Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Feb 19, 1969

174 N.L.R.B. 636 (N.L.R.B. 1969)

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse Electric Corporation and Salaried
Employees Association of the Baltimore Division,
affiliated with the Federation of Westinghouse
Independent Salaried Unions . Case 5-CA-3723
February 19, 1969
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On April 29, 1968, Trial Examiner Abraham H.
Mailer issued his -Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other alleged unfair labor practices. 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 exceptions and brief, and
the entire record in this case, and, finding merit in
certain of Respondent's exceptions, hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith.
The Trial Examiner found, and, for the reasons
set forth in his Decision, we agree that Respondent's
Bay Bridge facility is a relocation of OR&E work
previously performed at its Parker Road plant and
not an accretion to that plant. We do not agree,
however, that Respondent is obligated to bargain
with the Union with respect to the transfer of
employees from the Parker Road plant to
Respondent's Bay Bridge facility, or to recognize
and bargain with the Union for exclusive
representative of the employees at the Bay Bridge
facility.
In pertinent part, the record shows that the Union
represents certain salaried employe, --s in ten separate
bargaining units in Respondent's Baltimore,
Maryland, area operations, four of which were
established by agreement of the parties and six,
including its Lansdowne and Parker Road plants,
through Board-conducted elections. Most of the
certified units have been established in substantially
the same manner, namely, whenever Respondent
either began a new operation or because of
expansion moved part or substantially all of an
operation (and, employees) to a new plant in the
Baltimore metropolitan area, the Union requested,
and, was refused, recognition, the parties then agreed
upon an appropriate unit, and election was held and,
if successful therein, the'Union was certified. Once
certified as representative at-a-particular location,
the Union continued to receive recognition from the
Respondent regardless of any product or operational
changes at that location. Each of the bargaining
units, or at least the certified units, is subject to the
provisions of a National Agreement to which the
parties have been continuously bound since 1950.
Early in 1964, Respondent began searching for a
deep-water location in which to house its expanding
ocean research and engineering (OR&E) work which
was then the primary operation being performed at
its Lansdowne plant. Lansdowne was then also
engaged in a small amount of weapons work. In
July of this same year, a decrease in the electronics
and communications work being performed at
Respondent's Parker Road plant,- located some 2
miles from Lansdowne, threatened the jobs of
Parker Road employees. In order to save those jobs,
Respondent transferred the electronics and
communications work out of, and the OR&E work
into, Parker Road, and thereby made room at
Lansdowne for more weapons work. To overcome
the provisions of their National Agreement, which
provided for bumping rights only within, and not
between, units, the Union and Respondent agreed to
transfer employees from the Lansdowne unit to the
Parker Road unit. Respondent apparently
transferred only those employees who requested
transfer since, at this time, Respondent was
planning to move the Parker Road OR&E
operation and emp','yees to wherever it would
establish its new OR&E Facility, and the employees
were informed of this possibility by both the Union
and Respondent's supervisors. In accordance with
past bargaining history, the Union continued as
bargaining representative at each of these plants
despite the operational changes and the transfer of
employees.
In August 1964, Respondent decided to erect its
new OR&E facility near the Bay Bridge at
Chesapeake Bay in the Annapolis, Maryland, area,
26 miles from Parker Road; it announced this
decision in March 1966, and, the following
November, began construction which was completed
in January 1967.
Meanwhile, from May 1965 through August 1967,
business at various of Respondent's Baltimore
operations had increased to such an extent that
despite the hiring of approximately 3,000 new
employees in 1965, hundreds of jobs still remained
unfilled during 1966 and part of 1967, including
positions requiring skilled and technical knowledge.
During this period, beginning specifically in January
1966 and continuing for 'approximately a year
thereafter, the Union, based on an alleged
174 NLRB No. 95
WEST][NGHOUSE ELECTRIC CORPORATION 637
"understanding"' that Respondent would recognize
it at Bay Bridge, sought information regarding the
staffing of that facility, the relocation of employees
and bargaining unit work from Parker Road to Bay
Bridge, and the wages and working conditions to be
established there. Faced with the employment
situation at its Baltimore operations and seeking not
to deplete those operations of essential employee
skills in order to satisfy future employment needs at
Bay Bridge, Respondent, either through inability or
design, did not then furnish the Union with the
requested information. In October 1966, Respondent
began investigating the labor market in the
Annapolis area and ascertained from the Maryland
State Employment Office and Annapolis-based
Company personnel managers that skilled people
from that area were available. During the course of
several meetings held thereafter, Respondent
informed the Union that Respondent planned 'to
employ Bay Bridge personnel from the Annapolis
area and would not recognize it at Bay Bridge or
transfer any Parker Road employee to Bay Bridge
without his consent buts instead, would consider
requests for transfer from employees at Parker
Road and other of Respondent's plants on a
quit-rehire basis.2 Respondent also refused the
Union's request to have Respondent apply to Bay
Bridge those provisions of the National Agreement
pertaining to the upgrading of employees transferred
within a bargaining unit when the work force is
increased on the ground that Parker Road and Bay
Bridge are separate, and not together one bargaining
unit. In an effort to establish its majority status at
Bay Bridge and thereby compel Respondent to
recognize and bargain with it in that unit, the Union
presented to Respondent 47 statements signed by
employees from Parker Road and another of
Respondent's Baltimore plants represented by the
Union which stated in substance that the signers
thereof desired to be represented by the Union at
Bay Bridge.
In selecting the employees to be transferred to
Bay Bridge, Respondent individually interviewed
only those employees it intended to transfer, rejected
the Union's request that a Union representative be
present during such interviews, stated that a
representative would be allowed to be present only if
the employees to whom Respondent intended to
'This "understanding" is predicated on a 1964 conversation between the
Union's president and Respondent's Industrial Relations supervisor during
which the former questioned the latter with regard to Respondent's plans
for staffing Bay Bridge and also sought Union recognition at that
contemplated facility. In reply thereto, Respondent 's supervisor stated in
pertinent part that . . you have never had problems with us in
representation and you know it. This will be worked out and you know
dam well it will be so why get into it now _ We have never had a problem
with bargaining .. . you know that you will have no problems "
'rhe quit-rehire procedure, whereby an employee quits at midnight and
is rehired at 12:01 a.m., ostensibly to protect employee rights at plants to
which transfers are made, came into existence m 1963 as the result of
negotiations between the Union and Respondent . The record shows that
this procedure does not affect in any respect an employee' s terms and
conditions of employment.
offer transfers wished him to be, and gave the
Union a list of employees who had requested
transfer. On January 15, 1967, the approximate date
on which the Bay Bridge facility opened, there were
130 employees in the certified unit at Parker Road,
74 of whom were Union members and on checkoff.3
Respondent received a total of 86 transfer requests
from the Parker Road unit, and transferred 47
employees therefrom, 25 of whom were Union
members. Respondent also honored some transfer
requests from employees in plants other than Parker
Road. However, Respondent's main source of
employment was personnel from the Annapolis area,
and as of the time of the hearing, Bay Bridge was
fully staffed with a complement of approximately
500 employees. Although no OR&E work is now
being performed_ at Parker'Road, no employee at
this plant has been laid off or downgraded because
of the transfer of OR&E work, and the plant is still
in operation performing weapons work.
The Trial Examiner, relying on the Cooper
Thermometer Company and Fiberboard Paper
Products Corp.4 lines of cases, found that the
transfer of employees from Parker Road to Bay
Bridge affected the Parker Road employees, and,
therefore, that Respondent was obligated to bargain
with the Union regarding those transfers. We do not
agree that the principles set forth in those cases
govern the instant situation. The Cooper
Thermometer type of case is concerned with a loss
of jobs caused by the partial or complete
termination of an operation at one location and its
relocation at another. In such situations, the
employees at the old plant are directly affected by
the relocation, and an employer is required to
negotiate not only respecting the shutdown, but also
the bases and conditions on which employees
affected by the termination may transfer to the' new
location and thus continue to be employed. In the
Fiberboard line of cases, where unit work also is
affected by a change in, or the termination of,
operations, an employer is also required to bargain
with respect to the effect on the employees
occasioned by the altered operation, and further,
must inform the bargaining representative before
effectuating the operational change that such was
contemplated in order that that representative might
have the opportunity to negotiate with respect to the
contemplated change concerning the tenure of the
employees and their conditions of employment.
Here, however, none of these factors is present. The
record clearly shows that although the nature of the
Parker Road plant work has changed, that change
has not affected either the continuity of its
'The Union represents virtually all nonexempt salaried employees
employed in the 10 certified or agreed-upon units in the Baltimore area
Slightly more than half of these employees are Union members , however,
and the fact of membership is known to Respondent only if an employee is
on checkoff
4Cooper Thermometer Company, 160 NLRB 1902 , 1912, enfd. in
pertinent part 376 F.2d 684 (C A. 2), Fiberboard Paper Products Corp,
130 NLRB 1558, enfd. 379 U.S. 203.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations or the employment of its employees, and
the Union is still the bargaining representative at
that plant. In addition, the employees who
transferred did so voluntarily and with the full
knowledge and consent of the Union. Moreover,
there is no contention that Respondent has breached
any obligation to bargain concerning either the
establishment of the Bay Bridge facility or the
transfer of OR&E work from Parker Road to that
facility. Accordingly, we find that the transfer of
employees from Parker Road to Bay Bridge did not
affect the Parker Road plant and that Respondent is
not required to bargain with the Union in this
regard.
Nor do we find, as did the Trial Examiner, that
Respondent unlawfully refused to recognize and
bargain with the Union at Bay Bridge. Respondent's
obligation to bargain must be established by
affirmative evidence showing either the presence of
the Union's majority status at Bay Bridge or that
the absence thereof has been caused by
Respondent's unfair labor practices. The evidence to
establish this former requirement is patently
insufficient since it consists basically of the transfer
requests submitted by 86 of the 130 Parker Road
plant employees, 74 of whom were Union members
as were 25 of the 47 transferred, the statements
signed by 47 of those plant employees requesting
that the Union represent those 47 at Bay Bridge,
and the statistics relating to employment at Bay
Bridge which show conclusively that the transfer of
all Parker Road Union members to that plant still
would not have given the Union a majority there.
