Full opinion text
MEMORANDUM OF DECISION CLARIE, District Judge. The plaintiff unions commenced separate actions in this Court on December 11, 1961, pursuant to § 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. § 185; thereafter on July 22, 1963, by consent of the parties, these suits were consolidated for trial. The plaintiffs seek a declaratory judgment that the Pratt & Whitney Aircraft Division and the Hamilton Standard Division, both subsidiaries of the defendant parent corporation, breached the terms of the Strike Settlement Agreements made in August 1960. They seek an order for specific performance and a judgment for substantial monetary damages. The unions’ claims include remedial damages to the individual union members affected, institutional damages to the plaintiff unions, and punitive damages to deter the defendant from future unlawful conduct; in addition thereto, the plaintiffs request an allowance sufficient to pay counsel fees and the expenses of this litigation. The original complaints contained a single count and alleged a breach of the Strike Settlement Agreements. Subsequently a consolidated amended complaint, drawn in four separate counts, was filed on November 30, 1964. The first count alleges that the defendant failed to reinstate strikers in accordance with the terms of the Strike Settlement Agreements, and that its conduct was motivated by a desire to protect those employees who helped break the strike. The unions represent that the defendant’s strike period hirings, promotions, and transfers were not permanent replacements of strikers and that since the execution of the agreements in August 1960, the unions’ membership has been unlawfully deprived of its employment. The second count, in addition to reiterating the averments of the first count, claims that the strikers were entitled to reinstatement as a matter of law, because the strike was caused or prolonged by the defendant’s unfair labor practices. The third count incorporated the material allegations of the first count and further asserted that the defendant contrived to curtail its employee complement immediately after the strike and during the effective period of the “preferred hiring list,” in order to deprive those strikers who were awaiting recall from the full enjoyment of their employment and seniority rights. The fourth and final count, in addition to reasserting the allegations of the prior counts, represents that the defendant unlawfully deprived and prevented the plaintiffs from effectively policing and enforcing the defendant’s compliance with the Strike Settlement Agreements. Upon defendant’s motion, count two and paragraph 19(e) of count four (which alleged unfair labor practices on the part of the defendant in failing to furnish records dating back to 1953) were dismissed by order of the Court on June 16, 1965, because the subject matter alleged and the remedies sought were not within the jurisdiction of this Court. The plaintiff unions and the defendant employer have polarized their respective positions, so that the Court is asked to draw widely dissimilar conclusions from the facts presented in evidence. The plaintiffs have attempted to demonstrate that the defendant corporation deliberately designed and developed a “master plan” to minimize the number of registered strikers who would be rehired and to relegate to inferior jobs many strikers who were recalled, so that the union membership would be taught a lesson, thereby weakening the local unions and minimizing their organizational effectiveness. Demonstrative of the existence of such a plan and the defendant’s anti-union animus generally, they point to certain threats attributed to defendant’s representatives on the occasion of the local union leaders’ refusal to recommend the terms of a tentative settlement negotiated and recommended by the plaintiffs’ general counsel on or about July 7, 1960. At that time the defendant’s Vice-President Burke is reported to have said “We are going to get you. We are going on a full scale hiring program;” and in similar vein the defendant’s counsel purportedly admonished his adversary with the warning, “We’re going to see to it that there isn’t another strike at United Aircraft for fifteen (15) years.” (DX-74) While the statements standing alone express an attitude of measured hostility, when considered in the light of the circumstances in which they were said, they have the appearance of being the normal aftermath of heated and frustrated negotiations, which terminated in the aborting of an otherwise prospective peaceful labor relations settlement. From the opposite end of the spectrum, the defendant-company points to the admissions by plaintiffs’ general counsel, that these strikes at defendant’s plants were ill-conceived by local union leadership at the outset and had already been lost, when he first arrived on the scene to negotiate. (Tr. 8920). He denied any recollection of a 1961 conversation, wherein defendant’s counsel inquired of him why he had started this mammoth litigation, knowing there had been no violation and his giving a reply that the union was dead and he had to do something. (Tr. 9001). However, when asked if he told defendant’s counsel, that he had hired plaintiffs’ present trial counsel for the sole purpose of coming to Connecticut and litigating these suits, just as a means of keeping the union alive, he replied, “I could have said that.” (Tr. 9006). If this were true, such a statement would strongly suggest a completely unjustifiable and unethical motive for the plaintiffs initiating this protracted litigation. Mindful of the philosophic and descriptive warning of the essayist, that “all looks yellow to the jaundiced eye,” the Court, aloof from the natural emotional involvement of the parties, will not attempt to filter the motives, the alleged animus, or subjective suspicions of either of the litigants through any amber or rose-colored prism; but rather it will attempt to bring the conduct of both parties into focus, in the light of every day human experience and the tests of objective reality. In so doing, the Court will ascertain the true legal measure of their conduct in faithfully carrying out their respective obligations under the Strike Settlement Agreements. GENERAL FACTUAL BACKGROUND Local Lodges #1746 and #743 are both labor unions within the meaning of § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, and are affiliated with the International Association of Machinists. For many years Lodge #1746 had been the exclusive bargaining agent for the employees in the East Hartford and Manchester plants of the Pratt & Whitney Aircraft Division and prior to the strike had approximately 6,500 members (Tr. 1547); and Lodge #743 had similarly been the lawful bargaining agent for the employees in the Windsor Locks and Broad Brook plants of the Hamilton Standard Division. (Tr. 3254). Pratt & Whitney, the largest of the defendant’s subsidiaries, is primarily engagediin the production of multiple types of jet engines for aircraft, utilities, ships industrial and transportation installations, as well as rocket engines for spacecraft. Its principal plants in Connecticut are located in