Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 389 (N.L.R.B. 1969)

WESTINGHOUSE ELECTRIC CORP.
Westinghouse Electric Corporation and International
Union of Electrical , Radio and Machine Workers,
Local 456 , AFL-CIO. Case 22-CA-3685
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a charge filed by International Union of
Electrical, Radio and Machine Workers, Local 456,
AFL-CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 22, issued a
complaint dated February 25, 1969, against
Westinghouse Electric Corporation , herein called
Respondent , alleging that Respondent had engaged
in and was engaging in unfair labor practices within
the meaning of Section 8(a)(5) and ( 1) and Section
2(6) and (7) of the National Labor Relations Act, as
amended . Copies of the charge; and complaint and
notice of hearing before a Trial Examiner were duly
served upon Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance , that on December
10, 1956, the Union was duly certified by the
National Labor Relations Board ' as the exclusive
bargaining representative in a unit found
appropriate by the Board ; that on October 24, 1968,
the Board , in its "Decision of Review ,"' found that
employees in two disputed classifications are an
accretion to the above certified unit and that the
unit as clarified includes these two classifications;
and that, at all times since on or about October 25,
1968, Respondent has refused to bargain with the
Union as the exclusive bargaining representative of
Respondent' s employees in the unit found
appropriate as clarified , although the Union has
requested and is requesting it to do so . On March
10, March 26 , and April 1, 1969, respectively,
Respondent filed its answer with two amendments,
in which Respondent admitted its refusal to bargain
with the Union , but denied the appropriateness of
the unit as clarifed , and denied the commission of
the unfair labor practices alleged.
On April 9, 1969 , the General Counsel filed with
the Board a Motion for Summary Judgment, and a
supporting memorandum, on the ground that no
issue of fact or law is in dispute since all matters
raised have been determined by the Board in its unit
clarification proceeding,' and requesting , in view of
Respondent ' s answer, that the Board enter judgment
against Respondent on the pleadings . On April 14,
1969, the Board issued an Order, transferring the
proceeding to the Board , with a notice to show
'Case 2-RC-8364. This certification was pursuant to the Board's
Decision and Direction of Elections in Westinghouse Electric Corporation,
116 NLRB 1545.
'173 NLRB No. 43.
389
cause why the General Counsel's Motion for
Summary Judgment should not be granted.
Thereafter, Respondent filed an answer to the notice
to show cause, and a supporting memorandum.
Pursuant to the provisions of Section 3(b) of
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR
SUMMARY JUDGMENT
The record establishes that, pursuant to Board
Decisions and Directions of Elections, issued in 1950'
and 1956,' the Board duly certified and recertified
the Union as the exclusive bargaining representative
of an appropriate bargaining unit of office, clerical
and technical employees in Respondent's Jersey City
Works, Jersey City, New Jersey. In 1967, by a
petition filed under Section 9(b) of the Act, the
Union sought to include, as an accretion to its
certified unit, employees in the classifications of
Systems and Procedures Analysts "A" and "B" (as
well as certain other employees not in issue here.)
At that time, the unit description was as follows:
All office, clerical and technical employees of
Westinghouse Electric Corp., Jersey City Works,
150 Pacific Avenue, Jersey City, New Jersey,
including assistant buyers, but excluding all staff
assistants to department managers or the general
manager, buyers, confidential salary payroll
clerks, paymasters, industrial relations employees;
secretaries to Company officers, managers and
assistant managers, purchasing agents,
superintendents, and factory accountants; the
internal auditor, budget accountants, the audit
clerk, and other professional employees, guards,
and supervisors as defined in Section 2(11) of the
Act, as amended.
Thereafter, a hearing was held before Hearing
Officer Julius Cohn. All parties appeared and were
given full opportunity to participate in the hearing.
The Union and Respondent filed briefs in support of
their respective positions.
On October 18, 1967, the Acting Regional
Director for Region 22 issued a Decision and Order
Clarifying Bargaining Unit' in which he granted the
Union's request to include Systems and Procedures
Analysts "A" and "B" in the bargaining unit.