As to the alleged unlawful preclusion of that
majority, the record shows, as set forth above, that
prior, during, and subsequent to the staffing of Bay
Bridge, Respondent was faced with a critical
manpower shortage at its Baltimore operations and
that in order to both retain its needed skills at those
operations and also properly staff Bay Bridge, it
selected and transferred 25 Union and 22 non-Union
members from the Parker Road plant, and also
tapped the well of an abundant labor market in the
Annapolis area from which it obtained most of its
personnel for Bay Bridge which, as of the time of
the hearing, was fully staffed with a complement of
500 employees. The record also shows that a few
Union members were dissuaded from submitting
transfer requests because of some supervisory
statements to the effect that there would be no
union at Bay Bridge. It also shows that employee
Lozar was told by her supervisor that she would not
be transferred to Bay Bridge if she signed the
authorization requesting representation there by the
Union. The Trial Examiner also found that Lozar's
request to transfer to that plant was unlawfully
denied because she was a Union member. Based
upon his primary premise that Respondent
discriminatorily refused to honor more, or most, or
all of the transfer requests submitted by Parker
Road Union members, and his findings that the
supervisory statements, together with Respondent's
conduct toward Lozar, illustrated Respondent's
policy determination to staff Bay Bridge with a
disproportionate number of non-union transferees
and new hires in order to prevent the Union from
obtaining majority status at that plant, the Trial
Examiner concluded that although the Union lacked
a majority at Bay Bridge, this was not material
because that lack of majority was caused by
Respondent's unfair labor practices and, therefore,
Respondent was obligated to recognize and bargain
with the Union concerning terms and conditions at
Bay Bridge which it unlawfully refused to do.'
The record does not sustain those conclusions. As
indicated above, the transfer of employees from
Parker Road to Bay Bridge was predicated on
economic necessity which is both undisputed and
substantiated by the record. In addition, and as we
previously noted, aside from economic justification,
the figures relied upon by the Trial Examiner
conclusively show that had Respondent transferred
all Parker Road plant Union members desiring
transfer, the Union still would not have achieved
majority status at Bay Bridge when that plant was
staffed, regardless of the commission of any
purported unfair labor practices by Respondent.
Moreover, Respondent's actions with regard to
Lozar, while perhaps technical violations, fail to
establish a pattern of discrimination as to the
selection or nonselection of employees for transfer
when considered either separately or in conjunction
with the refusal of a few employees to submit the
transfer requests because of supervisory statements
that there would be no union at Bay Bridge. In view
of Respondent's economic situation, there is no
assurance that, had those transfer requests been
submitted, those particular employees would have
been selected for transfer. Moreover, since the
statements which precluded their submission were
made after Respondent had informed the Union that
it would not be recognized at Bay Bridge, they
appear to have been made in context with the
parties' bargaining history whereby Respondent did
not and would not recognize the Union at a
newly-established location without an election.
Accordingly, and for the reasons set forth herein,
we find, 'contrary to the Trial Examiner, that
Respondent is not obligated to recognize or bargain
with the Union at Bay Bridge, and we shall dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
In arriving at these conclusions , the Trial Examiner properly afforded
no weight to the alleged "understanding" that Respondent would recognize
the Union at Bay Bridge.
WESTINGHOUSE ELECTRIC CORPORATION 639
TRIAL EXAMINER'S DECISION
ABRAHAM H. MALLER, Trial Examiner: On February
28, 1967, Salaried Employees Association of the
Baltimore Division, affiliated with the Federation of
Westinghouse Independent Salaried Unions, herein
referred to variously as SEA or the Union, filed a charge
against Westinghouse Electric Corporation, herein
referred to variously as the Respondent or Westinghouse.
Upon said charge, the Regional Director for Region 5 of
the National Labor 'Relations Board, herein called the
Board, on June 30, 1967, issued on behalf of the General
Counsel a complaint against the Respondent, alleging
violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq ) herein called the Act In its duly filed answer,
Respondent denied the commission of any unfair labor
practices. Thereafter, Respondent filed a motion for a Bill
of Particulars, which was granted by Trial Examiner
Charles W. Schneider. Complying with the Trial
Examiner's Order, counsel for the General Counsel filed a
Bill of Particulars.
Pursuant to notice, a hearing was held before me at
Baltimore, Maryland, on the following dates: September
27, 28, and 29, October 10, 11, 12, and 31, November 1,
2, and 3, 1967. The General Counsel and the Respondent
were represented and were afforded full opportunity to be
heard and to introduce relevant evidence. At the outset of
the hearing, counsel for the General Counsel moved to
amend the complaint to allege, in the alternative, a
different appropriate unit. Over the objection of the
Respondent, I granted the motion.' At the conclusion of
the hearing, both parties were given the opportunity to
present oral argument and to file briefs with me.
Comprehensive briefs were filed by both parties.
Upon consideration of the entire record,2 including the
briefs of the parties, and upon my observation of each of
the witnesses, I make,the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
L THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation duly organized under
and existing by virtue of the laws of the Commonwealth
of Pennsylvania, has various locations throughout the
United States including Baltimore, Maryland, where it is
engaged in the research, manufacture, and distribution of
electrical products and in oceanographic research. During
the year preceding the filing of the complaint, which is a
representative period, Respondent, in the course and
conduct of its business operations, received goods,
materials, and products valued in excess of $50,000 at its
places of business located in Baltimore, Maryland, directly
from points outside the State of Maryland. During the
same period Respondent shipped goods, materials, and
products valued in excess of $50,000 directly from its
places of business in Baltimore , Maryland, to points
located outside the State of Maryland. The electronic
equipment produced at Respondent's Baltimore,
Maryland, places of business is manufactured for the U.S.
Navy, U.S. Air Force, and other agencies of the United
States Government and vitally affects the defense of the
United States. Accordingly, I find and conclude that
Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the
Act for the Board to assert jurisdiction here.
IL THE LABOR ORGANIZATION INVOLVED
Salaried Employees Association of the Baltimore
Division, affiliated with the Federation of Westinghouse
Independent Salaried Unions is and has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
1. Whether the salaried, clerical, technical, and
maintenance employees at Parker Road and at Bay
Bridge constitute separate units appropriate for
bargaining, or whether they, together, constitute one unit.
2. Whether Respondent threatened two employees with
retaliation because of their union membership and
activities.
3. Whether the Respondent failed to bargain in good
faith with SEA with respect to the staffing of, and
transfer of work to, the Bay Bridge plant, in violation of
Section 8(a)(5) of the Act.
4. Whether Respondent, in order to avoid recognition
of SEA at the new facility, discriminated against
employees by failing to transfer them to the Bay Bridge
plant and/or promote them to better jobs at the Bay
Bridge plant, to which they would have been entitled, in
violation of Section 8(a)(3) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The Baltimore Operations of Westinghouse
The complaint alleged that the appropriate unit consisted of the
salaried, nonexempt employees at both the Bay Bridge and Parker Road
plants. By the amendment, the General Counsel alleged in the alternative,
that the salaried, nonexempt employees at the Bay Bridge plant constituted
an appropriate unit In legal effect , the original allegation was premised on
the theory that the Bay Bridge plant was an accietion to the Parker Road
plant, whereas under the amendment the Bay Bridge plant would be
considered to be a relocation of the Parker Road plant. In its brief,
Respondent renewed its motion to deny the amendment of the complaint,
contending that it was thereby placed in an untenable and unfair position.
The motion is denied. The amendment did not call for the presentation of
any new or different testimony . It went only to the legal effect of the facts
in the record, and the Respondent had the opportunity to argue, and did in
fact argue fully, as to the legal effect of she facts The Respondent,
therefore , has not been prejudiced by the amendment.
'Included in the briefs filed by both parties were motions to correct the
record in certain particulars . No opposition to such motions have been
filed . Upon consideration of said motions, it is hereby ordered that said
motions be and they are hereby granted.
All of the issues in the instant case arise out of the
establishment by Respondent of a new plant called Bay
Bridge located near Annapolis, Maryland, and the transfer
thereto of the work previously performed at the Parker
Road plant. To fully understand the problem, a review of
the background is necessary.
The Westinghouse operations in the Baltimore area are
administratively known as the Defense Space Center,
commonly referred to as D.S.C., and includes many
facilities engaged in diverse activities. These activities are
organized for administrative purposes into several
different divisions, one of which is the Underseas Division.
The work of the Underseas Division is of two distinct
types: (1) The manufacture of underseas weapons,
principally torpedeos (excluding the explosives), and (2)
the development of various types of underseas devices, for
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
example, deep submergence vehicles for exploring and
exploiting ocean depths , on research and development
contracts which , if the project culminates in any
manufacturing at all, results in a one-of-a-kind item. The
latter activity is known as ocean research and engineering,
herein referred to as OR&E. Prior to January 1967, when
the new Bay Bridge facility was opened , Underseas
Division weapons work was done principally at the
Lansdowne plant on Washington Boulevard , while OR&E
work was done principally at the Parker Road plant. No
production work was done at the Parker Road plant; all
Underseas Division production work was done at
Lansdowne
Westinghouse employees , insofar as their pay status is
concerned , are divided into three categories : ( 1) hourly
paid , (2) salaried but not exempt from the provisions of
Federal wage and hours regulations , and (3 ) salaried and
exempt employees . The last category embraces managerial
and professional employees and is, with some minor
exceptions not relevant here, generally unrepresented by
any labor organization . Hourly employees do production
type work and are, generally , represented in various units
embracing production workers (and maintenance workers
whose jobs are related to the production operation) by
either the International Union of Electrical , Radio and
Machine Workers, AFL-CIO, herein referred to as IUE,
or by the International Brotherhood of Electrical
Workers, AFL-CIO, commonly referred to as IBEW. In
the Baltimore area, hourly paid employees are represented
by either Local 130 of the IUE, or 1805 of IBEW.