East Hartford, Manchester, North Haven, Southington, Middletown and Meriden. At the time of this labor dispute in 1960, the East Hartford and Manchester plants, represented by Lodge #1746, employed between 15,-000 and 16,000 hourly paid employees; however, it should be noted that the Manchester plant had only 140 employees, and each plant was treated by the parties as a separate entity for purposes of collective bargaining. The labor contracts in both units expired December 4, 1959. Hamilton Standard’s main plant at Windsor Locks employed approximately 5,000; the Broad Brook plant employed only 400. The larger factory manufactured airplane propellers, fuel controls for jet engines, aircraft air conditioning systems, electronic components, controls and related items. The smaller plant produced and assembled electronic devices exclusively. Separate labor contracts for these two plants existed with Lodge #743. As a prelude to the strike, during the period 1959-1960, a Union Unity Program was initiated on a national level between the International Association of Machinists representing the employees at the defendant’s East Hartford, Manchester, Southington, Meriden and Middletown plants with representatives of the United Automobile Workers’ Union, which represented employees in the defendant’s North Haven and Stratford (Sikorsky) plants. (Tr. 2953-4). The bargaining committees and membership in the Southington, Meriden, and Middletown plants subsequently negotiated and ratified a three (3) year agreement on December 4, 1959, but the membership of Lodge #1746 refused to approve it. The Hamilton contract expired April 21, 1960; the Sikorsky contract in February 1960; the North Haven plant, May 15, 1960. The latter unions announced uniform objections and advanced a common strike date. (Tr. 2963-68). The primary issues were: (1) a union shop; (2) plant-wide seniority; (3) automatic wage progression; (4) promotions on the basis of strict seniority; and (5) unrestricted arbitration. (Tr. 2969). It is not relevant or significant to consider here the factors which led to the settlement of the disputes in the other plants; for our purpose, only Pratt & Whitney Lodge #1746 and Hamilton Lodge #743 are the subject matter of this litigation. The plaintiffs commenced their strike against both Pratt & Whitney and Hamilton simultaneously on June 8, 1960 and for nine weeks a major power struggle ensued as a result of the unions’ attempt to force the defendant to grant increased economic concessions to the employee-unions. The strike was marred by employee violence with resulting mutual antipathy on both sides, which culminated in state court judgments for substantial damages against both plaintiff unions. When settlement discussions appeared to reach an impasse, the International Union sent its general counsel from its Washington, D. C. headquarters to attempt an amicable settlement. It appeared at first that his efforts and suggested recommendations would solve the impasse; but on or about July 7, 1960, it became apparent that the local union leaders were resisting his proposed settlement terms. The general counsel then withdrew his active participation in the negotiations, until he might be given a more meaningful authority to effect binding negotiations with the active backing of the local unions’ leadership. (Tr. 9006; DX-75). On or about July 18, 1960, the local leadership agreed to recommend to its members any agreement he might negotiate and approve. (Tr. 8921). The plaintiffs’ general counsel then resumed negotiations and a mutually acceptable agreement was worked out, on terms which would have settled the strike. The details were expressed and documented in a set of written notes compiled by the plaintiffs’ and the defendant’s attorneys. (Tr. 8923; PX-310; DX-20; see also DX-76). Although the bargaining committees for the unions had agreed to support and recommend the terms of such a settlement, when the time came to submit the proposal to the membership for ratification on July 23, 1960, the union bargaining committees declined to recommend acceptance (Tr. 8812, 8923) and the membership voted down the proposed settlement by a vote of approximately 3,800 to 300. (Tr. 8836). This meeting of the membership, became so tumultuous, violent, and out of hand, that the general counsel feared for his own personal safety and he too refrained from recommending ratification. At this point he left town and declined to participate further in any negotiations in behalf of the local unions. (Tr. 8834-35). The Governor of Connecticut arranged a meeting in New York City on August 5, 1960, between a few key officials of the defendant corporation and the national president of the International Union and its general counsel. While the evidence discloses substantial agreement between the parties on much that was discussed and orally agreed to at this informal meeting, there was violent disagreement at the trial on whether the new terms agreed to were substantially identical with those rejected by the membership on July 23, 1960. Papps, the plaintiffs’ general counsel, claimed that Burke, the defendant’s Executive Vice-President and negotiating representative, referred to certain written notes at the August 5th conference (PX-312; Tr. 8843) which had been mutually prepared by the parties prior to the abortive membership meeting of July 23rd and that the latter agreed the terms of settlement would embody the same “package.” The defendant, through Burke, vigorously and steadfastly denied that this conversation ever occurred or that any such document was ever shown to him on that occasion. It was mutually agreed at the New York conference that the strikers who desired to return to work would register; that those who had engaged in misconduct during the strike would have their cases reviewed by a panel of arbitrators (Tr. 9014-17; DX-76); that those who returned to work by September 1, 1960 would not lose their continuity of seniority, because of absence during the strike, but those who returned between Septembe 1, and December 31, 1960 would lose seniority only between September 1 and the date on which they returned; and that those who returned prior to January 1, 1961 would receive vacation pay. It was mutually understood that all strikers who registered would not be immediately returned to work, because both divisions of the defendant corporation had been hiring permanent replacements, since July 11, 1960. The terms governing wages, hours, and working conditions would be the same as previously proposed under the tentative agreement reached for a new labor contract on December 4, 1959, except that there would be no “wage reopener;” in its stead a general wage increase of from seven (7) cents to twelve (12) cents per hour would become effective January 2, 1961. As a further consideration, the defendant agreed to withdraw a petition it had filed with the NLRB, wherein it requested that an election be ordered to determine whether or not the union represented a majority of defendant’s employees at Pratt & Whitney. Upon returning to Hartford, the defendant’s representatives met the following day with Grand Lodge representative, Richard