Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 424 (N.L.R.B. 1986)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse Electric Corporation and United Elec-
trical, Radio, and Machine Workers of America,
Locals 1002 , 957, and 1105 . Cases 19-CA-
16964, 7-CA-23546, and 13-CA-24327
31 January 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOJHANSEN, AND
BABSON
On 2 July 1985 Administrative Law Judge
Walter H. Maloney , Jr. issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief. The General Counsel filed an an-
swering brief, and the Charging Parties filed a brief
in support of the judge 's decision. -
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Westing-
house Electric Corporation , Pittsburgh , Pennsylva-
nia, its officers , agents, successors, and assigns,
shall take the action set forth in the Order.
' The Respondent has excepted to some of the judge's credibility fmd-
mgs. The Board's established policy is not to overrule an administrative
law judge's The credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings.
In his decision , the judge made some minor factual errors which we
correct Contrary to the judge's statement, a proposal to revise the key
sheet rates was rejected only by Local 1002 representing employees at
the Seattle facility Similar proposals were not made at the other two
plants. Ronald Landess was not among the employees demoted at the
Chicago facility Seattle Plant Manager Hammond met with officials of
Local 1002 on 21 February 1984, not 1983 . Finally, we correct the spell-
mg of Local 1105 President Samuel Mmniefield 's name.
2 There are no exceptions to the judge's dismissal of the complaint al-
legations relating to the layoff and recall of employees at the Respond-
ent's Detroit facility
Member Babson, in adopting the judge's conclusion that it is appropri-
ate for the Board to interpret the disputed clauses in the contracts here,
does not rely on the judge 's finding that the contracts do not contain ar-
bitration provisions . See Plasterers Local 627 (Hart Concrete), 274 NLRB
1286 (1985).
Max Hochanadel, Esq., and George Alexander, Esq., for
the General Counsel.
Walter P. DeForest, Esq., and William Bevan, III, Esq., of
Pittsburgh, Pennsylvania, for the Respondent.
Robert L. Lewis, Esq., of New York, New York, for the
Charging Parties.
278 NLRB No. 61
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law
Judge. These cases came on for hearing before me at Se-
attle, Washington, Detroit, Michigan , and Chicago, Illi-
nois, upon unfair labor practice complaints , " issued by
Regional Directors for Regions 7, 13, and 19 of the Na-
tional Labor Relations Board. These cases which were
consolidated for hearing allege that Respondent Westing-
house Electric Corporation2 violated Section 8(a)(1) and
(5) of the Act. More particularly, the respective com-
plaints allege that the Respondent unlawfully reclassified
employees in its Seattle , Detroit, and Chicago apparatus
repair plants to lower grades with lower rates of pay
Without notifying the respective UE locals in those
plants and giving them an opportunity to bargain over
the reductions in pay. These events took place on De-
cember 22 , 1983, and March 2, 1984 , , during the term of
outstanding, national and local agreements between the
Respondent and the UE and its respective locals. The
Detroit complaint alleges that this end was accomplished
by the subterfuge of laying off employees and later re-
calling them to lower classifications having lower rates
of pay. The Respondent admits that it reclassified down-
ward certain employees at these plants and that it laid off
and recalled certain Detroit employees in labor grades
lower than the ones they held on the date of their lay-
offs. It claims that it had the right to do so under provi-
sions of its national and local agreements , and that it had
no obligation to bargain with the UE or its locals con-
' The principal docket entries in these cases are as follows.
Charge was filed on August 15, 1984, in Case 19-CA- 16964 by United
Electrical, Radio , and Machine Workers of America, Local 1002 (Local
1002), against the Respondent The complaint was issued by the Regional
Director for Region 19 against the Respondent on September 26, 1984
The Respondent 's answer was filed on October 9, 1984 The charge was
filed on June 15, 1984 , in Case 7-CA-23546 by UE Local 957 against the
Respondent . The complaint was issued by the Regional Director for
Region 7 against the Respondent on October 23, 1984 . The Respondent's
answer was filed on November 2, 1984. The charge was filed on June 21,
1984, in Case 13-CA-24327 by UE Local 1105 against the Respondent
The complaint was issued against the Respondent by the Regional for
Region 13 on August 20 1984. The Respondent's answer filed on Septem-
ber 17 , 1984 . The amendment to the complaint was issued by the Region-
al Director for Region 13 on October 12, 1984 The answer to the
amendment to the complaint was filed on October 22 , 1984 . The second
amendment to the complaint was issued by the Regional Director for
Region 13 on November 8, 1984 ; the Respondent 's answer to the second
amendment to the complaint was filed on November 19, 1984 . The hear-
ing was held in Seattle , Washington , on December 18 and 19, 1984, in
Detroit, Michigan, on January 30 and 31, 1985, and in Chicago, Illinois,
on March 27 and 28, 1985 Briefs was filed by the General Counsel, the
Charging Party, and the Respondent with me on or before May 28, 1985.
2 The Respondent admits, and I find, that it is a Pennsylvania corpora-
tion having offices and plants in various parts of the United States, in-
cluding Seattle , Washington , Trenton , Michigan, and Chicago, Illinois,
where it is engaged in the service and repair of electrical apparatus In
the course and conduct of its business at these and other locations, the
Respondent has had gross sales in the period of 1 year in excess of
$500,000, and has sold and transported from these named locations direct-
ly to points and places located outside the States in which they are situat-
ed goods and services valued in excess of $50 ,000. Accordingly, the Re-
spondent is an employer engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act. UE Locals 1002, 957, and 1105 are,
respectively, labor organizations within the meaning of Sec . 2(5) of the
Act.
WESTINGHOUSE ELECTRIC CORP. 425
cerning such matters. The Respondent admits that, in
fact, it did not bargain concerning these downward re-
classifications of employees. On these contentions, the
issues herein were drawn.3
FINDINGS OF FACT
1. THE UNFAIR LABOR PRACTICES ALLEGED
The Respondent operates approximately 63 apparatus
repair plants throughout the United States and controls
these operations from its Greentree headquarters in Pitts-
burgh, Pennsylvania. About 25 of these apparatus repair
plants are covered by labor agreements with the IBEW
and about 6 to 8 are covered by agreements with the
IUE. The three apparatus repair plants at Seattle, De-
troit, and Chicago are covered by agreements with the
UE. A fourth UE-represented apparatus repair plant at
Tucson, Arizona, was closed in February 1985. Employ-
ees at the balance of the Respondent's apparatus repair
facilities are unrepresented. The UE also represents Wes-
tinghouse employees at eight production plants.