Specifically, and contrary to the contention of
Respondent, the Acting Regional Director found
that (1) these employees were technical employees
having a close community of interest with the
technical employees already in the unit, and were
not professional employees; (2) they were not
'Ibid.
'Westinghouse Electric Corporation, 89 NLRB 9.
' Westinghouse Electric Corporation , 116 NLRB 1545.
'Case 22-UC-11.
177 NLRB No. 49
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confidential employees; and (3) they could be
included in the bargaining unit by means of the unit
clarification procedure.
Thereafter, Respondent filed a timely request for
review. The Board, by telegraphic order dated
January 3, 1968, granted review only with respect to
issue (3) above, and denied review as to the other
issues. Both parties filed briefs in support of their
respective positions. On October 24, 1968, the
Board, in its Decision of Review, supra, rejected
Respondent's contentions, affirmed the Acting
Regional Director's findings, and found the disputed
employees to be an accretion to the certified unit.
On November 12, 1968, Respondent filed a motion
for reconsideration and request for oral argument,
which motion and request the Board denied on
December 18, 1968.
In its Answer to notice to show cause, and its
memorandum in support thereof, Respondent
contends that the General Counsel's motion should
not be granted since the Board erred in holding that:
(1) these employees are not professional employees;
(2) they are not confidential employees; and (3) they
could be included in the bargaining unit by means of
a unit clarification procedure. In support of its
contention, Respondent offers no additional
evidence, but asserts that the Board's Decision of
Review was contrary to established law, and urges
that the Board consider de novo the evidence
adduced at the hearing in Case 22-UC-11. We find
no merit in these contentions.
It is well settled that, in the absence of newly
discovered or previously unavailable evidence, the
Board will not relitigate in a subsequent
refusal-to-bargain proceeding matters which have
been disposed of in a prior related representation
case.' This matter having already been fully litigated
in the related unit clarification proceeding, it is clear
that no basis exists for relitigating it now.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the Commonwealth
of Pennsylvania. At all times material herein,
Respondent has maintained its principal office at 3
Gateway Center, Pittsburgh, Pennsylvania, and
various other places of business, including its
Elevator Division Plant at 150 Pacific Street, Jersey
City, New Jersey, herein called the Jersey City
Plant, and is now, and at all times material herein
has been, continuously engaged at said Jersey City
plant in the manufacture, sale, and distribution
'See Pittsburg Plate Glass Co. v. N L R B, 313 U S. 146; E-Z Davies
Chevrolet , 161 NLRB 1380, enfd . 395 F.2d 191 (C.A 9)
of elevator machines, electric controllers, and
related products.
During the past year , which period is
representative of all material times herein,
Respondent caused to be manufactured , sold, and
distributed at its Jersey City Plant, products valued
in excess of $50,000, of which products valued in
excess of $50,000 were shipped from said Jersey
City Plant in interstate commerce directly to States
of the United States other than the State of New
Jersey.
Respondent admits , and we find , that Respondent
is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and
Machine Workers, Local 456, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The Unit
The following employees at Respondent's Jersey
City Plant constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act:
All office, clerical and technical employees of
Westinghouse Electric Corp., Jersey City Works,
150 Pacific Avenue, Jersey City, New Jersey,
including assistant buyers, and Systems and
Procedures Analysts "A" and "B," but excluding
all staff assistants to department managers or the
general manager , buyers, confidential salary
payroll clerks, paymasters, industrial relations
employees; secretaries to Company officers,
managers and assistant managers, purchasing
agents, superintendents and factory accountants;
the internal auditor, budget accountants, the audit
clerk, and other professional employees, guards,
and supervisors as defined in Section 2(11) of the
Act, as amended.
