample evidence that major deci-
sions were controlled by top officials of Litton
Industries. A division obtained the approval of two
of the highest officials of the parent corporation
before seeking a reopening of its collective-bargain-
ing contract. Another division told its employees that
Litton Industries would follow a certain policy in the
event of a strike-a policy which would be irrelevant
if the division alone determined what offers to make
to a union in negotiations. Royal's plant manager,
Jurras, similarly told the employees in the instant
case that in the event of a strike, typewriters would
simply be produced at other Litton plants. He had
previously indicated to the Union that he had to get
approval from "Beverly Hills"-an obvious reference
to the corporate headquarters of Litton Indus-
tries-before making a final contract offer. In
addition, some employee benefits provided by Litton
Industries are available to employees of subsidiaries
or divisions, and, while the Springfield employees
had a nominally separate pension plan, it was, in
effect, administered by Litton Industries and referred
to Litton Industries as the employer. Moreover, in its
annual reports to stockholders in 1967 and 1968,
Litton Industries stated that it had more than
100,000 employees-a figure which obviously in-
cludes the employees of subsidiaries and divisions.
The notice of the 1968 stockholders' meeting repeat-
ed this, adding, "Litton believes that its relations
with its employees are satisfactory." Thus, its own
officials' statements show common control over
labor relations and recognition of single-employer
status.
The extensive participation by officials of Litton
Industries in the conduct alleged herein to constitute
unfair labor practices is even more clearly shown by
the record. As early as January 1969, Irwin, the
director of labor relations of Litton Industries, was
asked for advice with respect to Respondents' refusal
to bargain with the Union; he approved the course of
action which was being taken. Later, when Respon-
dents' counsel, Ellis, met with a union representative
to try to get the contract extended, he sought to have
Irwin present at the meeting. When negotiations did
begin, Irwin was given the schedule of bargaining
sessions and was initially asked, not by officials of
Royal but by Group Executive Berry, to report on
the progress of negotiations. Irwin attended only a
ROYAL TYPEWRITER COMPANY
few of the bargaining sessions, but at the sessions he
did attend, three of which (April 15, -21, and 22)
included discussion of the impending decision on
whether the Springfield plant would be closed, he
was the principal spokesman for Respondents. He
made no counterproposals, but repeatedly stated
Respondents' position on the Union's proposals, and
explained the economic situation and the factors
which might lead to a closing of the Springfield
plant.
Litton Industries, through Irwin, was thus directly
involved in the negotiations concerning the decision
to close the plant. Respondents contend that the
actual decision to close the plant was made solely by
Stewart, the president of Royal. During the negotia-
tions, however, the representatives of Respondents
repeatedly stated that this decision would be made in
Beverly Hills, where the headquarters of Litton
Industries, but not those of Royal or Litton Business
Systems, are located. Respondents now contend that
the references to Beverly Hills were based on the fact
that Stewart was then in Beverly Hills. However, they
did not so inform the Union; they referred to "the
people," not one person, in Beverly Hills, and to "the
Board of Directors"-clearly that of Litton Indus-
tries, as Royal has no directors-not to the president.
The "people in Beverly Hills" were also said to be
concerned about the "image of Litton" in Spring-
field. Clearly, such image could be affected only if
the community perceived a plant closing as resulting
from a decision by Litton Industries; the closing of a
Royal plant by Royal officials would have affected
only Royal's image. Thus, the statements made
during the bargaining sessions clearly implied that
officials of Litton Industries would decide whether to
close the plant. Furthermore, in the FTC proceeding,
Litton Industries expressly stated, both in its answer
to the complaint and in an affidavit filed by Berry,
that it had closed the Springfield plant. Even in this
proceeding, before any attempt was made to add
Litton Industries as a respondent, Ellis stated in a
letter to the Board's Regional Office that the FTC's
challenge to the acquisition of Triumph-Adler "made
it virtually impossible for Litton to continue the plant
in Springfield as a typewriter producer." Thus,
Federal agencies, as well as the Union, have been
told that Litton Industries closed the plant.
In addition, it is clear from the record that the head
of a division such as Royal simply did not have
authority to close a plant on his own initiative,
whereas officials of Litton Industries did have such
authority. In the first place, it is undisputed that
Berry, group executive of OCEG and a vice president
12 Esgro Inc and Esgro Valley Inc, 135 NLRB 285, 286. We reject the
contention that the procedure followed herein depnved Litton Industries of
due process As stated in our Order of Apnl 6, 1973, the remand order of
1011
of Litton Industries, rather than any official of
Royal, made the decision to halt production after the
shooting incident. It is wholly unrealistic to assume
that Berry would make the decision to close the plant
temporarily himself but leave the decision whether to
close the plant permanently solely to his subordinate,
the president of Royal. Indeed, the chairman of the
executive committee of Litton Industries testified
that a group executive would replace a division
manager if he disapproved the latter's decision to
close the plant. Furthermore, Stewart, the president
of Royal, admitted that he was in Beverly Hills
during part of the period when the shutdown was
being considered, although he returned to New York
before the final decision was made. On the basis of
this evidence, we conclude that the decision was
made in Beverly Hills, where Ellis repeatedly told the
Union it would be made and from where, he stated
on April 23, he received word of the decision to close.
We further conclude that the "people in Beverly
Hills" who made the decision were officials of Litton
Industries. That they had the power to do so is clear.
Berry, the head of OCEG, Gray, a senior executive
vice president of Litton Industries and former head
of the BEG, and the president of Litton Industries all
expressed the view in their testimony before the FTC
that if the acquisition of Triumph-Adler were not
permitted, Litton would have had to close Royal and
get out of the typewriter business . While this
testimony referred to the closing of the entire Royal
division, we think it obvious that the parent corpora-
tion was not limited to a choice between closing the
entire division or closing none of it. The power to
close a division surely includes the power to close a
single money-losing plant of that division. Indeed,
the president of Litton Industries testified that, in at
least one instance, Litton Industries had closed a
major product line of a subsidiary without closing
the entire company. We are convinced that it could,
and did, similarly close the Springfield plant without
terminating all of Royal's operations.
In sum, all the elements of a single-employer
relationship-common ownership, common manage-
ment, actual control of the subsidiary's operations by
the parent company, and centralized control over
labor relations-are present 'here. Because Litton
Industries, together with Litton Business System and
Royal, constitutes a single employer, and particularly
because of the participation of officials of Litton
Industries in the decision to close the Springfield
plant, we find that Litton Industries was properly
made a respondent herein 12 and may be held liable
February 14, 1973, "[gave] Litton Industries , Inc. the opportunity to litigate
the single-employer issue, including the right to examine and cross -examine
witnesses , object to evidence previously introduced , and introduce addition-
(Continued)
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any unfair labor practices arising out of the plant
closing.13
2. We agree with the Administrative Law Judge's
finding that Jurras, the plant manager at Springfield,
in the speech given on February 7, 1969, threatened
to close the plant in the event of a strike and
promised the employees a wage increase if they
refrained from striking, in violation of Section 8(a)(1)
of the Act.14 The Administrative Law Judge failed to
pass on the speech given by Respondents' attorney,
Ellis, to employees at the Springfield plant on
February 21, 1969. The General Counsel and the
Charging Party contend that it contained essentially
the same threats and promises made by Jurras. Ellis
gave essentially the same speech on each of the three
shifts that day. We have considered all three versions
of the speech, which are in the record herein. There is
a substantial difference between what the transcripts
of the speeches reveal was purportedly said by Ellis
and the testimony of employees as to their under-
standing and perception of what he said. As the
Administrative Law Judge made no credibility
resolutions as to such testimony, and as the alleged
violations involved are the same as those found to
have been committed by Jurras, we deem it unneces-
sary to resolve this issue, and we shall dismiss the
allegations that Ellis' speeches violated Section
8(a)(1) of the Act.
3. We find, in agreement with the Administrative
Law Judge, that Respondents violated Section
8(a)(5) and (1) of the Act by refusing to meet and
bargain with the Union from December 18, 1968,
until February 21, 1969, since they lacked objective
grounds for doubting that the Union still enjoyed
majority representative status. We further find, in
agreement with the Administrative Law Judge, that
Respondents, from February 21 until March 19,
1969, imposed unlawful conditions on their offer to
bargain with the Union, thereby further violating
Section 8(a)(5) and (1) of the Act. However, we do
not agree with his conclusion that this latter
violation, coming after Respondents had unlawfully
refused to bargain at all for 2 months and had
thereby provoked an unfair labor practice strike, was
al relevant testimony and evidence, before the issue [was] decided." Under
Secs 102.28 and 102.41 of the Board 's Rules and Regulations , it could have
exercised any or all of these rights without waiving its contention that the
Board lacked jurisdiction over i t it chose not to do so in our view , the fact
that this opportunity was provided fully satisfies the requirements of due
process C f N LB B v. Deena Artware, Inc, 361 US 398
13 Member Penello agrees that , in view of the participation by Litton
Industries in the decision to close the plant, it is liable for any unfair labor
practices arising out of said decision He therefore finds it unnecessary to
determine whether, absent such participation . Litton Industries could he
found to constitute a single employer together with the other Respondents
or ordered to remedy their unfair labor practices
i i Member Penello would not find an unlawful threat to close the plant
in the event of a strike In his view , the speech, the relevant portion of which
is set forth in sec 111, B, of the Administrative Law Judge 's Decision, clearly
"more technical than substantial." In these circum-
stances, the refusal to bargain from February 21 to
March 19 was a serious violation which warrants a
remedial order.
4. The Administrative Law Judge, relying on
General Motors Corporation, GMC Truck & Coach
Division, 191 NLRB 951, affd. 470 F.2d 422
(C.A.D.C., 1972), held that the decision to close the
plant was not a mandatory subject of bargaining and
that Respondents therefore did not violate Section
8(a)(5) and (1) of the Act with respect to such
decision. We do not agree. In General Motors, the
Board held that an employer was not obligated to
bargain with a union concerning an economic
decision to sell an independent dealership. It did not
overrule Ozark Trailers, Inc., 161 NLRB 561,
565-570, and other decisions in which the Board,
notwithstanding court decisions to the contrary, held
that an employer operating two or more plants was
obligated to bargain with respect to a decision to
close one of those plants. Decisions since General
Motors have reached the same result.15 Accordingly,
we hold that Respondents were required to bargain
in good faith concerning the decision to close the
plant.
In determing whether good-faith bargaining did, in
fact, occur, the context in which the possibility of
closing the plant was raised must be considered. For
3 months, Respondents had unlawfully refused to
bargain with the Union. Shortly after bargaining did
begin, Respondents eliminated a substantial number
of unit jobs, and clearly placed the remaining ones in
jeopardy, by permanently transferring the pro-
duction of portable electric typewriters to Hartford-a
step taken with less than a week's notice to the Union
and announced at only the third bargaining session
after such notice was given. On April 15, when
Respondents first informed the Union that the plant
might be closed, they had not yet offered the Union a
wage increase, although Jurras had promised the
employees 2 months earlier that they would receive a
substantial increase if they did not strike. Not until
April 17 was a wage increase offered to the Union,
and that offer was of doubtful value, since Respon-
states Respondents' intention , in the event of a strike, to continue operating
the plant with nonstriking employees and, if necessary, with replacements
for strikers . In this context, Member Penello construes the further statement
that typewriters could be produced at other Litton plants as indicating
merely an intention to have struck work performed elsewhere for the
duration of any strike , which would have been entirely lawful , rather than as
threatening to close the plant permanently.
i' Southeastern Envelope Co., inc. & Southeastern Expandvelope, Inc, 206
NLRB No 115 (partial closing); Bruce E Kronenberger and Herbert
Schoenbrod d/b/a American Needle & Novelty Company, 206 NLRB No 61
(transfer of unit work ). Unlike Summit Tooling Company; 195 NLRB 479,
480, this case does not involve "the prerogative of an employer . . to
eliminate itself as an employer " The closing of the Springfield plant did not
take Respondents out of the business of manufacturing typewriters, such
manufacturing continued at Hartford and abroad.
ROYAL TYPEWRITER COMPANY 1013
dents were indicating at the same time that even a
wage reduction might not save the plant. Thus, the
negotiations concerning the decision to close took
place, not in a context of prior bona fide efforts to
reach agreement, but in an atmosphere infected by
serious unfair labor practices.
Respondents' conduct at the bargaining table also
precluded meaningful discussion of the decision to
close the plant. They offered to bargain about the
decision, but were unable to say where the work
performed at the plant would be transferred. The
Union responded that, without this information, it
could not determine comparative costs or make
meaningful suggestions as to how the plant could be
saved. On April 21, it specifically requested informa-
tion concerning the economic factors behind the
proposal to close; where the work would be trans-
ferred; the relevance, if any, of the acquisition of
Triumph-Adler, a German typewriter company, by
Litton Industries to this situation; and the steps, if
any, that the Union could take to help improve the
economic situation. Although some discussion of
these matters occurred, the Union was never given
any concrete answers or furnished with written data
for analysis and consideration. Moreover, as noted
supra, Respondents indicated that the decisions
would be made by officials of Litton Industries, but
at the same time rejected all suggestions that the
Union's negotiators be permitted to meet with those
officials. Instead, they indicated, the Union would
have to rely on Respondents' negotiators to' present
the Union's point of view to the officials making the
decision. On April 23, just 8 days after the Union was
first informed that the plant might be closed, the
decision to do so was announced.