Salaried , nonexempt employees consist of clericals,
draftsmen , and laboratory technicians . They are
represented , generally, by the Federation of Westinghouse
Salaried Unions. The Baltimore affiliate of the Federation
is the SEA , which represents 3,300 salaried, nonexempt
Westinghouse employees in 10 units in the Baltimore area.
Production type employees such as machinists whose work
is related to the work performed in these units are
included therein and are distinguished by Respondent
from hourly paid production type employees normally
represented by IUE or IBEW by the fact that they are
compensated on a salaried , nonexempt basis. Maintenance
type employees such as janitors whose work is related to
the work performed in these units are also included
therein and are distinguished from hourly paid
maintenance workers on the same basis.
2. The Bargaining History of the Baltimore
Operations
SEA is the certified or recognized bargaining
representative for the employees in 10 separate units in
the Respondent ' s Baltimore operations .' Originally, SEA
represented a unit of all salaried employees located at the
Wilkens Avenue and Lansdowne plants.'
In 1952, upon the establishment of the Aerospace
Division (then known as Air Arm ) at Friendship Airport,
SEA requested recognition . Although this activity had
formerly been conducted at the Wilkens Avenue plant,
Respondent rejected the request, and SEA filed a petition
'The relationship between SEA and the Respondent is set forth in an
Agreement between the Respondent and the Federation of Westinghouse
Independent Salaried Unions (national contract). In that agreement the
units are described as having been "certified " The term "certified" as used
in the agreement is not synonymous with the Board certification, but, in
effect, means recognized by the Respondent and bargained for in the
agreement. Some of the units have Board certification ; others do not.
`The two plants are approximately 2 1/2 miles from each other. Later
by agreement, the parties established separate units at each location.
for representation with the Board. The parties agreed to a
separate bargaining unit limited to this division, and after
an election, SEA was certified.
Subsequently, the Surface Division (then known as the
Electronics Division) moved from the Lansdowne plant to
another building at Friendship, immediately adjacent to
the Aerospace Division. SEA again requested recognition
on the theory that this operation was an accretion to the
then existing Wilkens-Lansdowne unit. Respondent
contended that the unit should be part of the already
certified Aerospace unit. In Case 5-RC-2173, the Board
issued a decision and direction of election in which it set
up a separate bargaining unit for the Surface Division.
After an election, SEA was certified as the representative
of a unit limited to nonprofessional salaried employees.
Some time later, an upswing in activity created an
overload in this particular operation, causing Respondent
to lease facilities of a plant on Parker Road,
approximately 8 1/2 miles from Friendship Airport and 2
miles from Lansdowne. The expanded Surface Division
moved to that location. SEA then requested recognition at
the Parker Road plant as an accretion to the Surface
Division certification. Respondent rejected the request,
and SEA filed a petition in Case 5-RC-3375. An election
was agreed to by the parties, and a majority of the
employees voted in favor of SEA which was certified as
the representative of these employees as part of the
Electronics [Surface] Division.
Subsequently, the Surface Division expanded further
into the Morrell Park plant.' SEA again requested
recognition on the theory that the Morrell Park plant was
an accretion to the then existing Surface Division at both
Friendship and Parker Road. Respondent rejected the
claim, and SEA filed a petition. The parties agreed to an
election among the employees at Morrell Park, and the
agreement provided for inclusion of these employees in the
existing Surface bargaining unit, if a majority voted for
representation. Following the election, SEA was certified
as the representative of the employees of Morrell Park as
part of the Surface Division.
In 1962, Respondent established a central records,
maintenance, and government storeroom at a location a
mile from Friendship, called Magothy Manor. This
function had previously been performed at the Friendship
site, and the employees performing that function were
transferred to Magothy Manor. In 1963, SEA filed a
representation petition seeking representation of these
employees as an accretion to the Aerospace Division at
Friendship. Subsequently, SEA and the Respondent
agreed to a consent election for a separate unit at
Magothy Manor. SEA won the election and was certified
as the representative of the employees of this unit.
A further expansion of Respondent's Baltimore
operations occurred in January 1964, when the Product
Support Equipment Department (PSED) was established
at Cockeysville, Maryland, approximately 25 to 30 miles
from the Friendhsip site. The function of this division has
been to build test equipment for the various products built
by other Baltimore divisions. The employees were
relocated from other plants. The parties agreed to an
election for the employees at PSED. In the ensuing
election, representation was rejected by the employees.
In the early 1960's, Respondent built a Management
Services Building interconnecting the Aerospace and
Surface Divisions at Friendship, from which, service
'This location is approximately 9 miles from Friendship , and 2 to 3
miles from the Parker Road plant.
WESTINGHOUSE ELECTRIC CORPORATION
functions for the various divisions were performed. Also
located in the same building was the Systems Department
which assumes responsibility for the development of large
complex electronic systems. By agreement of the parties, a
separate bargaining unit was created for that building, and
SEA was recognized as the representative of the
employees.
B. The Establishment of the Bay Bridge Facility
By early 1964, Respondent conceived the idea of
building a new facility to house its increasing OR&E
activities at a deep water location. The task of finding a
suitable spot on the shores of the Chesapeake Bay was
assigned to a 3-man committee which inspected as many
as 20 different potential sites. In August 1964,
Respondent's attention focused on a tract of ground at the
western end of the Chesapeake Bay Bridge not far from
Annapolis, Maryland, where the Bay Bridge facility was
ultimately built. In September 1964, negotiations were
begun to acquire that tract, and in March 1965,
Westinghouse announced publicly that it would build the
Bay Bridge facility.
Meanwhile, in 1964, a downturn in business of the
Surface Division posed a threat to the jobs of the Surface
Division employees then housed at the Parker Road plant.
Respondent decided to terminate the Surface Division
activities at the Parker Road plant and to transfer OR&E
from Lansdowne to Parker Road, thereby making room
at the Lansdowne plant for more weapons work. Since
SEA's national contract provides for bumping rights in
the event of a reduction in force only within, and not
between, bargaining units, Surface Division employees at
Parker Road had no right to the OR&E jobs which were
coming into existence. Rather than see Respondent lose
experienced employees, SEA and Respondent cooperated
in a program in offering Surface Division employees at
Parker Road an opportunity to transfer from Surface to
Underseas Division. Although Surface Division employees
thereby lost their bumping rights in their division, the less
senior employees were relieved of going through a
disposition proceeding in the Surface Division.6 In the
ensuing interviews for staffing the OR&E operations at
Parker Road, the prospective transferees were informed
by SEA representatives in the presence of Westinghouse
officials that Westinghouse contemplated moving the
OR&E operations to a new site to be selected in the
vicinity of Chesapeake Bay and were 'advised not to
transfer to OR&E unless they were prepared to move with
the job. Subsequent hirings and transfers into the unit
were also predicated on the applicant's willingness to
move with the job.
In connection with the staffing of the OR&E operation
at Parker Road, James Hare president of SEA asked
Lovett Henderson, Supervisor of Industrial Relations,
what would happen when the OR&E operation was moved
to a new plant. Henderson replied:
Sir, you have never had problems with us in
representation and you know it. This will be worked out
and you know darn well it will be so why go into it
now. We have never had a problem with the bargaining
. You know that you will have no problem. You
know darn well that we went through these same things
"Disposition" is a term used in the national contract to describe a
procedure by which an employee who is bumped may replace the least
senior employee in the same or next lower level in his position progression
within the seniority unit
641
just a couple of weeks ago with the I. U. E. when we
transferred part of their work out on Wilkens Avenue
over to the Longwood Street locations and he kicked
the stuffings out of us and we are not going to go down
that road again. You know that you will have no
problems.'
Henderson flatly denied making any such statement at
anytime. I do not credit his denial. Thus, Henderson
denied that he knew of the Longwood case. Yet, the
Longwood case had occurred only 2 months before
Henderson's conversation with Hare.' Despite the fact, as
he claimed, that the Longwood plant was not his
responsibility, I find it difficult to believe that, as an
industrial relations executive in the Baltimore complex,
Henderson would know nothing of so important a labor
relations case which was involved in the complex.
On the other hand, Hare's testimony is corroborated by
that of James Wallace, then Assistant Manager of
Industrial Relations of the Baltimore complex and
Henderson's superior, who testified that at a meeting
between SEA and the Respondent on December 22, 1966.
Mr. Hare asked me in that meeting if I was aware that
he and Mr. Henderson had an understanding about the
Parker Road, Lansdowne, Bay site operations.
I told him that I was aware from conversations that
I had had with Mr. Henderson and Mr. Hare, that
there were understandings concerning those three
locations.
Wallace also conceded that the Union's minutes of that
meeting contained "essentially what was said" at that
time on the subject The particular portion of the minutes
referred to by Wallace reads as follows:
Hare . . Mr. Wallace, in all honesty, are you
aware of the good faith understanding between Lovett
Henderson your Industrial Relations Supervisor and
myself concerning the transferring of these employees
and the recognition of the S. E. A. at the Bay Bridge
site?
Wallace - Yes, I know an understanding exists; but
there is no agreement and our position has changed.
It is true that, later, Wallace testified that Henderson
"never told me that he had reached an understanding or
agreement with the Union on recognition ..." However,
this statement is completely inconsistent with Wallace's
statement at the meeting of December 22, 1966, as
reflected in the Union' s minutes of the meeting: "Yes I
know an understanding exists; but there is no agreement
and our position has changed." Indeed, the statement
attributed to Wallace in the Union's minutes are in accord
with the facts, viz, that despite the understanding,
Westinghouse had changed its position. Thus, Wallace
admitted that in March 1966, D. C. Lee, Manager of
Industrial Relations for the Baltimore complex and
Wallace's superior, had indicated to him "the probability
that we were not going to recognize the SEA" at Bay
Bridge.
