Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1976

224 N.L.R.B. 899 (N.L.R.B. 1976)

WESTINGHOUSE ELECTRIC CORP 899
Westinghouse Electric Corporation and International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC Case 5-CA-7585
June 16, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
Upon a charge filed on October 14, 1975, by Inter-
national Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, herein called the Union,
and duly served on Westinghouse Electric Corpora-
tion, herein called the Respondent, the Acting Gen-
eral Counsel, herein called the General Counsel, of
the National Labor Relations Board, by the Regional
Director for Region 5, issued a complaint and notice
of hearing on October 31, 1975, amended on Decem-
ber 16, 1975, against Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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, complaint and amended com-
plaint, and notice of hearing before an Administra-
tive Law Judge were duly served on the parties to this
proceeding
With respect to the unfair labor practices, the
amended complaint alleges in substance that on
April 11, 1975, following a Board election in Case 5-
RC-8924, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate,' and that, commencing on or about April 15,
1975, and at all times thereafter, Respondent has re-
fused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so Respondent filed its
answers to the complaint and amended complaint,
admitting in part, and denying in part, the allegations
in the complaint
On February 2, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment Subsequently, on February 18,
1976, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted Respondent there-
after filed a response to Notice To Show Cause, enti-
tled "Memorandum in Opposition to Petitioner's
Motion for Summary Judgment" Subsequently, the
Union filed motions for leave to respond to
Respondent's memorandum and to strike the affida-
vit of D L Dotson which was attached to
Respondent's memorandum 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
Upon the entire record in this proceeding, the
Board makes the following
Ruling on the Motion for Summary Judgment
In its answers to the complaint and the amended
complaint, and in its response to the Notice To Show
Cause, Respondent admits its refusal to bargain but
attacks the propriety of the Union's certification in
the underlying representation case Respondent con-
tends the Board erred in setting aside the first elec-
tion, which the Union lost, and further contends Re-
spondent was denied due process by the denial of its
motion for specification of certain of the Union's ob-
jections to the first election and by certain of the
Hearing Officer's rulings at the hearing on the
Union's objections to the first election
Review of the record herein, including the record
in Case 5-RC-8924, reveals that, pursuant to a Stipu-
lation for Certification Upon Consent Election, an
election was held on June 12 and 13, 1974, which the
Union lost The Union filed timely objections to con-
duct affecting the results of the election alleging, in
substance, (1) threats, coercion, and intimidation by
named and unnamed supervisors, (2) interrogation
by named and unnamed supervisors, (3) posting of a
pay increase notice in the voting area, and (4) a dis-
criminatory no-solicitation rule After investigation,
on September 18, 1974, the Regional Director issued
his report on objections and notice of hearing in
which he recommended that the "pay increase" and
"no-solicitation rule" objections be overruled, and
directed a hearing on the Union's other objections 3
On September 24, 1974, Respondent moved the
Regional Director that the Union be directed to in-
form Respondent, by October 3, 1974, of the names
i Official notice is taken of the record in the representation proceeding
Case 5-RC-8924 as the term record is defined in Sees 102 68 and
102 69(g) of the Boards Rules and Regulations Series 8 as amended See
LTV Electrosystems Inc 166 NLRB 938 (1967) enfd 388 F 2d 683 (C A 4
1968) Golden Age Beverage Co 167 NLRB 151 (1967) enfd 415 F 2d 26
(C A 5 1969) Intertype Co v Penello 269 F Supp 573 (D C Va 1967)
Follett Corp 164 NLRB 378 (1967) enfd 397 F 2d 91 C A 7 1968) Sec
9(d) of the NLRA
2 In view of our determination hereinafter we find it unnecessary to rule
on the Union s motions for leave to respond and to strike the Dotson affida
vit or on Respondents alternative request for an evidentiary hearing there
on
s The Board on October 8 1974 adopted the Regional Directors recom
mendations and ordered that the issues raised with respect to the Union s
other objections be processed pursuant to the notice of hearing
224 NLRB No 123
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the unnamed supervisors and the times of all
events and conversations referred to in the Union's
objections or, alternatively, that the Regional Direc-
tor amend his report to recommend that these objec-
tions be overruled Thereafter, on September 27,
1974, Respondent filed with the Board in Washing-
