Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1967

163 N.L.R.B. 503 (N.L.R.B. 1967)

WESTINGHOUSE ELECTRIC CORPORATION
employment and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Rescind its no -solicitation , no-distribution rule
posted on July 22, 1965, as it applies to union solicitation
or other activities protected by Section 7 of the Act.
(c) Post at its plant in Gibsonburg, Ohio, copies of the
attached notice marked "Appendix. `28 Copies of said
notice, to be furnished by the Regional Director for Region
8, after being duly signed by a representative of the
Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained 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
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of receipt of this
Recommended Order, what steps the Respondent has
taken to comply herewith.29
is In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
R' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify the
Regional Director for Region 8, in writing , within 10 days from the
date of this Order , what steps the Respondent has taken to
comply herewith."
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT unlawfully question employees as to
their own or fellow employees' union sympathies and
leanings, threaten economic reprisals because of
union activities, condition job advancement upon
abandonment or renunciation of union activity, create
the impression that employees' union activities are
under surveillance, or in any other manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed in Section 7 of the National
Labor Relations Act, as amended.
WE WILL rescind our no-solicitation, no-distribution
rule posted on July 22, 1965, as it applies to union
solicitation or other activities protected by Section 7
of the Act.
WE WILL, upon request, bargain collectively with
Teamsters, Chauffeurs, Warehousemen and Helpers
Local # 20, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of
all our employees in the bargaining unit described
below with respect to rates of pay, wages, hours of
employment and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement.
503
The bargaining unit is:
All production and maintenance employees at
our Gibsonburg , Ohio , plant , including shipping,
receiving , stockroom and toolroom employees,
truckdrivers , draftsman , and working group
leaders, but excluding office clerical employees,
time-study methods employee , and all guards,
professional employees and supervisors as
defined in the Act.
Dated By
ATLAS ENGINE WORKS, INC.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 621-4465.
Westinghouse Electric Corporation and Lima
Westinghouse Salaried Employees
Association , Affiliated with Federation of
Westinghouse Independent Salaried
Unions. Case 8-CA-4219.
March 20,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On November 28, 1966, Trial Examiner James F.
Foley issued his Decision in the above-entitled
proceeding, finding that the Respondent had
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 Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record' in the case, and
I Respondent's motion to reopen the record in this case is
hereby denied. The evidence, which Respondent now seeks to
introduce relating to the role of the product department
managers in the 1966 contract negotiations, is not, in our opinion,
newly discovered. The managers' role had been established in
163 NLRB No. 62
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the,Trial Examiner and
hereby orders that the Respondent, Westinghouse
Electric Corporation, Lima, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
advance of opening negotiations , and such evidence was available
to Respondent at the hearing in this case on August 9, 1966, a
week prior to the reopening date of the existing contract Indeed,
counsel for Respondent conceded at the hearing that Respondent
at that time had "the actual facts as to their [the product
department managers '] role in the negotiations
Accordingly, Respondent's claim of new evidence is rejected
' In his Decision, the Trial Examiner inadvertently gave as the
date of Respondent's refusal to bargain, "April 20, 1965 " We
correct that date to read , "April 20, 1966 "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner: This case,
8-CA-4219, was brought before the National Labor
Relations Board (herein called the Board) under Section
10(b) of the National Labor Relations Act, as amended (61
Stat. 136, 73 Stat. 519), herein called the Act, against
Respondent Westinghouse Electric Corporation (herein
called Respondent) on a complaint issued by the Regional
Director for the Board's Region 8, on May 20, 1966, and an
answer of Respondent filed June 6, 1966. The complaint is
premised on a charge filed on April 29, 1966, by Lima
Westinghouse Salaried Employees Association, Affiliated
with Federation of Westinghouse Independent Salaried
Unions (herein called the Union).
The allegations of the complaint are that on or about
March 31, 1966, the Union demanded that Respondent
recognize it and bargain with it, as the collective-
bargaining representative of the three private secretaries
to the managers of the Aerospace Power Systems
Department, the Systems Research and Development
Department, and the Utilization Systems Department, of
Respondent's Aerospace Electrical Division, at Lima,
Ohio, as these three secretaries were employees in the
appropriate unit of Respondent's employees at Lima,
Ohio, covered by a collective-bargaining agreement then
in effect between it and Respondent; and that on or about
April 20, 1965, Respondent refused, in violation of Section
8(a)(5) and (1) of the Act, to recognize and bargain with the
Union as the collective-bargaining representative of these
three employees, and continues to refuse to recognize and
bargain with the Union as it has demanded Respondent
admits in its answer filed June 6, 1966, that the Union
demanded recognition and bargaining on or about
March 31, 1966, as alleged in the complaint, and admits
that on or about April 20, 1966, it refused to recognize and
bargain with the Union, and continues to do so, but denies
that its refusal is violative of the Act.