In sum, Respondents afforded the Union only 8
days of discussion of the decision to close the plant,
and that discussion, coming after several months of
an unlawful refusal to bargain, was with persons who
had no authority to make the decision, who insisted
that only they and not the Union would speak with
those who did have such authority, and who did not
furnish information which might have enabled the
Union to discuss the matter intelligently. In our view,
this does not satisfy the statutory requirement of
good-faith bargaining. Accordingly, we find that
1e Member Penello does not agree that Respondents violated Sec. 8(a)(5)
with respect to the decision to close the plant . As to the identity of
Respondents ' negotiators, he notes that Litton Industries had a representa-
tive, Irwin, who was the principal spokesman for Respondents at several
bargaining sessions and who was constantly contacting the officials
responsible for the decision to close, there is no contention that he ever
refused to present any union proposal to these officials A violation of Sec
8(a)(5) cannot be found merely because no director of Litton Industries was
at the bargaining table McLean-Arkansas Lumber Company, Inc., 109
NLRB 1022, 1038 , Lloyd A Fry Roofing Company v NLRB, 216 F 2d 273
(CA 9)
As to the negotiations themselves , Respondents informed the Union on
April 15, 1969, that they were considering closing the plant , and, in the six
Respondents violated Section 8(a)(5) and (1) of the
Act by failing to bargain in good faith with respect to
the decision to close the Springfield plant.16
5. The Administrative Law Judge found, and we
agree, that Respondents violated Section 8(a)(5) and
(I) of the Act by offering unit employees temporary
employment in bargaining unit work at Springfield,
and temporary and permanent employment in unit
work at Hartford, without notice to or consultation
with the Union, and by offering employees reinstate-
ment at Hartford, West Hartford, and Newington on
better terms than had been offered to the Union.
Notwithstanding these findings, however, the Ad-
ministrative Law Judge concluded that Respondents
had not failed to bargain in good faith with respect to
the effects of the closing of the Springfield plant on
the unit employees. We do not agree. Rather, we find
that Respondents' offers to and dealings with the
employees demonstrate their unlawful intent to avoid
meaningful bargaining with the Union.
At the bargaining session of April 30, 1969, a week
after the announcement of the decision to close the
Springfield plant, Respondents proposed a termina-
tion agreement. Under the terms of this proposal,
employees accepting an offer of reinstatement at
Hartford would have to report for work within I
week and would not be reimbursed for travel or
moving expenses. The proposal was discussed at the
bargaining sessions of April 30 and May 9, during
which Respondents stated that only sporadic work
remained to be performed at the Springfield plant,
and that it was not production work but involved
dismantling machinery and packing it for shipment
elsewhere. The Union indicated that it was not
interested in bargaining about the working condi-
tions of employees hired to perform this kind of
work. On May 9, the Union agreed to submit
Respondents' proposal to its membership, which
accepted the proposal, provided that acceptable
language were drafted.
Before the next meeting with the Union, Respon-
dents, without notice to or consultation with the
Union, recalled a number of employees to work at
the Springfield plant to repair and refurbish typewrit-
ers previously manufactured there. These employees
were paid 25 cents per hour more than they had been
bargaining - sessions between April 15 and 23 , when the decision to close the
plant was made , repeatedly asked the Union to submit any ideas it had for
resolving the underlying problems The Union suggested no alternative,
other than to negotiate a new contract, despite Respondents' warning that
this would not necessarily save the plant. Indeed , the Union indicated, in
response to an inquiry by Respondents, that it was primarily interested in
bargaining about the effects of the decision to close the plant upon the unit
employees if such a decision were made . In Member Penello 's view, these
facts indicate that Respondents did afford the Union an adequate
opportunity to negotiate concerning the decision to close the plant. He
therefore finds it unnecessary to pass on the applicability of General Motors,
supra, to the facts of this case.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid prior to the strike, whereas Respondents, in
bargaining with the Union before the decision to
close the plant was announced, had offered wage
increases ranging from 7 to 21 cents per hour.
Thereafter, Respondents submitted, in writing, a
proposed termination agreement which stated that
the Union waived its right to bargain about the terms
and conditions of employees recalled to perform any
work, whether bargaining unit work or not, in the
Springfield plant, and that Respondents could hire
employees to perform such work, including the
repairing and refurbishing of typewriters, under such
terms and conditions as they might determine. At the
parties' next meeting, on May 29, the Union rejected
the proposed termination agreement, objecting, inter
alia, to this language and protesting the unilateral
recall of employees to do unit work.
About a month later, three of the employees who
had been recalled to work at the Springfield plant
were offered temporary employment at the Royal
plant in Hartford. They went to Hartford and
repaired typewriters which had been manufactured
at Springfield. Respondents paid their transportation
expenses to and from Hartford. While they were in
Hartford, Respondents offered them permanent
employment there and offered to pay all their
moving expenses up to 6,000 pounds. They declined
this offer, but two of them subsequently accepted
temporary employment in Hartford again. Respon-
dents again paid their transportation expenses.
On July 8, 1970, Respondents, which had never
offered payment of transportation or moving expen-
ses to the Union, sent a letter to all the former
Springfield employees offering them reinstatement at
Hartford, West Hartford, or Newington,17 and
offering to pay the cost of moving up to 6,000 pounds
of household goods and relocation expenses up to a
maximum of $250 per family. In subsequent meet-
ings with the Union, Respondents proposed that the
Union agree that this was a fair and reasonable offer
of reinstatement. The Union refused, saying that, by
bypassing it and making the offer directly to the
employees, Respondents had acted in derogation of
its status as the employees' bargaining representative.
No agreement was ever reached with respect to the
effects of the closing of the plant on the unit
employees.
The Supreme Court has declared that an employ-
17 While the letter spoke only of "full, immediate, and unconditional
reinstatement" and stated that all employees who accepted the offer would
begin work by August 31, 1970, Respondents admitted in subsequent
meetings with the Union that there were only enough job openings at the
three facilities in the Hartford area for a few of the Springfield employees,
and stated that those who accepted the offer of reinstatement , but for whom
jobs were not immediately available, would not be asked to report to
Hartford until jobs became available
18 N L R. B v Benne Katz, d/b/a Williamsburg Steel Products Ca, 369
U S 736, 745 (1962)
er's making better offers to employees than to their
union is "necessarily inconsistent with a sincere
desire to conclude an agreement with the union." 18
Clearly, Respondents' conduct in the instant case
can be similarly characterized. After negotiating a
termination agreement, Respondents proceeded to
sabotage it, first by recalling employees, unilaterally
and at higher wage rates than had been offered to the
Union, to perform bargaining unit work-work
which they had led the Union to believe would not
be done-and later by drafting an agreement
requiring the Union to waive its right to bargain for
employees performing unit work, although the Union
had only agreed not to bargain for employees
recalled for "close-out" work (which it had been
assured was not production work and bore little
resemblance to that previously performed by unit
employees).
Having recalled some employees to work, Respon-
dents then proceeded-again unilaterally-to offer
them first temporary and then permanent employ-
ment at Hartford, to perform work formerly done at
Springfield. Respondents paid their travel expenses
and offered to pay their moving expenses. A year
later payment of these expenses still had not been
offered to the Union, but it was offered to all of the
unit employees. Only after this offer had produced
few responses did Respondents ask the Union to
agree that it was a fair and reasonable offer.
We thus have not an isolated incident but a
consistent pattern of Respondents' making offers of
temporary and permanent employment directly to
unit employees, offering them more favorable terms
than were offered the Union,19 and then asking the
Union simply to ratify a fait accompli. Such conduct
is totally inconsistent with the statutory obligation to
bargain in good faith-an obligation which, we have
held, "requires at a minimum recognition that the
statutory representative is the one with whom [the
employer] must deal in conducting bargaining
negotiations, and that [the employer] can no longer
bargain directly or indirectly with the employees."20
In view of the above, we find that Respondents
failed to bargain in good faith with respect to the
effects of the decision to close the Springfield plant
19 The pattern of making more favorable offers to employees than to the
Union actually began even before the Springfield plant was closed. As
noted supra, the employees were promised on February 7, 1969, that they
would receive a substantial wage increase if they refrained from striking,
while no wage increase was offered to the Union until April 17, when the
manufacture of portable electric typewriters had already been transferred to
Hartford and the Union had been notified that the closing of the entire
Springfield plant was under consideration.
20 General Electric Company, 150 NLRB 192, 194, enfd . 418 F.2d 736
(C.A. 2, 1969).
ROYAL TYPEWRITER COMPANY 1015
on the unit employees, and thereby violated Section
8(a)(5) and (1) of the Act.21
THE REMEDY
Having found that Respondents have engaged in
conduct violative of Section 8(a)(5) and (1) of the
Act, we shall order them to cease and desist
therefrom and to take affirmative action, as follows:
We shall order Respondents to prepare a preferen-
tial hiring list of all employees employed at Royal's
Springfield plant as of February 21, 1969. In the
event that Respondent Litton Industries, Inc., or any
subsidiary or division thereof, resumes ,the pro-
duction of typewriters in the Springfield area, it shall
offer the employees reinstatement to their former or
substantially equivalent positions and bargain, upon
request, with the Union as the exclusive representa-
tive of the employees in the appropriate unit.22
The Administrative Law Judge recommended that
Respondents be ordered to offer the employees on
the preferential hiring list employment in any jobs
for which they were qualified which were or might
become available at the Royal facilities in Hartford,
West Hartford, and Newington, Connecticut. Since
the issuance of the Administrative Law Judge's
original Decision, all production at the Hartford
plant, including that formerly done at Springfield,
has been transferred overseas. It is not clear whether
any jobs similar to those formerly performed by
employees in the bargaining unit at Springfield now
exist in Connecticut. If any such jobs are or hereafter
become available, Respondents shall offer them to
employees on the preferential hiring list, and shall
pay travel and moving expenses to any employees
accepting such reinstatement.23 We shall leave the
amount of such expenses to be determined at the
21 In view of our findings that Litton Industries . inc., Litton Business
Systems, Inc., and Royal Typewriter Company constitute a single employer
and that Litton Industries participated in the decision to shut down, the
obligation to bargain about the effects. of the shutdown included an
obligation to discuss offering the Royal employees employment at the other
two plants of Litton Industries in Springfield . In the negotiations after the
plant was closed, in which no officials of Litton industries participated, the
Union repeatedly raised the question of reinstatement at these two plants,
only to he told by Respondents' representatives that they could not bargain
for the divisions which operated the plants. Respondents even denied the
Union's request for the names of any employees who had already been
hired at these plants and the pay rates and seniority under which they had
been hired . In short, Respondents bargained on this matter in much the
same way as on the decision to close the plant Such bargaining , as we have
held supra, does not satisfy the obligation imposed by law.
As indicated in fn. 13, supra. Member Penello relies on the participation
of Litton Industries in tie decision to close the Springfield plant, rather than
on its single-employer status, in finding that it was obligated to bargain
concerning the effects of that decision on the unit employees, including the
discussion of their employment at other Litton plants He agrees with his
colleagues that this obligation was not satisfied
22 Respondents contend that, even if violations of Sec . 8(a)(5) and (1) of
the Act are found , no bargaining order should issue because a picket
captain shot the son of a nonstriking employee at the home of the latter,
away from the picket line. We agree with the Administrative Law Judge that
bargaining table, but in no event shall the Respon-
dents pay amounts less than those already offered
directly to the employees.
We have found that Respondents violated Section
8(a)(5) and (1) of the Act by failing to bargain in
good faith with respect to the decision to close
Springfield plant and the effects of that decision on
the unit employees. Accordingly, Respondents must
now be ordered to bargain with the Union, upon
request, concerning the effects of the decision to
close the plant on the unit employees.24 Under the
present circumstances, however, a bargaining order,
alone, cannot serve as an adequate remedy for the
unfair labor practices committed. The Act requires
more than pro forma bargaining, but pro forma
bargaining is all that is likely to result unless the
Union can now bargain under conditions essentially
similar to those that would have obtained had
Respondents bargained in good faith at the time the
Act required them to do so. If the Union must
bargain devoid of all economic strength, we would
perpetuate the situation created by Respondents'
unlawful conduct which precluded meaningful bar-
gaining.25 Here, at the time Respondents should have
bargained with the Union, the employees were unfair
labor practice strikers entitled to reinstatement upon
application. Accordingly, to restore the Union to a
position comparable to that existing at that time, we
shall adopt the Administrative Law Judge's recom-
mendation that Litton Industries, Inc., be ordered to
offer employees on the preferential hiring list
employment in any jobs for which they are qualified
and which are or hereafter become available in any
plant owned, operated, or controlled by Litton
Industries, Inc., or any subsidiary or division thereof,
in the Springfield, Missouri, area. We shall further
order that Litton Industries, Inc., bargain with the
this does not constitute a basis for withholding a bargaining order herein In
addition , we note that Respondents continued to meet with the Union over
a period of 18 months, beginning 2 days after the shooting, and never
indicated that they would not bargain with the Union because of this act of
violence. Accordingly, we find no merit in Respondents ' contention Kohler
Co, 128 NLRB 1062, 1086, fn 44. However, the various reinstatement
orders which we are issuing herein shall not be applicable to the two
individuals (Earl Murray and Richard Brown ) who were convicted of
criminal offenses in connection with the shooting.
23 This order is not rendered unnecessary by Respondents ' offer of
reinstatement to the employees on July 8, 1970. As indicated in In 17, supra,
there were insufficient job openings in these three facilities at that time for
all of the Springfield employees. Manifestly , an offer of jobs which do not
exist cannot be regarded as a valid offer of reinstatement
The Administrative Law Judge recommended that Springfield employees
not be given priority in hiring over Hartford employees presently in a layoff
status We find it unnecessary to determine this issue at this time, as it is, in
our opinion , best left for determination at the compliance stage of this
proceeding.
24 As the plant was clearly closed because of pressing economic
necessity, has been closed for a considerable period of time , and has been
sold to General Electric Company, we shall not require further bargaining
with respect to the decision to close the plant.