The aforementioned International unions also represent
employees at many other Westinghouse facilities which
are devoted to production activities. These unions
engage in national bargaining with Westinghouse every 3
years and conclude national agreements. Thereafter, their
various affiliated locals bargain with local Westinghouse
plant management for local agreements which are limited
in scope to a single location, The UE has followed this
pattern with respect to the three apparatus repair plants
involved in this proceeding. The national Westinghouse-
UE agreement was concluded in ' the summer of 1982 in
Pittsburgh and runs from July 12, 1982, to July 22, 1985.
Local agreements covering the Seattle, Detroit, and Chi-
cago plants were concluded following the completion of
national bargaining. It is in these local agreements that
hourly rates, which are keyed to specific job classifica-
tions, are negotiated and agreed on. These rates, as em-
bodied in what are called "key sheets." They vary from
plant to plant and are a part of local supplements, not the
national agreement.
In October 1983, the Respondent reorganized its appa-
ratus repair division from two divisions (western and
eastern) into one division headed by Robert Burns, who
bears the title of general manager of the apparatus repair
division of Westinghouse. His immediate subordinate is
James L. Cannon, the operations manager of the appara-
tus repair division. The 63 repair plants are supervised by
4 regional managers. The Seattle plant is part of the
western region, while the Detroit and Chicago plants are
a part of the midwest region.
Apparatus repair, plants are established to repair, over-
haul, and rebuild not only Westinghouse equipment but a
variety of electrical equipment manufactured by many
other companies. Typically these plants are engaged in
the work of repairing transformers, generators, and elec-
trical motors of various sizes, dimensions, and complex-
ity. Most of the work is done at the Respondent's plants,
but it is quite commonplace to dispatch mechanics to the
site of a damaged or malfunctioning piece of equipment
3 The transcnpt is noted and corrected.
to overhaul or repair it at the customer's premises. In ad-
dition to these conventional types of repair work,, the
Respondent has attempted to branch out into related
fields in order to expand its repair business. For example,
the Seattle plant has undertaken the function of disposing
of PCB, a highly toxic liquid found in larger transform-
ers and generators, and employs specialized employees
who perform this service for its customers.
Unlike production plants which manufacture a variety
of items for national or international markets, the busi-
ness of apparatus repair plants is peculiarly local and re-
gional in scope. It is affected by downturns, and presum-
ably upturns, in economic conditions in the particular
market areas which they serve. The Seattle plant has
been adversely affected by economic troubles in the lum-
bering industry and by a decline in repair contracts let
by the U.S. Navy. The Chicago plant has been affected
by troubles in the steel industry in and about Chicago,
while the Detroit plant is sensitive to ups and downs in
the automobile industry. Moreover, repair plants have
been affected by local and area competition, which ap-
parently has been increasing in recent years.
The Respondent introduced evidence that, between
1981 and 1983, the apparatus repair division (or divi-
sions) suffered a national decline in annual sales of about
$40 million-from $174 million to $135 million. In 1983,
the division experienced a net operating loss of $7.8, mil-
lion. According to Division Human Resources Manager
Charles Hester, most of its 63 plants (including the ones
involved in this proceeding) experienced a loss, although
Operations Manager Cannon, in a memo dated Novem-
ber 21, 1983, told his regional managers that four plants
were operating at a loss. In 1984, about 25-30 repair
plants also underwent what Westinghouse likes to call a
"redistribution"-a downgrading or demotion of produc-
tion and maintenance employees with resultant reduc-
tions in their, hourly earnings. In some plants there were
layoffs as well. The "redistributions" which took place
between December 22, 1983, and March 2, 1984, in the
three UE-represented plants in the Apparatus Repair Di-
vision are what is being litigated in this case.
Shortly after the reorganization of the repair division
in October 1983, the Respondent embarked on a wide-
spread program of cost cutting in order to reverse the
net operating loss which it was experiencing nationally.
This program extended into various fields. Of particular
importance to this proceeding was its effort to reduce
the average earned rate (AER) at its various plants. The
average earned rate is the average rate which it pays all
employees at a particular plant. It includes the hourly
rates which are derived from the key sheet (not a specif-
ic key sheet rate but the aggregate of what is actually
being paid as a result of key sheet requirements), over-
time and travel premiums, night-shift differentials, and
what is known as temporary rate adjustments (TRA). If,
on a temporary basis, an employee is assigned to work
which is of greater difficulty or complexity than the
duties set forth in the job description pertaining to his
regular classification, he is temporarily paid at the higher
hourly rate which is assigned to the classification which
includes the complexity and difficulty of the job to
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he has been assigned . For instance, a grade 9 em-
ployee temporarily assigned to a job which includes
grade 11 work would be "TRA'ed" as a grade 11 for the
duration of that assignment . After completing the job for
which he has been "TRA'ed," he then returns to the
hourly rate for the labor grade to which he has been per-
manently assigned.
A national seminar of plant managers in Pittsburgh
was devoted, in part, to the importance of cost cutting,
including a reduction in the AER in each plant. A meet-
ing of regional managers of the division which took
place in El Paso in the fall of 1983 also focused on this
problem. On November 21, 1983, Cannon sent a memo
to his regional managers in which he made the following
statement:
At the beginning of our El Paso meeting last
week, we discussed the importance of reinforcing
our forecast for 1983. This must be done in order to
give us a reasonable start on the information for
1984. We had asked each of you to obtain a small
increase in sales and margin by location, or to
reduce the costs by location for a few months in
order to reinforce our position going into 1984.
The plants where the volume is not available
should be actioned immediately as far as programs
designed to reduce costs. Each of the regional man-
agers who has a declining year performance, and
who will continue to decline, should act immediate-
ly to stem the negative financial effect.
For those plants that you are going to identify to
reduce costs in 1983, I would suggest that you
move immediately and effect the programs by the
first week in December. Please keep me informed as
to what your actions are, and what the time tables
will be.
In 1984, you are each loaded with an objective of
maintaining black performing plants, and reversing
four red performing plants. In addition to this, we
have committed to a $1.00 per hour ICS direct
labor rate reduction. I have asked each of you to
try to work within the framework of $1.20 per hour
to $1.70 per hour, in order to obtain a division com-
mitment of a net $1.00 per hour reduction in ICS
direct labor rate.
For plants that are to be adjusted, as per the
above paragraph, I would suggest that you immedi-
ately readjust the distribution of labor grades at the
time that you action these plants.
Your commitment to the division for the 1983
numbers means that we have to pull a return from
the profitable plants, and reduce a bit in the non-
profitable plants.
I thought it proper to document this commitment
immediately following our El Paso meeting, so that
we all continue to understand what the objectives
are.