'The Longwood Street case was recent history Westinghouse had
transferred some IUE work from Wilkens Avenue , which was a separate
bargaining unit to Longwood Street . IUE Local 130 claimed that
Longwood was an accretion to its existing unit at Wilkens Avenue, while
Westinghouse claimed that Longwood was a separate bargaining unit. To
resolve the dispute, Westinghouse filed Case 5-RM-503. On April 14,
following a hearing, the Regional Director issued a letter decision holding
that Longwood Street was an accretion to the unit at Wilkens Avenue.
Westinghouse thereupon recognized IUE Local 130 at Longwood Street,
and the latter withdrew a charge it had filed against Westinghouse. The
"he" who kicked the "stuffings" out of Respondent in that situation was
Eugene Watts, president of IUE Local 130
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Bargaining Between SEA and Westinghouse
Regarding the Move to Bay Bridge
Westinghouse announced the beginning of construction
of its OR&E facility at the Bay Bridge site in November
(1965. The Bay Bridge facility is approximately 26 miles
from the Parker Road plant. Completion was scheduled
for October 1966. A number of employees at Parker Road
became concerned as to what would happen when OR&E
work was transferred from Parker Road to Bay Bridge.
Lewis Haase, SEA plant representative at Parker Road,
asked Henderson for a meeting A meeting was held on
January 13, 1966, between Henderson and representatives
of SEA. At this meeting, SEA posed 12 specific questions
relating to the transfer of OR&E to Bay Bridge. Question
10 was: "Will we [i.e., salaried, nonexempt employees in
the Parker Road unit] be under the same certification
[i e., in the same bargaining unit]?" To each of these
questions, Henderson replied that he did not know and
that he would inform SEA as soon as he found out. SEA
continued to seek answers to these questions through
1966, but was unable to get any answers. During the same
period, Respondent was surveying the labor market in the
Annapolis area. Finally, on November 29, 1966, SEA
filed a charge in Case 5-CA-3361, charging Westinghouse
with refusing to bargain in good faith about the move to
Bay Bridge . The following day, Westinghouse met with
SEA concerning the move.'
A series of four meetings beginning with November 30
were held: December 22, 1966, February 10, and 16, 1967.
At the November 30 meeting, Respondent announced that
staffing of the Bay Bridge plant would begin on a limited
basis between December 15 and 19, and would be
complete by March 1967, that the Company would not
ask any of the employees at the Parker Road plant to
transfer to the Bay Bridge plant, but instead planned to
employ personnel from the Annapolis and Eastern Shore
area. However, Wallace stated that Westinghouse would
consider any employee's request to transfer from Parker
Road or other locations on a quit-rehire basis.' Wallace
also stated that Parker Road would continue in operation
at some level - to what extent he did not know. With
regard to recognition of SEA, Wallace stated that
Westinghouse would not recognize any Union at Bay
Bridge, inasmuch as the IUE had requested recognition
there. However, Wallace admitted that no work or
activity represented by another union was being sent to
Bay Bridge.10 Although Westinghouse planned to begin
staffing the Bay Bridge plant in less than 3 weeks,
Wallace stated that he was unable to inform SEA which
functions or activities would go to the Bay Bridge plant,
stating only that it would be oceanographic research work,
but that he could not be more specific. R Terwilliger,
assistant to the manager, Underseas Division, also stated
that he did not know "exactly." At one point, SEA
President Hare asked: "Are you aware that the
supervisors of the Deep Submergence project here at
Engineering Systems has notified 9 employees that they
would be transferred to the B/B site but the supervisors
stated they did not know when?" Wallace replied that he
'It is noted that the meeting was held before the charge in Case
5-CA-3661 was served on the Respondent. However, it is apparent that
Respondent was aware of the filing of the charge , since Wallace referred to
the case in his opening remarks and, as previously noted, Wallace testified
that the Union's summary of the meeting was substantially correct.
did not know that. J. Boak, administrative to the
industrial relations, replied that he thought they would
sometime in the future. Terwilliger said that they had long
been part of the oceanographic operation, but he did not
know whether they would stay there or go to Parker Road
or Bay Bridge." Finally, Hare recited the history of
SEA's cooperation with Westinghouse in staffing Parker
Road, with the understanding that the function would be
moved to Bay Bridge, and accused Westinghouse of
pulling the rug out from under SEA. Wallace replied that
he knew that the Union would take legal action and
pointed out that the Union had had the advantage of
representing the people at Parker Road for the past 2 1/2
years.
Following a further written demand from SEA, a
second meeting was held on December 22, 1966. Wallace
opened the meeting by stating that the Company's
position on the moving of employees to the Bay Bridge
plant was unchanged; that if an employee signed a request
for a transfer, Westinghouse would consider him for open
jobs at the Bay Bridge site, with the understanding that
the procedure would be a quit and rehire. Hare then asked
Wallace for a letter to the effect that a quit-rehire would
have no effect upon an employee's record. Wallace replied
that he would let him know. No such letter was ever
written. In answer to a question from Hare, Wallace and
Terwilliger reiterated that the Company was not then or
in the future planning to send work represented by the
IUE to Bay Bridge, and that SEA was the only union
involved in the matter. It was at this meeting that Wallace
admitted that he knew of an understanding between SEA
and Henderson, "but there is no agreement and our
position has changed." Hare also tendered to Wallace 47
statements signed by Parker Road employees indicating
their desire to be represented by SEA when transferred to
Bay Bridge. Wallace declined to see them.
The third meeting was held February 10, 1967. At the
opening of the meeting the Union announced that it had
withdrawn its charge in Case 5-CA-3661 "on the basis
that discussion would resolve problem of representation."
At this meeting, Respondent, for the first time, gave SEA
concrete information on the numbers and types of jobs it
planned to have at the Bay Bridge plant and what work
would be transferred there. Westinghouse conceded that
the Bay Bridge plant was built to house oceanographic
projects. SEA contended that the Bay Bridge plant was an
accretion to the Parker Road plant. The contention was
rejected by Westinghouse. SEA then stated that it wanted
the plant representative notified of all moves of the
employees at Parker Road, as well as a list of employees
requesting jobs at the Bay Bridge plant. In addition, SEA
requested that its representative be present when job offers
were made to Parker Road employees. Westinghouse
'The General Counsel concedes that at the present time , relocation of an
employee on a quit-rehire basis apparently does not affect any of the
employees' terms and conditions of employment , with the possible
exception' of Westinghouse 's salary extension plan Henderson denied that
the procedure had any effect on the salary extension plan. The quit-rehire
procedure did not come into existence until 1963 when it was the result of
union negotiations with the Company. Prior thereto a quit-rehire
transaction in an employee's service record reduced the benefits he would
have received if there had been no such entry.
"In fact, no production work represented by IUE has been transferred
to the Bay Bridge facility, and Eugene Watts, president of IUE Local 130,
was informed by Westinghouse officials that no such work would be
transferred to Bay Bridge.
"The Engineering Systems OR&E units at Friendship moved to Bay
Bridge in May 1967.
WESTINGHOUSE ELECTRIC CORPORATION
promised to keep the plant representative advised of any
personnel changes, and that it would give a list of people
who had requested transfers from Parker Road to Bay
Bridge. Westinghouse rejected the request that an SEA
representative be present when job offers were made to
Parker Road employees. Instead, it stated that it would
ask the employees to whom it intended to offer jobs at
Bay Bridge whether they would like to have an SEA
representative when the job is offered. The meeting ended
with an agreement to convene again the following week.
The final meeting was held on February 16, 1967.
Westinghouse stated that their Parker Road employees
would be given no preference for OR&E jobs at Bay
Bridge. In response to SEA's suggestion that its members
were looking for upgrade possibilities at OR&E,
Westinghouse replied that all moves had been lateral thus
far. SEA then pointed out new hires were getting high
code jobs; and that Parker Road employees should get a
chance for upgrade to the high code jobs. Westinghouse
replied that it considers upgrades when moving employees.
In response to SEA's request for a list of plant transfers
to Bay Bridge, Westinghouse replied that it could give this
list only on a weekly basis. SEA then countered with a
request for a planned list of all moves, and Westinghouse
replied that this depended on building occupancy space.
No agreement of any kind was reached at this meeting.
On March 10, 1967, SEA refiled its unfair labor
practice charge in this case.
D. The Staffing of the Bay Bridge Plant
Transfer of OR&E work and staffing of the Bay Bridge
plant with salaried, nonexempt employees began in early
January 1967. As reflected by Respondent's position
during the bargaining meetings detailed above, it was
Respondent's policy to invite the Parker Road employees
to file a request for a transfer to Bay Bridge on a
quit-rehire basis. Employees requesting a transfer were
then interviewed by supervisors of the Respondent.
Respondent's supervisors made it clear to the employees
at Parker Road both before and during the interviews that
there would be no union at Bay Bridge. Several employees
who were on checkoff did not submit a request because of
their concern over Respondent's decision not to recognize
the SEA at Bay Bridge and the consequent effect on their
right to be represented by the Union.
By early April, at which time the Regional Director for
Region 5 evaluated the staffing at Bay Bridge in reaching
his decision to issue a complaint in the instant case,
Westinghouse employed at Bay Bridge 110 employees of
the class that would have been included in an SEA-type
unit if the unit had been recognized at Bay Bridge for the
sort of unit it represented at Parker Road Of these, 63
were newly hired' employees and not relocated there from
another Westinghouse plant, while 47 had been relocated
from other Westinghouse facilities. In tabular form, this
appears as follows-
Total 110
New hires 63 (57%)
Relocates 47 (43%)
From Parker Road plant 38
On 'checkoff 't 18 (16 %)
Not on checkoff 20 (17%)
From other locations 8
SEA units 5
On checkoff 12 1 (1 %)
Not on checkoff 4
IBEW units
Unrepresented units
2
643
By the time the complaint had issued in this case in
June 1967, the salaried, nonexempt complement at Bay
Bridge had risen to 142, of whom 81 were new hires and
61 were relocated employees.