ton, D C, a request for review of any ruling of the
Regional Director which may be adverse to
Respondent's motion for particulars On September
30, 1974, the Acting Regional Director referred
Respondent's motion to the Hearing Officer for rul-
ing Respondent, on October 4, 1974, supplemented
its September 27 request for review, asserting that the
referral, in effect, denied its motion for particulars 4
Treating Respondent's request for review as a re-
quest for special permission to appeal from the ruling
referring the motion for particulars to the Hearing
Officer, the Board, by telegraphic order dated Octo-
ber 9, 1974, denied such request as lacking in merit
At the hearing, the Hearing Officer denied
Respondent's motion for particulars and, in general,
ruled adversely to Respondent's various attempts to
exclude testimony as to the conduct of supervisors
not named in the Union's objections and to its re-
quests for recesses Following the conclusion of the
hearing, the Hearing Officer issued her report on ob-
jections in which she recommended that certain of
the Union's objections involving supervisory conduct
be sustained and that the election be set aside Re-
spondent filed timely exceptions to the report, con-
tending, inter alga, that the Hearing Officer erred in
sustaining these objections and that, due to the Hear-
ing Officer's rulings, Respondent was not given a full
opportunity to participate in the hearing and to ex-
amine and cross-examine witnesses The Board con-
sidered Respondent's exceptions and the Union's
statement of position and, on February 25, 1975, is-
sued its Decision and Direction of Second Election
in which it adopted the Hearing Officer's findings
and recommendations, except in certain respects not
relevant herein, set aside the election, and directed
that a second election be held
The second election was held on April 2 and 3,
1975, which the Union won On April 11, 1975, in the
absence of objections to the election, the Regional
Director issued a Certification of Representative in
which he certified the Union as the exclusive collec-
tive-bargaining representative for an appropriate unit
of Respondent's employees
4 By this supplement the Respondent also requested that the Regional
Director postpone the hearing scheduled for October 9 1974 until Respon
dent is given at least 10 days notice of the information requested or until a
reasonable time following disposition of the request for review On October
8 1974 the Regional Director denied the request for postponement of the
hearing
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding 5
Except as hereinafter discussed, all issues raised by
the Respondent in this proceeding were or could
have been litigated in the prior representation pro-
ceeding, and the Respondent does not offer to ad-
duce at a hearing any newly discovered or previously
unavailable evidence, nor does it allege that any spe-
cial circumstances exist herein which would require
the Board to reexamine the decision made in the rep-
resentation proceeding We therefore find that the
Respondent has not raised any issue which is proper-
ly litigable in this unfair labor practice proceeding
On May 3, 1976, Respondent filed a supplement
to Respondent's memorandum in opposition to
Petitioner's Motion for Summary Judgment Respon-
dent cites the recent Board decision granting a mo-
tion for a bill of particulars in Blue Bell, Inc -Hicks
Ponder Division, Cases 23-RC-4272 and 23-RC-
4306, as supportive of its position that the denial of
particulars, relating to the alleged objectionable con-
duct of unnamed supervisors, in the underlying rep-
resentation case constituted a deprivation of due pro-
cess and equal protection of the law It contends
there are no substantive differences between the facts
in Blue Bell and those in the instant case
After review of the record in Blue Bell, of which we
take judicial notice, we find Respondent's conten-
tions to be without merit As our telegraphic order in
Blue Bell indicates, the Board therein directed partic-
ulars only with respect to the employer's general con-
clusionary objection in Case 23-RC-4306 6 which
was necessary for adequate preparation for a hear-
ing That objection was much less specific and de-
tailed than were the Union's objections in the repre-
sentation proceeding herein, with respect to which
particulars were not deemed to be essential for ade-
quate preparation for a hearing In these circum-
stances, we conclude that the denial of particulars in
the underlying representation case did not constitute
a denial of due process or of equal protection of the
5 See Pittsburgh Plate G l a s s C o v NLRB 313 U S 146 162 (1941)
Rules and Regulations of the Board Secs 102 67(f) and 102 69(c)
6 The Employers objection in Blue Bell as to which particulars were
granted follows
The Petitioner by and through its officers representatives and
agents threatened employees engaged in gross falsehoods and misrep
resentations and injected class race and religious hostilities in its of
