Hastie and Seitz, Circuit Judges and Body, District Judge.
This case is here on a petition by International Telephone and Telegraph Corporation to review, and a cross-petition by the National Labor Relations Board to enforce, a decision and order of the Board. 159 NLRB No. 145. The Board found that the petitioner had committed unfair labor practices within sections 8(a)(5) and (1) of the National Labor Relations Act,*fn1 (1) by withdrawing recognition from and refusing to bargain with Local 400, International Union of Electrical, Radio & Machine Workers, AFL-CIO, as representative of the professional employees in the engineer-technician unit, (2) by refusing to disclose to the union certain data necessary to the union in the performance of its role as bargaining agent, and (3) by entering into and conducting negotiations with a determination to avoid an agreement. The Board also found that the petitioner had violated section 8(a)(1) of the Act by unlawfully employing threats and promises in soliciting two striking employees to abandon the strike. Accordingly, the order here in controversy was issued requiring the petitioner to cease and desist from these practices and to take appropriate affirmative action, including posting of notices.
In 1951, Local 400 petitioned the Board for a representation hearing to be conducted within the framework of three theretofore-recognized bargaining units of the petitioner's employees; a shop-maintenance unit, a clerical-drafting unit, and an engineer-technician unit. A dispute arose whether the technicians in the engineer-technician unit were professional employees within the terms of the Act and thus should be included in that unit. The Board ruled that the technicians were properly so included, whether "professionals" or not, because of the similarity of working conditions, integration of work and parallel bargaining history of the technicians and the engineers. The Board also found that professional employees constituted a majority of workers within the unit regardless of classification of the technicians. Federal Telecommunications Laboratories, Inc., 1951, 92 NLRB 1395.
At that time, the policy of the Board was to deny professionals a separate vote as to their choice of a collective bargaining representative where they constituted a majority of such a mixed unit. Thus, although the engineer-technician unit selected Local 400 as its bargaining representative, no separate vote was ever held among the engineers, despite the petitioner's objection. This was in contravention of section 9(b)(1) of the Act, 29 U.S.C. § 159(b)(1), which reads in part: "The Board shall not . . . decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit ".
Local 400 was granted recognition and collective bargaining ensued. Thereafter, for thirteen years the petitioner maintained a continuous bargaining relationship with the union as the representative of each of the three units. Bargaining agreements were executed in 1951, 1952, 1954, 1956 and 1959. A Strike Settlement Agreement was entered into in 1961 and expired in September, 1964. Upon failing to reach a new agreement with the petitioner, the union struck on September 9, 1964. Although negotiations continued, no accord was reached.
At this juncture, for the first time since 1951, the representative status of the union was challenged. On October 7, the professional employees filed a decertification petition with the Board, requesting that engineers and chemists no longer be represented by Local 400. One day later, the petitioner filed election petitions for both the mixed unit and the professional employees. At the same time, it notified the union that it was withdrawing recognition from Local 400 as bargaining representative of the professional employees. On October 9, Local 400 filed unfair labor practice charges with the Board alleging the Petitioner's refusal to supply certain data which the union considered necessary for proper collective bargaining and also averring the petitioner's intent to avoid agreement. These charges were later amended to allege as additional wrongs the petitioner's withdrawal of recognition of the union as the representative of the professional employees and certain threats and promises made by the petitioner to specific striking professional employees.
The Board dismissed the election petitions on the ground that they could not be considered pending disposition of the unfair labor practice charges. Thereafter, the Board handed down the Decision and Order contested here.
Withdrawal of Recognition of the Union
The Board found that the petitioner's withdrawal of recognition of the union as representative of the professional employees violated sections 8(a)(5) and (1) of the Act. In reaching its decision, the Board assumed that the failure to provide a separate election for the professional employees in 1951 made that election illegal. See Leedom v. Kyne, 1958, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180. But to concede that point is not to say that every unit composed of professionals and non-professionals originally formed without a separate election is invalid forever. Though section 9(b)(1) prohibits the Board from designating a mixed unit without holding the requisite election of professionals, nothing in the language of the Act prohibits the relevant parties from maintaining and recognizing such a unit consensually. Retail Clerks Union Local 324 (Vincent Drugs), 1963, 144 NLRB 1247. In our view such a consensual arrangement is presented here. At no time between 1951 and 1964 did either the petitioner or the professional employees challenge the unit or seek its decertification. The petitioner could have brought the question of alleged improper certification to a head immediately by refusing to bargain in 1951 and litigating the issue before the Board and the courts in an unfair labor practice proceeding. More significantly, even after the 1958 decision in Leedom v. Kyne, supra, which put the parties on notice that the original certification was made in error, they negotiated and entered into new contracts in 1959 and 1961 without questioning the composition of the unit. The Board reasonably found that this conduct constituted consent on the part of both parties to a mixed bargaining unit consisting of professional and non-professional employees. The rationality of that conclusion is further supported by the fact that even before 1951 an engineer-technician group had existed and had functioned as a consensual unit for collective bargaining between the petitioner and the union which then represented the employees. In these circumstances, the error in the original determination of the bargaining unit does not justify the present refusal to bargain with it.*fn2
Nor can it be said that the petitioner's refusal to bargain was grounded on and justified by good-faith doubt as to the union's majority within the existing unit. At the time recognition was withdrawn 216 of the 345 engineers had returned to work, but more than a majority of the engineer-technician unit remained on strike. And, as the petitioner has admitted, the filing of a decertification petition by a group within a recognized union is not a valid excuse for refusal to bargain with that union. The Board permissibly found that the petitioner's refusal to bargain with Local 400 as representative of the entire group of employees in the engineer-technician unit constituted an unjustified disruption of the bargaining process violative of sections 8(a)(5) and (1).
The bargaining history prior to the strike of September 9, 1964, discloses that the issue of labor costs, especially fringe benefits, was of vital concern to both the petitioner and the union. The petitioner continually maintained that in order for it to remain "competitive" the cost of fringe benefits must be reduced, and that contracts were being lost because the fringe benefit costs of its competitors were lower. The union requested data showing the relation between fringe benefits and bidding for new contracts and information showing the contracts that had been lost because of high fringe benefit costs. The petitioner suggested that the union "write a letter to the company, and they would give it to counsel for review". Although no letter was written until October 13, four days after the unfair labor practice charges were filed, the petitioner persisted in its refusal to disclose any financial data regarding its competitive position and corresponding labor costs.
Good-faith bargaining requires that relevant factual statements made during the course of collective bargaining be supported, on request, by available proof as to their accuracy. NLRB v. Truitt Manufacturing Co., 1956, 351 U.S. 149, 100 L. Ed. 1027, 76 S. Ct. 753. Certainly it cannot be contended that the information sought by the union was irrelevant to its function as bargaining agent. Indeed, the petitioner does not deny relevancy. In our view, failure to honor the request for disclosure of relevant data in this case was a clear violation of the Act. Puerto Rico ...