25 Royal Plating and Polishing Co., Inc., 160 NLRB 990, 997
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union with respect to the mode of operation of the
preferential hiring list and the terms and conditions
under which the Royal employees may, if they desire,
obtain employment at the other Litton plants.26 This
order, designed to insure meaningful bargaining,
does not, in our view, impose an undue or unfair
burden on Respondents. We are not requiring the
reopening of a plant long since closed, nor are we
requiring the dismissal of any person presently
employed at any other plant. We are requiring only
that employees whose statutory rights were unlawful-
ly denied by Respondents be employed when jobs
become available, and then only if they are qualified
for such jobs. In our view, this Order contains the
minimum requirement necessary to assure the
meaningful bargaining which has been delayed until
now by Respondents' earlier unlawful course of
conduct.
The General Counsel and the Charging Party have
requested that the Board also issue a backpay order
in this case. However, it is settled Board policy not to
award backpay to striking employees until they make
an unconditional offer to return to work, even where,
as is not the case here, they are unlawfully dis-
charged during the strike.27 In the instant case, when
such an unconditional offer was made on July 21,
1969, the decision to close the Springfield plant had
already been made. Only a small amount of
bargaining unit work was performed in the plant
thereafter. While we have found that Respondents
violated Section 8(a)(5) and (1) of the Act by
recalling employees to perform this work without
notice to or consultation with the Union, there is no
contention that the selection of employees for recall
was discriminatory. Accordingly, we shall not order
the payment of backpay herein.28
ORDER
A. Royal Typewriter Company, a Division of
Litton Business Systems, Inc., a Subsidiary of Litton
Industries, Inc.; Litton Business Systems, Inc., a
Subsidiary of Litton Industries, Inc.; and Litton
Industries, Inc., their officers, agents, successors, and
assigns, shall, jointly and severally:
1. Cease and desist from:
(a) Threatening to close the plant if the employees
go on strike.
(b) Promising employees a wage increase if they
refrain from striking.
(c) Refusing to bargain in good faith with Allied
Industrial Workers of America, Local 469, affiliated
with International Union Allied Industrial Workers
26 Darlington Manufacturing Company, 139 NLRB 241, 259, enfd 397
F 2d 760 (C A 4, 1968), Brown Truck & Trailer Manufacturing Company,
Inc, Newel Manufacturing Company, Inc., and Joseph L . Brown, 106 NLRB
of America, AFL-CIO, with respect to wages, hours,
and other terms and conditions of employment of the
employees in the appropriate unit, as set forth below,
including the decision to close the Royal plant in
Springfield, Missouri, and the effects of said decision
on the unit employees.
(d) Conditioning an offer to bargain with the
Union upon withdrawal of unfair labor practice
charges or termination of a lawful strike.
(e) Offering temporary or permanent employment
to employees in the appropriate unit without notice
to or consultation with the Union.
(f) Offering employment to employees in the
appropriate unit on terms more favorable than those
offered to the Union.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with Allied Industrial
Workers of America, Local 469, affiliated with
International Union Allied Industrial Workers of
America, AFL-CIO, as the exclusive bargaining
representative of all employees in the appropriate
unit, with respect to the effects on such employees of
the decision to close the Royal plant in Springfield,
Missouri, and, if an understanding is reached,
embody it in a signed agreement. The appropriate
unit is:
All production and maintenance employees at
Royal's Springfield, Missouri, plant, including all
trades helpers, tool and die apprentices, ware-
housemen, inspectors, shipping and receiving
clerks, and electronic technicians; but excluding
maintenance department and toolroom clerk
typists, dispatchers, the chief clerk shipping and
receiving, the chief clerk finished stock, the
toolroom records coordinator, the maintenance
records coordinator, toolcrib clerk, toolroom
clerk, manufacturing and receiving inspection
clerk, plant maintenance clerk, dispatch clerk,
quality control investigator, chief clerk toolcribs,
laboratory and other technicians, timestudy
engineers, timestudy observers, timestudy men,
the chief custodian, employees in research and
development department, draftsmen, office cleri-
cal employees, guards, and all supervisors as
defined in the Act.
(b) In the event that Litton Industries, Inc., or any
subsidiary or division thereof, resumes the pro-
999, 1003
27 Sea-Way Distributing, Inc, 143 NLRB 460
28 McGregor Printing Corporation, 163 NLRB 938, 940
ROYAL TYPEWRITER COMPANY
duction of typewriters in the Springfield area, it shall
bargain, upon request, with the above-named labor
organization with respect to the wages, hours, and
other terms and conditions of employment of the
employees in the appropriate unit, and embody any
understanding reached in a signed agreement.
(c) Prepare a preferential hiring list of all employ-
ees employed at the Royal Typewriter plant at
Springfield, Missouri, as of February 21, 1969. In the
event that Litton Industries, Inc., or any subsidiary
or division thereof, resumes the production of
typewriters in the Springfield area, it shall offer to
employees on said list reinstatement to their former
positions or, if these do not exist, to substantially
equivalent positions.
(d) Offer employees on said preferential hiring list,
after notice to and consultation with the above-
named labor organization, employment in any jobs
for which they are qualified and which are or
hereafter become available in the Royal Typewriter
facilities at Hartford, West Hartford, and Newing-
ton, Connecticut. Employees accepting such employ-
ment shall be paid travel and moving expenses for
themselves and their families in an amount to be
determined in negotiations with the Union, but in no
event to be less than the amount previously offered
directly to the employees by Respondents.
(e) Mail to the last known addresses of all
employees on said preferential hiring list copies of
the attached notice marked "Appendix." 29 Copies of
said notice, on forms provided by the Regional
Director for Region 17, shall, after being duly signed
by authorized representatives of Respondents, be
mailed to said employees as soon as said list has been
prepared.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
B. Litton Industries, Inc., shall take the following
affirmative action, in addition to that set forth above,
which is necessary to effectuate the policies of the
Act:
1. Offer the employees on the preferential hiring
list, after notice to and consultation with the above-
named labor organization, employment in any jobs
for which they are qualified and which are or
hereafter become available in any plant or plants
operated, owned, or controlled by Litton Industries,
Inc., or any subsidiary or division thereof, in the
Springfield, Missouri, area.
29 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "a Decision and
Order" shall be changed to read "a Judgment of the United States Court of
Appeals enforcing an Order "
30 1 join Member Jenkins in finding that Jurras' speech to employees on
1017
2. Upon request, bargain collectively with the
above-named labor organization with respect to the
manner in which said employment is to be offered
and the terms and conditions under which the
employees are to be employed.
3. Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the Board hereby
reserves to itself the right to modify the provisions of
this Order, if made necessary by circumstances not
now apparent.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
MEMBER FANNING, concurring in part and dissenting
in part:
I concur in the decision of my colleagues except in
the respects indicated herein.30 I dissent from the
failure to find that Respondents' entire course of
conduct constituted bad-faith bargaining. Thus,
Respondents initially withdrew recognition from the
Union and refused to bargain for a new contract
because an organization, entitled the Free Choice
Committee, had filed a petition with the Board
seeking to withdraw the Union's authorization to
negotiate a contract containing a union-security
clause. The record reveals that Respondents had
communicated with employees as to the merits of
that committee's activities. A major thesis of the Free
Choice Committee was that the union contract was
keeping wages down and that employees would fare
better without a contract than with one. Respon-
dents' own communications with employees assured
employees that they would not suffer from lack of a
contract, and, in Februaryjust prior to the expiration
of the contract, Respondents promised employees a
substantial wage increase upon the expiration of the
contract. Respondents' withdrawal of recognition
and refusal to bargain was of course unlawful, as was
their later refusal to bargain so long as the Union
refused to withdraw unfair labor practice charges.
Unlawful, too, was Respondents' insistence in
February, just prior to the expiration of the contract,
that they would bargain only if the Union agreed to
extend the contract for 60 days. Had the Union
accepted that condition, it would have precluded the
promised wage increases and added fuel to the Free
Choice Committee's thesis that it was the Union and
its contract that prevented higher wages; it would
February 7, 1969, conveyed to employees the threat of plant closure as well
as a promise of benefit 1 also join Member Jenkins in finding that
Respondents faded to bargain in good faith about the decision to close
down the Springfield plant.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also have precluded the Union from striking for the
duration of the extension.
The Union refused the unlawful condition and
called a strike for February 22. On March 19,
Respondents finally agreed to bargain absent any
unlawful condition . Preliminary negotiations began
on March 24 . On March 28 , before Respondents
made any economic proposals , they announced that
they were considering permanently moving the
portable typewriter line. Though they conceded their
obligation to bargain about that decision , no real
bargaining took place , and 4 days later they
announced the decision had been made . Two weeks
later , still prior to any economic proposals from
Respondents , Respondents announced that they
were considering closing down the Springfield plant
and asked the Union for suggestions . Eight days
later, they announced that the decision to close had
been made , but offered to bargain about the effects.
Negotiations thereafter were concerned mainly with
bargaining about effects , but such bargaining was
marred by persistent efforts on the part of Respon-
dents to deal directly with employees , and, when
dealing with the Union , to offer it less than had been
offered directly to employees . As found in the
decision herein , Respondents did not bargain in
good faith about the decision to remove the portable
typewriter line, to close down the plant entirely, or
about the effects upon employees of those two
decisions . There is much more in the record to
support the General Counsel's contention that
Respondents bargained in bad faith from their initial
withdrawal of recognition on December 18, 1968,
during their later refusals to meet , and through their
eventual failure to bargain in good faith even about
the effects of their drastic decision to close down the
operation throwing over 1,000 employees out of
work.
Considered in its totality, I am satisfied that the
record requires the conclusion that Respondents
initially engaged in conduct designed to undermine
the Union's representative status so that they could
force acceptance of a contract on their terms, and,
failing in that, undertook to close . down the plant and
thus eliminate the need to deal with the Union,
seeking to cloak their intention with the form, but
not the substance, of collective bargaining . I believe
the Administrative Law Judge's failure so to find
demonstrates that he failed to come to grips with the
central issue in this case, and I would reverse him on
this aspect of the case.
I also dissent from so much of the "Remedy"
provided by my colleagues and the provisions of the
Order based thereon to the extent they fail to (1)
require Respondents to bargain about resumption of
the Springfield plant operations in the Springfield
area , (2) create a situation in which meaningful
bargaining may take place , and (3) make employees
whole for the loss of jobs flowing from Respondents'
unfair labor practices . The mere fact that Respon-
dents have sold the plant does not foreclose them
from resuming the operations in some other facility.
Surely , Respondents have the financial resources to
carry out such a decision should they agree to do so,
and 1 believe the Order should require such bargain-
ing and should attempt to create a situation in which
meaningful bargaining about such decision can take
place . To that end , and for the purpose of remedying
the serious economic injury visited upon employees
by such unfair labor practices , I would order
Respondents to make employees whole by paying
them backpay from July 21 , 1969, the date employees
offered unconditionally to go back to work, until
such time as Respondents have fully complied with
the affirmative bargaining provisions of this Order,
have placed employees in jobs in other of their plants
or upon preferential hiring lists established through
good-faith negotiations with the Union, or the
employees themselves have found substantially
equivalent employment elsewhere . It is absolutely
clear that Respondents ' unfair labor practices pro-
voked the Union and employees into striking in
order to force Respondents to the bargaining table,
and that Respondents ' later course of bargaining
precluded any meaningful bargaining over either the
decisions to permanently move the portable typewrit-
er line and to close down operations entirely or the
effects upon employees of those decisions. Those
violations of Section 8(a)(5) warrant the backpay
remedy provided in Town & Country Manufacturing
Company, Inc., 136 NLRB 1022 , 1031; Winn-Dixie
Stores, Inc., 147 NLRB 788; Royal Plating and
Polishing Co., Inc., 148 NLRB 545; 152 NLRB 619;
Arnold Graphic Industries, Inc., 206 NLRB No. 43:
Bruce E. Kronenberger and Herbert Schoenbrod d/b/a
American Needle & Novelty Company, Kentucky
Manufacturing Company and Harrisburg Manufactur-
ing Company, 206 NLRB No. 61. Even were it
appropriate to limit the bargaining obligations of the
Order to "effects bargaining," some sort of wage
payment or make-whole provision would be neces-
sary to ensure meaningful bargaining . Royal Plating
& Polishing Co., Inc., 160 NLRB 990; Transmarine
Navigation Corporation, 170 NLRB 389; Interstate
Tool Co., Inc., 177 NLRB 686. As there is not a
majority in support of this position, I concur in the
more limited remedy provided.
APPENDIX
NOTICE To EMPLOYEES
Pursuant to a Decision and Order of the National
ROYAL TYPEWRITER COMPANY
Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL. NOT threaten to close the plant if you
go on strike.
WE WILL NOT promise you a wage increase if
you refrain from striking.
WE WILL Not refuse to bargain in good faith
with Allied Industrial Workers of America, Local
469, affiliated with International Union Allied
Industrial Workers of America, AFL-CIO, with
respect to wages, hours, and other terms and
conditions of employment of the employees in the
appropriate unit, including the decision to close
the Royal plant in Springfield, Missouri, and the
effects of that decision on the unit employees.
The appropriate unit is:
All production and maintenance employees
at Royal's Springfield, Missouri, plant,
including all trades helpers, tool and die
apprentices, warehousemen, inspectors, ship-
ping and receiving clerks, and electronic
technicians ; but excluding maintenance
department and toolroom clerk typists,
dispatchers, the chief clerk shipping and
receiving, the chief clerk finished stock, the
toolroom records coordinator, the mainte-
nance records coordinator, toolcrib clerk,
toolroom clerk, manufacturing and receiving
inspection clerk, plant maintenance clerk,
dispatch clerk, quality control investigator,
chief clerk toolcribs, laboratory and other
technicians, timestudy engineers, timestudy
observers, timestudy men, the chief custodi-
an, employees in research and development
department, draftsmen, office clerical em-
ployees, guards, and all supervisors as
defined in the Act.