Total 142
New hires
Relocates
81
61
(57%)
(43 %a)
From Parker Road 44
On checkoff 23 (15
Not on checkoff 21
From other locations 17
SEA units 14
On checkoff 3 (2%)
Not on checkoff 11
IBEW units 2
Unrepresented units 1
An analysis of the OR&E employees who were
represented by SEA at Parker Road in January 1967,
when staffing of Bay Bridge began, shows that of 123
whose fate is relevant to the issues here," 71 had
authorized Respondent to checkoff their union dues, while
52 had not. Of the 71 on checkoff, 24 were relocated at
Bay Bridge by mid-June 1967, while 47 were not." Since,
"The distinction between employees on checkoff and those not on
checkoff is for the obvious reason that checkoff was a means by which
Westinghouse was aware of the employees' affiliation with the Union. Of
course, some employees not on checkoff may have been members of SEA,
but that tact may not have been known to Westinghouse.
"The record shows that there were 130 SEA-represented employees at
the Parker Road on January 15, 1967 Of these, 6, viz, Andrews, Fant,
Jiles, Glover, Herbert, and Shisler, are excluded from the computation
because they left the Parker Road unit on or before February 1, 1967 for
(various reasons having no bearing on the staffing of Bay Bridge. A seventh
employee, Thurfield, who was not on checkoff, is also excluded . Thurfield
was offered relocation at Bay Bridge, but later rejected it
"Of these 47, 3, viz, Brookhart , Seiber, Slaughter , left before June 15.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under Respondent's policy, submission of a request for
transfer was a prerequisite for relocation at Bay Bridge,
selection of Parker Road employees for the Bay Bridge
facility was limited to the 83 of the 123 employees who
had submitted such request. Of the 40 who did not submit
requests, 23 were on checkoff, while 17 were not.1-5 Of the
83 employees who did submit a request for transfer, 47
went to Bay Bridge, while 36 did not. Of the former, 24
were on checkoff, while 23 were not. Of the 36 who had
requested transfers but who were not selected to go to Bay
Bridge, 24 were on checkoff while 21 were not. Analyzing
the foregoing in tabular form, we find the following
Parker
Road
Unit
Requested
Transfers
Transferred to
Bay Bridge,
Portion
of Class
Portion of
Requests
On checkoff 71 48 24 33.8 % 50 %
Not on checkoff 52 35 23 692% 65.7
Total 123 83 47 38.2% 56.6 %
In January 1967, ten employees in the Parker Road
unit, held official positions in the Union." Of these ten,
five filed requests for transfer to Bay Bridge; and of the
five only one, Delaney, has been relocated at Bay Bridge.
In contrast to the 47 (38 percent of unit) of salaried,
nonexempt employees who were relocated from Parker
Road to Bay Bridge on a quit-rehire basis, 90 to 95
percent of the salaried, exempt employees, i.e.,
professional and managerial employees not represented by
SEA or any other labor organization, who were located at
Parker Road on January 15, 1967, were transferred to
Bay Bridge. Such employees were not required to go
through a quit-rehire procedure.
Following the transfer of OR&E work to Bay Bridge,
Westinghouse transferred weapons work to Parker Road.
The amount of work being performed at Parker Road at
the time of the hearing appeared to be in a state of flux.
On the one hand, employees have worked overtime; on the
other, some employees occupy their time by reading lay
periodicals Employees have been put up for disposition
because of lack of work, but the disposition procedure was
halted after intervention by SEA. To provide work for
employees at Parker Road, Westinghouse has "contracted
out" work, i.e., transferred work from other plants to
Parker Road
"As previously noted, several employees who were on checkoff did not
submit a request because of their concern over Respondent ' s decision not
to recognize SEA at Bay Bridge.
"Schneider, Haase , Uhlig, Kuhn, Bezelik, Kerchner , Apple, Scallio,
Delaney, and Lehnert
E. Alleged Independent Violations of Section 8(a)(1)
1. Moore's statement to Lozar
Roselyn Lozar, a stenographer, testified that in
December 1966, she received from SEA two documents,
one an authorization for dues checkoff and ' the other a
statement that the signer desired to be represented by
SEA when transferred to Bay Bridge. She took them to
her supervisor, Benjamin Moore, and asked whether she
was going to Bay Bridge and solicited his advice as to
whether she should sign the documents. He told her that
he could not tell her that she was going. As to the card
about being represented at Bay Bridge,
He told me, "I would say if you sign this card, then
your request for transfer would not be considered."
Then I asked him what I should do about the dues
card, and he said, "Well, if they are not going to have
the Union then there wouldn't be any need for you
signing the dues card," or some words to that effect.
Moore admitted that he had a conversation with Lozar,
but denied making any statement to the effect that
Lozar's request for transfer to Bay Bridge would not be
considered if she signed a statement indicating her desire
for representation by SEA. According to Moore, there
was no conversation concerning her,signing the request for
continued representation by SEA, because "I would be
very sensitive about that, I would tend to indicate an
interest 180 degrees away than what she was trying to
apparently get me to say to her " Yet, on
cross-examination, Moore was unable to state what Lozar
was trying to get him to say.
I credit the testimony of Lozar who testified in a
straightforward manner . Lozar is no longer employed by
Westinghouse and indicated some concern lest the fact
WESTINGHOUSE ELECTRIC CORPORATION 645
that she testified against Westinghouse be used by
Westinghouse as a reason for refusing to give her a good
reference to future employers. Furthermore, Lozar's
testimony that Moore told her that there would be no
union at Bay Bridge is entirely consistent with the
testimony of a number of other, witnesses who were so
told by their supervisors. On the other hand, Moore's
testimony that he did not answer Lozar's question about
signing the representation form because of what Lozar
was trying to get him to say does not ring true.
2. Jaffe's Statment to Schneider
David Schneider, Parker Road plant representative for
SEA, testified that on January 11 or 12, 1967, Albert
Jaffe, Manager of the Ocean Resources Program, spoke
to him at the Morrell Park plant, at which Schneider was
temporarily working, about Schneider's future and the
decision not to move him to Bay Bridge with the project,
despite Jaffe's desire to have him. According to Schneider,
Jaffe told him that "between friends, I would have to
choose a road between either a professional career with
the Company or a union activity career . between
friends, you will have to choose your work between a
professional career or a union activity career . . . I then
pointed out to Mr. Jaffe how I felt ... that a man should
be judged solely on his abilities, and not on his union
activities, he agreed with me, but he said, however, there
may or may not be members of higher management that
agree or disagree with you."
Jaffe, called by the Respondent, testified that he told
Schneider that he was not going to Bay Bridge; "that the
drafting department had to make the decision, . . . that I
had specifically asked for him, as well as some of the
other draftsmen to transfer down to Bay Bridge, because I
was quite satisfied with their work," but that he "was not
his supervisor, the drafting department was his line
supervision, and they had to make the decision as to
which employees would be assigned where." According to
Jaffe, Schneider "voiced the opinion that he thought that
perhaps the reason that he was not going down, was
because he had union activity." Jaffe replied that he "did
not feel that this was right, as far as I was personally
concerned, that this was not the case, it was strictly a
question that the drafting department had an assignment
for him at Parker Road, they made that decision." Jaffe
further testified that on several occasions, Schneider had
come to him and asked him privately what advice he
could give him in terms of his own personal career, and
Jaffe advised him to take additional schooling, that "he
was acquiring a lot of very valuable experience and we do
have ground rules whereby a person can achieve a certain
educational level and combine this with a certain level of
experience, we might be able to promote him to
engineering." On one of these occasions, Schneider raised
a question whether there would be "any kind of stigma or
problem with respect to his career, by the fact that he was
active in the Union's work."
Jaffe replied:
I told him that as far as I was personally concerned, it
certainly wouldn't be, but that 1[ considered him a
capable individual and that eventually, either in the
drafting line or the engineering line, if he decided to go
that'way, but I felt that he was personally capable of
moving up the line, eventually into supervision, and I
did point out to Dave that if it ever came to the point
where he was interested in getting into supervision,
which is a phase of management, he would have to
make a decision as to being with the Union or being
with management, but until that time, it was strictly up
to him, it made absolutely no difference to me, I didn't
judge him on that basis. I didn't think that
Westinghouse as a corporation would ever judge him on
that basis.
Both Jaffe and Schneider appeared to be credible
witnesses. It is apparent to me that Schneider
misinterpreted Jaffe's remarks. As indicated above, what
Jaffe was telling Schneider was that if Schneider took
additional schooling and improved himself to the point
where he could be made a supervisor, he would have to
choose between union activity and supervision. Jaffe's
statement was not made in the context of why Schneider
was not selected to go to Bay Bridge. In view of the
foregoing, I find that Jaffe's statement was not violative
of Section 8(a)(1) of the Act, and the complaint should be
dismissed in this regard.
CONCLUDING FINDINGS
1. Bay Bridge as an accretion to, or relocation of,
Parker Road
As noted above, the General Counsel tried the instant
case on alternative theories, viz., that Bay Bridge is an
accretion to the Parker Road plant, or that it is a
relocation of the OR&E work previously performed at
Parker Road. The General Counsel now takes the position
that Bay Bridge "appears to be a complete relocation of
all Respondent's OR&E work, since substantially all the
OR&E work formerly done at Parker Road has been
transferred there, along with OR&E projects formerly
located at Morrell Park and the Administrative Service
Building."" However, the general Counsel contends that
the alternative accretion finding is not ruled out. Thus, the
General Counsel points to the description of the unit set
forth in the Agreement between Westinghouse and the
Federation of Westinghouse Independent Salaried Unions
(national contract):
All clerical and technical employees of the Underseas
Division of the employer at its Parker Road, Baltimore,
Maryland, Plant, excluding .. [Emphasis supplied by
the G. C.]