Thurer, who had previously represented both plaintiff unions in the contract negotiations. The purpose of the meeting was to explain and iron out with the local union officials the detailed terms and administrative procedures which would be followed based upon the tentative agreement reached in New York on the previous day. It was fully explained and understood that all strikers who registered would not be immediately returned to work, because their jobs had already been filled during the strike by permanent replacements. Hamilton’s estimate was that the non-returning personnel would approximate between 400-500; at Pratt & Whitney the number was believed to be much greater. The defendant explained that the hiring of permanent replacements for both divisions was still going on every day and even if the strike were settled within the next few days, there would be a number of people who had already been hired, who would still be reporting to work within the next two weeks. It was explained further that those for whom jobs were not immediately available would be placed on a preferred hiring list until December 31, 1960, when their preferred status would expire. Pratt & Whitney Lodge #1746 scheduled its membership ratification meeting for August 7, 1960, while Hamilton Standard Lodge #743 called its meeting for the following day. The membership of Lodge #1746 originally rejected the proposed settlement agreement. However, when Lodge '#743 accepted the proposal the next day, Lodge #1746 called another meeting for August 9, 1960, at which its membership reconsidered its prior action and ratified the proposed settlement agreement. Simultaneously, at these same membership meetings, the unions approved new collective bargaining labor contracts governing working conditions, wages, and union recognition. The registration of strikers commenced at Hamilton August 9th, the day after ratification; 1,721 registered at the Windsor Locks plant and 300 registered at the Broad Brook plant. Union representatives participated in the registration procedures and simultaneously recorded the identity of the registrants. Registration at Pratt & Whitney commenced on August 11,1960 and with few exceptions, it was completed on the 13th. Approximately 4,515 strikers registered at East Hartford and 20 at Manchester. The defendant subsequently supplied Lodge #1746, at the latter’s request, with a list of all strikers who had registered. (PX — 160). The Strike Settlement Agreements drafted by the defendant (Tr. 3009-10) were reduced to writing and executed by the parties on August 11th, 1960. The company represented that these were modeled after the strike settlement agreement originally proposed by Seminole Lodge #971, an affiliate of the plaintiffs’ International Union, and previously accepted by the defendant as a basis for settling the strike at the latter’s Florida plant on July 15, 1960. (Tr. 3016-17; DX-5). EXPLANATION OF TERMS In order to clarify the terms used in this opinion relating to the company’s use of personnel classifications, the Court hereby outlines their meaning. Job Code: It is a number used to designate a particular set of duties, responsibilities and functions which have been drawn together in a single job assignment and to which a job title is affixed. (Tr. 4740-41, 80-81). Based on his job code, an employee is classified in a seniority area and in an occupational group. These latter classifications are important because an employee ordinarily has seniority and thus recall preference during periods of layoff within his seniority area and occupational group. Seniority area: At Pratt & Whitney it consists of a group of departments in an administrative area, which are grouped and given a number; each area is treated as if it were a separate plant. Since 1960, Hamilton has grouped some of its departments into seniority areas but others are separate and distinct. (Tr. 453-6). Occupational Group: A group designation used to identify a class of skills that have a commonality, but which are not interchangeable, except as within a seniority area. There were 116 such groups listed in the Pratt & Whitney labor contract; however, the same group might appear in 10 to 20 different seniority areas and thus there were a total of approximately 440 occupational groups spread over 23 seniority areas. (Tr. 5360-63; 4742-44). Seniority: Means the number of work weeks of prior employment with this employer, with which the employee is credited under the labor contract. This seniority does not cross seniority area lines either contractually or as a matter of practice. Seniority ordinarily gives a senior employee priority in being retained during layoff over less senior employees; and the right of recall in the same occupational group and seniority area over other employees of lesser grade. (Tr. 5369-71). Seniority code #1 commences with the first week of January 1925, the year the defendant was founded; subtracting the code number from the current week number would disclose the employee’s weeks of seniority, provided they have not been interrupted. (Tr. 5506). Demonstrated One who had previously done the job and demonstrated ability: his ability. (Tr. 3015). Shifts: Pratt & Whitney: 1st shift: 7:00 A.M to 3:30 P.M. 2nd shift: 3:30 P.M. to 12:00 midnight. 3rd shift: 12:00 midnight to 7:00 A.M. (Tr. 1469-71). Hamilton: 1st shift: 7:30 A.M. to 4:00 P.M. 2nd shift: 4:00 P.M. to 12:30 A.M. (one-half hour for lunch) (Tr. 1732). Labor Grade: The highest labor grade at Pratt & Whitney is l.g. #1; the lowest is l.g. #11. Grades #9 through #11 are unskilled jobs. (Tr. 611, PX-93). At Hamilton the highest labor grade is l.g. #1; the lowest is l.g. #12. (PX-95, PX — 97, PX-154, PX-155; Tr. 2024-25). Rates: In each labor grade there are four (4) steps within the rate range reached through a merit rating system. “J” rate is job rate; “R” rate above standard; “P” rate is premium; and “T” rate is top. (Tr. 1423, 2738). Straight Hours worked during scheduled “standard pay peTime: riod,” which is not compensated for at overtime rates. On the third shift this actually means working six and one-half hours while being paid for eight hours. (Tr. 8470). THE AGREEMENTS The written agreements as drafted were basically alike, except that paragraphs 4(b) and 4(c) of the recall provisions in the Hamilton contract introduced the element of “demonstrated ability” in addition to the seniority factor as criteria for recall. This essential difference must be continuously borne in mind, when any attempt is made to treat the two agreements as if they were the same, in respect to the recall of registered strikers. (Tr. 242). At the August 11, 1960 meetings, where the agreements were signed, the representatives of Hamilton Lodge #743 requested no changes in the Strike Settlement Agreement, except that paragraph 4(b) be changed to read, that if a striker’s prestrike job was not available, he would be returned to a “comparable job.” The defendant consented to this change and the original phrase “treated as if they had been laid off” was deleted. The word “comparable” was inserted before the phrase “or other available jobs.” The Hamilton agreement provided that registered