WE WILL NOT condition our offer to bargain
with the Union on withdrawal of unfair labor
practice charges or termination of a lawful strike.
WE WILL NOT offer employees in the unit
described above temporary or permanent employ-
ment without notice to or consultation with the
Union.
WE WILL NOT offer employees in the unit
described above employment on terms more
favorable than those which we have offered the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their right to self-organization , to form
labor organizations, to join or assist Allied
Industrial Workers of America, T,ocal 469, affili-
1019
ated with International Union Allied Industrial
Workers of America, AFL-CIO, or any other
labor organization, to bargain collectively
through representatives of their own choosing, to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the Act.
WE WILL, upon request, bargain with the Union
with respect to the effects of our decision to close
the Royal plant in Springfield, Missouri, on the
employees in the unit described above, and, if an
understanding is reached, WE WILL embody it in a
signed agreement.
WE WILL prepare a preferential hiring list of all
employees employed at the Royal plant in
Springfield, Missouri, as of February 21, 1969. If
Litton Industries, Inc., or any subsidiary or
division thereof, resumes the production of
typewriters in the Springfield area , WE WILL offer
all employees on said preferential hiring list full
reinstatement to their former or substantially
equivalent positions , bargain , upon request, with
the Union with respect to their wages, hours, and
other terms and conditions of employment, and
embody any understanding reached in a signed
agreement.
WE WILL, after notice to and consultation with
the Union, offer employees on said preferential
hiring list employment in any jobs for which they
are qualified and which are or hereafter become
available in the Royal Typewriter facilities at
Hartford, West Hartford, and Newington, Con-
necticut. WE WILL pay employees accepting such
offer travel and moving expenses for themselves
and their families in an amount to be determined
in negotiations with the Union, but in no event
less than the amount which we have previously
offered directly to the employees.
The Board found that Litton Industries, Inc.,
Litton Business Systems, Inc., and Royal Typewriter
Company constitute a single employer and that
Litton Industries , Inc., was responsible for the
decision to close the Royal plant in Springfield,
Missouri . Accordingly, Litton Industries, Inc., will,
after notice to and consultation with the Union, offer
employees on the preferential hiring list employment
in any jobs for which they are qualified and which
are or hereafter become available in any plant or
plants operated, owned , or controlled by Litton
Industries , Inc., or any subsidiary or division thereof,
in the Springfield , Missouri , area , and will, upon
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request, bargain collectively with the Union with
respect to the manner in which said employment is to
be offered and the terms and conditions under which
the employees are to be employed.
ROYAL TYPEWRITER
COMPANY, A DIVISION OF
LITTON BUSINESS
SYSTEMS, INC., A
SUBSIDIARY OF LITTON
INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
LITTON BUSINESS
SYSTEMS, INC., A
SUBSIDIARY OF LITTON
INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
LrrroN INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, 616-Two Gateway Center , Kansas
City, Kansas 64101 , Telephone 816-374-4518.
TRIAL EXAMINER' S DECISION
SFATE'_v1ENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This proceeding' was
brought before the Board on charges filed by Allied
Industrial Workers of America, Local 469, herein the
Union, against Royal Typewriter Company, Inc., herein
Royal, and Litton Business Systems, Inc., herein Litton
Systems, jointly as the Respondents,2 and upon complaints
issued by the General Counsel upon said charges. The
charges and complaints upon which the Board asserted
jurisdiction are as follows:
1. A charge filed January 30, 1969, in Case
17-CA-3788, by the Union against Royal alleging Royal
i The names of the parties appear as amended at the hearing.
2 Prior to the hearing the General Counsel served a notice of intention to
amend the complaint by adding Litton Industries, Inc, as a respondent.
upon Litton Industries, Inc. Matt J. Diedench appeared specially for the
purpose of opposing the motion The motion was later withdrawn by the
General Counsel
3 This complaint was amended at the hearing, over objection of
Respondent, to add to par 5 (changed to par 5-A) the allegation• "and
further made promises of wage increases to employees in order to induce
them to refrain from supporting and aiding the Union, and from engaging
refused to bargain in good faith in violation of Section
8(a)(5) of the Act.
2. A complaint issued by the General Counsel on
February 25, 1969, in Case 17-CA-3788, alleging Royal
violated Section 8(a)(1) and (5) of the Act by threatening
reprisals against its employees for engaging in union
activity and by refusing to bargain in good faith with the
Union.3
3. A charge filed April 4, 1969, in Case 17-CA-3857, by
the Union against Litton Systems alleging a refusal to
bargain and a unilateral transfer of certain work performed
by Royal at Springfield, Missouri, to another plant and
further alleging that the transfer of work from the
Springfield plant was in retaliation for the strike called at
Springfield by the Union on February 22, 1969, in
violation of Section 8(a)(1)(3) and (5) of the Act.
4. A charge filed May 27, 1969, in Case 17-CA-3932,
by the Union against Litton Systems repeating the
allegations in Case 17-CA-3857, and alleging a decision by
Litton Systems to terminate and close all operations at
Springfield without negotiating with the Union, in viola-
tion of Section 8(a)(1)(3) and (5) of the Act.
5. A charge filed August 4, 1969, in Case 17-CA-4023,
alleging a refusal to reinstate strikers , bargaining on an
individual basis with employees in the bargaining unit, and
a refusal to apportion insurance rebates except upon
waiver of the right of reinstatement, in violation of Section
8(a)(l)(3) and (5) of the Act.
6. An order consolidated Cases 17-CA-3857,
17-CA-3932, and 17-CA-4023 and a complaint issued
July 31, 1969, by the General Counsel against Litton
Systems alleging it violated Section 8(a)(1) and (5) by:
(a) Unlawfully conditioning bargaining with the Union
upon a withdrawal or unfair labor practice charges filed in
Case 17-CA-3788.
(b) Refusing to bargain in good faith with the Union
regarding the terms and conditions of a new contract
following the expiration of the former contract on
February 21, 1969.
(c) Refusing to bargain with the Union regarding the
decision to transfer Royal's typewriter line from Spring-
field to Hartford, Connecticut.
(d) Refusing to bargain with the Union respecting the
effect of said transfer upon the employees in the bargaining
unit.
(e) Refusing to bargain with the Union respecting the
decision to close the Springfield plant on April 23, 1969.
(f) Refusing to bargain with the Union respecting the
effect of the closing upon the employees in the bargaining
unit.
(g) Depriving 350 employees in the bargaining unit of
their right to reinstatement at the termination of the strike
in union and/or protected, concerted activities "
It was further amended to add par. 5-B. reading.
Acting by and through its agent , Ransom A . Ellis, Jr., at the plant, on
or about February 21, 1969 , the Respondent threatened its employees
with economic reprisals for engaging in union and /or protected,
concerted activities, and further made promises of wage increases to
employees in order to induce them to refrain from supporting and
aiding the Union, and from engaging in union and/or protected
concerted activities.
ROYAL TYPEWRITER COMPANY
by transferring the electric portable line to Hartford
without bargaining with the Union.
(h) Depriving 1,000 employees in the bargaining unit of
their right to reinstatement at the termination of the strike
by closing the Springfield plant without bargaining with
the Union.
(i) Negotiating directly with the employees in the
bargaining unit and offering them inducements on a
selective and individual basis to accept employment at
Hartford.4
The answers of the Respondents denied the commission
of any unfair labor practices and asserted certain affirma-
tive defenses.
This proceeding, with all parties represented, was heard
by me on 25 hearing dates between November 16, 1970,
and February 5, 1971, at Springfield, Missouri. At the
conclusion of the hearing the parties were given leave to
submit proposed corrections to the record. On April 28,
1971, the corrections were received by stipulation and the
Trial Examiner closed the record by order of that date.5
The General Counsel's corrections are attached hereto as
"Appendix A," the Respondent's as "Appendix B" and the
Charging Party's as "Appendix C" [omitted from publica-
tion ].
At the conclusion of the hearing the parties were given
leave to file briefs and the time for filing was extended to
July 21. Exhaustive and helpful briefs6 were received from
the Respondents and the Charging Party on July 21 and
from the General Counsel on July 26.7
Upon the entire record8 in this case and from my
observation of the witnesses I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENTS
At all times material hereto until April 23, 1969, Royal, a
division of Litton Systems, operated a plant at Springfield,
Missouri, where it was engaged in the manufacture and
sale of typewriters. In the course of its business and during
a representative year Royal purchased materials for its
Springfield plant valued in excess of $50,000 directly from
outside the State of Missouri and sold products valued in
excess of $50,000 to places outside the State of Missouri.
4 The complaint was amended at the hearing to change this allegation
(par 7-E) to read
Commencing on or about May 20, 1969, and at various times
thereafter , Respondent did negotiate directly with employees in the
unit described in Paragraph 4, above, by passing the Union as the duly
authorized, selected and lawful collective bargaining representative of
all the employees in said unit, and did offer inducements , on a selective
and individual basis, to certain of its Springfield , Missouri employees to
accept temporary employment at its plant at Springfield, Missouri.
The complaint was further amended by adding par. 7-F, reading
Commencing on or about June 27, 1969, and at various times
thereafter, Respondent offered inducements to its Springfield , Missour-
i, employees to accept temporary and/or permanent employment at its
facility at Hartford, Connecticut, all of which is in derogation of the
Union's rights and obligations as exclusive collective bargaining agent
of the employees in the unit set forth above in Paragraph 4
S On June 2, 1971, the General Counsel moved to amend the complaint
1021
Royal is engaged in commerce within the meaning of the
Act.
Litton Systems, a corporation, included among its
subsidiaries and divisions Royal. While no direct evidence
was offered as to the volume of interstate business done by
Litton Systems as a separate and distinct entity I find that,
based on the operations of its wholly owned division,
Royal, it is engaged in commerce within the meaning of the
Act.
iI. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Royal and Litton Systems as a Single Entity
Litton Systems is a corporation with its principal place of
business at 850 Third Avenue, New York, New York .9 It
owns a subsidiary structure known as the Business Systems
and Equipment Group which in turn operates a subgroup
called the Office and Communication Sub-Group, of
which Royal is an operating division. The Business
Systems and Equipment Group is not a separate corporate
entity although it operates eight subgroups, none of which
appears to be a separate corporate entity. The structure is
functional rather than corporate. In 1965 Litton Industries,
Inc., acquired by purchase Royal-McBee Corporation,
engaged in the manufacture of typewriters, and conveyed
its assets to Royal Typewriter Company Inc., which was
then merged with Monroe International, Inc., wholly
owned by Litton. The name of Monroe International was
then changed to Litton Business Systems, Inc., and Royal
became a division of that corporation, as a member of a
group and subgroup. The labyrinth does not end here,
however.10 After acquisition Royal was divided into four
functional divisions: (1) Consumer Products Division
(portable typewriters); (2) Office Products Division (office
typewriters); (3) Rototype Supplies Division (supplies
division). The fourth division was later disbanded. The
Springfield plant came within the Consumer Products
Division. Changes on the intrastructure of the various
divisions were made at intervals and follow no discernible
pattern. The fact remains that Litton Systems owned all of
to allege that Litton Industries , Inc (herein Litton), Royal, and Litton
Systems constituted a single employer enterprise within the meaning of the
Act. The Trial Examiner reopened the hearing for oral argument on the
motion on June 23 and July 5 issued an order denying the motion.
6 The General Counsel 's brief contained 107 pages, the Respondents'
355 pages , the Charging Parties' 131 pages
7 In deference to protocol the General Counsel's brief , written in New
York , was forwarded to Washington by way of the Regional office in
Kansas City and in deference to economy it was forwarded via regular mail
Timeliness of filing had subordinate pnoty.
8 The transcript contains more than 33,000 pages and over 700 exhibits
were received , some of which contained over 100 pages (G C. Exh. 2, a
transcript of bargaining meetings, ran to approximately 2,000 pages.)
0 Counsel for Litton Systems contended that Litton Systems was never
properly served Since it appeared through counsel , answered the complaint,
and fully litigated all the issues raised by the consolidated complaint I find
the Board had jurisdiction in personam and the question of proper service
moot
10 G C Exh 5 reveals but does not clarify the functional structure of the
enterprise operating as the Business Systems and Equipment Group
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the various subsidiary corporations and divisions with its
group.
Since Royal had no corporate or identity apart from its
status as an integral division of Litton Systems I find
Litton and Royal constitute a single employer for the
purposes of this action.'I
B. Violations of Section 8(a)(1)
The complaint in Case 17-CA-3788 alleges that Mark
Jurns, plant manager of Royal, threatened, on February 7,
1969, employees with economic reprisals for engaging in
union and/or protected activities.' On February 7, Jurris
addressed the employees of both shifts of the plant at mass
meetings. A copy of his speech was received by stipula-
tion.13 Page 6 of this speech contains the following
statement:
This plant will operate if a strike is called and we will
operate it with employees who wish to work. And for
those who do not wish to work, we will have to find
replacements and we will have to make typewriters.
Union officials are not going to take over the
management of this plant. The decision of when and
where to operate will be made by the company. The
company is prepared if need be to produce typewriters
elsewhere. Litton has typewriter plants at its disposal in
Germany, Japan, Holland, England, Hartford and in
the Monroe system also here in the United States. The
product line will not suffer and we will not permit a loss
of service to our customers because of a work
interruption in Springfield, Missouri.