B. The Request to Bargain and Respondent's
Refusal
Commencing on or about October 25, 1968, and
continuing to date, the Union has requested and is
requesting Respondent to bargain collectively with it
as the exclusive collective-bargaining representative
of Systems and Procedures Analysts "A" and "B"
as part of the above unit. Since on or about October
25, 1968, and continuing to date, Respondent has
refused, and continues to refuse, to bargain
collectively with the Union as exclusive bargaining
WESTINGHOUSE ELECTRIC CORP.
representative of the Systems and Procedure
Analysts "A" and "B" in the above described unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of Respondent in an
appropriate unit, that thereafter said unit was
clarified by the Board to include Systems and
Procedure Analysts "A" and "B ," and said unit is
constituted as described above, and that the Union
at all times since October 24, 1968, has been and
now is the duly certified exclusive bargaining
representative in the aforesaid unit , as clarifed,
within the meaning of Section 9(a) of the Act. We
further find that Respondent has, since on or about
October 25, 1968, refused to bargain collectively
with the Union as the exclusive bargaining
representative of the Systems and Procedures
Analysts "A" and "B" in the appropriate unit, as
clarified, and that, by such refusal Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act, we'
shall order that it cease and desist therefrom, and,
upon request , bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit as clarified , and, if an
understanding is reached , embody such
understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Westinghouse Electric Corporation is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union of Electrical Radio and
Machine Workers, Local 456, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All office, clerical and technical employees of
Westinghouse Electric Corporation, Jersey City
Works, 150 Pacific Avenue, Jersey City, New
Jersey, including assistant buyers and systems and
procedures analysts "A" and "B," but excluding all
391
staff assistants to department managers or the
general manager, buyers, confidential salary payroll
clerks, paymasters, industrial relations employees;
secretaries to Company officers, managers, assistant
managers, purchasing agents, superintendents and
factory accountants; the internal auditor, budget
accountants, the audit clerk, and other professional
employees, guards, and supervisors as defined in
Section 2(11) of the Act, as amended, constitute a
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 10, 1956, the above-named
labor organization has been the exclusive bargaining
representative of all employees in the appropriate
unit as clarified on October 24, 1968.
5. By refusing on or about October 25, 1968, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclusive
bargaining representative of the Systems and
Procedures Analysts "A" and "B" in the
appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By the aforesaid refusal to bargain, the
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Westinghouse Electric Corporation, Jersey City,
New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with International Union of Electrical,
Radio and Machine Workers, Local 456, AFL-CIO,
as the exclusive bargaining representative of Systems
and Procedures Analysts "A" and "B" in the
following appropriate unit:
All office, clerical and technical employees of
Westinghouse Electric Corp., Jersey City Works,
150 Pacific Avenue, Jersey City, New Jersey,
including assistant buyers, and systems and
procedures analysts "A" and "B," but excluding
all staff assistants to department managers or the
general manager , buyers, confidential salary
payroll clerks, paymasters, industrial relations
employees; secretaries to Company officers,
managers , assistant managers, purchasing agents,
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superintendents and factory accountants; the
internal auditor, budget accountants, the audit
clerk, and other professional employees, guards,
and supervisors as defined in Section 2(11) of the
Act, as amended.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization, as the exclusive representative of
Systems and Procedures Analysts "A" and "B" in
the aforesaid appropriate unit with respect to rates
of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Post at its Jersey City, New Jersey, plant,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly
signed by Respondent's representatives, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order," the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order National Labor
Relations Board and in order to effectuate the policies of
the National Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively with
International Union of Electrical, Radio and Machine
Workers, Local 456, AFL-CIO, as the exclusive
representative of Systems and Procedures Analysts "A"
and "B" in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive representative of
Systems and Procedures Analysts "A" and "B" in the
bargaining unit described below with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The
bargaining unit is:
All office, clerical and technical employees of
Westinghouse Electric Corporation, Jersey City
Works, 150 Pacific Avenue, Jersey City, New Jersey,
including assistant buyers and systems and procedures
analysts "A" and "B," but excluding all staff
assistants to department managers or the general
manager , buyers, confidential salary payroll clerks,
paymasters, industrial relations employees; secretaries
to Company officers, managers, assistant managers,
purchasing agents, superintendents and factory
accountants; the internal auditor, budget accountants,
the audit clerk, and other professional employees,
guards, and supervisors as defined in Section 2(11) of
the Act, as amended.
WESTINGHOUSE ELECTRIC
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal
Building , 16th Floor, 970 Broad Street, Newark, New
Jersey 07102, Telephone-201-645-2100.