strikers would be recalled to work in the following manner: “(a) If the job held prior to the strike (i. e., same job code, department, and shift) is available, the registering striker will be returned to that job. “(b) If such job is not available, strikers will be recalled to comparable or other available jobs in accordance with their seniority and demonstrated ability pursuant to Article VII, Sections 1 and 2, of the Windsor Locks contract ratified by the union on August 8, 1960, or pursuant to Article VII, Section 1, of the Broad Brook contract ratified by the union on the same date. “(e) Strikers for whom no job is available in accordance with (a) and (b) above will be placed on a Preferred Hiring List and will be recalled to job openings which develop at any time prior to January 1, 1961, before new employees are hired. Employees on such Preferred Hiring Lists will be recalled to job openings in the order of their seniority and demonstrated ability pursuant to Article VII, Section 1 and Section 2, of the Windsor Locks contract ratified by the union on August 8, 1960, or pursuant to Article VII, Section 1, of the Broad Brook contract ratified by the union on the same date. “Separate Preferred Hiring Lists shall be established for returning strikers employed at the Windsor Locks plant and those employed at the Broad Brook plant.” (Emphasis added.) (Exhibit A to the Consolidated Amended Complaint) . The Pratt & Whitney Lodge #1746 representatives executed the proposed draft in its original form as presented by the defendant without any change. Paragraph 4(a) was identical with that at Hamilton in respect to the recall of registered strikers to the same job held prior to the strike, if it was available; but the provisions of paragraphs 4(b) and 4(c) established different criteria for the recall of the remainder. It provided : “(b) If such job is not available, strikers will be treated as if they had been laid off, and will be recalled to other available jobs in their occupational groups and seniority areas in accordance with their seniority, pursuant to Article VII, Section 1 and Section 2, of the contract ratified by the union on August 9, 1960. “(c) Strikers for whom no job is available in accordance with (a) and (b) above will be placed on a Preferred Hiring List and will be recalled to job openings in their occupational groups and seniority areas which develop at any time prior to January 1, 1961 before new employees are hired. Employees on such Preferred Hiring Lists will be recalled to such job openings in the order of their seniority pursuant to Article VII, Section 1 and 2, of the contract referred to above. “Separate Preferred Hiring Lists shall be established for returning strikers employed at the East Hartford plant and those employed at the Manchester plant.” (Emphasis added.) (Exhibit B to the Consolidated Amended Complaint). The Hamilton Strike Settlement Agreement provided that if the identical job was not available, strikers would be recalled to comparable or other available jobs in accordance with seniority and demonstrated ability, as is provided in Article VII, §§ 1 and 2 of the labor contracts. (PX-95, Windsor Locks plant; PX-97, Broad Brook Plant). Article VII, §§ 1 and 2 referred to the terms of layoff and recall because of lack of work. It recognized the principle of recall to specified seniority areas based not alone on seniority, but required that there be weighed with it the additional element of “demonstrated ability.” Under layoff circumstances, the labor agreements at Hamilton authorized management to offer a transfer to an employee scheduled to be laid off in one seniority area, to a job in a different seniority area; and to recall a person laid off in one seniority area to a job in a different seniority area, provided no other laid off employee had greater seniority in that area. These seniority areas are defined in Appendix B of the Windsor Locks contract and there are a total of twenty-six (26). Fourteen comprise a single department, eleven (11) comprise two departments and one (1) is made up of four departments. The Broad Brook agreement is the same as that in Windsor Locks, except that it identifies seniority areas by individual departments. In comparison, paragraph 4(b) of the Prátt & Whitney settlement agreement simply provided, that where the strikers’ identical pre-strike jobs were not available, they would be treated as if laid off and, based solely on their seniority, would be recalled to other available jobs in their respective “occupational groups and seniority areasthe element of “demonstrated ability” was not contained in the Pratt & Whitney agreement. Article VII of the Pratt & Whitney labor contract (PX-93) provided for recall to “noninterehangeable occupational groups within specified seniority areas” in accordance with the principles of seniority. It also permitted management to offer a transfer to an employee scheduled to be laid off from a job in a different occupational group or to recall an employee laid off from one occupational group to a job in a different occupational group, provided no laid off employees had greater seniority in that area. These occupational groups and seniority areas are defined in Appendix B and C of the Pratt & Whitney labor contract. It allows for 116 occupational categories arranged by groups into 23 seniority areas. Paragraph 4(c) in both Strike Settlement Agreements was substantially the same. It provided that strikers for whom no job was available in accordance with paragraphs 4(a) and 4(b) would be placed on a Preferred Hiring List and recalled to job openings which developed at any time prior to January 1, 1961, before new employees were hired, pursuant to Article VII, §§ 1 and 2 of the respective labor contracts. The criteria for the order of recall differed because the Hamilton labor contract permitted recall to the striker’s “pre-strike seniority area” and to a comparable job where he had “demonstrated ability.” Pratt & Whitney’s labor contract, on the other hand, provided more limited guidelines of recall, conditioned solely on there being a job available in the striker’s “pre-strike seniority area and noninterehangeable occupational group.” The collective bargaining labor contracts were incorporated by reference in these Strike Settlement Agreements, and they reserved to management in the “Witnesseth Clause,” “the sole right and responsibility to direct the operations of the company.” This reservation specifically included the right to select, hire, promote, demote, and transfer employees, unless otherwise provided by the contract. This reservation of authority was further strengthened by a supplemental agreement to both the Hamilton and Pratt & Whitney labor contracts dated August 16, 1960. In this supplemental agreement the parties attempted to further clarify their intent and define the prerogatives of management, reserved in the “Witnesseth Clause.” It stated that these reservations could not be lessened, diminished, or affected by the powers entrusted to an arbitrator; and provided: (1) Management’s right to determine the size and number of the working force in the active employ of the Company; (2) Its