A hearing on the complaint and answer was held before
me on August 9, 1966, in Lima, Ohio. General Counsel,
Respondent, and Charging Party were represented at the
hearing. All parties were afforded an opportunity to offer
evidence, make oral argument, and file briefs. Respondent
filed a brief after the close of the hearing.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a Pennsylvania corporation with its
principal office and place of business in Pittsburgh,
Pennsylvania , is engaged in the city of Lima, Ohio, in the
manufacture of aircraft generators and control apparatus
at its Aerospace Electric Division, and the manufacture of
fractional horsepower appliance motors at its Small Motor
Division, and annually , in connection with its business
operations at Lima, Ohio, causes goods valued in excess of
$50,000 to be shipped directly from Lima, Ohio, to points
outside the State of Ohio. Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. The Board's assertion of jurisdiction effectuates the
purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding: Case 8-CU-3
On September 15, 1965, the Union filed with the
Regional Director a petition , Case 8-CU-3, seeking a unit
clarification of the employees included in the bargaining
unit of Respondent's Lima, Ohio, employees described in
the national agreement (herein called the Contract)
between Respondent and the Federation of Westinghouse
Independent Salaried Unions (herein called the
Federation) with which the Union is affiliated.' This unit
is:
All salaried technical and clerical employees at the
Lima, Ohio, facilities of Westinghouse Electric
Corporation, located at Wapak Road, and 325-327
South Main Street, excluding all professional
employees, senior internal auditors and industrial
relations assistants, cashiers, shop production clerks,
secretaries to: division general managers, assistant
division general managers, managers of
manufacturing, managers of accounting , industrial
relations managers , managers of union relations,-all
other employees and all supervisors as defined in the
Act
The Contract unit for Lima, Ohio, includes employees of
the Aerospace Electrical Division and the Small Motor
Division located in Lima, Ohio.2 In August 1963, as a
result of reorganization, Respondent created three new
departments in the Aerospace Electrical Division; namely,
the Aerospace Power Systems Department, the Utilization
Systems Department, and the Systems Research and
Development Department. Three officials of this division
were made managers of the newly created departments.
Sales Manager A. C. Chiazza was appointed manager of
' The Contract was for the period October 15, 1963, to
October 14, 1966, with a yearly automatic renewal provision
Notice required by the contract for its termination as of midnight
October 14, 1966, was contemplated Notice not earlier than 60
days or later than 30 days prior to October 14, 1966, is provided by
the Contract The hearing was held on August 9, 1966
2 Approximately 335 employees are in the unit Aerospace has
238 and Small Motor has 97
WESTINGHOUSE ELECTRIC CORPORATION
Aerospace Power Systems, Special Products Manager R.
L. Rumsey was appointed manager of Utilization Systems,
and Engineering Manager J. D. Miner was appointed
manager of Systems Research and Development.
Chiazza, prior to his new appointment, reported to A. L.
Paquette, the marketing manager for the Aerospace
Electrical Division. When he was appointed manager of
Aerospace Power Systems, June Haggard, Paquette's
secretary, was made his full-time secretary. She had done
work for Chiazza when her duties as Paquette's secretary
permitted. Judy Heath, who had been Miner's secretary
for 10 years, continued as his secretary when he became
manager of Systems Research and Development. Frances
Jenkins, secretary to the manager of Materials Control and
Subcontracts, was assigned to Rumsey as his secretary
when he became manager of Utilization Systems. She had
been his secretary when he was purchasing agent for the
Aerospace Electrical Division.
These three secretaries were in the unit represented by
the Union prior to their assignments as secretaries to the
three new department heads. On September 15, 1964,
Respondent gave the three new job descriptions, informed
the Union that it considered them to be confidential
employees, and removed their names from the union dues
payroll deduction list. The Union filed a grievance under
the Contract, and unsuccessfully processed it through four
steps of the contractual grievance procedure.
In the representation proceeding (Case 8-CU-3),
initiated by the petition of September 15, 1965, the Union
sought to have the Regional Director rule that the three
secretaries were not confidential employees, and were still
in the unit which it represented. A hearing on the petition
was held in Lima, Ohio, on October 22 and December 1
and 2, 1965, before Hearing Officer Bernard Levine. The
Union and Respondent offered evidence, the Union made
summary argument, and Respondent filed a brief after the
close of the hearing. In the course of the hearing, evidence
was taken of the extent of the participation of Chiazza,
Rumsey, and Miner in the formulation, determination, and
effectuation of Respondent's policy in the field of labor
relations, and the extent to which the three secretaries
rendered secretarial assistance to these three department
heads with respect to the matters alleged to contribute to
Respondent's labor policy.