Understandably, this memo, emanating as it did from
company headquarters, gave rise to other memos issued
further on down ,the corporate ladder. On December 1,
1983, Kenneth R. Carlson, western repair region manag-
er, sent a memo entitled "Cost Reduction Objectives-
1984" to all unit managers in the western region. Carl-
son's memo, containing a caution that it should be
"Opened by Addressee Only," stated:
We are all aware that 1983 was not a good year
for the repair business in our Region, as well as
throughout the country. Going into the first quarter
of 1984, we will be responsible for attaining strin-
gent cost reduction objectives.
By March 1, 1984, the entire Region is commit-
ted to reducing its over-all direct labor rate. Each
of you should look at $1.70 per hour reduction as
your target. Prepare a work sheet with your analy-
sis of redistribution of employees by labor grade
that will accomplish the targeted objective, using
the current make-up of your work force (11/30/83).
This report must be in my office by Dec. 19.
There are many ways to accomplish this task.
The most "results" oriented practice to reduce your
average earned rate in each plant would be to redis-
tribute your labor grades. Other examples of meth-
ods to supplement the effect of redistribution would
be to cut back on group leader pay or night shift
premium. Obviously, the hiring of productive
people at the low end of the key sheet is not an ac-
ceptable methodology to be utilized in attaining our
committed objectives.
We are aware of some of the consequences that
face us through applying this exercise. George Men-
denhall will be looking carefully at each plant. Lou
Zaltzberg and I will assist him and also make sug-
gestions and recommendations . Since there are ob-
vious sites throughout our Region where opportuni-
ty exists to do the most good, we will be concen-
trating our efforts toward them first.
Please begin now by thoroughly reviewing your
own location and coming up with a plan or plans to
reduce your direct labor rates. If you have any
questions or suggestions, feel free to contact
George, Lou, or me.
Later on, George E. Mendenhall, the western region's
manager of human resources , sent the following message,
dated June 15, 1984, to all western region foremen:
I am well aware each of you are the individuals
taking the most "heat" in regards to our Redis-
tribution/AER Program. I only hope at this time
you believe the intent of the Program is in the right
direction.
By slotting our productive people in their proper
position description, we are paying them for the re-
spective work performed. In many cases where we
lowered the keysheet for the second time and have
begun to hire entry level people, our labor costs
have decreased tremendously. I'd like to thank each
of you for your input and cooperation;' and your
continued support will attain our AER reduction
goal.
WESTINGHOUSE ELECTRIC CORP. 427
Other memos of similar import were written elsewhere
in the apparatus repair division. On November 7, F. J.
McLaughlin, the former plant manager of the Respond-
ent's Chicago plant,4 sent a memo to Henry Kauffunger,
former superintendent of the ARD portion of the plant,
in which he stated:
Please arrange to review your thoughts on how
the CGR work force should be distributed. Keep in
mind we have many labor grade 12's who are not
qualified for that position and we are looking for
more of an even distribution of labor grades.
Think about job combinations such as cleaner/-
sweeper. Let me have your reply by November 28,
1983.
On January 30, 1984, L. E. Vickers, manager of
human resources for the Respondent's midwest region
(which includes both Chicago and Detroit), sent the fol-
lowing memo, entitled "Reducing Direct Labor Costs,"
to all midwest region plant managers:
I have already had the opportunity to discuss
with most of you the subject of reducing your aver-
age hourly labor rate. Beginning in February, we
will have to begin reporting to Mr. Cannon our
achievements by location.
Again, we have been given the objective of re-
ducing direct labor cost by $1.20 to $1.70 per
hour/AER across the region. In reaching this ob-
jective, we must report direct labor savings of
$.53/hour by April 1 and $.72/hour additional by
June 1.
This subject will be one of the main topics of dis-
cussion during our region meeting. You are asked to
begin thinking of ways this can be accomplished in
your location.5
On December 23, 1983, the Respondent laid off 15 em-
ployeess out of a total complement of 35 who were em-
4 In 1983, the Chicago plant housed a production operation, known as
the Chicago control division (CCD), and an apparatus repair division
(ARD) McLaughlin was in charge of both divisions. The recipient of the
November 7 memo, Henry Kauffunger, was his immediate subordinate
and was in charge of the repair or ARD portion of the plant.
5 Carl Spevetz is the manager of the Detroit apparatus repair plant and
has held that position for more than 10 years He professed complete ig-
norance of the above-quoted memo from J L. Cannon to regional man-
agers concerning cost reduction While admitting that Vickers mentioned
at a meeting that the Company was looking for ways to cut labor costs,
Spevetz denied that Vickers ever gave any orders to cut labor costs, al-
though he admitted on cross-examination that he told Vickers there was
going to be a reduction in force and Vickers okayed it He also said he
was unaware of what other appliance repair plants were doing with re-
spect to downgrading of employees I discredit Spevetz' testimony with
respect to these matters on the basis of: the above-quoted memo which
was sent to all midwest region plant managers, including Spevetz. Spe-
vetz' testimony in general was marked by argumentative and evasive re-
sponses and his demeanor was poor. I would not credit any of his testi-
mony on any disputed matters unless it was corroborated by independent
evidence.
6 Spevetz testified that, on December 17 or 18, he told 18 employees
they would be laid off, but detailed evidence placed in the record by the
Respondent (R.Exh. 23) indicates that only 15 were, laid off in December
1983.
ployed at its Detroit plant. Two laid-off employees even-
tually quit. One is still on layoff status. The net effect of
the layoff was to eliminate 13 positions in labor grades
10 and 11, the highest grades in the Detroit scale. The
remaining 12 were recalled, between January 20 and May
23, 1984. Eight of the twelve recalled employees were
recalled to work in labor grades lower than the grades
they occupied on the date of their layoffs. Five of the
eight employees recalled to lower labor grades have
been promoted to higher grades since the date of their
respective recalls.7 Five other Detroit employees were
downgraded on December 23 but were retained on the
company payroll.
On March 2, 1984, the Respondent downgraded 10
employees out of a unit of 25 at its Seattle apparatus
repair plant. 8 No layoffs took place at that time, al-
though six layoffs did occur in late August. Those lay-
offs are not alleged as violations by the General Counsel.
On the same day as the Seattle downgrading, the Re-
spondent demoted 27 of its 47 Chicago apparatus repair
employees; however, no layoffs took place at Chicago.9
Some of these employees have since been given promo-
tions to higher labor grades.
The Respondent justified these personnel actions, all of
which resulted in lower earnings for affected employees,
by provisions in its national contract with the UE and in
local supplements covering its Seattle, Detroit, and Chi-
cago plants. The provision in the National Agreement
relied on by Westinghouse reads:
Section V - Cooperation
The parties to this Agreement agree to cooperate
in every reasonable way in carrying out the provi-
sions hereof and to exchange such information with
respect hereto as is mutually deemed essential for
the furtherance of harmonious relations. The Union
recognizes that it is the responsibility of the Compa-
ny and its Plant Managements to maintain plant effi-
ciency and agrees that Management shall have the
freedom of action necessary to discharge its respon-
sibility for the successful operation of the Company.
