United Aircraft Corp.

National Labor Relations Board - Board Decisions

Sep 11, 1963

144 N.L.R.B. 492 (N.L.R.B. 1963)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that, unless within the prescribed period, Respondent
notifies said Regional Director, in writing, that it will comply with the foregoing
Recommended Order, the National Labor Relations Board issue an Order requiring
the Respondent to take the aforesaid action.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees, by refusing to
recall employees, or in any other manner discriminating against them in regard
to their hire or tenure of employment or any other term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the enjoyment or exercise of rights guaranteed to them by Section
7 of the Act.
WE WILL offer the employees named below immediate employment at the
same or substantially equivalent positions to which they would have been
recalled had they not been discriminated against, without prejudice to any
seniority or other rights and privileges they may have enjoyed or acquired, and
make them whole for any loss of earnings they may have suffered by reason of
the discrimination against them:
Domingo Perdomo Marguerite Hawkins Helena Pagan
Joseph E. Richardson Robert L. Scott Eugene Allen
Willie Mae Harrison John Clark Mary Baker
George D. Thomas Donald Milbourne
All our employees are free to become or remain, and to refrain from becoming
or remaining, members of the above-named or any other labor organization.
NACHMAN CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. Pennypacker 5-2612, if they have any question concerning this
notice or compliance with its provisions.
United Aircraft Corporation ( Hamilton Standard Division) and
Lodge 743, International Association of Machinists , AFL-CIO.
Cases Nos. 1-CA-4003 and 1-CA-4023. September 11, 1963
DECISION AND ORDER
On May 28, 1963, Trial Examiner Joseph I. Nachman issued his
Intermediate Report herein, finding that the Respondent engaged in
certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Intermediate Report. Thereafter, the Respondent and
144 NLRB No. 56.
UNITED AIRCRAFT CORP. (HAMILTON STANDARD DIV.) 493
General Counsel filed exceptions to the Intermediate Report and briefs
in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the additions and modifications as hereinafter set forth.
1. We agree with the Trial Examiner, for the reasons stated in the
Intermediate Report, that the Respondent's failure to bargain with
the Union over the wages, hours, and terms and conditions of employ-
ment for the employees agreeing to participate in the training pro-
gram was a violation of Section 8(a) (5) and (1) of the Act.
2. The Trial Examiner found that the Respondent violated Section
8(a) (3) and (1) of the Act when it refused the request of Butler J.
Seedman, the union president, that he be excused from work to discuss
the 8 (a) (5) charge with a Board agent. The Trial Examiner was
of the opinion that the refusal was discriminatorily motivated, because
the "Respondent's intent and purpose in denying Seedman the re-
quested time off was to retaliate for his activity in bringing to a head
the training school issue." We do not agree.
The record shows that sometime before December 6, 1962, the Inter-
national Union's representative, Sullivan, was informed by a Board
agent that he would be in Hartford on December 11, and wished to
meet at some convenient hour that day with all persons having in-
formation relating to the 8 (a) (5) charge filed by the Union. Sullivan
told the Board agent that he wished to have the Union's attorney pres-
ent. After ascertaining the time that would be convenient to the
Union's attorney, Sullivan arranged a meeting with the Board agent
for the morning of the 11th at 8 o'clock. Seedman thereafter addressed
a letter to the Respondent requesting that he be excused from work on
December 11 to discuss the charge with the Board agent. Seedman
did not explain why the meeting had to be held during his working
hours,' nor did he make any representation to the Respondent that a
meeting at any time other than during his regular working hours
would work a particular hardship on him.2 It is apparent that the
Respondent was fully acquainted with the nature of the Board's in-
vestigatory process and that the 8 a.m. time fixed for the meeting
Seedman works from 7:30 a.m. to 4 p.m.
s The Respondent on several occasions in the past has allowed Seedman time off because
requiring his presence at the plant would 'impose a hardship on him. Thus , when certain
union meetings cause him to be up quite late at night, the Company customarily excuses
him from work the following day.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not have been of the essence in the pursuit of the Board agent's
duty. Indeed, the record shows that Seedman did meet with the
Board agent that day after Seedman's working hours, and there is
no claim that the Union's case was in any way prejudiced thereby.