right to determine whether the Company’s work should be performed by employees of the Company or by independent contractors; (3) Its right to determine the identity of Company’s personnel to whom work shall be assigned; (4) Its right to determine whether transfers, promotions, or demotions are to be made; and (5) The identity of or the number of new employees to be hired. (PX-93, following Appendix “C”; PX-95, PX-97). The parties executed an arbitration agreement on August 24, 1960, affecting the eligibility of 50 registered strikers (Tr. 9032) who had been accused by the defendant of strike misconduct. It provided for the appointment by the Chief Justice of the State Supreme Court of a panel of three arbitrators, to consider whether this alleged misconduct warranted a refusal of management to accord them full recall rights. Before final adjudication by this panel, three accused employees resigned and their cases were considered moot; seven were withdrawn from consideration by the plaintiff and abandoned; four were withdrawn by the defendant and the validity of their rights as registered strikers consented to by the defendant; six were found not guilty of misconduct by the panel and thirty were found guilty. Of this latter number fifteen were ordered deprived of all rights of recall and ten were placed at the bottom of the “seniority area and occupational group listing.” Two were rehired and returned to work on December 5 and 6, 1960. In the remaining five cases, the arbitrators held that they should be deprived of periods of seniority ranging from one to three years. Of these, one was reached on the preferred hiring list and returned to work December 5, 1960. Thus there were three sets of interrelated agreements between the parties which were instrumental in settling this strike; all of these must be weighed and considered in defining the parties’ intentions and conduct: (1) The Strike Settlement or Recall Agreements dated and executed August 11, 1960; (2) The collective bargaining labor agreements dated August 9, 1960 and executed August 16, 1960; together with the supplemental memorandum agreement of August 16,1960, designed to clarify the meaning of the management prerogatives reserved to the defendant company in the “Witnesseth Clause” of the contract. (3) The arbitration submission of August 24, 1960, relating to the fifty (50) strikers whose strike misconduct was challenged by the defendant, as grounds for forfeiting their rights to recall. During the lengthy Court trial, multiple tangent issues were injected into the controversy by the litigants. Cognizant of the board spectrum of human relationships involved in any labor relations litigation and being desirous of avoiding the omission of any significant issues in dispute, the Court requested the parties to submit a statement of the factual and legal questions, which they considered essential. The Court suggested that the parties stipulate to an agreed statement of issues, with the understanding that in doing so, they would not be considered as waiving any factual or legal claims omitted, but heretofore advanced. The Court has utilized this stipulation as a basis for establishing the questions to be decided. ISSUES 1. Did the defendant-employer breach the Strike Settlement Agreements by failing to recall registered strikers to the jobs they held before the strike, unless the striker had been permanently replaced or unless the striker’s job had been permanently abolished during the strike for legitimate economic reasons? 2. Did the defendant breach the Strike Settlement Agreements by filling jobs during the strike settlement period by transfer, promotion, and demotion rather than by recalling registered strikers ? 3. Did the defendant breach the Strike Settlement Agreements by failing to recall strikers whose jobs at the end of the strike were occupied by (a) summer employees; (b) non-bargaining unit trainees, who had been transferred into the bargaining unit during the strike ? 4. Whether the defendant in negotiations at the Governor’s conference held in New York City on August 5, 1960, orally agreed (a) to offer union officers a job; (b) to continue the preferred hiring provision of the agreement for a period of six months; (e) offer unrecalled strikers jobs in occupational groups and seniority areas other than the occupational group and seniority area such strikers had occupied before the strike, provided such strikers were qualified and no strikers from these groups and areas were awaiting recall; (d) to recall strikers whose former jobs were unavailable to “comparable jobs,” and if so, to the extent it differs from the written agreement of August 11, 1960, is it binding upon the defendant. 5. Did the defendant breach the Strike Settlement Agreements by failing to maintain a preferred hiring list in a form similar to the layoff lists previously used in layoff situations or did it conceal such lists from the plaintiffs. 6. Did the defendant breach the Strike Settlement Agreements by failing to provide plaintiffs with information requested by plaintiffs during the settlement period or by failing to disclose to plaintiffs that it had periodic data processed list which it used in its personnel department. 7. Did the defendant breach the Strike Settlement Agreements by depressing the total bargaining unit during the life of the Strike Settlement Agreements through December 31, 1960 to avoid its contractual obligations. DISCUSSION OF THE MERITS Issices Conceded to be Excluded It should be made clear at the outset, that the plaintiffs have made no claim, as to the ineligibility of any new employee (stranger) being hired between September 1, 1960 and December 31, 1960, aside from the conditional hires, because there was a qualified registered striker awaiting recall. (Tr. 2502-3, 2507, 2522, 976). Furthermore, there is no claim made by the plaintiffs in this action as to any discrimination occurring after January 1, 1961, pertaining to registered strikers on the preferred hiring list, who might claim they were discriminated against after that date; such issues, if they exist, are regarded to be solely within the jurisdiction of the NLRB. This is a contract action, wherein the plaintiffs’ claims are limited to the period of the Strike Settlement Agreement. (Tr. 2398-99, 4268). JURISDICTION This action is properly within the jurisdiction of the Court pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. The defendant concedes jurisdiction, but questions the advisability of having the same issues litigated simultaneously before the Court and the NLRB. (Tr. 996-98). “The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301. If, as respondent strongly urges, there are situations in which serious problems will arise from both the courts and the Board having jurisdiction over acts which amount to an unfair labor practice, we shall face those cases when they arise.” Smith v. Evening News Assn., 371 U.S. 195, 197-198, 83 S.Ct. 267, 269, 9 L.Ed.2d 246 (1962). See, NLRB v. Great Dane Trailers, 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967); Carey v. Westinghouse Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964); United Steelworkers v. American Internat’l. Aluminum Corp., 334 F.2d 147, 153 (5th Cir. 1964); Textile Workers Union of America v. Arista Mills Co., 193 F.2d 529, 533-534 (4th Cir. 1951). Labor issues may be both a public violation, subject to the scrutiny of the NLRB, and a private contract violation subject to the Court’s jurisdiction. The plaintiff-unions, as the exclusive bargaining agent of the employees, have standing to litigate their employee’s interests under the law. Section 301 of the Labor Management Relations Act provides: “(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. “(b) * * * Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States.” Agreements which are subject to § 301 must be construed, if possible, to effectuate national labor policy. Construction which would bring such an agreement into conflict with substantive labor law should be avoided. “We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in 'certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 84 L. Ed. 313, 317. Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 485, 87 L. Ed. 640, 643. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. See Board of Commissioners of Jackson County v. United States, supra, at 351-352, 60 S.Ct. 285. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957). See, John Wiley & Sons v. Livingston, 376 U.S. 543, 550, 84 S.Ct. 909, 11 L.Ed. 2d 898 (1964); Local 89, General Drivers v. Riss & Co., 372 U.S. 517, 519-520, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279-280, 76 S.Ct. 349, 100 L.Ed. 309 (1956); 4 Williston on Contracts, §§ 615, 621 (3d ed. 1962). BURDEN OF PROOF Whether the burden of proof, in its primary sense, rests upon the plaintiffs or the defendant is ordinarily to be determined by ascertaining from the pleadings, which of the parties would be compelled to submit to an adverse judgment, before the introduction of any evidence. The burden of proof rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the action is concluded. Reliance Life Co. v. Burgess, 112 F.2d 234, 237-238 (8th Cir. 1940); Lilienthal’s Tobacco v. United States, 97 U.S. 237, 24 L.Ed. 901 (1877); Hotel Co. v. Wade, 97 U.S. 13, 24 L.Ed. 917 (1877); Davis v. O’Hara, 266 U.S. 314, 45 S.Ct. 104, 69 L.Ed. 303 (1924); Nikitiuk v. Pishtey, 153 Conn. 545, 553, 219 A.2d 225 (1966); Wetherell v. Hollister, 73 Conn. 622, 626, 48 A. 826 (1901); Silva v. Hartford, 141 Conn. 126, 104 A.2d 210 (1954); 29 Am.Jur.2d §§ 128-130. The burden of proof in the secondary sense of going forward with the evidence rests upon the party, who at the particular state of the trial, is required to meet a prima facie case established by his adversary, once sufficient evidence has been offered to justify a finding. 29 Am.Jur.2d §§ 127 (fl4, § 132). “ ‘(W)here * * * a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.’ [Quoting 1 Greenl.Ev. § 79] # # # “This burden, ' however, which was simply to meet the prima facie case must not be confounded with the preponderance of evidence, the establishment of which usually rests upon the plaintiff.” United States v. Denver R.G.R.R., 191 U.S. 84, 92, 24 S.Ct. 33, 35, 48 L.Ed. 106 (1903). The principle of proof which requires the defendant to go forward with the evidence, when the plaintiff has presented a prima facie case and the explanatory information is peculiarly within the defendant’s knowledge and control, is analogous to the legal concept regularly applied in NLRB enforcement proceedings. The latter proceedings generally treat the defendant’s averments as an affirmative defense, wherein the burden of persuasion rests with the defendant. “(O)nce it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.” NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967). “To rely on the Mackay case it would have been necessary to convince the Board that the reason for (respondent’s) refusal to rehire was that the jobs had been immediately filled.” Firth Carpet Co. v. NLRB, 129 F.2d 633, 636 (2d Cir. 1942). See, Nabors v. NLRB, 323 F.2d 686, 690 (5th Cir. 1963); NLRB v. Cambria Clay Products Co., 215 F.2d 48, 56 (6th Cir. 1954); New Orleans Roosevelt Corp., 132 N.L.R.B. 248, 250 (1961). In the present civil action, the primary burden of proof has not changed; it rests with the plaintiffs to submit substantial evidence upon which the Court may base essential findings in their favor. However, where relevant and material facts rest peculiarly within the defendant’s knowledge, it will be incumbent upon it to come forward with the proof; and should it fail, an inference is raised that the evidence, if produced would be unfavorable to its cause. The plaintiffs’ basic burden of proof, their responsibility for the overall persuasion of the Court in establishing the factual truth of their allegations, still remains with them; and that burden requires that they prove all the essential material allegations of their case on each issue submitted, by a fair preponderance of the evidence. CONDITIONAL HIRES On August 9, 1960, the date the strike ended at Pratt & Whitney, there were 389 “new hires” and on August 8, 1960, 61 “new hires” at Hamilton, who had been hired as permanent replacements for strikers during the strike period but were scheduled to report for work on agreed dates subsequent to August 8, 1960. (PX-137, p. 2; PX-138, p. 2; Tr. 398-9). The plaintiffs concede that they had been informed by the company, that the latter had made commitments to hire certain people during the strike period who would be reporting for work after the strike ended. However, the plaintiffs claim the defendant had in actual fact made no such contractual commitments. (Tr. 509-10, 2854). The plaintiffs admit that if a legally binding contract had been made, defendant would be justified in treating these jobs as unavailable to strikers at the end of the strike. (Tr. 511-13, 2856-57). The plaintiffs’ rationale is that these new employees had not been actually hired as of August 8, 1960, because they had not been effectively put on the payroll before the termination date of the strike. (Tr. 2713). They contend that they were in fact conditional hires, because they had not yet passed the required medical examination, a prerequisite to being put on the payroll. (Tr. 385-86). The plaintiffs argue that such a “new hire” in this category should be simply classed as an applicant who had been interviewed. (Tr. 701-3). Since the put-on date was ordinarily the date of actual hire (Tr. 2716), when the strike ended, the defendant should have considered all of these jobs, which had been promised to the conditional hires, to be immediately available to the strikers who had occupied them prior to the strike under Paragraph 4(a) of the Settlement Agreement. (Tr. 404-5). The plaintiffs’ position is that the applicant ran the risk that the striker might return to work before he was put-on, or that the strike would end and the company’s need fw employees might be such that it would have no room for him. (Tr. 408). Plaintiffs’ position is that notwithstanding the admitted fact, that the defendant did timely advise the plaintiffs during settlement negotiations of the status of these new hires and agree how they should be treated, since they were not