This responsibility includes, among other things, the
determination of the number and location of its
plants; the selection of those with whom it will do
business; and the determination of the products to
be manufactured and the production schedules. This
4 Those recalled to lower labor grades were James Blaylock, Jerry
Linton, Billy Ferrell, Clarence Peterson , Darrell Kasic, Ricky Andrews,
Boyd Wallace, Maynard Robinson , and Marvin Wilson . Ferrell , Peterson,
Kasic, Andrews, Robinson, and Wallace have been promoted to higher
grades following their recalls.
B The 10 employees downgraded on March 2 at the Seattle plant were
Michael Yadrick, James S. Welsh, Shawn Mitchel, Walter Kasprzyk,
Jamie L. Jones, Michael D . Joel, David Hopkins, Steven B . Hanson,
Ronald C. Palo, and Fred S. Schmidt.
9 The employees who were demoted on March 2 at the Chicago ARD
plant were Robert Bedient, Robert Davis, Mark Doyle, Arnold Green,
Chester Haldash, Joseph Hornik, Miihai Jacob , Harley Kelso, Kenneth
Kenjosian, Stefan Keratschkoff, Frai{k Kozikoski, Ronald Landess,
Delmus Lech, Joseph Mintello, Marc Muller, Hans Myhre, Garth Po-
chocki, Alfred Polus, Herbert Powell, Esteban Rodriquez, Bahtout
Salman, Ossie Seaton, George Sirak, Conrad Sirois , Adam Weklar, Rich-
ard Willey, and Aleksander Wodka.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section does not limit or modify the rights of the
parties under any other provisions of this Agree-
ment or of the applicable local supplements. 10
The portion of the Seattle local supplemental agreement
relied on by the Respondent in support of its action de-
moting 10 Seattle employees is entitled "Article IV-Se-
niority." Sections C and D of that article read, in perti-
nent part:
C. Decrease in Force
1. When production schedules make it necessary
to effect a decrease in force, the Foreman will
notify the Chief Steward and Department Steward,
of the reasons therefor prior to notifying the em-
ployee.
2. The employee with the least seniority on each
job affected will be up for disposition.
3. Provided the employee up for disposition has
sufficient seniority, he may replace the least senior
employee on the same or successively lower-rated
jobs, provided he can do the job with only such
training as an employee with previous experience
on such job would require.
4. If the employee cannot be placed by applica-
tion of (3) above, he will be given proper notice
and placed on the inactive seniority list, if eligible.
D. Furlough
1. When there is a temporary reduction in activi-
ty, furloughs will be used to bridge the period of re-
duced activity.
2. Unless all employees assigned to a job are af-
fected, furloughing will be in seniority order in the
group affected.
The Detroit Local Supplement 2 contains a similar
provision. It states, in pertinent part:
D. Decrease in Working Force
1. Furloughs
a. Temporary reductions in production will be
bridged by furloughing the affected employes on
the affected job classifications involved. The section
steward shall receive advance notice of furloughs
and the reasons therefor.
b. Furloughing will take place on an equalized
basis among employes on the same job classification
as far as practical. Generally, furloughing will not
take place in excess of forty (40) hours at any one
time, nor more than eighty (80) hours in a calendar
year. No additional furlough will be scheduled
beyond the eighty (80) hours without prior discus-
sion with the Local.
10 Also pertinent is "Article XII-Seniority ," section B-1, which
states:
It is understood and agreed that in all cases of rehiring or layoffs
2. Layoff procedure
a. The least senior employe on the job affected
will be removed.
b. An employe thus up for disposition will be
moved as follows, depending on which alternative
results in the highest labor grade, if the employee
can do the job with only such training as an em-
ployee with previous experience on such job would
require.
(1) He may displace the least senior employe in
the same or progressively lower labor grades in
his section; or
(2) He may displace the least senior employe
on any job he had held at the standard rate. 11
(3) He may displace the least senior employe in
the same or progressively lower labor grades in
this occupation.
(4) If he is not placed under b.(1), (2), or (3)
above, he will displace the least senior employe
in any job of the same or lower labor grade.
(5) When an employe is not placed by the
above procedure, he will be laid off and his name
placed on the inactive seniority list, provided he
has successfully completed his probationary
period.
Chicago Local Supplement 5, entitled "Seniority,"
contains the following provision relied on by the Re-
spondent as the basis for its procedure in downgrading
27 Chicago employees on March 2. It provides, in perti-
nent part:
Section III. Decrease in Work Force
In the event of a layoff, the Company shall give
the Union as much advance notice as possible but
not less than 3 working days.
In a reduction in working force, an employe will
be permitted to replace an employe with less senior-
ity only if the employe can do the job with only
such training as an employe with previous experi-
ence on such job would require. On jobs affected
by a reduction in force, employes at probationary
rate will be first removed, then employes at qualify-
ing rate, and lastly employes at standard rate.
The following procedure shall be used in line with
the preceding paragraph:
[Details of bumping procedure omitted. Similar
to procedure at the other two plants]
Employes in the Control Center Division who are
involved in a decrease in work force will be able to
bump the lowest 30% of the employes on Job #247
Light Manufacturing Assembly (calculated at the
time of the announced decrease in work force) and
due to increasing or decreasing forces, accumulated length of service 11 Every labor grade has three wage rates established for it on the key
ll if h lwi govern t e emp oyee can do the job .. . sheet-probationary (P), qualifying (Q), and standard (S).
WESTINGHOUSE ELECTRIC CORP.
whose prime duties and responsibilities are perform-
ing the following operations:
1. Stab assembly
2. Structure Assembly Station #2 & 5
3. Small Cell Canner
4. Handle Mechanism Assembly
5. Unit Handle Assembly
6. Fuse Clip Assembly
7. Cell Handlers
just as if those jobs were in the common unit.
Employes in the Apparatus Service Plant who are
involved in a decrease in work force will be able to
bump 100% of the employes on Job #223 Repair-
man "C" and 50% of the employes on Job #264
Coil Taper (calculated at the time of the announced
decrease in work force) just as if those jobs were in
the common unit.
One further provision in the national agreement was
frequently cited in connection with the demotions and
layoffs which took place at these three plants in 1983 and
early 1984. Article VI, section 5(a)(2), of that agreement
provides:
Notwithstanding 1., above, when an employee
who in accordance with the applicable Decrease in
Working Force procedure would be placed in a
salary code or labor grade the maximum key sheet
rate for which is more than ten percent (10%)
lower than the maximum key sheet rate for the
salary code or labor grade of record in which the
employee was assigned on the day six months prior
to the place in question, the employee may elect to
be laid off.