During the hearing the complaint was amended as set
forth above, footnote 3, to allege promises of wage
increases by Jurris to induce the employees to refrain from
engaging in union and/or concerted activities and to allege
further threats of reprisals and promises of increases by
Ransom A. Ellis, Jr. The Jurris speech of February 7
contained the following language:
As I said before, it is obviously going to be quite a
while before we know exactly where we stand on this
question of whether or not we can legally bargain with
the union. As we said before that we do not want to see
our employees penalized by this problem, accordingly,
11 Respondents rely in some part on the Board 's decisions in Los Angeles
Newspaper Guilt4 Local 69, et al (Hearst Corporation ), 185 NLRB 303, and
American Federation of Television and Radio Artists (Hearst Corporation), 185
NLRB 593, to support its contention that divisions of a parent corporation
are separate entities The difficulty , however, is that these proceedings were
brought under Sec . 8(b)(4) of the Act, one of the purposes of which was to
confine labor disputes to the sites of the dispute and to the Pelson
immediately involved in such dispute . Had the Union struck at any of the
other divisions or subsidiaries of Litton Systems in support of its dispute
with Respondents there would have been no doubt that the restraints
imposed by Sec 8 (b)(4) would have been transgressed . Here the issue is
whether a parent of an unincorporated division having no separate identity
as legal entity becomes a single employer with its division for the purposes
of the Act . I hold that it does and it is unnecessary to find that control over
the labor policies of the division must be established to the extent necessary
where separate corporate entities are involved. See McEwen Manufacturing
Company, 172 NLRB 990, enfd., sub nom Amalgamated Clothing Workers of
America v. N L.R.B., 419 F.2d 1207 (C A D.C., 1969), as to the extent of
control required where separate corporations are involved . There does not,
regardless of whether there is a strike or not, it is our
intention to place a substantial wage increase into
effect on February 22. This is not being done to get you
to reject the union. It is simply facing the facts of life.
We know that you have not had an increase in wages
for almost 15 months under the union contract. You
are entitled to an increase now with or without a union
and there is no telling how long the union may drag this
thing on. Therefore, we are going to keep our promise
to you that you are not going to have to wait another 6
or 12 months to get a wage increase. On February 22 an
increase will be made effective.
Conclusions
I think that the threat to produce typewriters elsewhere
in the event of a strike carries an implication that the
exercise of that right (to strike) might result in a closing of
the Springfield plant. No mention was made by Jurris of
the obligation on the part of Respondent to bargain with
the Union respecting the effects of such a move upon the
employees and the threat further implied that the right of
the strikers to reinstatement upon the termination of the
strike could be irretrievably lost.
Similarly, I find that the promise of a wage increase to
the employees at the expiration of the contract, an increase
that would benefit the nonstrikers, coupled with the
suggestion that they remain away from the strike meeting
was a clear promise of benefit for refraining from protected
activity. This promise of a wage increase was likewise made
without any suggestion of but rather a clear intention not
to bargain with the Union on this crucial issue . The record
does not disclose that any impasse on wages had been
reached; Respondent had adamantly refused to bargain
with the Union at this time, see finding, below.14
I find the conduct of Respondent Royal in threatening
its employees with a plant shutdown in the event of strike
and promising them wage increases to induce them not to
strike violated Section 8(a)(1) of the Act. N.LRB. v. Gissel
Packing Co., 395 U.S. 575 (1969).'5
C. Refusal to Bargain Between December 18, 1968,
and March 19, 1969
Paragraph 7(e) of the complaint in Case 17-CA-3788
alleges:
however, appear to be any clear authority for or against the finding made
herein. Cf New York Mirror, Division of the Hearst Corporation, 151 NLRB
834, fn. 2, where the Board stated : "The General Counsel 's exception of the
Trial Examiner's failure to make a single employer finding is inapposite, as
it is clear that the Mirror is merely one component of a legal entity known
as the Hearst Corporation, the Respondent herein."
12 This was the only allegation of an independent violation of Sec 8(a)(l)
set forth in either complaint.
13 G.C Exh.24
1-4 In view of the finding that Respondent refused to meet to bargain in
good faith with the Union a dismissal of the 8(a)(1) allegation would permit
an employer to refuse to bargain with a certified incumbent union and force
it to stoke while at the same time threatening employees with loss of
employment through a plant closedown if they struck and promising them
benefits if they refused to strike. No union could survive such tactics
15 The speech of Ransom A. Ellis, Jr., includes the same threats and
promises according to the testimony of the General Counsel' s witnesses. In
view of the finding above I find it unnecessary to pass upon the speech
made by Ellis to the employees.
ROYAL TYPEWRITER COMPANY 1023
Since on or about December 18, 1968, and continuing
to date, the Respondent [Royal] has failed and refused
to negotiate or bargain in good faith with the Union as
the exclusive collective bargaining representative of the
employees in the unit described above in paragraph 6.
The date of the complaint was February 25, 1969.
Paragraph 7(a) of the consolidated complaint alleges:
From on or about December 18, 1968, through
February 20, 1969, Respondent [Litton Systems]
unlawfully conditioned its offer to negotiate and
continuing since February 21, 1969, unlawfully condi-
tioned its continuation of negotiations upon the
Union's withdrawal of the. Charge in Case No.
17-CA-3788, and termination of the strike mentioned
in the complaint in said case;
I find the date which the parties first met for the purposes
of collective bargaining free from conditions imposed by
Respondents was March 19, 1969.
On February 18, 1966, the Union was certified as the
collective-bargaining representative of the employees of
Royal Typewriter Co., Inc., (Case 17-RC-4948) in a unit
described as follows:
All production and maintenance employees at Respon-
dent's Springfield, Missouri, plant, including all trades
helpers, tool and die apprentices, warehousemen,
inspectors, shipping and receiving clerks, and electronic
technicians; but excluding maintenance department
and tool room clerk typists, dispatchers, the chief clerk
shipping and receiving, the chief clerk finished stock,
the tool room records coordinator, the maintenance
records coordinator, toolcrib clerk, tool room clerk,
manufacturing and receiving inspection clerk, plant
maintenance clerk, dispatch clerk, quality control
investigator, chief clerk tool cribs, laboratory and other
technicians, time study engineers, time study observers,
time study men, the chief custodian, employees in
research and development department, draftsmen,
office clerical employees, guards, and all supervisors as
defined in the Act.
This unit I find appropriate for the purposes of collective
bargaining.
Following certification and on August 27, 1966, the
Union and Royal entered into a collective-bargaining
agreement covering employees in the above unit which
expired February 21, 1969.16
Thereafter and sometime in May, 1968, a Royal Free
Choice Committee was formed under the leadership of a
Springfield attorney named Donald W. Jones (otherwise
unidentified). Literature was distributed by this committee
which had as its objective the elimination of the union-
16C.PExh4
17 C.P Exh 41.
Is G C Exh 49
19 Resp. Exh 8.
20 Resp Exh 12.
21 Sometime during this period Edgar A Vogus, director of industrial
relations at Springfield , and Jurras had a conversation with Jones in which
they told him that they had reason to believe there was dissatisfaction with
security clause in the contract between Royal and the
Union . In October , 1968, a union deauthorization petition
was filed with the National Labor Relations Board
pursuant to Section 9(e)(1) by the Free Choice Committee
in Case 17-UD-19. (This petition was dismissed on March
17, 1969 .) In a letter dated circulated to obtain signatures
to the deauthorization petition17 Jones stated : ". . . All
that the Committee seeks to do by this election is to force
the Union to do a better job of representing its members,
or to permit the employees to decide for themselves not to
join the union if they do not like the way the union is doing
things . The Committee does not seek to oust the union by this
election ...." (Emphasis supplied.)
On December 3, 1968 , the Union notified Royal it
wished to reopen the contract , due to expire February 21,
for negotiation.18
Before it replied to this demand Royal , on December 5,
received a letter from Jones advising it that a majority of
the employees did not desire representation by the Union
and threatening legal action against Royal if it bargained
with the Union's
On December 6, Royal received a letter signed by 16
employees stating a majority of the employees did not want
to be represented by the Union and requesting Royal not
to bargain with the Union . (The unit consisted of slightly
more than 1,000 employees.) 20
On December 12 Jones filed a "Motion to Revoke
Certification" with the Regional Director of Region 17.21
This motion alleged improper conduct on the part of the
Union and its officers . The motion was denied by the
Regional Director and after appeal to the Board Jones'
request for review was denied on March 14, 1969.
On December 18, Royal replied stating its intention to
terminate the contract on February 21, 1969, and refusing
to meet to negotiate . 22 This letter , signed by Vogus, stated
that a decertification petition had been filed by the Free
Choice Committee23 and quoted from the December 5
letter of Jones as follows:
A large number of employees who (sic) I represent of
your company have requested that I write you to advise
that is their informed belief that a majority of the
employees in the present bargaining unit at your
company no longer desire Local Union No. 469, Allied
Industrial Workers of America, AFL-CIO , to represent
them in any manner whatsoever. [Emphasis supplied.]
Vogus also referred to the threat of legal action made by
the committee. Respondent asserts that it is against this
background that its decision not to bargain must be
measured.
Thereafter there followed correspondence between Roy-
the Union among the members No factual support for this conclusion
appears in the record.
22 G.C Exh. 50.
23 The record does not disclose that any decertification petition was ever
filed . The letter from Jones to Royal did state that a number of the
employees would rather decertify the Union and thought deauthorizatton
was insufficient.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al and the Union in which the Union renewed its demand
for bargaining and Royal continued to refuse.'24 On
February 20 and 21 Royal and union representatives met
at the offices of Harry O'Connell, Federal mediator, at
Springfield. Kenneth E. Salsman, president of the Local
Union, Gordon Brehm, administrative assistant to the
Union's International vice president, and George Woods,
regional representative, represented the Union; and Royal
was represented by Ransom A. Ellis, Jr., attorney, Edgar
Vogus, and John H. Fairbrother, director of industrial
relations for Royal at its Hartford plant. According to
Salsman the Royal representatives proposed to the Union
that it withdraw the unfair labor practices and extend the
current contract for 2 months. The Union replied that the
full bargaining committee would have to meet on this. The
next day the parties met again with the Union's full
committee present and Ellis repeated Royal's offer-with-
drawal of the charge, a 60-day extension of the contract
and retroactive backpay if agreement was reached. The
Union rejected this offer on the ground that it was
conditional.25 At midnight the Union struck 26
On February 26 Vogus wrote the Union as follows:
Dear Mr. Salsman:
Royal Typewriter Company stands ready to bargain
with your Union at any time you are willing to extend
the contract for a reasonable period of time so that
bargaining may proceed on the many issues confront-
mg the parties in an orderly fashion. To show your
good faith we would request that you call off your
strike so that your members may be working during
negotiations and have the full advantage of any
retroactive pay which may be agreed upon.
Earlier statements attributed to certain Union officials
to the effect that the Company did not offer retroactive
pay, but merely stated it would "consider" such pay if
agreement was reached within 60 days are erroneous.
Royal offered you retroactive pay at our last meeting if
agreement was reached within 60 days, and reoffers
retroactive pay at this time if agreement is reached
within the extended contract period, so that all doubt
on this subject may be removed. These are the only
conditions we would request in order to get bargaining
started.
Frankly we cannot understand why you would refuse
to bargain under conditions where your members
cannot possibly lose anything. Continuation of the
strike, when bargaining is possible cannot be to
anyone's advantage. We are offering to bargain under
reasonable conditions.
Sincerely yours,
Edgar A. Vogus, Industrial Relations Manager
On March 4 Vogus again wrote Salsman protesting a
newspaper quotation misstating Royal's position and
setting forth the position anew. 27In this letter Vogus, after
clarifying Royal's position with respect to term of contract
extension (he offered to let the Union set the number of
days) and its backpay offer, wrote: "Let me repeat our
offer. We will bargain immediately under an extension of
the contract which we will let you set. And, you do not
have to drop your unfair labor practice charge."
On March 5 Salsman replied,28 stating the union would
bargain at any time, adding, however, "we come to the
bargaining table without any conditions and insist that we
will not agree to any conditions either." On March 19 the
parties met.
Conclusions
I find Respondents Royal and Litton Systems violated
Section 8(a)(5) of the Act by refusing, on December 18,
1968, to bargain with the Union on the ground that a
deauthorization petition had been filed. A deauthorization
petition raises no question concerning representation and
casts no valid doubt upon the continuing majority status of
a certified union. The statement quoted from Jones' letter
to the effect that "a majority of the employees in the
present bargaining unit at your company no longer desire
to be represented by Local Union No. 469" does not meet
the standards of objective evidence, in my opinion,
required to rebut or even cast doubt upon the presumption
of continuing majority status.29' Jones' statement was based
on hearsay on its face and, apart from a petition which
would affect only the union-security clause of the contrac-
tual relationships of the parties, bore no support whatsoev-
er of his allegation. Nor do I attach greater weight to the
opinion testimony of Vogus and Jurras. It would put the
right to bargain and the certification of a representative in
serious jeopardy if that right could be denied merely on an
employer's belief that his employees were dissatisfied with
their union.30 Although no charge was filed until January
30, 1969, and the insulation period did not start until
December 22, Royal filed no petition for an election by
which the union's majority status could be tested.
I also find that Royal violated Section 8(a)(5) by
requesting the Union to withdraw its charge and to extend
the current contract for 60 days as conditions precedent to
entering negotiations. Its obligation was unconditional. I
do, however, find these violations more technical than
substantial in view of the eventual resumption of negotia-
tions. Since they have no impact on the major issues of the
case, other than a reflection of Respondent's state of mind,
and since the closedown of the Springfield plant and the
transfer of the portable typewriter line to Hartford
precludes effective relief, no remedial order will be
recommended as to these violations. New York Mirror,
supra at 841, 842.