Because it found no reason compelling enough to justify an interrup-
tion in its own business, the Respondent denied the Union's request that
Seedman be excused during his working hours.
We cannot see in the circumstances of this case that the prepon-
derance of the evidence clearly establishes a discriminatory motive on
the part of the Respondent. It is true that the Respondent had in
the past granted Seedman, in his capacity as union president, permis-
sion to attend to union business during working hours almost without
exception, but we cannot infer from such past consent alone that the
Respondent was not justified in denying this request under the cir-
cumstances here shown. Accordingly, we find that the Respondent
did not violate Section 8 (a) (3) of the Act.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, United Aircraft Cor-
poration (Hamilton Standard Division), its officers , agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge 743, International
Association of Machinists, AFL-CIO, with respect to rates of pay,
wages, hours of employment, or other conditions of employment of
trainees while assigned to a training school, said trainees being within
the unit for which said Lodge 743 has been certified by the National
Labor Relations Board as the exclusive collective-bargaining
representative.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist Lodge 743, International
Association of Machinists, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choice, and 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
The General Counsel excepted to the Trial Examiner's failure to find that the Re-
spondent 's refusal to grant Seedman time off to meet with the Board agent was also an
independent violation of Section 8(a)(1) of the Act In essence , his position is that an
employee ' s request for time off to attend to legitimate union business is a matter of right
under the Act, and that a denial is a violation of Section 8(a) (1) unless an employer
can show good cause for refusing to grant the request Since we have found that the
Employer had such cause when he denied Seedman's request, we find it unnecessary to
discuss any further the merits of the General Counsel's contention.
UNITED AIRCRAFT CORP. (HAMILTON STANDARD DIV.) 495
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Section
8 (a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Lodge 743, Interna-
tional Association of Machinists, AFL-CIO, as the exclusive
collective-bargaining representative of its employees in the afore-
said unit, with respect to the rates of pay, wages, hours of employ-
ment, or other conditions of employment of trainees while assigned
to a training school, and embody any understanding reached into a
signed contract.
(b) Post at its plants in Windsor Locks and Broad Brook, Con-
necticut, copies of the attached notice marked "Appendix." 4 Copies
of such notice, to be furnished by the Regional Director for the First
Region, shall, after being signed by a representative of the Respond-
ent, be posted immediately upon the receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps it has taken to
comply herewith.
IT IS IT RTHER ORDERED that the complaint insofar as it alleges that
the Respondent violated Section 8(a) (3) and (1) be, and the same
hereby is, dismissed.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National 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 refuse to bargain collectively with Lodge 743,
International Association of Machinists, AFL-CIO, as the cer-
tified exclusive collective-bargaining representative of the unit
which has been found to include trainees, with respect to rates of
pay, wages, hours of employment, and other conditions of em-
ployment of such trainees while assigned to our training school.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Lodge
743, International Association of Machinists, AFL-CIO, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a) (3) of the
National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL upon request, bargain collectively with Lodge 743,
International Association of Machinists, AFL-CIO, as the ex-
clusive collective-bargaining representative of our employees in
the aforesaid unit, with respect to the rates of pay, wages, hours
of employment, or other conditions of employment of our trainees
while assigned to the training school, and embody any under-
standing reached into a signed agreement.
UNITED AIRCRAFT CORPORATION (HAMILTON
STANDARD DIVISION),
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 24 School Street, Boston, Massachusetts, Telephone No.
523-8100, if they have any question concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding heard before Trial Examiner Joseph I. Nachman, at Hartford,
Connecticut, on February 19, 1963, involves allegations that Respondent , United
Aircraft Corporation (Hamilton Standard Division ), herein called United or Com-
pany, violated Section 8(a)(5), (3), and (1 ) of the National Labor Relations Act,
as amended , herein called the Act.'