The parties agree that, if a proposed demotion results in
less than a 10-percent cut in pay, the demoted employee
must continue to work at the lower grade or be deemed
a voluntary quit. Under such circumstances he has no
option to take a layoff.
The affected UE locals filed grievances protesting the
Company's actions. In Detroit, the grievance was
couched in terms of wrongs allegedly done to two
named employees, Mike Kniffen and Jeff Lerchenfeldt.
In Seattle, a grievance was filed on behalf of all members
of UE Local 1002 and complained of a violation of the
national agreement and the local key sheet. A second
grievance, filed the same day, ;complained about specific
wrongs done by the downgrading of 10 named employ-
ees, assertedly in violation of the national Agreement and
the Seattle local supplement. The Chicago grievance was
general in character. It complained of a "wage cut" in
violation of specific sections of the national agreement
and the Local supplement.
All three grievances were taken to the national level
and were discussed by UE International Representative
Sandra Polaski with various corporate officials in Pitts-
burgh. All three grievances were denied by the Respond-
ent. Their denials were protested by the UE. However,
the contract between the UE and the Respondent does
not provide for arbitration after the fourth step, except in
429
cases of discipline and discharge, so these grievances
were not taken to arbitration. In fact, the UE was free to
strike to enforce its position in .these grievances, notwith-
standing the fact that the national agreement and the sev-
eral local supplements were still in full force and effect.
However, the UE elected not to strike and instead filed
the charges herein. 112
The bulk of the testimony in this ponderous record
was devoted to blow-by-blow descriptions of what actu-
ally transpired in the respective plants in preparation for
the demotions and/or layoffs. Much testimony was also
devoted to detailed interpretative rationalizations as to
why the demotions and/or layoffs were or were not au-
thorized by the terms of the above-quoted sections of ex-
isting contracts. In Detroit, where the first of the Re-
spondent's conflicts with the UE took place, Plant Man-
ager Spevetz held a meeting with outgoing Shop Stew-
ard Kniffen and current Shop Steward Leo Denard, as
well as other Local 957 officials on December 15, 1983,
at which time he discussed a forthcoming reduction in
grades and layoffs' 3 at that plant.14 Spevetz gave them a
handwritten list of job titles and labor grades and in-
formed them that "this is what we have and this is what
we need." Denard testified that he was dumbfounded.
He had expected that a layoff might be in the offing but
he had no previous inkling that the Company was also
contemplating a downward revision of the plant's grade
structure. The list furnished by Spevetz contained a sum-
mary indicating that the plant currently needed 22 em-
ployees and would be laying off 13. However, the grade
structure proposed on the list was at a considerable vari-
ance with the existing structure. Denard's response to
Spevetz on this occasion was that he would not be re-
sponsible for informing his membership of the proposed
downgrading, and that he would have to refer the whole
matter to the membership before coming to any agree-
ment concerning it: A meeting of the Local 957 member-
ship took place on the following Sunday, December 18,
at which time the membership refused to approve.
A second meeting took place between Spevetz and
union officials about December 19. At that time, Denard
told Spevetz that the membership had rejected the pro-
12 The Respondent makes no contention that the Board should or must
defer to the contractual grievance machinery contained in the national
agreement, at least as it applies to the disputes involved in this case.
Having refused to arbitrate , the Respondent cannot claim that this dis-
pute is one that should be sent to an arbitrator.
is Spevetz testified that he had not been given any specific orders to
reduce his work force. In light of other findings, as well as the discussion
in fn. 6, supra, I discredit this statement. Spevetz admitted that he had
engaged in previous conversation with Vickers and admitted telling
Vickers that he was contemplating a layoff at the Detroit plant because
of low volume.
14 I credit Kniffen's testimony to the effect that, early in December
1983, he had a brief conversation with Regional Human Resources Man-
ager Lee Vickers as Vickers was touring the Detroit plant. Kniffen asked
Vickers about rumors that were going around that Westinghouse was
going to close its repair shops in Chicago, Cleveland , and Detroit. Vick-
ers replied by asking Kniffen how the employees in the Detroit plant
would feel about a pay cut, adding that the Detroit plant was top heavy
in its grade structure . Kniffen replied that there was no way that Detroit
employees would accept a pay cut and asserted that they would be very
irritated if one were attempted. Vickers said there was going to be a pay
cut in Detroit and Chicago, and that the Chicago cut was going to be
worse than the one in Detroit
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed downgrading and informed Spevetz that he would
have to decrease the work force according to contract
requirements . The Union was then notified that a layoff
would take place on December 22. The procedure to be
used was also announced . Each employee whose job was
eliminated was to be called in to the office in the pres-
ence of a union official , informed that his job was being
eliminated , and further informed of his right to bump
into a lower graded position if one was available which
was not being held by another employee who was senior
in company service . At the same time, Spevetz posted
five job openings in the plant but later removed the post-
ings at the request of the Union.
Employees were called in to the office and informed
that they would be laid off if they could not bump. Spe-
vetz testified that it was impossible at the outset of this
procedure to determine exactly who would be laid off
until the bumping process was exhausted. He also testi-
fied that his objective in making demotions and layoffs
was to continue to perform the work in the plant, and if
possible, with the same individual who was doing it but
working at a lower grade. One summary placed in the
record by the Respondent (R. Exh . 20) indicates that
there were 35 employees at the Detroit plant before the
layoff on December 22 and 19 immediately thereafter,
thus suggesting that there were 16 layoffs . This figure
varies by one with another compilation introduced by
the Respondent concerning layoffs and recalls (R. Exh.
23), which indicates that 15 were laid off on that date. A
third summary placed in evidence by the Respondent co-
incides with the figure of 15 (R. Exh . 28). All are at a
variance with Spevetz 's recollection . Six employees-
Pleso, Schmidt, Lerchenfeldt , Kniffen, Denard, and
Nordstrom-were downgraded but not laid off. The end
result of this procedure, both as to the size of the work
force and the allocation of existing jobs throughout the
11 labor grades, was somewhat different than the grade
allocation and work force size contained in the staffing
plan which Spevetz proposed to the Union on December
15. When the revisions of December 22 were completed,
there were 15, not 13 , layoffs, and there were several
variations from the labor grade levels contained on the
sheet given to Denard the week before . Spevetz testified
that, had Denard agreed to the grade distribution of em-
ployees found on the sheet given to him on December
15, the number of layoffs would have been three less
than what actually occurred' on December 22. Since De-
cember 22 , 1983 , the employee complement has in-
creased in size from 20 to about 30 employees as laid-off
employees were periodically recalled . Included in these
recalls were three employees laid off back in 1982. Not
surprisingly, the amount of TRA'ed work-hours com-
pensated at a labor grade higher than the permanently
assigned grade of an employee who was given more
complex work on a short-term basis-nearly doubled in
the Detroit plant in 1984 over the 1983 figure.