On January 28, 1966, Philip Fusco, Regional Director for
Region 8, issued his decision in this representation case.
He referred to the evidence for and against the issue that
the three managers formulated, determined, and
effectuated employer policy in the field of labor relations,
and to the confidential nature of the duties of secretaries
Haggard, Heath, and Jenkins.3 He found that the three
new product department managers do not participate in
negotiations with any labor organization, that they are
3 Confidential secretaries to department heads who formulate,
determine, and effectuate employer policy in the field of labor
relations are confidential employees, and are excludable from the
bargaining unit
4 In the letter, the Union, by Harman, its president, requested
that Westinghouse in accordance with the Regional Director's
decision of January 28, 1966, and the Board's denial of March 18,
1966, of Respondent's request for review of the decision, consider
the secretanes of Chiazza, Rumsey, and Miner to be employees
within the unit represented by the Union, and to include their
names on the rate review sheets for the forthcoming collective-
bargaining rate review in April 1966
S Kennedy stated in his letter that careful review was given to
Harman's letter, and that after every consideration was given to
505
consulted during negotiations and their opinions solicited
concerning proposals relative to the local seniority
supplement negotiated by the Union and Respondent (the
petitioner and employer, respectively, in the
representation case), and, as key management personnel,
they submit their views, opinions, and recommendations
regarding local supplement proposals insofar as they have
an impact upon their respective departments. The
Regional Director also found that the three secretaries
acted in a confidential capacity to the new product
department managers. The Regional Director then
concluded that the three secretaries were not confidential
secretaries with respect to labor relations policy as they
are secretaries to department managers who participate in
labor relations only to the extent they affect their
respective departments, and department heads who have
only this limited participation in labor relations matters do
not formulate, determine, and effectuate employer policy
in the labor relations field. The Regional Director's
decision did not constitute a recertification of the
Petitioner Union. The Union was certified in 1941, in
Westinghouse Electric & Manufacturing Company, 36
NLRB 901. Since that time, the unit described in the
certification has been modified, and is presently the unit
described in the Contract, as stated supra. On March 18,
1966, the Board denied Respondent's request for review of
the Regional Director's decision of January 28, 1966.
B. The Evidence in the Unfair Labor Practice Proceeding
In support of its complaint that Respondent has refused
to bargain in violation of Section 8(a)(5) and (1) of the Act,
counsel for General Counsel offered in evidence the
Regional Director's decision and clarification of
bargaining unit of January 28, 1966; the Board's
telegraphic order of March 18, 1966, denying
Respondent's request for review of the Regional Director's
decision; the formal documents received in evidence in
the representation hearing; the Union's exhibits received
in evidence, as the Petitioner's exhibits, in the
representation hearing; the Respondent's exhibits
received, as the Employer's exhibits, in the representation
hearing; the transcript of the 3 days' representation
hearing; a letter dated March 31, 1966, from John R.
Harman, president of the Union, requesting recognition
and bargaining for the three secretaries, to Paul J.
McDermott, manager of union relations, Westinghouse
Aerospace Electric Division, Lima, Ohio;4 and a reply
letter dated April 20, 1966, to Union President Harman
from Industrial Relations Manager R. F. Kennedy, for the
Aerospace Electrical Division, Lima, Ohio, of Respondent,
in which Respondent refused the Union's request.5
This offer of counsel for General Counsel was received
in evidence without objection by Respondents General
the request in the letter, Respondent had concluded the request
must be denied. Kennedy also stated in the letter that the record
in the representation hearing established without a doubt the
confidential nature of the duties of the three secretaries, that the
Board erred in its decision, and Respondent's intention was to
insist that there be a review of the decision "by the proper courts
in appropriately instituted proceedings," and, "Until so directed
by such a court, your request must be denied."
6 Respondent at this time offered as evidence in its behalf its
request to the Board of February 18, 1966, for review of the
Regional Director's decision of January 28, 1966, in the
representation proceeding, and supporting brief They were
received in evidence as Respondent's exhibit, without objection
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel then rested his case-in-chief. He represented that
he offered the complete record of the representation
hearing in evidence only to have the record complete for
review by the court of appeals. He contended that the Trial
Examiner was foreclosed by Section 102.67(f) of the Board
Rules and Regulations from considering the merits of the
issue of the confidential nature of the secretaries' duties as
it had been resolved by the Regional Director's decision,
and the Board's denial of the Respondent's request for
review.