In view of the conclusions reached herein and in
paragraph "B," above, I find that the strike which took
24 G C. Exhs 53, 54, 55, 56, 58, 59, 60, and 65 Exhs. 58, 59, 60, and 65
represented further requests by the Union and went unanswered
25 This testimony is corroborated, in substance, by that of Gordon
Brehm and Ellis
26 Over 900 of the employees in the unit went out on strike.
21 G.C Exh 68
28 G.C Exh. 69.
28 Massey-Ferguson, Inc, 184 NLRB 69, and cases cited.
ao Laystrom Mfg Co., 151 NLRB 1482, Daisy's Originals, Inc., of Miami,
187 NLRB 251; The Little Rock Downtowner Inc., 168 NLRB 107, enfd 414
F 2d 1084 (C.A 8, 1969).
ROYAL TYPEWRITER COMPANY 1025
place on February 22 was due directly to the unfair labor
practices of Respondents and that the strikers were unfair
labor practice strikers.
D. Bargaining with Respect to the Transfer of
Work and Plant Closedown
Paragraph 7 of the consolidated complaint issued against
Litton Systems, subsections (b) (as amended at the
hearing), (c), and (d) allege:
(b) Negotiations sessions , or meetings, between the
parties hereto occurred in 1969, on March 24, 25, 28
and 31; April 1, 2, 3, 7, 8, 15, 16, 17, 18, 22, 23, 29 and
30; May 9 and 29; August 1, 1969, and August 6 and 7,
October 7, 1970; throughout the course of said
negotiation sessions or meetings, Respondent bar-
gained in bad faith with no substantial effort or real
intent to reach agreement;
(i) Upon the terms of a new collective
bargaining agreement to replace that which
expired between the parties on February 21, 1969,
(ii) Upon a method, manner or means where-
by termination and transfer of Respondent's
electric portable typewriter production line at the
Springfield, Missouri, plant might be avoided,
(iii) Upon terms of an agreement minimizing
the effect(s) of such termination and transfer
upon unit employees,
(iv) Upon a method, manner, or means
whereby termination and closure of Respondent's
entire Springfield, Missouri, plant might be
avoided,
(v) Upon terms of an agreement minimizing
the effect(s) of such total termination and
closure; and,
(c) On or about April 2, 1969, the Respondent did
unilaterally in bad faith, and without affording the
Union prior meaningful opportunity to bargain collec-
tively about either the decision itself or its effects upon
unit employees, terminate and transfer its production
line for electric portable typewriters from its Spring-
field, Missouri, plant, and did relocate said production
line at its facility located at Hartford, Connecticut, and
did thereby deprive approximately 250 of its Spring-
field, Missouri, employees of their right to reinstate-
ment upon termination of an unfair labor practice
strike in which they were then engaged (as set forth in
the Complaint previously issued, and now pending in
Case No. 17-CA-3788); and,
31 Respondent argues, at the end of its brief, that if a violation of Sec
8(a)(5) is found the shooting incident was sufficient evidence of violence on
the part of the Union to warrant a refusal of a bargaining order, citing
Laura Modes Co, 144 NLRB 1592 The cases are inapposite. In Laura
Modes the union organizers engaged in deliberate violence in order to force
the employer to bargain with a union which the employees had never
selected and the Board refused to impose the union upon the employees
without an election It was a classic example of organization based on force
and terror, which no government agency could condone, let alone
encourage . Here the crime , admittedly heinous, was the act of a picket
captain acting as an individual which took place away from the picket line
and at a time when the captain had, according to witnesses , been drinking
heavily Neither the Union nor any of its officers initiated , participated in,
(d) On or about April 23 , 1969, the Respondent did
unilaterally , in bad faith , and without affording the
Union prior meaningful opportunity to bargain collec-
tively about either the decision itself or its effects upon
unit employees , terminate and close out all remaining
production operations at its Springfield , Missouri, plant
(excepting only a temporary "close out" crew), and did
thereby deprive approximately 1,000 more of its
Springfield , Missouri , employees of their right to
reinstatement upon termination of an unfair labor
practice strike in which they were then engaged (as set
forth in the Complaint previously issued , and now
pending, in Case No . 17-CA-3788).
At the meeting on March 19 the Union submitted its first
contract proposal and on March 24 and 25, the proposal,
which Respondent thought was unrealistic , was discussed.
The March 26 meeting was deferred due to the shooting of
the son of a nonstriker by a picket captain the preceding
night. (The shooting took place away from the picket line
but the parties were, understandably, under emotional
tension.) 31,
A meeting was held on March 28 and at that meeting
and thereafter a court reporter took minutes of each of the
meetings.32 At this meeting the Respondents, through Ellis,
made known that production of the electric portable line
must be continued and that the line might be moved from
Springfield and that, if it were, the move would be
permanent. Ellis stated Respondents welcomed suggestions
but that they would have to be brought to the table quickly
for the urgency was great. Woods replied that if a move
was made the Union would want to talk about severance
pay and any other benefits involved .133 On April 1, Ellis
repeated to Woods that the decision would have to be
made shortly and acknowledged Respondents' obligation
to bargain on the issue. The Union at this point would not
agree to resume work without a contract.34 On April 2,
Ellis announced that the decision to move the line to
Hartford had been made.35 The Union's response, made
through Kenneth Loebel, its attorney, who made his first
appearance, was that its thought was that the decision was
unlawfully motivated. On the same day Salsman wrote
Jurras requesting negotiations on the effects of the transfer
of electric portables to Hartford.36 In this letter Salsman
protested the unilateral nature of the action taken;
demanded the right to bargain on the decision and the
reasons, in writing, why the decision was made; submission
of a contract proposal in writing by the company and
alleged that the transfer was in retaliation for'the strike.
On April 3 Ellis, at the morning session , protested that
or knew of the crime until after it had been committed . it then fully
cooperated with the authorities in the investigation although it did not, as
counsel for Respondents suggested it could have done, engage in vigilante
action . As to other conduct alleged but not proven to be unlawful under
Board and court decisions, no 8(b)( IXA) charge was filed This was one of
the many issues litigated at length and with fervor which had little relevancy
to the issues at stake Neither , let it be said, does any of the testimony with
respect to this issue reflect on the credibility of Salsman or Brehm
32, G.C. Exhs. 2-a through 2-w
33 G C. Exh 2-a, pp 3 through 6
34 G C Exh 2-c
35 G.C. Exh 2-d.
36 C.P Exh.34
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's description in the press of the action as
unilateral was inaccurate and again offered to discuss the
transfer and its effects.37 When the Union demanded
reasons Ellis stated that the primary reason was that
inventory of the electric line was low and that production
must be continued and that as to the other reasons it would
need time to gather facts.38 Respondent again offered to
continue , the terms of the expired contract pending
negotiations . The remainder of the session was devoted to
bickering, a pastime indulged in throughout the negotia-
tions by both parties. The afternoon session was devoted to
negotiations concerning the Union's proposed contract.
On April 8 Respondent reiterated that the reason for the
transfer was the decline in inventory of the electrics and
the necessity of immediate production to meet demand. It
was not contemplated that the line could be produced
cheaper at another location but the status of negotiations
did not indicate an early ternunation of the strike and
resumption of production.39 The rest of the discussion
related to the failure of the parties to reach any substantial
agreement on a new contract and the reasons therefore.
On April 15 the parties met again and Ellis, at the
opening of the meeting, announced that there was a
proposal on the part of the company to "permanently close
the Royal Typewriter plant in Springfield, Missouri, as a
facility for the production of portable typewriters." Ellis
listed the factors as (1) the plant would operate at only 25
percent of capacity if a new agreement were reached (this
was based on a working force of about 600 against a
potential for 2,000) resulting in an inefficient utilization of
the plant's potential, and (2) the action of the Federal
Trade Commission in challenging Respondents' acquisi-
tion of Triumph-Adler, a German company, some of
whose production it had planned to move to Springfield.
Ellis stated the decision was not final and offered the
Union the opportunity to negotiate as to reasonable
alternatives, adding, "We want your ideas, we welcome
your ideas, we will listen to your ideas."40 Peter Irwin,
attorney for Litton, expanded on the economic factors
involved in the decision.41 In the discussion that followed
relating to the economic factors involved in the tentative
decision Ellis informed the Union that if a new contract
was reached the Respondents could give no assurance that
the plant would be kept in operation for even 15 days.42
The Union's immediate response was that the first order of
business was agreement on a new contract 43 Later it told
Respondent it wanted to discuss effects of the closing of
the plant upon the employees.44 The parties then resumed
bargaining over the terms of a new contract.
On April 15 Ellis again asked the Union if it had any
suggestions on the plant closing issue or preferred to
discuss the new contract. Shinn replied that he wished to
37 G C Exh. 2-e, pp. 5, 6
38 G.C Exh. 2-e, pp 23 and 31.
39 G C Exh. 2-h, pp 4-7
4O G.C Exh 2- i, pp. 2-8.
4' Id, pp 8-13
42 Id, p 21
13 Id, p 26
leave the door open on the closedown issue , but had a new
contract proposal to submit.45 The Union offered its wage
demands for a 3-year contract and other contract propos-
als.46 The remainder of the meeting was devoted to
discussion of the revised proposed contract.
On April 17 the meeting started, as usual with a request
by Ellis for suggestions from the Union on the plant
closedown, on which final decision had not then been
reached 4- At this meeting, Respondent made its first
economic counterproposal in the form of a 3-year
contract.48 In discussion of this counterproposal Ellis made
it clear that the execution of a new contract would not
assure the continued operation of the Springfield plant 49
The Union questioned the economic feasibility of a move
to Hartford in view of the higher wages and higher fringe
benefits under the union (UAW) contract there and there
was a continued discussion of the socioeconomic factors
embraced in such a move.
On April 18 the meeting began with the following
colloquy:
MR. ELLIS : Well, Boyd , another night has gone by
and you requested a recess , yesterday afternoon , to talk
about this proposal which the Company has on the
table so you could go over it with your committee, and
I assume that you have . But before we get into the
response-
MR. SHINN : Are you going to make the standard
request?
MR. ELLIS: I am going to make the standard request
because , once before I was told we hadn 't given you an
opportunity to bargain on the question of moving the
electric line and I'm going to be persistent suitor in this
case. I'm going to ask and ask and ask and ask, and
you may keep saying no and no , but I 'm going to keep
asking. .
MR. SHINN : I think the record will show you have
been persistent, Ransom.
Shinn then demanded to know where the work would be
placed and whether the Springfield plant would be closed
permanently. Ellis replied that the first question was
whether the plant would be closed and then, if it was,
indicated the natural assumption would be that it would go
to Hartford. Shinn then protested that without specific
dates, without sales records, the Union could not bargain
effectively about the decision to close. As to this request
Ellis replied that the decision would be based on the fact
that it would not be practical to keep the Springfield plant
open for 600 employees. Ellis and Shinn then argued about
the relevancy of any cost figures the Respondents might be
able to offer, particularly, since the Respondents had not
decided upon the new location, that no comparative cost
figures would be available.-0
44 Id, p 39
45 G C Exh 2-j, pp 3-5
46 Id, pp 12-14
47 G.C Exh 2-k, p. 3
48 Id, pp. 16, 17.
49 Id, pp. 28, 29
50 G C Exh. 2-1, pp. 61-69
ROYAL TYPEWRITER COMPANY 1027
Prior to the next meeting on April 21 the Union
forwarded Litton Systems a letters' requesting the follow-
ing information:
1. What economic factors is the company consider-
ing in arriving at its decision?
2. Is the work being performed at Springfield going
to be performed elsewhere? If so, why? Where?
3. What role does the recent purchase of two
German typewriter companies by Litton play in this
matter? Does the FTC's action regarding this purchase
have a bearing on the plant closure here?
4. What steps could the union take which would
enable the company to operate profitably in Spring-
field?
At the opening of the meeting the Union was informed by
Fairbrother, and this statement was reaffirmed by Ellis and
Irwin, that if the Springfield plant were closed the portable
line would not be transferred; it would be discontinued.52
In answer to the Union's letter Ellis stated that losses at the
Springfield plant had run about $80,000 per month for the
past year. As to the German typewriter company, Tri-
umph-Adler, it was planned to produce some of its line at
Springfield if it expanded in its market. (This was prior to
intervention by the FTC.) The Union then asked if an
agreement were reached on lower wages for the employees
would the plant be kept working, to which Irwin stated he
could give no assurance . 53 Irwin admitted he did not know
what steps the Union could take to save the operation 54
This meeting was adjourned with the understanding that
Respondents would have a new proposal to present the
next day.
On April 22, Respondent presented a new contract
proposal which substituted a maintenance of membership
clause with checkoff for the union-security clause and
modifications of other clauses including wage rates which
Ellis considered would be more favorable to the Umon.55
There was exploratory discussion of the terms and some
further discussion relating to the threat of closedown.
On April 23 Ellis announced that the decision to close
the plant had been made by Litton but that the Respon-
dent would continue to bargain on the impact of the
decision on the employees.56 Daniel Leary, attorney for the
Union, stated that he felt the action violated Section
8(a)(1)(3) and (5) of the Act but accepted the Respondents'
offer to bargain .57 Leary suggested some of the issues as
the possible reopening of the plant , vacations , pension
rights and severance pay, tools, and partially paid-for
bonds . Ellis agreed to bring two toolboxes left in the plant
to the Union hall and the meeting adjourned.
On April 29 Ellis advised the Union that a seniority list
had been prepared and data was being collected as to
pension rights . The parties agreed that production costs at
Springfield were no longer relevant in view of the decision
to close the plant . It was reiterated by Ellis that the manual
portable line would not be moved, it would close . As to the
plant, Ellis stated no decision had been made as to its
disposition and that in the meantime it would be "phased
out" and the machinery moved. 58 Discussion focused first
on the toolboxes used by apprentices. These boxes became
the property of an apprentice after 6 months and some had
not completed the 6 -month period . This issue is not clear
since it was also involved with an educational program for
the students . Apparently decision was deferred.59 On
vacations Ellis took the position that under a strict
construction of the contract the employees were not
entitled to vacations since the eligibility date was June 1.