Spevetz also recounted in his testimony that the De-
troit plant was operating in the red in 1983. Respondent's
summary of the profitability of that plant recites an oper-
ating loss in 1983 of $243,211. The same compilation in-
dicates that the Detroit plant operated at a loss during all
but one of the last 7 calendar years , posting a net loss of
$1,093,415 in 1982 because of the bankruptcy of a large
customer.' In 1984, it lost $320,362.
Spevetz testified that he effectuated layoffs by compa-
ny seniority within occupational groups, such as winder,
fitter, and machine tool operator. There are six such
groups in the Detroit plant, including one group referred
to by Spevetz as "miscellaneous ." He did not recall any
employee electing a layoff rather than a demotion when
the option was offered in the course of the bumping pro-
cedure.
December 1983 was not the first time that a layoff had
occurred at the Detroit plant. Layoffs at this facility
took place in March and May 1982, September 1980, and
March 1979. However, Spevetz testified that the only
previous downgradings during his tenure as plant manag-
er, in situations in which no layoffs had occurred, were
five or six instances when employees were demoted be-
cause they were found to have been incapable of per-
forming their work properly . There is no suggestion in
this record that any employee, either at Detroit or else-
where, was demoted in late 1982 or early 1983 because
of poor performance in the labor grade vacated . Denard
testified that previous layoffs were handled differently
from the one which took place in December 1983. Ac-
cording to Denard, previous layoffs were strictly "from
the bottom up" with respect to seniority, and no down-
gradings or demotions occurred. Occupational class,
such as winder or fitter, was not a factor. Spevetz con-
firmed this statement but explained it on the basis that, in
previous layoffs, all of the junior employees who had
been laid off were at the bottom of their respective occu-
pational ladders so it was not necessary to invoke any
bumping procedures, as in 1983. According to Spevetz,
in 1983 some of the junior employees held higher labor
grades in various occupational classes so that bumping
had to be followed to accommodate the seniority re-
quirements of the contract.
The reduction in labor grades which eventually took
place in Seattle on March 2 met with resistance from the
start from Plant Manager Kenneth G. Hammond. After
receiving the above-quoted memorandum from Western
Regional Manager Carlson, Hammond wrote to Carlson
on December 30, 1983, setting forth statistical summaries
of the staffing then in effect at Seattle and outlined a
possible grade redistribution which would lower the av-
erage earned rate at the plant by $1.59 per hour. After
setting forth this hypothetical redistribution table, Ham-
mond stated to Carlson:
The net result of such a move would be to weed
out many of our best people with corresponding
productivity and quality repercussions.
In considering such a move 4 things must be
carefully weighed:
1. Skill level and overall contribution of each
individual
2. Area rate structure for similar businesses
skills
3. Content of each job description
4. Skill level required for normal, if there is
such a thing, work-mix
WESTINGHOUSE ELECTRIC CORP.
Bearing all that in mind we come up with where
we are now. However, should a person decide to
throw caution to the wind and take on the weakest
performers, without regard to seniority, contract
agreements , or productivity you may have the fol-
lowing:
[Labor grade distribution omitted]
Reduction $.31
Finally if you want to know what I think may
have a chance of getting past without a total uproar
we could have the following. In my humble unk-
nowledgeable opinion, its not worth it except per-
haps as opportunity such as retirement or severe
work force reduction presents itself. The latter of
which I hope we never see.
[Alternative labor grade distribution omitted]
Reduction $.16
In mid-January 1984 Hammond held a meeting with
the employees at the Seattle plant, which, at that time,
numbered about 25 in the UE bargaining unit. He told
them that a pay cut had taken place at the Portland ap-
paratus repair plant (which is represented by the IBEW)
and that the same thing could happen in Seattle, even
though he disagreed with the policy which prompted it.
Notwithstanding Hammond 's reluctance to effectuate a
general downgrading or demotion at the Seattle plant, he
acceded to the insistence of his superiors and, in fact, de-
moted 10 members of the Seattle bargaining unit. After
assessing the requirements of the plant, Hammond pre-
pared a revised seniority list which incorporated the de-
motion of 10 designated employees. On February 21,
1983, he held a meeting with officials of Local 1002 and
handed them the list. It was Hammond's intention to
follow the decrease in force procedures in the Seattle
local supplement in selecting employees for demotion
and to observe the seniority requirements of the national
and local contracts in designating those who were up for
"disposition," to use the phase employed by Westing-
house. He proffered the list to the Union and asked if it
contained any errors in applying the terms of these
agreements. However, he also told them that the Compa-
ny's overall decision to engage in the downgrading was
not negotiable.15 As the proposed company action did
not involve any layoffs, the Union took the position that
the reduction in force procedure was not available to the
Company for this purpose since no reduction in force
was taking place. On March 2, the "redistributions" or
demotions were effectuated. All of the demoted employ-
ees testified that their work assignments, both before and
after the March 2 demotions, were the same and some
suggested that they were doing even more complex or
difficult work at lower pay than before the demotions.
Hammond did not frontally challenge these statements
but attempted to explain them on the basis that the em-
is It has been the Respondent's firm position throughout these pro-
ceedings that its basic decision to engage in a downgrading process in
any of its plants is a management prerogative and hence nonnegotiable
Respondent insists that it never negotiated this subject with any of the
representatives of the affected bargaining units
431
ployees in question were probably working below their
classifications before the demotions so the action of the
Respondent on March 2 served only to bring labor
grades more closely into line with the nature of assign-
ments which were actually being made.' 6
In Chicago, the apparatus repair plant was housed in
the same building as a production facility called the con-
trols division, which was engaged in the manufacturing
of electrical components that automatically control the
turning on and off of fans , electrical systems , and similar
machinery. Both repair division employees and control
division employees were part of the same bargaining unit
and were represented by UELocal 1105. At the same
time the downgrading process in the repair division was
being accomplished, the production facility was being
phased out and its functions were being transferred to
Fayetteville, North Carolina.11 Both divisions had sepa-
rate seniority lists but transfers between divisions were
permissible under certain very limited circumstances.
Each division had separate management , although they
shared certain staff or support functions, such as person-
nel.