In his opening statement, counsel for Respondent stated
that when the representation hearing was held in October
and December 1965, there had been no negotiations since
1963 for national agreements and accompanying local
supplements between Respondent and unions with which
it had collective-bargaining relations, in which the three
new product department managers could have
participated since their appointments dated from August
1964. He then stated that the only evidence Respondent
would offer at the hearing in its defense against the
complaint of a refusal to bargain was evidence of the "role
these product department managers are now playing as
negotiations begin on a new contract." Respondent's
counsel was referring to Respondent's preparation for
negotiations contemplated to begin about August 15, 1966,
on the Contract with the Federation; on national
agreements with other unions; and negotiations with the
Union on local supplements to a new or amended
Contract, and with other unions on local supplements to
new or amended national agreements or on other local
contracts.' Respondent's counsel represented that the
evidence of the participation of the new product
department managers in the preparation for negotiations
since the representation hearing, when considered with
the evidence of record in the representation case, would
show that the three secretaries are not within the unit
covered by the Board certification.8
Respondent did not call as witnesses Chiazza, Rumsey,
and Miner, the three new program department managers,
or Haggard, Jenkins, or Heath, their secretaries.
Respondent's witnesses were Robert F. Kennedy, the
manager of industrial relations for Respondent's
Aerospace Electrical Division at Lima, Ohio, and George
M. Nicholson, the "Assistant Director of Labor Relations
and group counsel for the atomic defense and space
groups and miscellaneous groups" of Respondent.
Nicholson testified he appeared as a witness "in the
capacity of director of industrial relations activities in the
groups to which I have been assigned which currently
covers some 15 plants, 80 locations, and 25 to 30 thousand
people."
Kennedy reports directly to R. W. Esarey, general
manager of the Aerospace Electrical Division, at Lima,
Ohio, and looks to Nicholson "for guidance to I.R.
[industrial relations] policy matters and guidance in the
personnel area, or guidance in any associated areas with
' In addition to the Contract with Federation, Respondent has
national agreements with International Union of Electrical Radio
and Machine Workers, AFL-CIO (herein called I U E), and
United Electrical Radio and Machine Workers of America (herein
called U E) In addition to the local supplements Respondent has
with the Union for the Lima plant, it has local contracts for the
Lima plant in terms of supplements with I U E Local 724 for
production and maintenance employees, and I U E Local 760 for
production clerks, and local contracts with Loca1366,
International Association of Machinists, AFL-CIO (herein called
I A M Local 366) for the toolroom employees, and with the Lima
Westinghouse Police Association for 10 police officers The
industrial relations." Nicholson reports directly to C. C.
Frame, director of labor relations for Respondent, and
Frame reports to R. D. Blazier, vice president in charge of
industrial relations for Respondent. Both Frame and
Nicholson participate in national negotiations. Ordinarily,
Paul J. McDermott, manager of union relations for the
Aerospace Electrical Division, negotiates with the Union
on the local supplements. McDermott reports directly to
Kennedy. While the local supplements to the Contract for
the Lima, Ohio, area cover employees in the Small Motor
Division, as well as employees in the Aerospace Electrical
Division, Kennedy and McDermott negotiate with the
Union on the local supplements on behalf of both divisions.
According to Kennedy, the three product department
heads contributed to the formulation, determination, and
effectuation of employer policy in labor relations during
the period following the representation hearing by the
work they did in labor relations as members of an
employee relations committee (herein called Committee)
appointed by Division General Manager Esarey. The
members are Division Assistant General Manager C. J.
Weber; Miner, Rumsey, and Chiazza, the three product
department managers; R. E. Davis, manager of
manufacturing; and Kennedy, McDermott, and L. J. Brehl,
communications coordinator. Kennedy heads the
industrial relations department, and McDermott and Brehl
are in that department. They report to Kennedy. Miner
and Kennedy report directly to General Manager Esarey,
and Davis, Rumsey, and Chiazza report directly to
Assistant General Manager Weber, and through him to
Esarey.
Kennedy testified that the appointment of an employee
relations committee by a division or plant general manager
was in accordance with "companywide policy." He also
testified that he had personal knowledge that this policy
was followed in 1960 and 1963 in connection with
negotiations of national and local agreements. In regard to
the work that the Committee did in the field of labor
relations, Kennedy stated:
Well, the responsibilities of the employees' relations
committee are to analyze any particular employee
relations, Union relations and labor relations that we
have; to prepare and to determine and execute plans
that may be necessary during the period of
negotiations; to give consideration to the position the
Company will take with respect to proposals during
the forthcoming negotiations; to consider the
proposals that may be submitted by the respective
unions if we get into emergency situations such as
those that would be involved during a threatened
strike, or the actual execution of a strike; to provide
the plans and the termination of plans that would be
executed during that period.