There was no refusal of vacation pay, which was left to
computation , but no final agreement either so As to
severance pay, the Union asked for 2 weeks and Ellis
inquired if employees who had been on strike for 9 weeks
should be entitled to any severance pay. The discussion
was lengthy and sociological , idealogical, and economic.
No agreement on principle was reached although the issue
was not rejected by Ellis.61
At the afternoon session Vogus told the Union that
checks would be mailed all employees who had bond
refunds due . As to group insurance, Vogus agreed to keep
the policies in effect for those employees willing to
continue payment of premiums for another months? The
next issue was preferential hiring either at any new
operation commenced at the closed plant or at the other
Litton plants in the Springfield area . Ellis explained that
the two other Litton plants at Springfield were in the
Advanced Circuitry Division , a completely autonomous
division entirely apart from the Business Systems Division.
Ellis stated there could be no enforcement of preferential
hiring at another division in the Litton System. As to
Hartford, Ellis indicated preferential hiring might be
applied if any Springfield employees would be interested.
Ellis offered to have Hartford provide a list of available
jobs without a firm commitment to hiring . As to reopening
the Royal plant at Springfield , Ellis could offer preferential
hiring if it were reopened by Royal but refused to bind
another division of Litton. Ellis did, however, offer to
present the issue to Litton63 The remainder of the meeting
was occupied with a discussion of the unemployment
compensation problem.
At the session on April 30 Respondent offered a
termination proposal which provided:
(1) An offer to sell apprentice tools to the appren-
tices as soon as inventory could be completed.
(2) A certificate to each apprentice showing hours
worked and courses completed.
(3) Continuation of past practice as to references
with respect to employees seeking employment else-
where.
51 G.C Exh 73 5e G C. Exh 2-p, pp 3-10
52 G C Exh 2-m, pp 3, 73. Id, pp 11-20.
53 Id, p 69. 80 Id, pp 20-26.
54 Id, p. 70 61 Id , pp. 28-59.
55 G C Exh. 2-n, p 3 62 Id , pp 61-63
56 G C Exh. 2-c, pp. 3-5 53 Id, pp. 64-79.
57 Id, pp 6-7
1028 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
(4) Termination pay would be broken down into
four categories:
(a) Less than 1 year of service; 1 /3 of I week's
pay
(b) One year but less than 3; 2/3 of 1 week's
pay.
(c) Three to 10 years, 2/3 of 2 week's pay.
(d) Ten years; 2/3 of 3 week's pay.
(5) All payments on savings bonds to be refunded
immediately.
(6) Group insurance to be continued until May 31.
(7) All employees would have their rights as set forth
in the pension plan.
(8) a. Preferential hiring for Springfield employees
experienced in the electric line at Hartford and who
make themselves available at Hartford. (Respondent
would not pay moving expenses.)
b. Preferential hiring at Springfield for qualified
personnel should Royal reopen for manufacture of any
product.
(9) Mutual releases to be exchanged for any all
liability prior to date of termination agreement.
(10) All pending litigation to be dismissed without
prejudice.
(11) Unemployment compensation to be established
as of April 23.
(12) Group insurance dividend to be made as soon
as amounts would be available 64
Ellis then requested that the Umon permit the Respon-
dent to hire such employees as might be necessary for
closedown of this work.
In the discussion Ellis advised the Union that Respon-
dent's prorated termination plan was intended as a
substitute for vacation pay. Discussion of the pension plan
ended with tentative agreement that the employees would
receive whatever they were entitled to under the plan.65
After a recess the Union rejected outright that part of the
offer which included dismissal of all pending litigation.
The limitation on preferential hiring at Springfield to
possible Royal reopening rather than to a reopening of the
plant by any division of Litton was also unacceptable. The
remainder of the session was devoted , to a large extent, as
to whether the vacation plan could be put into effect as an
isolated item or whether Respondent was insisting on a
package deal . Respondent did not wish to grant the Union
those parts of the offer which it considered favorable and
leaving other items to continued negotiation 66
After another recess the Union brought up the question
of an educational refund , presumably money paid by the
apprentices toward courses . Ellis rejected this on the
ground that no credit was received until a course had been
completed. (The current semester had been interrupted by
the strike.) Ellis then revised Respondent 's position on the
dismissal of litigation by stating , "if you are just absolutely
dedicated to the proposition that men ought to spend the
rest of their lives litigating, I guess we'll have to
accomodate you." The meeting ended on a discussion of
the closedown work which Ellis stated would not be
production work and would be sporadic in nature.67
On May 9, the parties again discussed various points of
the termination offer and the Union tentatively accepted
the proposal with the right to continue the litigation and
subject to agreement on the language ss Sometime between
this date and May 29 Respondent forwarded the Union its
written proposed termination agreement.69
On May 29, the next meeting, the first item was the
pension plan refund, on which the Union desired further
information.70 The Union then rejected Respondent's
proposed agreement. Its chief items of disagreement were:
(1) Union felt that the preamble indicated Union was
dropping all litigation.
(2) Respondent's retention of the right to hire without
union approval of employees for closedown work was
unacceptable since more than casual closedown work was
involved, particularly refurbishing, completing and repair-
ing typewriters.
(3) Article II, which provided that the termination date
for all electric employees be April 2, and for all other
employees April 23, was unacceptable in view of pending
litigation.
(4) Article IV, termination or vacation pay, was
unacceptable because the termination date was fixed at
February 22. The Union considered April 23 the correct
computation date.
The meeting concluded with the agreement that the
Union would submit its own termination agreement. This
was submitted on July 10.71 By letter dated July 14
Respondent rejected this proposal.72 The letter merely
stated that the proposal was not in accord with the
agreement of the parties and offered to meet to discuss the
reasons for Respondent's position. By letter of July 21 the
Union made an unconditional offer to return to work on
behalf of the unit employees 73 and on the same day
Respondent offered to resume bargaining on the effects of
the plant closure and any other unresolved items. 74
On July 25 Ellis wrote Loebel a six-page letter advising
him that the Union's proposal was unsatisfactory and
specifying his objections.75 In general these were that the
proposals did not conform to the agreement of May 9 and
that the language was not satisfactory.
On August 1 the parties met again. The entire morning
was taken up with a discussion of the pension plan and the
rights of employees thereunder.76 At the afternoon session
the parties (Ellis and Loebel did most of the talking)
discussed the insurance rebate received by the Respondent.
Ellis said the money would be paid the employees when
final termination agreement was reached and Loebel
64 G C. Exh 2-q, pp 91-99 71 G C Exh 76.
65 Id, pp 99-109 72 Resp . Exh. 47.
66 Id, pp. 110-134. 73 G C Exh. 77
67 Id, pp 141-143 74 G C Exh 78
68 G C Exh 2-r, pp 1-45. 75 Resp Exh.51
69 G C Exh. 75
70 G C Exh. 2-s, pp. 1-25
76 G.C. Exh. 2-t, pp. 1-70.
ROYAL TYPEWRITER COMPANY 1029
demanded immediate payment in accord with past
practice.77 Loebel also questioned the formula for vacation
or termination pay proposed by Respondent. After almost
interminable discussion of their differences the meeting
terminated without agreement.
There were no further meetings until August 6, 1970, but
correspondence continued.
On August 28, 1969, Respondent informed the Union it
was distributing the insurance dividend checks to the
employees.78
On September 25 Respondent notified the Union it was
hiring 15 people to assist in the closedown. It did not offer
to bargain with respect to the selection of these employ-
ees.79
On September 25, Respondent notified the Union that
domestic typewriter refurbishing had been completed and
that, all refurbishing activity would be completed by
December 14.80
On June 18, 1970, Respondent informed the union at its
Hartford plant, Local 479, UAW, that there was a
possibility of moving part of the Hartford operations to
Hull, England8i'
On July 8, Respondent by letter offered Springfield unit
employees full and immediate reinstatement to their
former or substantially equivalent positions at Hartford
with expenses paid. The offer required acceptance not later
than 3 weeks from the date of receipt of letter and fixed
August 31 as a final starting date.82 This offer was not
conditioned upon the availability of work.
On July 21, Respondent offered to resume bargaining on
the effect of plant closure and other matters.83
On August 6 and 7 the parties met 84
At the August 6 meeting preliminary discussion between
Ellis and Loebel consisted largely of charges and counterc-
harges of misrepresentation and bad faith in prior
negotiations . Loebel asked how many employees had
accepted the Respondent's offer of May 9 to apply for
work in Hartford at their own expense and Ellis named 11
employees. 85'Ellis and Loebel then reviewed moving costs
down to the last detail, including packing, insurance,
overnight stoppages, cost of moving a piano, etc. Loebel
apparently contended that expenses should be on an
individual basis rather than general limitations. The
discussion then shifted to the nature of the work performed
at the three Hartford plants (Newington, West Hartford,
and Hartford), and the seniority status of Springfield
employees vis-a-vis Hartford employees. Ellis explained
that what he meant by reinstatement was that employees
would be offered employment for all vacancies at Hartford
and the remainder placed on a reinstatement (preferential
hiring?) list. The constant indulgence in semantics which
characterized all meetings again prevailed at this one.
Respondent contended that since the Hartford plant was in
77 2A, pp. 70-75
78 Resp Exh 57
79 C P Exh. 38.
80 Resp Exh. 560
81 G C Exhs. 21-a, 21-b.
82 C P Exh. I i
113 G.C. Exh. 78
84 The correspondence during the interim period to which reference is
made includes only the highly relevant correspondence between the parties
during this period The correspondence was both frequent and voluminous
a layoff status no immediate opportunities existed and the
Hartford laid-off employees would have priority in recall
as against Springfield employees in "reinstatement status"
and that the UAW at Hartford would have to be a party to
any employment agreement at that plant . As to employ-
ment at Newington and West Hartford , Fairbrother
described their chances as "good," but that the Springfield
employees would not replace anyone at those plants. The
parties then proceeded to discuss the relationship between
the various subsidiaries, groups , and divisions within the
Litton empire .86
No further progress was made at the August 7 meeting.
The Union demanded vacation pay computed to August 7,
1970, and Respondent stood by its original offer of May 9,
1969. The Union demanded severance pay but refused to
suggest an amount or a basis for computation and
Respondent refused to make an offer without a specific
proposed amount . The Union offered to waive all
reinstatement rights of the employees to employment at
Hartford but not at other facilities in return for a cash
payment of the cost of moving all Springfield unit
employees to Hartford . This was rejected by Respondent.87
On August 21 Respondent announced that it would
transfer the major portion of its typewriter production at
Hartford to England for economic reasons and that the
working force at Hartford would probably be reduced by
50 percent by July , 1971.88
On September 19 Ellis notified Loebel that Respondent
had a different proposal and offered to meet at mutual
convemence.89
On September 30 Ellis forwarded a copy of the new
agreement to the Union and agreed to meet October 7 .90
The document, consisting of 17 pages, provided in
substance and in part:
(1) Union had waived all rights to bargain as to
moving, dismantling packing and shipping at the
Springfield plant after May 9. [The so-called closedown
work.]
(2) Respondent had agreed to bargain as to all
refurbishing and repair of typewriters at Springfield
after May 9.
(3) Vacation pay as provided for in May 9 agreement
was increased . Computation date remained April 23.
Respondent was still , apparently, contending this was
in lieu of severance pay.
(4) Union to agree to termination of pension plan as
of February 22, 1969. It also provided for distribution
of the fund as set forth therein. [The endless discussion
on the pension fund is almost unintelligible to a reader
of the transcript nor did the parties seem to understand
the plan.]
and no good purpose would be served by a detailed recital encumbering the
record beyond comprehension
-85 The record does not establish whether these employees were paid the
cost of moving
88 G C Exh 2-u, pp 1-128.
87 G C Exh 2-v, pp 1-164
88 G C Exh 21-h
89 C P Exh 20
90 C.P Exh. 23.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) Agreed that Respondent had offered preferential
hiring to electric employees as of April 2.
(6) Offered preferential hiring at Hartford as
vacancies occurred at wage rates set forth therein.
Provided for no travel expenses and fixed the time of
expiration as June 30, 1969.
(7) Provided for preferential hiring at Springfield if
plant was reopened by any division of Royal or any
other company a member of the Office and Communi-
cations Group of Litton Systems.
(8) It was agreed that Respondent offered full and
immediate reinstatement to Springfield employees at
Hartford on July 10, 1969, with expenses as set forth
therein.
(9) Agree to furnish apprentices with letters showing
courses completed and gave graduates their tool boxes
provided such right was exercised prior to May 29,
1969. Other apprentices were granted option to
purchase tools for $150, option to expire May 23, 1969.
(10) Reference procedure to follow past practice.
(11) Agreed that partial payments on savings bonds
had been refunded.
(12) Agreed that Group Insurance terminated May
31, 1969, and that Respondent had paid proportionate
share of insurance refund to employees.
(13) Union agrees to withdraw all pending griev-
ances and arbitration proceedings.
(14) General release by Union from all liability
except for unfair labor practice charges pending.
(15) Respondent agrees to dismiss outstanding
injunction against the Union.
At the meeting on October 7 no agreement was reached
on Respondent's revised offer. This was the last meeting
between the parties9i
Conclusions
Paragraph 7(b)(i) and (iv) of the General Counsel's
consolidated complaint relates to the failure on the part of
Respondent to negotiate with the Union on the decision to
transfer work and close the plant. In its recent decision in
General Motors Corporation, 191 NLRB 951, a majority of
the Board, with Members Fanning and Brown dissenting,
joined with courts in holding that Fibreboard 92 does not
require an employer to bargain concerning the decision,
economically motivated.93 to sell, transfer, or close down a
part or all of his plant. On that authority and the cases
cited therein I dismiss subparagraphs (b)(ii) and (iv) of
paragraph 7 of the complaint.