Late in 198318 and early in 1984, three meetings were
held between union representatives and management offi-
cials concerning- the wage structure in the Chicago repair
division . Among the management representatives in at-
tendance was the new human resources manager for the
midwest region , Lee Vickers. Vickers told union repre-
sentatives at that meeting that wages at the Chicago
plant were not in line with wages being paid by competi-
tors in the area and that some adjustment had to be made
to bring them into line. He mentioned that the same situ-
ation existed at a couple of other plants, including the
one at Detroit, and requested that union officials sit
down and discuss a wage downgrading or demotion plan
with him. He told Minnefield and other union spokesmen
that he would get back to them on this matter.
A second meeting was held between company and
union officials on February 27. At that time, Vickers re-
called the earlier meeting and recited the fact that the
Chicago plant had a large number of employees in labor
grade 12. (Unlike the Detroit and Seattle plants, the Chi-
cago key sheet provides for 14, not 11, different labor
grades.) Vickers then told Minnefield that he had made a
breakdown of a new wage structure which was being
planned and indicated that a general announcement
would soon be made to unit employees concerning the
redistribution. The new plant manager , Steven McRae,
stated that a general meeting with unit employees, which
was to be held the following day, would not go into the
16 One of the features of Seattle 's grade distribution which gave Ham-
mond pause in criticizing the orders of his superiors was the fact, which
he reluctantly had to admit , that about 75 percent of his work force was
in the highest labor grades.
17 By March 2, when the demotions took place in the repair division,
little if any production was taking place on the "other side " of the plant
and only a handful of control division employees remained on board,
principally to wrap up the activities of that division. By September 1984,
no production employees at all were left in the Chicago plant.
18 Local 1105 President Samuel Minnefield placed the first conversa-
tion with company officials on this subject in January 1984, but it is more
likely that it occurred sometime in December 1983
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
details of the new wage structure or specifically who
was going to be demoted. Vickers stated that he was
trying to stay within the contract, but insisted that the
Company needed a better distribution of employees
across the key sheet. He told the union representatives
that, if a higher class of work should come into the
plant, the Company could "TRA" someone to do it. In
response to a question by Minnefield, Vickers stated that
management had gone through the job descriptions and
had compared them with the kind of work employees
were actually doing. When Union Steward James Scott
challenged this action as being a contract violation,
Vickers' reply was that there was no violation since the
key sheet was being left intact. Vickers repeated his feel-
ing that the Company was experiencing a serious prob-
lem in staying abreast of its competitors, and McRae
added that the Company was no longer doing the high
class work that it had been doing but was performing
fewer functions, all of which had less complexity. In re-
sponse to a question from Minnefield, McRae stated that
job descriptions had not been rewritten but added that
this might have to be done later on. Minnefield asked for
more information in order to determine which employees
were going to be affected by this move. At this time, the
company spokesmen furnished him with a summary of
how many employees would be working in which grades
but no names were mentioned.
Two days later another similar meeting was held.
Vickers announced that the job classification ladder had
been restructured and assured Minnefield that the Com-
pany was trying to observe seniority in making these
changes so that the contract would be observed. He
analogized what was taking place to a layoff situation,
except that no employees were going to be laid off.
Shortly thereafter, a list of those who were to be demot-
ed was prepared. It contained 27 names. The Company's
action in this regard took place effective March 2. As in
the case of the Detroit shop, the amount of TRA in the
Chicago plant approximately doubled following the
downgrading. Since this time, some promotions have
been made in individual cases, but the wage structure has
not been restored to what it was prior to March 2.
Henry Kauffunger, who was formerly superintendent of
the apparatus service plant, testified that the reduction in
the AER (average earned rate) at the Chicago plant
which came about as a result of the March 2 demotions
was about 36 cents per hour.
rather than discriminatory considerations is immaterial if
it did not bargain about those changes. Presumably most
positions taken with respect to changes in contract terms
are economically motivated. Such a defense may be
available when the charge in question is a violation of
Section 8(a)(3) of the Act, but it is no defense to an
8(a)(5) allegation. Pan Abode, Inc., 222 NLRB 313 (1976);
Long Mile Rubber Co., 245 NLRB 1337 (1979). Where,
as here, there is no contention that bargaining actually
took place, it is not necessary to address the closely re-
lated question of whether, under Section 8(d) of the Act,
the Union had ' any obligation to bargain about, or to
consent to, changes requested during the term of three
local collective-bargaining agreements which were in full
force and effect when the demotions at issue occurred,' s
and whether it could require the Employer to wait until
the next contract negotiations to find a remedy for its
economic position by reducing the hourly earnings of its
employees.
The obligation to bargain over wages, hours, and
terms and conditions of employment, as well as any mid-
term changes therein, covers a multitude of specific
items. The obligation extends to downgradings of em-
ployees in job classifications which have the effect of
cutting wages,20 changes made in job classifications and
wage rates,21 changes in the method of recalling laid-off
employees,22 changes in the manner in which a job may
be manned,23 the transfer of employees to other job clas-
sifications where the effect is a decrease in takehome
pay,24 or a change in the functions and content of a
job.25 As the Board stated in Pan Abode, Inc., supra at
315:
In order for the General Counsel to prove a prima
facie case with respect to an alleged violation of
Section 8(a)(5), he need only prove that an obliga-
tion to bargain under Section 9(a) existed and that
Respondent refused to bargain either directly or did
not bargain by unilaterally effecting a change in
working conditions. Not only is the Respondent's
motivation in instituting such changes totally irrele-
vant in determining the existence of a violation
under Section 8(a)(5), but such considerations may,
as alleged in this case, provide the predicate for
finding the same actions violative of other sections
of the Act.
II. ANALYSIS AND CONCLUSIONS
Any analysis of the legality of the Respondent's action
in effectuating a wholesale reduction of the wage rates in
three of its plants during the terms of the contracts cov-
ering those bargaining units must begin with the basic
statement that the refusal of an employer to negotiate
with the representative of its employees concerning mid-
term revisions of wages, hours, or terms and conditions
of employment is a violation of Section 8(a)(5) of the
Act, and it is no defense that such a refusal to bargain
did not take place in the context of overall subjective
bad faith. NLRB v. Benne Katz, 369 U.S. 736 (1962).
Moreover, the fact that the Respondent's action in
making unilateral changes is prompted by economic
As abstract propositions of law, the Respondent might
not quibble with the above-recited statements of its basic
legal obligation toward the Unions which represent Seat-
19 See C & S Industries, 158 NLRB 454 (1966), Oak Cliff-Golman
Baking Co, 207 NLRB 1063 (1973), Eastern Market Beef Processing Corp.,
259 NLRB 102 (1981), Ford Bros, 263 NLRB 92 (1982); Connecticut
Power Co, 271 NLRB 766 (1984).
Bergen Point Iron Works, 79^NLRB 1073 (1948)
21 Limpco Mfg. Co., 225 NLRB 987 (1978); Mooney Aircraft, 138
NLRB 1331 (1962)
22 D. H. Farms Co, 197 NLRB 267 (1972)
23 Sea-Land Service, 146 NLRB 931(1964).
24 Lucas County Farm Bureau Co-Operative Assn, 128 NLRB 458
(1960).