in fact technically on the payroll as permanent replacements when the strike ended, it mattered not what the parties had understood or agreed. The defendant employer had commenced hiring permanent replacements for strikers at both plants beginning shortly after July 7, 1960. (Tr. 492). It advised the plaintiffs at the Park Lane Hotel conference meeting on August 5, 1960, in New York City, that a considerable number of employees had already been hired at both plants, who would have to be put on the payroll, even if a settlement were immediately reached; that the hiring of permanent replacements was still continuing and commitments for permanent jobs were being made daily by the defendant. (Tr. 701-2, 764, 2074-5, 3506). The following day, August 6, 1960, the defendant again discussed with the plaintiffs’ local officers and committee representatives the details of the proposed settlement, and explained to them that there were a number of new hires, who had not yet returned to work, who would be reporting in a week or two. A discussion of the subject arose again at the time of the execution of the Strike Settlement Agreements with Pratt & Whitney Lodge #1746 on August 11, 1960 (Tr. 5474-77) and at the Hamilton Standard meeting on August 16, 1960, when the new collective bargaining labor agreement was signed. At the latter meeting, President Seedman inquired when the last strike period “new hire” would be reporting to work, and Vice-President Burke directed his personnel director Vandervoort to check the records and report the accurate count to the union president. This information was given to Seedman the same day, namely, that out of a total of 86 at Windsor Locks, all but seven had reported; and of the 47 at Broad Brook only, three remained to report. (Tr. 3508). On the afternoon of that same day, with Lodge #1746, the same question was advanced pertaining to the number of new employees who had been hired at Pratt & Whitney, but had not yet reported to work. The defendant estimated between 300-350 (Tr. 5474-76). The defendant-company’s position is that once an applicant had accepted employment and had been assigned to a specific job in the bargaining unit, it could not legally or morally unilaterally withdraw from the employment agreement. (3831-2). Some of these “new hires” had deferred reporting to work, because they required time to work out notices with their then present employer, or make arrangements to move here from out of state. Still others of the 228 Pratt & Whitney “new hires” for whom there was a gap of two weeks or more between the date of their interview and the date they started work, may not have reported during August 1960, because of the two week partial shutdown in some sections of the plant. (Tr. 2853-54, 2861, 2891, 9443). The defendant conceded that employment practices provided that should any “new hire” fail to pass the physical examination required, he could not be put on the payroll. (Tr. 3828). The defendant’s position is, however, that such a person had in fact already been hired and vested with a specific job and could only be divested of his job by reason of a subsequently disclosed physical defect or some other subsequent information which might reveal him to be a security risk. While inquiries were made by the unions and discussions had between the parties relating to the number yet to report at a given time, no question was ever raised during the settlement period challenging the legal correctness of the defendant’s procedures or its interpretation and administration of the Settlement Agreements on this issue. Not until after this suit was initiated more than a year later, did the unions, for the first time, suggest a legal distinction on this issue of the defendant’s job commitment to these hires. “(I)ntention can be determined from the language used and the circumstances known to both parties under which the negotiations were had. The contract must be read in the light of the whole relationship between the parties.” Hess v. Dumouchel Paper Co., 154 Conn. 343, 348, 225 A.2d 797, 800 (1966). The plaintiffs’ position is unsupported by the facts and is without merit. The Court finds that the defendant had the intention and did in fact bind itself to a firm contract of employment, at the moment it agreed to employ the “new hires” and that the latter had each accepted a specific job assignment. The possibility that they might be subsequently divested of such jobs, because of medical or security reasons is too remote and speculative to change the contractual relationships. “It is a well-settled rule that an employer may fill positions left vacant by employees going out on an economic strike, and that he is not later ‘bound to displace men hired to take the strikers’ places in order to provide positions for them.’ N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S.Ct. 904, 2 L.Ed. 1381 (1938); Vogue Lingerie, Inc. v. N. L. R. B., 280 F.2d 224, 226-227 (3d Cir. 1960); see Olin Mathieson Chemical Corp. v. N. L. R. B., 232 F.2d 158, 160-161 (4th Cir. 1956), aff'd per curiam, 352 U.S. 1020, 77 S.Ct. 587, 1 L.Ed.2d 562 (1957); N. L. R. B. v. Industrial Cotton Mills, 208 F.2d 87, 91 45 A.L.R.2d 880 (4th Cir. 1953). Under these cases, the critical time seems to be when the arrangements with the replacement workers became irrevocable and fixed, a readily determinable fact. Applying this rule to the present ease, if the company is found to have bound itself irrevocably by contracts of employment made with the replacement employees some time before they went to work then we think that the grievance is covered by the exclusion clause because the critical event, that of hiring, occurred within that period. On the other hand, if there was an informal arrangement in which the company told the men only that jobs would be available to them if they presented themselves at the plant, then there was not any hiring until the men began work * * International Ass’n of Machinists, Lodge 1652 v. International Aircraft Services, Inc., 302 F.2d 808, 812-813 (4th Cir. 1962). Having been fully appraised of the defendant’s firm commitment as permanent employees to this category of new hire, prior to the signing of the Settlement Agreements, the Court finds that the plaintiffs assented and agreed to these strike period “new hires,” as employees in those jobs to which they had been specifically assigned, on or before the actual settlement dates, which were August 8, 1960, in the case of Hamilton, and on August 9, 1960, in the case of Pratt & Whitney. The plaintiffs’ belated attempt to claim that they were then unaware, on the date the Settlement Agreements were signed, that these hires had not been actually cleared by medical examination and thus that they were not hired under an irrevocable agreement, is ingenious but unpersuasive and untenable. PERMANENT REPLACEMENT OF ECONOMIC STRIKERS The plaintiff-unions have launched a scattergun type of attack on the defendant’s claimed violations of the Strike Settlement Agreements; they claim that practically everything the defendant did in administering the Settlement Agreements was unlawful and carried out with evil motives. Where the settlement contracts