All parties were represented at the hearing and were afforded the opportunity to
present evidence , to examine and cross -examine witnesses , and to argue orally
on the record. Oral argument was waived . The General Counsel and Respond-
ent each filed a brief, which briefs have been duly considered.
1In Case No. 1-CA-4003, the charge was filed November 29, 1962 , and a complaint
thereon issued January 11, 1963. In Case No. 1-CA-4023, the original charge was filed
December 19, 1962, and amended January 18, 1963. The cases were then consolidated and
an amended complaint on both charges issued February 1, 1963.
UNITED AIRCRAFT CORP. (HAMILTON STANDARD DIV.) 497
Upon the entire record in this case , including my observation of the witnesses,
I make the following:
1. FINDINGS OF FACT 2
A. The 8(a)(5) charge
Among the plants operated by Respondent are those known as the Windsor Locks
plant and the Broad Brook plant. In July 1941, Lodge 743, International Associa-
tion of Machinists, AFL-CIO, herein called the Union, was certified as the repre-
sentative of the Company's production and maintenance employees? Whether
Respondent then had in its employ "trainees" of the type hereinafter referred to,
does not appear. The evidence does show that during World War II, the Company's
Pratt & Whitney division operated a school for trainees and employees from the
Company's Hamilton Standard Division at times attended that school. Since the
end of World War II, Respondent has employed no trainees of the type hereafter
referred to, nor did it operate a training school until the events hereafter referred
to. Since the certification seven contracts between the Company and the Union
have been executed .4 The first contract following the certification, executed July 16,
1941, described the unit as embracing "all hourly rated employees engaged in produc-
tion and maintenance," and provided for the exclusion of inter alia "apprentices,
trainees [and] students Although the description of the unit in the several
contracts which followed the one of July 16, 1941, has varied somewhat, it has
since February 12, 1954, been substantially the same as in the current contract
which described the unit as:
all production and maintenance employees, including working leaders and
all hourly rated technicians in the chemical, rubber, metallurgical, vibration,
and electronics laboratories at the [Company's plant], but shall exclude execu-
tives, professional employees, salaried technicians in the engineering depart-
ment, foremen's clerks who have access to confidential information, draftsmen,
plant production employees, medical department employees, salaried office and
salaried clerical employees, outside servicemen, truckdrivers, watch engineers,
group supervisors, and all other supervisors as defined in the National Labor
Relations Act, as amended.
It thus appears that neither the certification, nor any of the contracts executed on
or after August 25, 1942, makes any reference to "trainees," "school trainees," or
"students," the classification directly involved in this proceeding.
In October 1962, the Company posted on its bulletin board a notice to the effect
that it was instituting a "Limited Production Machinist Training Program" (herein
called training school), to provide itself with a pool of trained machinists. The
program, which contemplated a 22-week training period,5 was open to all employees
meeting the necessary qualifications , as well as to outside applicants . Although not
so stated in the notice, those successfully completing the training course would be
assigned, as needed, to the limited production department.6 Those failing to satis-
factorily complete the training course would, except in unusual situations, revert to
the job held prior to being selected for training.?
2 NO issue of commerce or labor organization is involved . The complaint alleges, and
the answer admits, facts necessary to establish both elements . I so find
8 The certification described the unit as "The production and maintenance employees
of [the Company], including group leaders and minor supervisory employees devoting part
of their time to actual production, but excluding executives, engineers , technicians in the
experimental department , guards , salaried employees , main office clerical help, foremen,
assistant foremen, and all other supervisory employees devoting a major part of their
program to supervising as distinguished from actual production."
A The several contracts were executed July 16, 1941, August 25, 1942, February 2, 1945,
October 21, 1946, June 9, 1948, December 22, 1950, February 12, 1954, December 12, 1955,
April 18, 1958, August 8, 1960, and the current one on April 21, 1962. The recognition
provisions in each of these contracts is in evidence.
5 Fifteen weeks of a combination of classroom work and machine operation in the
machine school training area, and the final 7 weeks in on-the -job training in the limited
production department , but still under the supervision of an instructor from the training
school.