Consequently, General Counsel argues: (1) if it is found
that enough OR&E work will continue to be done at
Parker Road despite the opening at Bay Bridge to justify
a conclusion that Parker Road will continue as essentially
an OR&E facility in addition to Bay Bridge, or (2) if it is
concluded that the form in which the Parker Road
certification was couched by the parties, i.e., an Underseas
Division certification rather than an OR&E certification it
would be appropriate to find that Bay Bridge is an
accretion to Parker Road and the two plants together now
constitute one appropriate unit for bargaining. In
addition, the General Counsel points out that there is an
additional indicium of accretion in the fact that some, but
not all, Parker Road employees have been moved to Bay
Bridge
The alternative accretion theory must be ruled out. The
use of the words "Underseas Division" in the certification
in the Parker Road unit in the national contract is not
controlling, because the same language appears in the
certification of the Lansdowne and Morrell Park plants in
17 G.C. brief, p 32.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the national contract, each of which is recognized as a
separate unit. Moreover, as the General Counsel concedes,
the pattern of bargaining between Westinghouse and SEA
in the Baltimore area `is on a one-plant one-unit basis,
although there have been some minor exceptions. Nor can
it be found on the basis of the record in the instant case
that OR&E work will continue to be done at Parker
Road. To the contrary, it appears that weapons work is
now being done there. In sum, the very concept of Bay
Bridge announced by Westinghouse, viz., a center to house
its ocean research and engineering activities, would seem
to preclude any finding other than that Parker Road, as
an OR&E facility, has been relocated at Bay Bridge.
Accordingly, I find and conclude that all salaried,
technical, clerical, and maintenance employees of the
Respondent located at , its Ocean Research and
Engineering Center, Sandy Point, Maryland (Bay Bridge),
excluding all employees of the Engineering and Service
Department, all hourly paid employees, all confidential
employees, all Industrial Relations assistants, interviewers,
buyers, guards, professional employees and supervisors as
defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b),
of the Act.
2. The independent 8(a)(1) violation
Mrs. Lozar wanted to go to Bay Bridge because she
had bought a home in nearby Bowie. She had filed a
request for transfer. When she asked her supervisor,
Moore, whether she should sign the forms which she had
received from the Union, he told her that if she signed the
request for representation by SEA at Bay Bridge, she
would not be transferred. This was a clear threat of
reprisal for engaging in union activity. Accordingly, I find
and conclude that Respondent thereby violated Section
8(a)(1) of the Act.
3. Violations of Section 8(a)(3)
Respondent's failure to transfer Lozar to Bay Bridge
was also violative of Section 8(a)(3) of the Act. When she
was hired at Parker Road, she was expressly asked
whether she would be able to move with the job when the
time came, and she committed herself to do so. Yet when
it came time to move, Moore, Lozar's supervisor, picked
D. R. Buckler, the other stenographer under his
supervision, to move to Bay Bridge. He explained his
decision as follows: He would need only one stenographer
at Bay Bridge, and in selecting Buckler, he exercised his
management prerogative. Yet the facts indicate that it was
Lozar's -ffiliation with the Union that was the
determinative factor. Thus, by Moore's own admission,
Buckler was not a better stenographer than Lozar.
Second, Lozar had seniority, having been hired in July
1964, while Buckler was hired in October 1966. Third,
Lozar was a member of the Union, a fact known to
Westinghouse by virtue of her being on checkoff, while
Buckler had never manifested any interest in the Union.
The Lozar case is merely illustrative. The record is
convincing that what was done in this specific instance
was part and parcel of a policy determination on the part
of Westinghouse to transfer as few union members from
Parker Road as possible and to staff Bay Bridge with a
majority of new hires, so that SEA would not have a
majority at Bay Bridge. Thus, supervisors told a number
of employees at Parker Road that there would be no
union at Bay Bridge. This, in itself, deterred several
employees from requesting a transfer, and as previously
noted, the filing of a request for a transfer was made a
prerequisite by Westinghouse for relocating employees at
Bay Bridge. Second, the statistics analyzed above
demonstrate that Westinghouse carried out this policy
determination. Only 33.8 percent of employees on
checkoff at Parker Road were transferred to Bay Bridge.
This compares with 69.2 percent of the employees not on
checkoff. Similarily, only 50 percent of checkoff
employees requesting a transfer were relocated at Bay
Bridge, while 65.7 percent of employees not on checkoff
who had requested transfers were relocated.
Although 90 to 95 percent of the professional and
managerial employees at Parker Road were transferred to
Bay Bridge, only 47 or 38.2 percent of the salaried,
nonexempt employees were transferred.
This is further illustrated by the fact that in early April
1967, new hires at Bay Bridge represented 57 percent of
the total complement of salaried, nonexempt employees,
and although staffing at Bay Bridge increased between
April and June, it is significant that the proportion of new
hires to relocated employees remained precisely the same,
viz., 57 percent new hires against 43 percent relocated
employees.
Respondent explains the foregoing discrepancies on the
ground that, with regard to the transfer of almost the
entire staff of professional employees, such employees are
essential to an OR&E project, while salaried, nonexempt
employees can be trained to do the work. With regard to
the overwhelming proportion of new hires, Respondent
explains that it was seeking to tap a new labor market in
the Annapolis area. In justification of its decision to hire
in the Annapolis area, Respondent demonstrated, that
starting in May 1965, employment picked up in the
Baltimore area, and by the end of that year over 2,800
persons had been brought in. Nevertheless, at the
beginning of 1966, it had openings available for some 570
more employees. In 1966, the need for people doubled,
and at one time over a thousand openings existed. Union
President Hare admitted that in the latter part of 1966
and through mid-1967, it was a "booming" employment
market. In particular, a critical shortage of employees
existed in the skilled areas, including draftsmen, electrical
laboratory technicians, and mechanical laboratory
technicians. Finally, in September 1967, the rapid hiring
pace slackened, and in October 1967, some 100 employees
were laid off at Aerospace, Surface and PSED However,
no reduction or layoffs took place in the Underseas
Division.
In 1966, Gerald Moore, Employment Manager of the
D.S.C., spoke to the manager of the Maryland State
Employment Office in Annapolis and personnel managers
of several Annapolis companies concerning the availability
of labor in that area. All assured him that skilled people
were available and ready to go to work. Moore then
assigned one of his assistants, Harry S. Bullen, to the
Annapolis area to see if people were really available.
Respondent ran an advertisement for 4 days in an
Annapolis newspaper and secured a large number of
applications. Also, during 1967, Respondent ran a series
of advertisements in newspapers in a large number of
cities and towns in Pennsylvania and Maryland, including
the Eastern Shore, for positions "in Baltimore and
Cockeysville." On the basis of the foregoing, Respondent
argues that valid economic considerations constituted the
basis for hiring in the Annapolis area as much as possible.
The contention has a surface plausibility which
evaporates upon analysis. First, Annapolis was not a
WESTINGHOUSE ELECTRIC CORPORATION 647
virgin labor market for Westinghouse, nor was it a
distinctively separate market. Thus, the roster at Parker
Road in January 1967, shows that there were 13
employees (10 percent of the unit) from the Annapolis
area on the payroll.1e Secondly, Respondent's witnesses
were unamimous in agreeing that the preferring of
strangers over old employees was highly unusual and
contrary to established company policy. Assistant
Industrial Relations Manager Wallace testified that
Westinghouse generally hired new employees only as a
last resort; and Employment Manager Moore testified
that the Company usually fills vacancies by upgrading
within the unit first or by honoring a request for transfer
from another unit before turning to new applicants for
employment." Finally, Westinghouse' s decision to staff
Bay Bridge with a majority of new hires cannot be
considered as a management decision to remedy an
unusual employment situation, because it is tainted by the
fact that Westinghouse had determined as early as March
1966, that there would be no union at Bay Bridge, and
various supervisors had so informed employees at Parker
Road who might be interested in transferring to Bay
Bridge.
In sum, Respondent by staffing Bay Bridge with a
majority of new hires pursuant to a policy not to
recognize SEA at that facility, and by selecting for
relocation a disproportionate number of employees not on
checkoff violated Section 8(a)(3) of the Act. Differential
Steel Car Company, 75 NLRB 714; Piasecki Aircraft
Corporation, 123 NLRB 348, 349; Robertshaw Controls
Company, 161 NLRB 103, enfd. in part denied in part,
386 F.2d 377 (C.A. 4).20
4. Violations of Section 8(a)(5)
to the Parker Road plant; that the establishment of Bay
Bridge was economically motivated; and that SEA did not
have a majority at Bay Bridge. Respondent is correct in
the contention that Bay Bridge was not an accretion to
Parker Road. It is also correct in its contention that the
establishment of Bay Bridge was economically motivated
However, Respondent's determination not to recognize
SEA at Bay Bridge, made even before the plant was
completed, and its announcement of that policy to Parker
Road employees, taint the economic motivation and give
the move to Bay Bridge some aspects as a "runaway"
shop. The fact that SEA did not have a majority at Bay
Bridge after the plant was staffed is of no consequence, as
this result was accomplished by Respondent's conduct of
requiring requests for transfer, discouraging such requests
by the announced policy that there would be no union at
Bay Bridge, discriminating against union members in
honoring requests for transfers, and staffing Bay Bridge
with a majority of new hires.
Pertinent in this connection is the Board's holding in
California Footwear Company, 114 NLRB 765, enfd. in
this regard, 246 F.2d 886 (C.A. 9), where the Board said
at pp. 767, 768, and 769:
We can see no real difference between the case of an
employer who decides to move his plant to run away
from his union rather than for economic reasons, and
an employer, who, as here, moves his plant for
economic reasons but decides to utilize the move as an
opportunity to get rid of the union . That the
Union cannot muster a majority at the new plant
because the conduct has achieved its desired end is no
more material in finding and remedying a violation of
the existing obligation to recognize and bargain with
the Union in the latter situation than in the former.
a. Respondent's duty to bargain with SEA concerning
the move
Respondent contends that it had no obligation either to
recognize or to bargain with SEA as the representative of
the employees at Bay Bridge. In support of its contention,
it argues that Bay Bridge did not constitute an accretion
"Six were from Annapolis, and seven from the area surrounding
Annapolis, including one from Grasonville on the Eastern Shore
"This is not negated by the testimony of George Nicholson,
Westinghouse's Assistant Director of Labor Relations , who testified that
generally the Company does not move salaried , nonexempt employees
when a new plant is opened It is clear from the context of his testimony,
that Nicholson was talking about moves of such a distance that
professional or managerial employees who are transferred have their
moving expenses paid by the Company . The move of OR&E from Parker
Road to Bay Bridge - a distance of only 26 miles - was not of this type,
as no transfer allowances were paid, and many salaried, nonexempt
employees were in fact, relocated.