afford the plaintiffs’ membership greater rights than the national labor law, they tenaciously stress the terms of the settlement contract; but where the inverse position would seem to be more advantageous, they minimize the applicability of the contract terms and seek to apply principles and policies embodied in established precedents under the body of federal labor law. The great majority of policy-making decisions in this field of the law have generally emerged from a relationship, where there has been a complete absence of a specific strike settlement agreement. In those situations, courts have been called upon to hew and shape general labor law principles and supplemental corollaries, to safeguard the unwritten rights of the litigants. In this case, however, we are dealing with specific recall conditions which are contractual in nature and establish with considerable specificity the mutual obligations of the parties. The plaintiffs represent that the company violated the Strike Settlement Agreements by treating those jobs occupied by new hires and transferees during the strike period, as if they were permanent replacements and thus made these jobs unavailable to the registered strikers when the strike ended. This position is founded upon the legal premise that the economic strikers, who have not been permanently replaced, retain their employee status, their seniority and right of reinstatement. Their status with respect to available jobs cannot be subordinated to that of other employees or otherwise discriminated against. See, Olin Mathieson Chem. Corp. v. NLRB, 232 F.2d 158, 169 (4 Cir. 1956), aff’d per curiam, 352 U.S. 1020, 77 S.Ct. 587, 1 L.Ed.2d 562; NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); NLRB v. Erie Resistor Corp., 373 U.S. 221, 230, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963); NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). The plaintiffs reach out even further in their rationale and represent that those strikers whose pre-strike jobs were occupied at the end of the strike by permanent strike period hires and transfers were not in fact permanently replaced. (Brief for Plaintiffs at 271; Tr. 3817). This theory advances the claim, that the defendant made permanent hires and transfers during the strike as additions to the work complement, not as replacements. They contend that defendant’s conduct in this regard was not made with a view toward post-strike conditions, but 'as a temporary makeshift arrangement to continue production during the strike. They argue that because the defendant did not specifically identify on its put-on records, which of the named strikers during the strike period each “new hire” actually replaced, (Tr. 3555) it thereby gave to these strike period new hires and transferees a priority over all registered strikers. To support this theory, the plaintiffs emphasize that when the defendant was asked during pre-trial discovery, to name which of the new hires had replaced specific named strikers, it responded that it did not know with complete certainty, which specific employee was absent in the capacity of a striker or whether the absence was for other personal reasons; including the absentee’s hesitating to return because of fear of bodily harm. (Tr. 2272-75, 6191-92). In this respect, it may be judicially noted that the defendant recently prevailed in the Connecticut state trial court in separate suits (now on cross-appeals) arising out of the plaintiff-unions’ acts of violent strike misconduct, which alleged the unlawful interference with the return to work of personnel, who might otherwise not have remained away from work. (Tr. 1938; DX-53, DX-54, DX-55, DX-56; note 3, supra). However, the plaintiffs claim the defendant’s answer to the plaintiffs’ pre-trial interrogatory constituted an admission, that the “new hires” during the strike period were not in fact permanent replacements of strikers, because the defendant failed to state which strikers had been replaced (Tr. 1007-08, 1010). Thus, the factual issue is presented as to whether or not the striking employees had been permanently replaced. “(E)conomic strikers are not employees if their jobs are filled by permanent replacements during the strike before they make unconditional requests for reinstatement. * * * (T)heir employee status is not changed if their jobs are still open or are only temporarily filled.” Daykin, The Distinction Between Economic and Unfair Labor Practice Strikes, 12 Lab.L.J. 189, 193 (1961). See, Kansas Milling Co. v. NLRB, 185 F.2d 413 (10th Cir. 1950); Anderson, Clayton & Co., 120 N.L.R.B. 1208 (1958) ; Cranston Print Works Co., 115 N.L.R.B. 537 (1956); Chalet, Inc., 107 N.L.R.B. 109 (1953); Wilson and Co., 105 N.L.R.B. 823 (1953). “While the employer may know that hiring replacements tends to dissipate the effects of the strike, and thereby tends to discourage union activities, such conduct is regarded as a legitimate weapon of economic warfare. Reasonable ‘discrimination’ in the exercise of this right is justified by the employer’s legitimate interest.” NLRB v. Potlatch Forests, 189 F.2d 82, 86 (9th Cir. 1951). See also, Olin Mathieson Chem. Corp. v. NLRB, supra. When negotiations broke down between the parties on July 7, 1960, the defendant notified the plaintiffs’ representatives personally and by newspaper advertising that it was embarking on a full scale hiring program and that those who were “newly hired” during the strike period would be permanent replacements for strikers. (PX-176, p. 2, PX-128, DX-75, p. 4; Tr. 5486, 1090-91, 1709, 8814-15). The defendant also distributed to each striker a printed bulletin (PX-107; Tr. 1024) advising him that during an economic strike where an employee permanently replaces an employee-striker, neither the union nor the striker can require it to subsequently discharge the replacement. (Tr. 1021). From July 7, 1960 continuously to the date of the signing of the Settlement Agreements, all of these new employees, as well as the unions’ membership knew and fully understood that these “new hires” were employed in jobs which were no longer open and available to strikers who might wish to return after the strike. (Tr. 3922). In fact, as referred to above, the litigants actually discussed this very point prior to the consummation and execution of their Settlement Agreements and the unions were even advised of the defendant’s best estimate of the approximate number of registered strikers, who would have no jobs to which to return. As these new hires were put on the payroll, the defendant did not identify on the record which specific individual the new hire replaced. (Tr. 3555). The defendant explained that considering the massive number of employees out on strike, it had no way of knowing which ones, if any, would eventually express a desire to be returned. (Tr. 6191-92). Plaintiffs’ claim that this procedure permitted the company to replace all the strikers is completely without merit. Regardless of the company’s personnel procedures, at the conclusion of the strike, those positions filled by replacements would be unavailable to returning strikers and those positions which remained unfilled and which had not bee