Also, another responsibility as to participation
would be in the planning of communications and
termination dates for the national agreements with I U E and
U E are approximately the same as for the Contract The
termination date of the I A M contract is October 15 or 31, 1966,
and for the Lima Westinghouse Police Association contract,
November 1, 1966
9 Sec 102 67(f) of the Board's Rules and Regulations precludes
rebtigation in a "related subsequent unfair labor practice
proceeding" of an issue determined in a representation
proceeding where there was a failure to request review, a denial of
a request for review, or the Board affirmed the Regional
Director's decision
WESTINGHOUSE ELECTRIC CORPORATION
evaluating actually the effectiveness of the
communications effort.9
In the representation proceeding, Kennedy testified that
the new department heads would participate in national
labor policy through membership on a Lima employee
relations committee. He also testified at that time that this
type of committee was appointed at all locations including
Lima, in accordance with companywide policy established
at the Pittsburgh headquarters. But he did not state the
responsibilities of this type of committee in the broad
conclusionary language, stated, supra, that he used in this
unfair labor practice hearing."' Counsel for General
Counsel and for the Charging Party moved to strike his
testimony on the ground that the broad conclusions in
which he stated what the Committee did were neither
evidentiary or probative. I stated that I was of the opinion
that the motion had merit, and that the testimony would
have to disclose what specific actions were engaged in by
the Committee which would support the broad
conclusionary description of what the Committee did, as
well as what the new managers did as members of the
Committee which would support the broad conclusionary
assertion by Kennedy that these managers participated in
the alleged policymaking of the Committee. I reserved
ruling on the motion to strike.
Kennedy testified that the Committee had three
meetings . The first was held in late April or early May, the
second around May 17, and the third toward the latter part
of June. At the first meeting, there was a discussion of the
responsibilities of the Committee as he identified them in
his testimony, supra, and the "identification of certain
subcommittees that might have to be appointed" as
preparations for negotiations , and negotiations,
progressed. Kennedy testified that, "Some of the
subcommittee could be headed by respective members of
the employees relations committee, but the actual makeup
of the subcommittees would involve other designated
members of management , depending on the nature of the
subcommittee." According to Kennedy, this was all the
business of the first meeting.
The second meeting was attended by all members of the
Committee, by Nicholson and Richard Dittmer from
Respondent's headquarters in Pittsburgh, by R. W.
Esarey, the general manager of the Lima Aerospace
Electrical Division, and C. F. McMeekin, manager of that
Division's Product Assurance Department, and by a Mr.
I At this point I asked the witness questions dealing with the
negotiations of local supplements and other contracts at the Lima
location, and the handling of matters arising at Lima under labor
contracts I have found from reading the transcript that evidence
was given in the representation proceeding regarding these
matters, and that the Regional Director made findings thereon
that the three program department managers did not participate
directly in negotiations with the Union or any other union, and
that their views, opinions , and recommendations were submitted
regarding local supplemental proposals only insofar as they had
an impact upon their respective departments.
10 In the representation proceeding , Kennedy was asked to
state the part the local division management played in national
negotiations once they have been started, and he answered as
follows
Well, for one thing, there are various selected managers of
industrial relations , who are invited into Pittsburgh and
actually become a participant on the negotiating team with
the respective unions There are also questions directed back
to the local levels relative to reactions or suggestions
concerning the subject of national negotiations There is also
somewhat of an advisory negotiations where notes of
management of the department , whereby a cross section
507
Frame, a representative of the Small Motor Division at
Lima. Dittmer is connected with Respondent's
information service. Kennedy testified that it "was a
review meeting which involved divisionwide matters," and
that "it was to review and discuss our local situation; to
receive suggestions from our headquarters people and to
make suggestions to them." Kennedy testified that a form
had been sent to the Division on which certain facts about
the Division were requested, the facts were furnished by
the departments, and coordinated and reduced to writing
by Kennedy's industrial relations department. The data
furnished on the form were the basis for the May 17
meeting. Kennedy testified that a number of confidential
matters were discussed, and disclosures were made that
"might damage the collective bargaining position" of
Respondent if known to the unions. The matters discussed
involved all unions having collective -bargaining relations
with Respondent. He testified that all members of the
Committee freely participated. No notes were taken. I
asked Kennedy what the general nature of the confidential
matters discussed was, and what was discussed with
respect to the coming contract negotiations . Kennedy
replied to the first question by saying he did not care to
give any inkling of the general nature of the confidential
matter discussed. Counsel for Respondent refused to
permit him to reply to the second question; on the ground
that Nicholson, an official from Respondent's
headquarters, could more properly reply to a question
dealing with the approaching contract negotiations.