0 The limited production department is intermediate between experimental work and full
production. In that department items are usually made in small lots. When a substantial
order is obtained, the work is done in the machinery department for full production.
a Trainees attending the training school are not to be confused with "trainees" in the
various departments , including the limited production department . The latter work on
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after Respondent posted the aforesaid notice, Union President Butler J.
Seedman conferred with James E. Vandervoort, Respondent's personnel manager,
relative to the posted notice. Vandervoort took the position that employees ac-
cepted for the training school would, during the 22-week term thereof, be outside
the bargaining unit for which the Union is the certified representative, not entitled
to any of the benefits of the contract, and that while attending he school would not
be subject to "checkoff" as provided in the contract. With respect to the com-
pensation of those selected for the training school, Vandervoort stated that a rate
of $2.17 to $2.37 per hour had been fixed, and that persons earning less would be
raised to that rate upon entering the school, while those earning more would be
reduced to that rate. Seedman insisted that the mere transfer of an employee to
the training school for a temporary training period did not remove that employee
from the unit, and that the Union wished to discuss with the Company the wages,
hours, and terms and conditions of employment of the "trainees" while assigned to
the training school. Vandervoort, however, remained adamant in his position
that while attending the training school, the "trainees" were outside the bargaining
unit, and that the Company would deal with them accordingly. The following day,
Seedman again met with Vandervoort, reiterated the Union's position with respect
to the training school, and stated that if the Company insisted on proceeding as
theretofore indicated, the Union would have to take all steps necessary to protect
its position. Vandervoort asked, "Do you mean you are going to take us to court,"
and Seedman reiterated that the Union would do what it considered necessary.
Vandervoort insisted that the school would start November 5, as set forth in the
posted notice. On November 12, 1962, Seedman wrote Vandervoort referring to
their two previous conversations concerning the school, and asked to be advised
whether the Company would recede from its position that employees attending the
school were for the period of such attendance, removed from the unit. Respondent
did not reply to that letter. On November 29, 1962, the Union filed the instant
8 (a) (5) charge.
B. The 8(a)(3) charge
Sometime between November 29 and December 6, 1962, Attorney Norman Zankel,
on the staff of the Board's Boston Regional Office, and to whom the aforementioned
8(a) (5) charge had been assigned for investigation, telephoned John R. Sullivan,
an IAM Grand Lodge representative assigned to Lodge 743, and stated that he
(Zankel) would be in Hartford on December 11, and wished to meet at some con-
venient hour that day with all persons having information relative to the charge
which the Union had filed. Sullivan stated that he wished to have Zeman, the
Union's attorney, present at the proposed meeting, and would have to call Zankel
back relative to the hour. After ascertaining Zeman's convenience, Sullivan called
Zankel and advised that the meeting had been arranged for 8 a.m., December 11, 1962.
On December 6, 1962, a letter, over the signature of Union President Seedman,
was directed to Personnel Manager Vandervoort, requesting that Seedman be ex-
cused from work on December 11 to attend the meeting with Board Agent Zankel
relative to the "unfair labor practice charge against Hamilton Standard re Trainee
Program." 8 This letter apparently came to the attention of the personnel depart-
ment on December 10. On that day Union President Seedman, while conferring
with Assistant Personnel Manager Kristopik on other matters, saw the letter of
December 6 and asked Kristopik if he was going to comment on it. Kristopik
asked Seedman if he would agree that the requested absence was for union affairs,
as distinguished from personal affairs, and hence outside the jurisdiction of the
foreman. Seedman agreed that this was correct, and that he had, for that reason,
directed his request to the personnel department instead of his foreman. Kristopik
thereupon told Seedman that the request was denied. Seedman did not ask, nor
did Kristopik give, any reason for the Company's decision. Seedman did not take
the time off, but did meet with Zankel on December 11, after work.9 The General
Counsel contends that Respondent's refusal to grant Seedman the time off as re-
the production floor and receive "on-the-job" training for their specific job : while the
former received their training in a school where they are trained generally to be superior
craftsmen and they perform no production operations. The "on-the-jab" trainees are not
1n7olved in this proceeding, as the Company concedes that they are in the unit and are
in all respects subject to the contract with the Union.