"The rationale of the Court of Appeals for the Fourth Circuit in
refusing to enforce the 8(a)(3) aspect of the case is inapplicable to the
instant case The Court pointed out that the only possible evidence of
antiunion animus was the statement of the employer ' s personnel manager
to the effect that the company was not going to take the union to the new
plant. This, the Court said , was de minimis when compared to the fact that
there were 269 employees at the new plant, while only 31 employees of the
old plant had evidenced any interest in transferring . In the instant case,
however, not only did the Respondent have a fixed determination and
policy not to recognize the Union at Bay Bridge, but supervisors so
informed employees at Parker Road who might be interested in
transferring, thereby discouraging transfers by employees who desired
continued representation by SEA. In addition , the relocating of all
employees on checkoff who had requested a transfer, viz , 48, would have
given SEA a substantial nucleus at Bay Bridge, just short of a majority in
April 1967
Moreover, viewing this case in the most favorable
light possible to the Respondents, it is one where the
Union's loss of majority is solely because of conduct
which in part is lawful (an economic decision to move
the plant) but in part is unlawful in the subterfuges
adopted to utilize the move as an opportunity to rid the
Employer of the Union. In such circumstances the
well-established principle is that the burden is upon the
respondents to disentangle the consequence of their
lawful contract from the consequences of their unlawful
conduct; and hence to establish that the union's loss of
majority resulted from their lawful conduct; failing this,
the union's loss of majority must be deemed to flow
from their unlawful conduct.
* * * * *
We believe ... that effectuation of the policies of the
Act requires of the Board, in this type of case as in any
other, not permit an employer to profit by his own
unlawful conduct ....
The rule that an employer may not profit by its own
wrongdoing, particularly when such wrongdoing results in
a loss of majority, has been applied in many cases.
Ilustrative is Great Southern Trucking Co. v. N.L.R.B.,
139 F.2d 984 (C.A. 4), where the court said at 985:
While it is true that the loss of majority in the instant
case occurred, not among the employees composing the
original working force of the Company, but rather
among the changed personnel composed largely of new
employees who replaced the discharged employees, the
principle that the union is entitled to a reasonable
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presumption of the continuity of its majority status and
an employer may not profit by its own wrong doing is
nonetheless applicable.
The court quoted from the decision of the First Circuit
in N.L.R.B. v. Franks Bros. Co., 137 F.2d 989, 994
(subsequently affirmed by the Supreme Court, 321 U.S.
702), as follows (139 F.2d at 986):
The Board might reasonably conclude that had the
union been recognized and installed as bargaining
representative of the employees, as the law required, it
probably would have retained its majority status by
accessions from these sources [new employees], despite
its loss of members resulting from normal labor
turnover. In other words, the Board has taken the
position that in a proceeding in this nature involving a
violation of Section 8(5), it is imperative in order to
effectuate the purposes of the Act, that an employer
gain no advantage from his dilatory tactics in refusing
to bargain collectively with a majority union. The fact
that it may be shown that by lapse of time the Union
had been unable to retain its majority is not a sufficient
basis for refusing to order affirmatively that the
respondent bargain with the union.
The Respondent relies on The Pierce Governor
Company, Inc., 164 NLRB No. 2, affd. sub nom. Intl.
Union United Auto Workers v. N.L.R.B., 394 F.2d 757
(C.A.D.C.). That case, however, is factually
distinguishable from the instant case. In Pierce, the Board
held that the company was under no obligation to bargain
with the union concerning the terms and conditions of
employment at the relocated plant, because "there can be
no basis for attributing the failure of Anderson [old plant]
employees to transfer to Upland [new plant] to any unfair
labor practice on the part of Respondent. Moreover, it is
clear from the record that at no time during the
bargaining over the effects of the move did a majority of
the production and maintenance employees represented by
the Union at Anderson have an interest in transferring to
Upland."
These crucial and determining elements found wanting
in the Pierce case are present in the instant case. Thus,
here 83 employees of a total of 123 comprising the unit at
Parker Road requested transfers to Bay Bridge.
Furthermore, Westinghouse actively discouraged union
employees from transferring to Bay Bridge by telling them
that there would be no union there and discriminated
against union employees in determining who would be
relocated, all pursuant to the fixed and unwavering policy
determination to staff Bay Bridge with a minority of
union employees so that it would have a colorable basis
for refusing to recognize SEA at Bay Bridge
Respondent also relies on Brown Truck and Trailer
Manufacturing Company, Inc., 106 NLRB 999, a case
which the Board distinguished in California Footwear
Company, supra, on the basis that the move in Brown did
not involve a plan to eliminate the union as the
representative of its employees. By the same token, Brown
is inapplicable to the instant case.
Apart from the foregoing, respondent's contention
misses the point. Except for refusal to recognize SEA at
Bay Bridge, Respondent is charged with a failure and
refusal to bargain with regard to the transfer of employees
to Bay Bridge, and such conduct is charged as having
occurred before and concurrent with the transfer of
employees to Bay Bridge. Since SEA was the bargaining
representative of the employees at Parker Road, it is well
settled that Respondent was required, upon request, to
bargain with the Union with respect to the contemplated
move as it affected the employees , such as the transfer of
employees from Parker Road to Bay Bridge. Cooper
Thermometer Company, 160 NLRB 1902 , 1912; enfd. in
this respect 376 F.2d 684 (C.A. 2); Brown Truck and
Trailer Manufacturing Company, Inc., 106 NLRB 999,
1000 ; N.L.R.B . v. Royal Plating & Polishing Co., 350
F.2d 191 , 196 (C.A. 3); N.L.R B . v. Rapid Bindery, Inc.,
293 F .2d 170, 172 (C.A. 2), enfg. as modified 127 NLRB
212; Fiberboard Paper Products Corp . v. N.L.R. B., 379
U.S. 203. As the Court of Appeals for the Second Circuit
said in the Cooper case at 2116 , an employer relocating in
his plant is required "to discuss with it [the union] the
basis on which employees may transfer and, in that
connection , to give information as to jobs in the new plant
essential to the intelligent formulation of the union's
request."
b. Respondent's refusal to furnish information as to
the staffing of Bay Bridge
The complaint alleges that the Respondent refused to
furnish the Union, when requested, with complete and
accurate ' information respecting the relocation of
employees and bargaining unit work from the Parker
Road facility to the Bay Bridge facility. Respondent
contends that it was under no obligation to furnish SEA
with information concerning the wages or working
conditions at Bay Bridge, because SEA did not represent
a majority of the employees at Bay Bridge. Respondent
contends further that, whatever its duty was, it complied
therewith. The first contention is without merit. To begin
with, the fact that SEA did not represent a majority of
the employees at Bay Bridge, after the plant was staffed,
is of no consequence, inasmuch as it was Respondent's
unfair labor practices which prevented the Union from
representing a majority at Bay Bridge. Secondly, the
information related not merely to the status and seniority
of employees relocating at Bay Bridge, but also affected
the status and seniority of employees remaining at Parker
Road, including the possibility that they would be put up
for disposition in the event of their lack of work at Parker
Road.
Respondent's second contention is not supported by the
record. As a result of the mounting concern of Parker
Road employees as to what would happen when OR&E
work was transferred to Bay Bridge, SEA Plant
Representative Haase asked Henderson for a meeting. At
the meeting held on January 13, 1966, SEA posed 12
specific questions relating to the transfer of OR&E work
to Bay Bridge. To each question, Henderson's reply was,
"I don't know." Nor was SEA able to obtain any answers
to these questions for the ensuing 10 months.
In the meantime, Westinghouse had determined that it
would not recognize SEA at Bay Bridge, and Employment
Manager Moore was surveying the Annapolis employment
market as early as May 1966. In September 1966, Boak,
of the Industrial Relations Department, had been assigned
to work on "planning tables" and began working on them
with Terwilliger, Assistant to the Manager of the
Underseas Division. Despite this and despite the further
fact that, at that time, Westinghouse planned to begin
staffing the Bay Bridge in less than 3 weeks, Assistant
Industrial Relations Manager Wallace stated at the
November 30 meeting that he was unable to inform SEA
which functions or activities would go to Bay Bridge,
stating only that it would be oceanographic research work,
but that he could not be more specific. And, as previously
WESTINGHOUSE ELECTRIC CORPORATION 649
noted, Terwilliger also stated that he did not know
"exactly." I find it difficult to believe that a corporation
of the size and management of Westinghouse did not have
information by November 30 as to how it would staff the
Bay Bridge plant, which was originally scheduled for
completion on October 1, 1966.
As previously noted, the second meeting between the
Union and Westinghouse occurred on December 22, 1966.
Although at the November 30 meeting, Wallace had
informed the Union that Bay Bridge would begin limited
operations on December 19, he announced at this second
meeting that there would be a further delay to January
1967. At this meeting, the information furnished to the
Union about the staffing of Bay Bridge was sketchy,
consisting of broad generalizations as to which groups
would be located where. As to codes and pay levels,
Wallace stated that "codes have not been established yet."
Again, I find it difficult to believe that although there had
been a December 19 deadline for the move to Bay Bridge,
yet three days later on December 22, Westinghouse was
unable to inform SEA what code and pay levels would be
involved in the staffing at Bay Bridge.
The Bay Bridge plant finally opened in January 1967.