In regard to the third meeting in the latter part of June,
Kennedy testified that theie were present the members of
the Committee , except Chiazza , R. D. Blazier, vice
president of companywide industrial relations , and Dale
McFeatters , vice president of companywide information
services . Blazier and McFeatters were from Respondent's
Pittsburgh headquarters . As stated , supra, Blazier is the
superior of Clark Frame, Respondent 's chief negotiator,
and like Frame, participates in national negotiations. In
answer to the question of Respondent 's counsel as to what
the purpose of the meeting was, Kennedy replied, "To
receive suggestions and to discuss with us the problems of
the national negotiations so that the key management in
the division would be better prepared during the period of
negotiations." He testified that there was discussion on
contract proposals , their "pros and cons"; the
communications program in detail ;" the union-relations
there will be an advisory group to reflect the attitudes of
dispositions of local management
In the representation proceeding , in reply to the question whether
local management analyzes and examining of local union
proposals and submitting comments, were done solely by
industrial relations , Kennedy testified that in Lima, during
negotiations , these functions were performed by a key
management committee , consisting of Assistant Division Manager
Weber, Miner , Rumsey, Chiazza , Berneburg , the division con-
troller , and himself. As stated , supra, the extent of the actual
participation in labor relations by this "key management com-
mittee" was explored on cross-examination in the representation
proceeding
u Kennedy testified that the communications program meant:
All facets of communications with the community, the total
communications program of keeping our employees informed
and in attempting to explain the division's problems, et
cetera , et cetera Many things Analyzing as we get into
negotiations and the communications of the respective
unions relative to the negotiations of problems in the plant,
analyzing these and, again, appraising the effectiveness of
our own communications program
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
climate that existed among the various unions; the
potential labor problems and the current labor problems;
and Respondent 's relationship with the community, with
law enforcement , "and any number of things that were
related."
In response to Respondent' s counsel 's question whether
any decisions were reached at the June meeting
concerning the subjects that were discussed or whether
only information regarding these subjects was imparted
and received, Kennedy testified
Well, when you say decisions, there were things
discussed relative to our plans and our positions
which were concerned with unanimity as far as being
adequate is concerned. There were discussion of
things where it may appear to be inadequate, if you
can label this as a decision, but they say areas of
agreement were clearly designated and areas where
perhaps additional things and additional plants may
be considered appropriate These areas were
identified.
In response to the Respondent's counsel's question
whether the product department managers were playing
any part in the communications program, Kennedy said
they were. He described their role insofar as it related to
negotiations by the words:
Analyzing and appraising the effectiveness of our
communications program and planning our
communications program for future events.
Kennedy then described their actual involvement in the
actual plans of the program itself, as follows:
From the standpoint which we ought to be
communicating and the perimeters within which we
would be communicating and the determination of
areas where there may not exist understanding and
employee understanding and problems with the
division and with negotiations and so on. This is the
segment of management from which we determine
the shape and the direction of our communications
program and the evaluating and the effecting of this
program.
Kennedy was asked by Respondent's counsel if he had
seen any correspondence from the Respondent's
headquarters in Pittsburgh regarding the negotiations
which he would consider confidential. Kennedy replied
that he could not recall having received a communication
of the forthcoming negotiations that he would label as
confidential. Kennedy had testified that confidential
communications regarding the negotiations were
distributed to the members of the Committee."
Nicholson, the assistant director of labor relations from
Respondent's Pittsburgh headquarters, testified in regard
to the May 17 meeting. The meeting was not chaired, it
was an open-discussion meeting. The outline of the agenda
for the meeting was the questionnaire which had been sent
to the Division by Nicholson from the Pittsburgh
headquarters. Prior to the meeting, the answers had been
compiled by Kennedy and the staff of the Industrial
Relations Department, after consultation with department
heads. The completed questionnaire was 40 to 60 pages in
length.
In regard to the purpose and scope of the meeting,
Nicholson testified as follows:
The purpose of the meeting was to-well, I might
add that this meeting was not confined to the Lima
location. We had this meeting at all-any locations,
and I think I had 12, and the subject of the meeting
was to review the basic labor relations situation in
Lima; to go over their current labor relations
problems; to gather together and go over every
problem that might arise and all possible effects it
might have on national negotiations and/or local.
The purpose of the meeting was to have a general
discussion between members of divisional
management, the top echelon of division
management, I might add, and representatives from
both the communications function and the industrial
relations function to headquarters; to review all labor
relations problems connected with the division which
might have an influence on either local negotiations
coming up, or national negotiations which were
coming up this month.
We reviewed this pursuant to that objective. We
reviewed communications programs in detail; we
reviewed their grievance handling, and in detail we
reviewed their thoughts or maybe reviewed is the
wrong word here. We discussed their thoughts on
what some of the problems would be which we might
face nationally or which they felt we might face
locally.