8 The reference in this letter to Zankel's conducting a "preliminary hearing" is an
obvious error which clearly did not mislead the Company. As Sullivan testified, this was
simply his choice of language.
9 Seedman's hours of work are from 7:30 a.m. to 4 p m.
UNITED AIRCRAFT CORP. (HAMILTON STANDARD DIV.) 499
quested in the letter of December 6, was at least, in part , discriminatorily motivated,
and hence a violation of Section 8(a) (3) and (1) of the Act.
Respondent 's position on this aspect of the case is that the Company is engaged
almost entirely in defense work; that Seedman and the fellow workers in his depart-
ment are skilled and in short supply, which required that they work considerable
overtime ; that Seedman was, with Respondent 's approval , frequently absent for a
variety of reasons including presiding at union meetings and transacting other union
business , and that such requests for leave were approved by Respondent both before
and after the request here involved ; and that it denied this request for leave, not
because Seedman could not be spared from his work , but because Respondent did
not regard the reason for the requested absence as adequate , when balanced against
the Company 's needs for his services . Personnel Manager Vandervoort admitted
that, had Seedman presented what he (Vandervoort) regarded as a legitimate reason
for the requested leave, such request would have been granted . Respondent also
argues that the conference with Zankel was arranged without regard to the interests
of the Company, and without any effort to arrange the meeting at a time that would
not interfere with Seedman 's work schedule , and points to the fact that Seedman
did meet with Zankel after working hours and apparently conferred with him to
the full extent necessary.
The contract between the Company and the Union has no provision for the release
of employees to attend to union business . Prior to Vandervoort's becoming per-
sonnel director on January 1, 1960, Seedman , who has been president of the Union
for about 10 years, had an understanding with the then Personnel Director Sullivan,
that he and other employees be granted time off to transact specified business for
the Union . Seedman sought to make the same arrangement with Vandervoort, but
the latter declined to enter into any general agreement stating that he preferred to
pass on each request as it arose.
The evidence also shows that in June 1962, Seedman requested time off to attend
a conference in Washington , D.C., as a representative of labor.1° The requested leave
was denied , but Seedman nevertheless took the time off, and upon his return to work
was suspended for 3 days. The suspension was made the subject of a grievance
which went to arbitration and resulted in a decision that the suspension was un-
justified.li Also, in November 1962, Seedman was again suspended for failing to
report to work one morning , having left town the preceding evening and due to alleged
transportation difficulties was unable to return for work. This suspension became the
subject of arbitration , but had not been decided at the time of the hearing herein.
II. CONCLUSIONARY FINDINGS
A. The 8(a)(5) charge
The principal issue on this aspect of the case is whether or not the "school
trainees ," while engaged in such training , are within the unit for which Lodge 743
is admittedly the certified and recognized bargaining representative . The certifica-
tion does not, by its terms, exclude trainees from the scope of the unit, and it has
been the general practice of the Board to include them in the unit when a question
regarding their inclusion has been raised. See , for example , Kearney & Trecker
Corporation, 121 NLRB 817; Republic Flow Meters Company, 72 NLRB 296. In
the last-mentioned case, where the trainees attended a school, the Board found
them to be a part of the residual production and maintenance unit, rather than in
the unit of tool-and-die makers and apprentices , in whose department the trainees
worked. It would appear, therefore , that the trainees involved would normally be
regarded by the Board as a part of the unit for which the Union is the certified
representative.
In support of its argument for a contrary result, Respondent relies upon the Board's
decision in United Aircraft Corporation, Pratt & Whitney Aircraft Division, 124
NLRB 392. In that case, the union involved 12 was certified in April 1952 for a
to Seedman testified that this request was for personal , as distinguished from union,
business The distinction between the two, according to Seedman, is that when he takes
time off for union business , the Union compensates him for the time lost; if he Is not
so compensated , it is for personal business.