fort to successfully deny the voters an opportunity to exercise a free
and untrammeled choice in the election
By these and other acts and conduct the Petitioner completely de
stroyed the atmosphere and laboratory conditions required by the
Board for the exercise of a free and uncoerced choice by the voters in
an N L R B election
WESTINGHOUSE ELECTRIC CORP 901
law We shall, accordingly, grant the Motion for
Summary Judgment
On the basis of the entire record, the Board makes
the following
mg with the Respondent The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on April 11, 1975, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation, is en-
gaged in the manufacture of magnet wire at its
Abingdon, Virginia, facility During the preceding 12
months, a representative period, Respondent sold
and shipped, in interstate commerce, materials and
supplies valued in excess of $50,000 to points located
outside the Commonwealth of Virginia
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assertjuris-
diction herein
II THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, is a labor organiza-
tion 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 of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act
B The Request To Bargain and Respondent's
Refusal I
Commencing on or about April 15, 1975, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit, and has re-
quested that Respondent honor the terms and condi-
tions of section I, paragraph 2, of the national agree-
ment between the Respondent and the Union which
provides for the inclusion of certified units of
Respondent's employees within the coverage of the
national agreement as of the date of certification 8
Commencing on or about April 15, 1975, and contin-
uing at all times thereafter to date, the Respondent
has refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit and has refused to honor the terms and condi-
tions of section I, paragraph 2 of the national agree-
ment between the Respondent and the Union
Accordingly, we find that the Respondent has,
since April 15, 1975, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and has refused to honor the terms
and conditions of section I, paragraph 2, of the na-
tional agreement between the Respondent and the
Union, and that, by such refusals, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act 9
All production and maintenance employees
employed by Respondent at its Wire Division
facility located at Abingdon, Virginia, but ex-
cluding all office clerical employees, profession-
al employees, sales employees, technical em-
ployees, guards, and supervisors as defined in
the Act, as amended
2 The certification
On April 2 and 3, 1975, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 5, designated the Union as their
representative for the purpose of collective bargain-
7 The Union s request and Respondent s refusal to bargain are established
by copies of letters dated April 15 1975 which are attached to the General
Counsels Motion for Summary Judgment as exhs 21 and 23 respectively
which stand uncontroverted
B Sec I par 2 of the Agreement and Pension and Insurance Agreement
between Westinghouse Electric Corporation and International Union of
Electrical Radio and Machine Workers (AFL-CIO-CLC) provides as fol
lows
Any units for which the Union or any of its Locals shall be lawfully
certified by the National Labor Relations Board as exclusive bargain
mg representative shall upon assent in writing to this Agreement by
such representative be included in and covered by this Agreement as
of the date of certification except that either party may withhold the
application of those portions of this Agreement considered inapplicable
to such units by giving written notice to the other party within thirty
(30) days of such representatives assent
9 See S B Rest of Framingham Inc a wholly owned subsidiary of Steak &
Brew inc 221 NLRB 506 (1975) Houston Division of the Kroger Co 219
NLRB 388 (1975)
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement
We shall further order that it honor the terms and
conditions of section I, paragraph 2, of the national
agreement between the Respondent and the Union
by including the certified appropriate unit of
Respondent's Abingdon, Virginia, employees within
the coverage of the national agreement as of the date
of certification, April 11, 1975
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit See Mar Jac Poultry Company, Inc, 136
NLRB 785 (1962), Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600
(C A 5, 1964), cert denied 379 U S 817 (1964), Bur
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd 350 F 2d 57 (C A 10, 1965)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Westinghouse Electric Corporation is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, is a labor orga-
nization within the meaning of Section 2(5) of the
Act
3 All production and maintenance employees em-
ployed by Respondent at its Wire Division facility
located at Abingdon, Virginia, but excluding all of-
fice clerical employees, professional employees, sales