What they thought the units would bring up would
have to be discussed.
We gave them in turn our thinking on the way we
saw things from our interchange of information. In
this area we covered in detail various phases of their
employee relations activities ranging from
suggestions to everything we could think of, with the
idea of ending up with a picture of the situation at
Lima, so that we would know from our position
nationally what kind of a situation faced them, and
they would have an understanding of what kind of a
situation faced us, and to try to anticipate as best we
could what the union demands would be, and what
demands we should make, if any
Nicholson testified that the same type of meeting was
conducted by two other assistant directors of labor
relations. The Small Motor Division at Lima, Ohio,
although covered by the local supplement with the Union,
as well as the Contract with the Federation, did not
participate in the meeting. Nicholson testified that the
Small Motor Division was not included in his group. In
response to Respondent's counsel's question whether any
plans or conclusions were arrived at at the meetings
Nicholson attended, he answered that there were plans.
He could not recall specifically, however, if any were
arrived at at Lima. He stated that it was "a little hard" to
differentiate between the meetings he attended. He then
testified that a decision was reached to "broaden out the
area of communications at Lima." He said he referred to
communications to employees It was not discussed as a
new policy, but as something thought to be desirable. In
response to a question by Respondent's counsel at this
point, he testified that the May 17 meeting did involve
"subjects other than those related to or the impending
national and location negotiations," but it was pointed very
heavily in the directions of national and local negotiations
as they were "coming up."
On cross-examination , Nicholson testified that he could
not recall whether Chiazza, Rumsey, or Miner made any
'L General Counsel's and Charging Parties' motions to strike
Kennedy' s testimony are denied
WESTINGHOUSE ELECTRIC CORPORATION 509
suggestions for changes in the Contract or whether they
said anything as specific suggestions relating to
Respondent 's communication system.
C. Analysis and Concluding Findings
On the foregoing findings, I make the analysis, findings,
and conclusions in the following paragraphs.
It is undisputed that the Regional Director found on
January 28, 1966, that the secretaries to the managers of
the Aerospace Systems Department, Systems Research
and Development Department, and the Utilization
Systems Department, of the Respondent's Aerospace
Electrical Division, Lima, Ohio, are in the unit of
employees for which the Union is the certified collective-
bargaining representative, and the Board on March 18,
1966, denied Respondent's request for review. It is also
undisputed that the Union, on March 31, 1966, demanded
that Respondent recognize, it as collective-bargaining
representative of the three secretaries, and bargain with it
in regard to their rates of pay, wages, hours, and other
terms and conditions of employment, and that Respondent
refused on April 20, 1966, and continues to refuse, to so
recognize and bargain with the Union, on the ground that
the three secretaries are not properly in the unit of
employees for which the Union is bargaining
representative, and the Regional Director erred in holding
they were in his decision of January 28, 1966, as did the
Board on March 18, 1966, by denying the request for
review.
The record made in the hearing before me on August 9,
1966, does not contain any newly discovered evidence of
the participation of Department Managers Chiazza, Miner,
and Rumsey in the formulation, determination, and
effectuation of Respondent's policy in labor relations
matters during the period from August 1964 through
December 2, 1965. Nor does it contain substantial
evidence on the record considered as a whole of such
participation by Chiazza, Miner , and Rumsey during the
period from December 1965 to August 9, 1966, the date of
the hearing before me in the unfair labor practice
proceeding.
While the secretaries serve in a confidential capacity to
the three department managers , they are in the unit for
which the Union is the certified bargaining representative
unless the managers participate in the formulation,
determination , and effectuation of Respondent's policy in
labor relations matters.13 As stated, there is no evidence in
the record made before me on August 9, 1966, of such
participation by the managers . And by the Regional
Director's decision of January 28, 1966, this issue is
resolved with respect to the record made in the
representation proceeding on October 22 and December 1
and 2 , 1965, and may not be relitigated before the Trial
Examiner. 14
Since neither new or newly discovered evidence has
been presented to warrant a holding contrary to the
Regional Director's decision, that decision prevails. And
since he found that the three secretaries are within the
appropriate unit, Respondent had a duty on April 20, 1966,
and thereafter, to bargain with the Union in regard to their
rates of pay, wages, hours, and other terms and conditions
of employment. By its refusal on April 20, 1965, and
thereafter, to so bargain, Respondent violated, and
continues to violate, Section 8(a)(5) and (1) of the Act.15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The secretaries to the managers of the Aerospace
Power Systems Department, the Utilization Systems
Department, and the Systems Research and Development
Department, of the Aerospace Electrical Division of
Respondent at Lima, Ohio, are employees included in the
appropriate unit for which the Union is the certified
exclusive collective-bargaining representative under the
Contract and its local supplements, and the Respondent
has a duty to bargain with the Union in regard to the
wages, hours, and other terms and conditions of
employment of these three secretaries. The appropriate
unit in which these three employees are included is:
All salaried technical and clerical employees at the
Lima, Ohio, facilities of Westinghouse Electric
Corporation, located at Wapak Road, and 325-327
South Main Street, excluding all professional
employees, senior internal auditors and industrial
relations assistants, cashiers, shop production clerks,
secretaries to: division general managers, assistant
division general managers, managers of
manufacturing , managers of accounting, industrial
relations managers, managers of union relations,-all
other employees and all supervisors as defined in the
Act.