"The arbitrator directed the Company to destroy the suspension notices and to pay
Seedman for the time lost . The basis for the arbitrator ' s decision does not appear in the
evidence The Company complied with this decision.
z2 The certified union in t hat case was the UAW which represented the employees of the
Pratt & Whitney North Haven , Connecticut , plant.
727-083-64-vol. 144-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production and maintenance unit. In March 1959, the certified union petitioned the
Board for clarification of the certification, contending that "in plant trainees" were
a part of the unit. The Board denied the petition. It is clear, however, that the
Board's decision in that case was based on the following facts: (1) Not only did the
stipulation for certification on consent election fail to mention the trainees, but the
record in the election proceeding showed that the trainees were not included on the
agreed list of eligible voters, and made no attempt to vote in the election subsequently
held; (2) that in practice the employer, with the acquiescence of the union, dealt with
the trainees as being outside the scope of the unit; and (3) during negotiations for
one of the several contracts, the union proposed modification of the unit description
to include "trainees and apprentices," but when the employer refused to agree to this
modification, the union agreed to a contract which did not include the disputed
classifications. It was for these reasons that the Board concluded [ at p. 3941:
that in-plant trainees were not included in the stipulated and Board-
certified unit, and have not at any time since the Board certification been in-
cluded in the bargaining unit ... .
The factors relied on by the Board in Pratt & Whitney, supra, are absent in the
instant case. There is no showing that (1) it was the intent of the parties to exclude
trainees from the unit as stipulated at the time of the election; or (2) the issue was
raised during contract negotiations and then abandoned it. In fact, a contrary in-
ference is virtually dictated by the fact that prior to November 1962 Respondent had
no trainees of the type involved here, and when the issue first arose between the
parties in October 1962, the Union stated its position and at all times since has stead-
fastly maintained it.13 There is, therefore, no predicate for a finding that the Union
bargained away or waived its interest in the issue, or that the establishment and
maintenance of the training school was solely a matter of management prerogative.
See The Press Company, Incorporated, 121 NLRB 976; Proctor Manufacturing Cor-
poration, 131 NLRB 1166, 1170. For these reasons, I conclude that Pratt & Whitney,
supra, is inapposite here.
Respondent does not deny that it has failed and refused to recognize the Union as
the collective-bargaining representative of the trainees involved, or to bargain with
the Union regarding the wages, hours, and terms and conditions of employment of
said trainees while assigned to the training school. Having found that the trainees
are a part of the unit for which the Union was certified, it necessarily follows that
by such failure and refusal Respondent violated, and continues to violate, Section
8(a)(5) and (1) oftheAct. Isofind.
B. The 8(a)(3) charge
It is not open to question that the Act does not circumscribe the normal exercise
by management of the right to determine when, if at all, and if so, for what reasons,
it will permit employees to be absent from work. ;Nor is the Board authorized by
the Act to inquire into the reasonableness of the employer's decision in that regard.
On the other hand, an employer may not, under the guise of exercising management
prerogatives, interfere with the right of his employees to engage in activities protected
by Section 7 of the Act, or discriminate against them with respect to their tenure or
terms and conditions of employment. The issue on this aspect of the case, therefore,
turns on Respondent's motive in denying Seedman time off as requested in the Union's
letter of December 6. Stratford Furniture Corporation, 96 NLRB 1031, enfd. 202
F. 2d 884 (C.A. 5); Chautauqua Hardware Corporation, 103 NLRB 723, enfd. 208
F. 2d 750 (C.A. 2); Superior Company, Inc., 94 NLRB 586, enforcement denied
199 F. 2d 39 (C.A. 6).
The evidence shows that while Respondent has in the past denied Seedman's re-
quest for time off, such requests were for what may be regarded as of a personal
nature, or concerned matters which were merely of general interest in the cause of
labor. There is no evidence that Seedman was ever denied permission to be absent
for the purpose of transacting business in which Lodge 743 had a specific and direct
interest. With respect to matters of the last-mentioned nature, Respondent appar-
ently granted leave whenever it was requested. Even in the instant case, Personnel
Director Vandervoort admitted that there was nothing unusual about its production
schedules of requirements that necessitated denial of the request and that Seedman
would have been granted the time off had there been presented what Respondent
is Respondent concedes in its brief that the reason for eliminating from the recognition
clause the exclusion for "apprentices, trainees and students," after the 1941 contract, was
that Respondent then had no such persons in its employ.