employees, technical employees, guards, and supervi-
sors as defined in the Act, as amended, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act
4 Since April 11, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act
5 By refusing on or about April 15, 1975, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act
6 By refusing on or about April 15, 1975, and at
all times thereafter, to honor the terms and condi-
tions of section 1, paragraph 2, of the national agree-
ment between the Respondent and the Union by
including the certified appropriate unit of
Respondent's Abingdon, Virginia, employees within
the coverage of the national agreement as of the date
of certification, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act
7 By the aforesaid refusals to bargain and to hon-
or the terms and conditions of section I, paragraph 2,
of the national agreement between Respondent and
the Union, Respondent has interfered with, re-
strained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise of
the rights guaranteed to them in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act
8 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 Re-
lations Board hereby orders that Respondent, West-
inghouse Electric Corporation, Abingdon, Virginia,
its officers, agents, successors, and assigns, shall
I Cease and desist from
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with International Union of
WESTINGHOUSE ELECTRIC CORP 903
Electrical , Radio and Machine Workers, AFL-CIO-
CLC, as the exclusive bargaining representative of its
employees in the following appropriate unit
All production and maintenance employees
employed by Respondent at its Wire Division
facility located at Abingdon , Virginia , but ex-
cluding all office clerical employees , profession-
al employees , sales employees , technical em-
ployees, guards , and supervisors as defined in
the Act, as amended
(b) Refusing to honor the terms and conditions of
section I , paragraph 2, of the national agreement be-
tween Respondent and the Union by including the
certified appropriate unit of Respondent' s Abingdon,
Virginia , employees within the coverage of the na-
tional agreement as of the date of certification, April
11, 1975
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed them in 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
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages , hours , and other terms
and conditions of employment , and, if an under-
standing is reached , embody such understanding in a
signed agreement
(b) Upon request , honor the terms and conditions
of section I, paragraph 2, of the national agreement
between Respondent and the Union by including the
certified appropriate unit of Respondent' s Abingdon,
Virginia , employees within the coverage of the na-
tional agreement as of the date of certification, April
11, 1975
(c) Post at its Abingdon, Virginia , facility copies
of the attached notice marked "Appendix " 10 Copies
of said notice , on forms provided by the Regional
Director for Region 5, after being duly signed by
Respondent 's representative , shall be posted by Re-
spondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places , including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced , or covered
by any other material
10 In the eNent that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
(d) Notify the Regional Director for Region 5, in
writing , within 20 days from the date of this Order,
what steps have been taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay , wages, hours , and other
terms and conditions of employment with Inter-
national Union of Electrical , Radio and Ma-
chine Workers , AFL-CIO-CLC, as the exclu-
sive representative of the employees in the
bargaining unit described below
WE WILL NOT refuse to honor the terms and
conditions of section I, paragraph 2, of the na-
tional agreement between Westinghouse Electric
Corporation and the above-named Union by in-
cluding the employees in the certified bargaining
unit described below within the coverage of the
national agreement as of the date of certifica-
tion , April 11, 1975
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 represen-
tative of all employees in the bargaining unit de-
scribed below , with respect to rates of pay, wag-
es, 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 production and maintenance employees
employed by Respondent at its Wire Division
facility located at Abingdon , Virginia, but ex-
cluding all office clerical employees , profes-
sional employees , sales employees , technical
employees, guards , and supervisors as defined
in the Act, as amended
WE WILL, upon request , honor the terms and
conditions of section I, paragraph 2, of the na-
tional agreement between Westinghouse Electric
Corporation and the above-named Union by in-
cluding the employees in the above-described
certified bargaining unit within the coverage of
the national agreement as of the date of certifi-
cation , April 11, 1975
WESTINGHOUSE ELECTRIC CORPORATION