Subparagraphs (iii) and (v) of 7(b) pose the critical
issues, i.e., whether Respondent bargained in good faith
with the Union on the effects of the transfer of the electric
line and of the closing of the plant. On March 28 Ellis
informed the Union that the transfer of the electric line
was under contemplation and that a decision would be
made shortly and asked the Union to bargain on the issue.
On April 2 he announced that the decision had been made.
The reason given by Respondent was that production in
the electric line must be continued and the demand for
electrics must be met. The Union's response to the
announcement on April 2, made by Loebel, was that it
thought the transfer was unlawfully motivated and later,
through Salsman, it demanded the reasons, and the right to
bargain and again alleged the transfer was illegal. On April
5 Ellis announced that Respondent was considering closing
the Springfield plant and requested discussion. On April 23
he announced the decision had been made. The reason was
that the plant, which could accomodate 2,000 employees
could not profitably operate with a force of some 600 and
FTC intervention in the purchase by Respondent of
Triumph-Adler had cut off a prospect of increased
production at Springfield.
From the first suggestion of a possible transfer of the
electric line on March 28, 1969, until the last meeting
between the parties on October 7, 1970, 23 meetings were
held and some 2,000 pages of transcript of these meetings
were recorded. The reading of these pages is a dismal
process. They are replete with mutual accusations, recrimi-
nations, and allegations of bad faith to the exclusion,
almost entirely, of any effort to achieve real agreement on
issues vital to the economy of Springfield and the well-
being of some 1,000 employees. The breach between the
parties widened with each exchange of correspondence and
each meeting and I think a fair reading of the record
establishes that each must bear an equal share of the
blame. Not only were the parties "locked in deadly
embrace" on the legal issues but the personal antagonisms
of their counsel and bargaining representatives added fuel
to the conflagration. Mining these records for relevancies is
no simple task.
Disregarding the General Counsel's attacks on the good
faith of the decisions to transfer and close down there
remains little to the General Counsel's case.
The General Counsel refers to testimony that Respon-
dent, contrary to statements made by Ellis to the Union
that the manual typewriter would not be produced
elsewhere, closed in a deal with Messisa- Messa in Portugal
in October, 1969, by which Springfield machinery was sold
to Messisa which produced a manual portable to be
marketed by Royal under the Royal name. The Trial
Examiner is to conclude, it must be supposed, that this
alleged misrepresentation vitiated all negotiations on the
closedown issue . It is, however, a long time from April to
October and both government and industry grant them-
selves generous privileges in withdrawing from and
reversing prior commitments when political or economic
factors suggest that a turnabout seems expedient. The
record is clear, however, that Royal did not produce the
typewriters and that no Royal employees were engaged in
the production in Portugal so its commitment to the Union
was not breached. The General Counsel then alleges that
the only reason for the Portugal deal was that the
typewriter could be produced at lower labor costs in that
91 G.C Exh. 2-w. closedown were in violation of Section 8(a)(3). In consideration of this case
91 Fibreboard Paper Products Corp v V.L.RB, 379 U.S. 203 (1964) 1 have confined myself to the issues as framed by the General Counsel's
91 The General Counsel has conceded that the motive was economic and complaint. See N L.R.B. v. Raytheon Corp, 445 F 2d 272 (C A. 9, 1971). Cf
not either in reprisal for the strike nor the purpose of "chilling unionism" at Laclede Gas Company v N L R B, 421 F.2d 610 (C.A 8, 1970)
other plants The Charging Party disagrees and alleges the transfer and
ROYAL TYPEWRITER COMPANY 1031
country. I do not agree with what must be the contention
of the General Counsel, namely, that there is something
inherently unethical, immoral, and illegal in seeking a
reduction in costs and thereby an increase in profits.
Industrial corporations are not eleemosynary institutions
and their stockholders, by and large, prefer profits to
losses . The General Counsel's characterization of this
transaction as "pure and simple deception" does no more
than provide additional invective to a case already
surfeited with invective.
Apart from this attack on the good faith of Respondent
and allegations of unlawful action in the hiring of
Springfield employees for unit work at Springfield and
Hartford without consultation with the Union, the issues
are presented by the transcripts of the negotiations. The
General Counsel simply alleges that Respondent failed to
bargain in good faith on the many issues presented by the
transfer and closedown. The fact is that the Union initiated
no proposal regarding the effects of these actions until
after the Respondent made its first offer on April 30, when
"meaningful" bargaining may be said to have started. This
first proposal set forth some 12 terms and conditions for
severance for discussion. The fact that these terms were
seriously discussed with the Union and that the parties
reached tentative agreement subject to the language of a
final termination contract negates the allegation, naked of
support in fact, that Respondent did not bargain in good
faith on these issues . The most serious objection of the
Union to Respondent's agreement when reduced to writing
was that it believed that "whereas" clauses commited the
Union to withdrawing its unfair labor practice charges.
Whether or not that implication could be read into the
preamble clauses, which were not a part of the body of the
agreement, Respondent did, during the negotiations, agree
that withdrawal of the charges would not be a condition to
agreement . Little would be served at this point by
reviewing the history of every proposal and counterpropo-
sal made on each and every issue. The transcript of the
meetings has been summarized and is available for study,
supra. It is the conclusion of the Examiner that neither
party manifested concern for reaching an amicable and
equitable agreement and that the prospect of long and
costly litigation as an alternative was not unpalatable. In
view of that conclusion, fully warranted by the record, I do
not find that Respondent either by its proposals or by its
conduct at the table engaged in bad faith bargaining in
violation of Section 8(a)(5). When two hardy adversaries,
embittered, hostile, and reluctant to yield the proverbial
inch, confront themselves at the bargaining table there is a
large prospect that negotiations may be, as they were here,
fruitless . Where the blame is a mutual responsibility the
Board may well leave the parties where it found them.
E. Bargaining Directly with the Unit Employees
Paragraphs 7(e) of the complaint, as amended, and (f), as
added at the hearing, allege:
Commencing on or about May 20, 1969, and at
various time thereafter, Respondent did negotiate
directly with employees in the unit described in
Paragraph 4, above, by passing the Union as the duly
authorized, selected and lawful collective bargaining
representative of all the employees in said unit, and did
offer inducements, on a selective and individual basis,
to certain of its Springfield, Missouri employees to
accept temporary employment at its plant at Spring-
field, Missouri.
Commencing on or about June 27, 1969, and at
various time thereafter, Respondent offered induce-
ments to its Springfield, Missouri, employees to accept
temporary and/or permanent employment at its facility
at Hartford, Connecticut, all of which is in derogation
of the Union's rights and obligations as exclusive
collective bargaining agent of the employees in the unit
set forth above in Paragraph 4.
Jerry Scott testified that he had been employed in the
bargaining unit at the Springfield plant since November,
1959. After the strike of February 22, 1969, and while on
strike he was contracted by "Chuck" Christiansen, whom
he described as personnel manager at Springfield, and
offered a temporary job repairing typewriters in the plant.
This was in the latter part of May and he accepted at 25
cents per hour above the rate he had been receiving. He
worked during June and toward the end of the month he
was called to the office of Richard Cover, described as in
charge of operations at the plant, together with "Bud"
Rozell and Don Goin, two other repairmen. Joe Arnold,
whom Scott described as in charge of manufacturing
during the strike, offered them temporary employment in
Hartford repairing typewriters. They were to receive $150
per week, overtime pay, meals and lodging, the use of a car,
and plane expenses. The employment was for 3 weeks and
they accepted. Before their time at Hartford was up they
were offered permanent employment in Hartford at the top
of their labor grade and all the overtime they wanted. This
was about July 16, 1969. They declined the offer on the
ground they would have to consult with their families.
They were offered all moving expenses then up to 6,000
pounds and a bonus of $ 1,000 to be paid in installments.
This offer was declined and they returned to Springfield
about July 18 where they returned to work in the
Springfield plant. After their return they were again offered
temporary positions at Hartford and Scott and Rozell
accepted for 4 weeks. They again received an allowance for
living expenses and were again offered permanent employ-
ment and the help of a real estate agent in finding homes.
They again declined and returned to Springfield where
Scott worked at the plant until late October or early
November. The testimony of Rozell substantially corrobo-
rated that of Scott.
On July 8, 1970, Respondent, under the name of Royal
Typewriter Company, offered " immediate , full and uncon-
ditional reinstatement" to the Springfield employees at
either Hartford, West Hartford, or Newington.94 This offer
was directed to the employees and not to the Union. The
employees were to notify Fairbrother if they accepted and
to be available not later than August 30. If they accepted
and reported for work they were to be paid for 6,000
s9 C.P Exh. II
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pounds of household expenses and $250 for travel
expenses. When confronted with this letter at the meeting
on August 6 and asked for an explanation for the fact that
the Union was not notified and that the offer of moving
expenses had never been made to the Umon, Ellis' reply
can only be considered as evasive. It did appear that
applications were received from 10 employees but far from
an offer of "immediate, full and unconditional reinstate-
ment" the letter was designed only to discover which
employees, if any, would accept employment when
available. Ellis admitted that the Hartford employees in a
layoff status would have priority in rehire at the Hartford
plant and that at the other plants the Springfield employees
would be offered employment as vacancies occurred.
I find that by offering Scott, Goin, and Rozell employ-
ment in unit work at Springfield and Hartford and by
granting them benefits at Hartford in excess of any offered
the Union and without bargaining with the Union with
respect to such offers and employment Respondent
violated Section 8(a)(5) of the Act. I also find that by
offering "reinstatement" to the Springfield employees at
the Hartford plant on terms more favorable than those
offered the Union and making such offer without notifying
or consulting the Union, Respondent violated Section
8(a)(5) of the Act.
Upon the basis of the foregoing findings and conclusions
I make the following:
CONCLUSIONS OF LAW
1. Respondents Royal Typewriter Company and Litton
Systems, Inc., constitute a single employer within the
meaning of Section 2(2) of the Act.
2. By threatening their employees with a plant close-
down if they engaged in a strike and promising them
benefits to induce them not to strike, Respondents violated
Section 8(a)(1) of the Act.
3. Respondents by refusing on December 18, 1968, and
thereafter until March 19, 1969, to bargain in good faith
with the Union concerning wages, hours, and other terms
and conditions of employment in the unit found appropri-
ate herein violated Section 8(a)(5) and (1) of the
Act.
4. The unit appropriate for the purposes of collective
bargaining is:
All production and maintenance employees at Respon-
dent's Springfield, Missouri, plant, including all trades
helpers, tool and die apprentices, warehousemen,
inspectors, shipping and receiving clerks, and electronic
technicians ; but excluding maintenance department
and tool room clerk typists, dispatchers, the chief clerk
shipping and receiving, the chief clerk finished stock,
the tool room records coordinator, the maintenance
records coordinator, tool crib clerk, tool room clerk,
manufacturing and receiving inspection clerk, plant
maintenance clerk, dispatch clerk, quality control
investigator, chief clerk tool cribs, laboratory and other
technicians, time study engineers, time study observers,
time study men, the chief custodian, employees in
research and development department, draftsmen,
office clerical employees , guards , and all supervisors, as
defined in the Act.
5. The strike which took place at Respondents ' Spring-
field plant on February 22, 1969, was an unfair labor
practice strike.
6. By offering employees in the bargaining unit
temporary employment in unit work at Springfield and
temporary and permanent employment in unit work at
Hartford and granting said temporary employment with-
out notice to or consultation with the Union , Respondents
violated Section 8(a)(5) and ( 1) of the Act.
7. By offering employees in the bargaining unit at
Springfield reinstatement at Hartford , West Hartford and
Newington , Connecticut , on terms more favorable than
those offered the Union and without notice to or
consultation with the Umon, Respondents violated Section
8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
THE REMEDY
Having found Respondent violated Section 8 (a)(1) and
(5) of the Act certain remedies will be recommended.
In view of the fact that Respondents no longer operate
the Royal plant in Springfield it will be recommended that
Respondents mail to each of the employees employed as of
February 21, 1969, and not limited to employees in the
bargaining unit , copies of the notice attached to this
Decision as Appendix D.
Since it has been found that the strikers were unfair labor
practice strikers and as such entitled to reinstatement upon
their unconditional offer to return , made July 21, 1969, it
will be recommended that the Respondents prepare, with
the approval of the Union , a preferential hiring list of all
employees employed at the Royal Springfield plant as of
February 21, 1969, and that such employees shall be
offered employment, if qualified, for any jobs which may
become available at the Royal plants at Hartford, West
Hartford and Newington, Connecticut. This recommenda-
tion shall not affect the rights of former employees of those
plants in a layoff status to priority of reinstatement at their
former jobs.
It will be further recommended that Respondents shall
offer employees on said preferential hiring list priority in
employment at any plant or plants within a radius of 100
miles of Springfield , Missouri , for any jobs for which they
may be qualified, operated by either Royal or by Litton
Systems or by any subsidiary or division of either.
Lastly, it shall be recommended that Litton Industries,
Inc., although not a party to this proceeding, shall, in order
more effectively to remedy the unfair labor practices found
to have been committed by its wholly owned subsidiary,
Litton Business Systems, Inc., and Royal Typewriter
Company, a division thereof, offer priority in employment
to all employees on the preferential hiring list required to
be prepared by Respondents to any jobs which may
become available and for which said employees may be
qualified at any plants at Springfield , Missouri, operated,
owned, or controlled by Litton Industries, Inc., or by any
ROYAL TYPEWRITER COMPANY 1033
subsidiary, group , subgroup or division of Litton Indus- [Recommended Order omitted from publication.]
tries, Inc.