UNITED AIRCRAFT CORP. (HAMILTON STANDARD DIV.) 501
regarded as a legitimate reason for the request. With respect to matters which
directly concerned Lodge 743, as distinguishable from matters involving unions
generally, there is no evidence that Respondent had prior to this occasion concerned
itself with the "legitimacy" of the reason for the requested time off, or the specific
nature of the union business to be transacted. This change in Respondent's attitude,
Vandervoort's question put to Seedman when the latter disclosed his purpose to
actively pursue the issue regarding the training school, "Do you mean you are going
to take us to court," and my observation of the demeanor of the witnesses while
testifying, convince me, and I find, that Respondent's intent and purpose in denying
Seedman the requested time off was to retaliate for his activity in bringing to a head
the training school issue.14 Accordingly, Respondent's denial of the requested leave
interfered with, restrained, and coerced Seedman in the exercise of his Section 7
rights. In view of the long practice to grant Seedman and apparently other union
officials time off to attend to business for the Union, Respondent's change in that
practice, for the purpose as above found, constituted discrimination against Seed-
man with respect to a term or condition of his employment, necessarily discouraging
membership in the Union, within the meaning of Section 8(a)(3) and (1) of the
Act.15
III. CONCLUSIONS OF LAW
1. United Aircraft Corporation (Hamilton Standard Division), is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Lodge 743, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By failing and refusing to recognize Lodge 743 as the collective-bargaining
representative of employees attending its training school, and by failing and refusing
to bargain with Lodge 743, concerning the wages, hours, and terms and conditions of
employment of employees while attending such training school, Respondent refused
to bargain collectively with the Union as the exclusive collective-bargaining repre-
sentative of said employees, and thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
4. By denying Seedman's request for time off with the intent and purpose of re-
taliating against him and the Union for pursuing and pressing the training school
issue, Respondent interfered with, restrained, and coerced Seedman in the exercise
of rights guaranteed to him by Section 7 of the Act, and discriminated against Seed-
man with respect to a term or condition of his employment, to discourage membership
in Lodge 743, and thereby engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor practices as above set forth,
it will be recommended that it cease and desist therefrom and take certain affirmative
action, set forth below, designated to effectuate the policies of the Act. I am not
recommending any backpay for Seedman because there no evidence that he lost
any time from work by reason of discrimination against him.
[Recommended Order omitted from publication I
"The General Counsel Introduced in evidence a complaint issued November 28, 1962,
against Respondent, alleging a violation of Section 8(a) (5) by Respondent's refusal to
furnish the Union data relating to performance ratings (Case No. 1-CA-3944). On
January 31, 1963, the Regional Director withdrew that complaint and refused to issue
another one That ruling was appealed to the General Counsel who subsequently sus-
tained the Regional Director. The General Counsel argues that the only reason for the
denial of Seedman's request for time off, the denial coming as it did little more than
2 weeks after issuance of that complaint, was Respondent's animus toward Seedman and
the Union I regard this argument as tenuous, and reject it. Accordingly, I have given
this exhibit no consideration In reaching my conclusion above set forth
16 Standard Packaging Corporation, Royal Lace Paper Division, 140 NLRB 628, relied
on by Respondent, is not applicable here. There the Board sustained the Trial Examiner's
findings that the employer's conduct In that case was not in reprisal for the protected
activity in which the employees had engaged, but was "motivated solely by the com-
plainant's absence from the plant in disregard of orders " Illy conclusion here is that the
denial of leave was in reprisal against Seedman because be had engaged in certain pro-
tected activity, as above set forth.