4. On April 20, 1966, and thereafter, the Respondent
refused, and continues to refuse, to bargain with the Union
in regard to the wages, hours, and other terms and
conditions of employment of the three secretaries.
5. By this refusal, Respondent has refused to bargain in
violation of Section 8(a)(5) of the Act, and has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed them in Section 7 of the Act, in violation
of Section 8(a)(1) of the Act.
13 RCA Communications, Inc., 154 NLRB 34
14 United Dairies, Inc., 144 NLRB 153, 154, enfd 337 F 2d 283
(C A. 10), Sec 102.67(f) of the Board Rules and Regulations,
Series 8, as amended Also see General Instrument Corporation,
140 NLRB 18, 21, enfd 319 F 2d 420 (C A. 4), cert. denied 375
U.S. 966
15 Memphis Moldings, Inc, 146 NLRB 265, enfd. 341 F.2d 534
(C A 6), Manning, Maxwell & Moore, Incorporated , 143 NLRB 5,
enfd 324 F.2d 857 (C A 5); Pittsburgh Plate Glass Company v
N L R.B, 313 U S 146, 148 , affg 113 F 2d 698 (C A 8) (15 NLRB
515)
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following:
RECOMMENDED ORDER
Respondent Westinghouse Electric Corporation, its
officers, agents, successors , and assigns , shall:
1. Cease and desist from-
(a) Refusing to bargain collectively with Lima
Westinghouse Salaried Employees Association, Affiliated
With Federation of Westinghouse Independent Salaried
Unions, concerning rates of pay, wages, hours, and other
terms and conditions of employment of the secretary to the
manager of the Aerospace Power Systems Department,
the secretary to the manager of the Utilization Systems
Department, and the secretary to the manager of the
Systems Research and Development Department, of
Respondent's Aerospace Electrical Division at Lima,
Ohio.
(b) Engaging in any like or related conduct interfering
with the efforts of the Union to negotiate for and represent
the employees in the appropriate unit for which it is the
exclusive bargaining agent.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union
with respect to the rates of pay, wages, hours of
employment, and other terms and conditions of
employment, of the three secretaries as employees in the
appropriate unit for which the Union is the exclusive
representative, and if an understanding is reached,
embody or include such understanding in a signed
agreement.
(b) Post at its locations in Lima, Ohio, copies of the
attached notice marked "Appendix."'s Copies of said
notice, to be furnished by the Regional Director for Region
8, after being duly signed by the Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the receipt of this Trial Examiner's Decision
and Recommended Order, what steps Respondent has
taken to comply therewith."
16 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
1' In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the receipt of this Trial Examiner's Decision
and Recommended Order the Respondent notifies the said
Regional Director, in writing, that it will comply with the
foregoing order, the National Labor Relations Board issue
an order requiring the Respondent to take the action
aforesaid.
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL bargain collectively upon request with
Lima Westinghouse Salaried Employees Association,
Affiliated With Federation of Westinghouse
Independent Salaried Unions, in regard to rates of
pay, wages, hours of work, and other terms and
conditions of employment of the secretaries to the
managers of the Aerospace Power Systems
Department, the Utilization Systems Department, and
the Systems Research and Development Department,
of our Aerospace Electrical Division at Lima, Ohio,
and if an agreement is reached embody it in a signed
agreement or include it in the agreement we have with
this Union for the following bargaining unit.
All salaried technical and clerical employees at
the Lima, Ohio, facilities of Westinghouse
Electric Corporation, located at Wapak Road,
and 325-327 South Main Street, excluding all
professional employees, senior internal auditors
and industrial relations assistants, cashiers, shop
production clerks, secretaries to: division general
managers, assistant division general managers,
managers of manufacturing, managers of
accounting, industrial relations managers,
managers of union relations,-all other
employees and all supervisors as defined in the
Act.
WESTINGHOUSE
ELECTRIC
CORPORATION
(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
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 621-4465.