Not until the third and fourth meetings on February 10
and February 16, approximately a month after
Westinghouse's staffing at Bay Bridge principally with
new hires was a fait accompli, did Westinghouse furnish
SEA with the detailed information on staffing that the
Union had sought more than a year before and which it
needed months before, if it were to carry out intelligently
its duty of representing the Parker Road employees in the
Bay Bridge,matter.
In view of the foregoing, I find and conclude that
Respondent's failure to furnish SEA promptly with
information concerning the staffing and code levels at Bay
Bridge was violative of Section 8(a)(5) of the Act.
c. Westinghouse bypasses the Union
Although the transfer of employees from Parker Road
to Bay Bridge was a condition of employment and thus a
bargaining matter, Westinghouse did not bargain with
SEA concerning these transfers, but, instead, announced
to the employees that if they desired to transfer they
should file a request therefor and thereafter discussed
these transfer requests with individual employees. At the
third meeting held on February 9, 1967, the Union
demanded information about jobs available at Bay Bridge
and employees who were being selected to fill them, with
the right to have a union representative present when
relocations were discussed with individual employees. As
previously indicated, Westinghouse agreed to give the
Union only the names of the employees and to permit an
SEA representative to be present if the employees so
requested. By bypassing the Union to deal directly with
employees in the bargaining units represented by SEA,
Westinghouse violated Section 8(a)(5) of the Act.
Roberishaw Controls Co., supra; Cooper Thermometer
Co., supra, Die Supply Corp., 160 NLRB 1326, 1343.
d. The alleged unilateral change in a condition of
employment
The General Counsel contends that Westinghouse
committed an unfair labor practice by unilaterally
imposing the quit-rehire requirement on Parker Road
employees transferred to Bay- Bridge. Requiring an
employee desiring to transfer from one plant to another to
quit his employment and to be rehired at the new plant is
quite obviously a condition of employment. However, the
record does not substantiate the contention that it was
unilaterally imposed by the Respondent. This method of
transferring employees from one plant to another had
been in effect since 1963, and the Union was well aware of
it. It cannot, therefore, be said that it was unilaterally
imposed by the Respondent at this time.
As explained by the Respondent, the quit-rehire
procedure is nothing more than a paper transaction which
indicates the identity of the employees in any, particular
bargaining unit As previously noted, the General Counsel
concedes that quit-rehire as a condition of employment
has very little significance at the present time, inasmuch
as it does not affect the tenure of employment with
Westinghouse. However, the General Counsel argues that
this could change in the future as a result of negotiation
between Westinghouse and the Union, and employees who
have a quit-rehire on their records as a result of the move
from Parker Road to Bay Bridge would find their
seniority rights seriously curtailed. In this regard, at the
December 22 meeting, Union President Hare, aware of
Westinghouse's interpretation of the quit-rehire procedure,
asked Wallace how quit-rehire would affect an employees'
continuous service. Wallace replied that there would be no
effect on the employees' continuous service. Whereupon,
Hare asked Wallace for a letter to that effect. Wallace
replied that he would let him know. However, no such
letter was ever given to the Union.
What Hare was asking Westinghouse for was an
unequivocal statement in writing that, as claimed by
Westinghouse, quit-rehire would have no effect on
employees' tenure. Since Westinghouse had claimed that it
would have no effect, the Union was entitled to such a
statement from Westinghouse in writing. Respondent's
refusal to put into writing its verbal assurances is an
indicium of Respondent's subjective bad faith in
bargaining. If there was no danger to employee status in
quit-rehire, why was Westinghouse reluctant to put its
assurances in writing for the guidance of future
management? Accordingly, I find and conclude that
Respondent did not bargain in good faith on this issue.
N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 152-153.
e. Respondent's failure to apply the upgrading
provisions of the national contract
Article IX, Section 6, of the national contract provides
for upgrading of employees within the bargaining units.
Respondent admits21 that these provisions were not
applied to employees relocating from Parker Road to Bay
Bridge. Respondent contends, however, that this provision
would be applicable only if Parker Road and Bay Bridge
constituted a single bargaining unit, and that since Parker
Road and Bay Bridge are separate units, it did not violate
its obligation under Section 8(a)(5) by not applying this
contractual provision.
I have previously found that Bay Bridge is not an
accretion to Parker Road. Hence, both plants are separate
units. However, it does not follow that this provision of
the national contract is inapplicable to Bay Bridge. From
what has been said above, it is clear that but for
Respondent's unfair labor practices , the unit at Bay
Bridge would have been substantially the same unit as had
existed at Parker Road before January 1967. And had this
been so, Respondent would have had no basis whatsoever
"Br., p 55
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for refusing to apply the upgrading provisions of the
national contract. Accordingly, I find and conclude that
Westinghouse violated Section 8(a)(5) of the Act by
failing to apply article IX, section 6 of the national
contract in staffing Bay Bridge.
f. Respondent's reliance upon IUE's claim as an
impediment to recognizing SEA
Respondent contends that it was justified in rejecting
SEA's request for recognition because the conflicting
claim of Local 130 of the IUE was alive during the
critical period between November 1966 and April 1967.
The contention is patently without merit. The record
discloses that IUE was interested in representing only
production and maintenance employees, if any were
transferred to Bay Bridge._ At no time did IUE seek to
represent salaried, nonexempt employees, and
Westinghouse was well aware of this. Thus, on January 6,
1966, Eugene E. Watts, President of Local 130 of the
IUE, wrote to Industrial Relations Manager Lee,
referring to the announcement by Westinghouse of the
new facility at Bay Bridge, and said:
IUE Local 130 who is the bargaining representative for
all Production and Maintenance employees of the
Underseas Division therefore request that IUE Local
130's collective bargaining agreement be extended to
this new location.
On January 24, 1966, Westinghouse replied in pertinent
part as follows:
Please be advised that, inasmuch as construction of this
plant facility has already begun and because we have no
employees in the unit you refer to at that location at
this time, we necessarily reject your claim as being
untimely, inappropriate, and without any supporting
basis.
Watts testified that because of rumors concerning the
transfer of work to Bay Bridge, he held numerous
conversations with Assistant Industrial Relations Manager
Wallace and other officials of Westinghouse concerning
the transfer of production and maintenance work to Bay
Bridge. In these conversations, Watts was consistently told
that there would be no production and maintenance work
done at Bay Bridge. Thus, Watts testified as follows:
Q. Your conversations with Westinghouse officials
have always indicated your interest in representing
production workers and your reply as always indicated
that there wouldn't be any production workers at the
Bay site. Is that correct, Mr. Watts?
A. The replies have always been that this is work
that we would not normally perform.
Mr. Trezise - Let me get that last question. Am I
to understand that you only asked to represent
production workers.
Witness: Production and Maintenance
Q. (By Mr. Blackburn): You are only interested in
Production and Maintenance workers?
A. Yes. I said that earlier in my testimony, Mr.
Trezise.
The foregoing was corroborated by Wallace who
testified that early in 1966, he spoke to Watts and told
him that he doubted very much that there would be any
production type employees at Bay Bridge.
Despite the foregoing, at the November 30, 1966,
meeting, Wallace stated the Respondent's position as
follows:
The Company takes the position that at the Bay Bridge
Site Plant we will not recognize any Union in so much
as the I.U.E. has requested recognition at the site when
we first started construction on the building.
And completely inconsistent with the Respondent's
position as stated by Wallace is the following colloquy
which took place later at the same meeting:
Hare - Is any work or activity represented by
another Union being sent to the B/B site other than
that represented by the S.E.A.
Wallace - No, I am sure there is not.
Similarly, at the meeting of December 22, 1966, Hare
again asked, "Are you now, or planning in the future to
send work now represented by the IUE to the Bay Bridge
or Parker Road?" To this, Terwilliger replied, "No, that
will stay at Lansdowne."
In these circumstances, Respondent's attempt to rely on
the allegedly conflicting claim of IUE as a basis for not
recognizing SEA is completely unjustified, and raises a
serious question as to Respondent's good faith in
bargaining with SEA.
In view of all the foregoing, I find and conclude that
the Respondent did not bargain in good faith with the
Union, in violation of Section 8(a)(5) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the business
operations of the Respondent set forth in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
VL THE REMEDY
Having found that Westinghouse Electric Corporation
has engaged in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) of the Act, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent engaged in unfair
labor practices which contributed to SEA's loss of
majority at Bay Bridge, I shall recommend that
Respondent be required to recognize SEA and, upon
request, bargain collectively with SEA as the exclusive
representative of the employees in the appropriate unit
with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an
understanding is reached, embody such understanding in a
signed agreement.
I shall further recommend that Respondent transfer to
Bay Bridge all persons who were employed at the Parker
Road plant prior to January 1, 1967, who, within 15 days
from the date of the notice to be posted by the
Respondent, file a request for such transfer with the
Respondent, discharging, if necessary any employee hired
at Bay Bridge who had not immediately prior to such
hiring been employed by the Respondent at the Parker
Road plant.
I shall further recommend that Respondent apply the
upgrading provisions of article XI, section 6, of the
agreement between Westinghouse Electric Corporation
and the Federation of Westinghouse Independent Salaried
Unions, dated October 17, 1966, to all employees at Bay
WESTINGHOUSE ELECTRIC CORPORATION
Bridge who have transferred from the Parker Road plant
or who may transfer to the Bay Bridge facility pursuant to
the preceding paragraph , and in applying said provisions,
the Respondent shall disregard the employment of persons
who had not previously been employed at the Parker
Road plant who may have been hired at code and pay
levels to which the former Parker Road employees may be
entitled under the provisions of that contract. Should any
of the former Parker Road employees be upgraded as a
651
result of the foregoing, Westinghouse should be required
to make them whole for any loss of earnings they may
have sustained by reason of Westinghouse's failure to
apply said upgrading provisions, said loss of earnings to
be computed from the date of the original staffing of the
Bay Bridge, with interest thereon at the rate of 6 percent
per annum. Isis Plumbing & Heating Co., 138 NLRB
716,
[Recommended order omitted from publication.]