25 Central Cartage. Inc., 236 NLRB 1232 (1978), Everbnte Electric
Signs, 222 NLRB 679 (1976).
WESTINGHOUSE ELECTRIC CORP 433
tle, Detroit, and Chicago apparatus repair employees.
The nub of the Respondent's defense to the General
Counsel's prima facie case is that it satisfied its obligation
to bargain with the respective UE locals concerning the
actions it took by virtue of provisions in its national
agreement with the UE and in each of its applicable
local supplements. Respondent argues that the UE and
its affiliated locals gave it permission to engage in the re-
distributions which took place at these locations late in
1983 and early in 1984 through unilateral actions. The
relevant portions of those agreements are set forth supra.
Respondent goes even further. It also contends that,
even though the terms of these agreements do not actual-
ly excuse it from bargaining over the disputed redistribu-
tions or downgradings, if it can come up with a plausible
argument to the effect that they do, then the Board must
dismiss the 8(a)(5) complaint in this case and leave the
ultimate truth of the matter to some other forum.
The major premise of the Respondent's defense can
also be stated in other terms. Recasting its defense into
language used in other Board cases , the Respondent's
claim is that the Union and its respective locals have
waived their right to bargain over the conduct here at
issue, so there can be no unlawful refusal to bargain in its
unilateral actions which are the subject of this case.
These contentions, in whatever mode they are cast, have
a long and varied history in Board and court law.
However, before examining that legal history, one ob-
servation must be made concerning a factual issue about
which much testimony was taken. According to the
Charging Party and the General Counsel, the Respond-
ent's unilateral action proceeded on orders from corpo-
rate headquarters which demanded that plant managers
cut average hourly earnings in all of the 63 plants in the
apparatus repair division of Westinghouse by $1.20 to
$1.70 per hour during 1984. Some of these plants are un-
organized, so unilateral action could be taken without
legal challenge. Some are represented by other unions,
who apparently consented to midterm wage reductions,
but three of these actions are challenged here as unlawful
refusals to bargain. In any event, what occurred was a
wage restructuring which was motivated by a look at a
nationwide balance sheet which showed that the division
in 1983 was awash in red ink. Something had to be done
and cutting wages all along the line was the principal
economy to be effected, in order to bring about an im-
provement in a nationwide profit-and-loss statement.
The Respondent spent a great deal of effort in attempt-
ing to establish that 52 demotions which were made at
the three plants involved in this proceeding occurred be-
cause of individual decisions, taken by individual plant
managers on their own initiative and without reference
to what was going on at any other location, all of which
were prompted by the fact that the repair work coming
into their respective facilities was not in quantity or qual-
ity of sufficient amount to justify the grade structures
which existed. According to the Respondent, three plant
managers went out and looked around their plants, saw
that the work in progress and the orders anticipated did
not justify the staff on hand, and then took action to
bring their grade structures into line with the needs of
their respective operations.
Both situations described above amount to an econom-
ic motivation for the actions which are challenged in this
case. I think it is quite clear that the actions taken at
these three locations would not have occurred but for
the memo from company headquarters and other pres-
sures brought to bear from the top to cut costs by cut-
ting labor grades. Hammond explained why he, as a
plant manager, was reluctant to take the action required
of him until he was ordered to do so. He was afraid of
hurting employee morale and of losing valuable and
skilled employees if their earnings were arbitrarily re-
duced. The other plant managers were not so fulsome in
their expressions, but it is clear that they and their prede-
cessors allowed the grade structures they eventually re-
duced to remain in place for a very long time, without
significant revision, until they were told to do something
about it and to do it soon. This finding places the actions
of the Respondent in proper focus and is generally rele-
vant in considering the legal questions at issue. However,
the actions taken for the motivation found are still an
economic, not a discriminatory, explanation of the Re-
spondent's conduct and, as a matter of law, are immateri-
al to the Respondent's defense, to an 8(a)(5) complaint.
Whether the Respondent downgraded its apparatus
repair employees because of companywide balance sheet
considerations or because of a scarcity of work in three
particular plants, it must still bargain over these matters
with the affected unions unless it was excused from
doing so. The validity of its excuse, not the bona fides of
its economic explanation, is the crux of the issue in this
case.
The fact that an asserted waiver of the bargaining obli-
gation involves an examination of the meaning of con-
tract provisions does not oust the Board' of jurisdiction
to make that examination. In NLRB v. C & C Plywood
Corp., 385 U.S. 421 (1967), the Board and the Supreme
Court were confronted by a contention in an 8(a)(5) case
that the Board had no right to challenge the unilateral
institution of a wage plan by an employer because , "since
the contract contained a provision which might have al-
lowed the Respondent to institute the wage plan in ques-
tion, the Board was powerless to determine whether that
provision did authorize the Respondent's action, because
the question was one for a state or federal court under
Section 301 of the Act." Supra at 425, 426. That case
had one other significant similarity to the one at hand, in
that "the [C & C Plywood] contract did provide griev-
ance procedures, but the end result of those procedures,
if differences between the parties remained unresolved,
was economic warfare, not `the therapy of arbitration'
[citing Carey v. Westinghouse Corp., 375 U.S. 261,
272]."This case looks very much like C & C Plywood re-
visited.
The Supreme Court held that the Board was not
ousted from jurisdiction to determine whether a contract
provision authorized a unilateral change in wages and
went on to uphold the Board's contract interpretation. If,
in this case, the Board declines to construe the contracts
in evidence to discover whether a waiver of bargaining
has occurred or whether the Respondent has committed
an unfair labor practice, it is because the Board chooses
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to do so, not because the Board is precluded from
doing so. See also NLRB v. Strong Roofing Co., 393 U.S.
357 (1969).
In resolving 8(a)(5) allegations, sometimes the Board
has chosen to engage in contract interpretation 26 and
sometimes it has not.27 In NCR Corp., supra, a case on
which the Respondent has placed heavy reliance, the
Board refused to resolve a disputed interpretation of a
contract because "the Board will not enter the dispute to
serve the function of arbitrator in determining which
party's interpretation is correct." Resolving a contract
claim in this case will not imperil the role of arbitrators
nor foist the Board into a dispute which others can re-
solve. The contracts in this case do not provide for arbi-
tration concerning the issues raised by the Respondent in
its defense, and the Respondent has candidly said that, if
the Union does not like the way in which the Respond-
ent resolved union grievances objecting to the down-
gradings, it can strike. A picket line is not a forum to be
equated with arbitration. One resolution is a resort to
economic muscle and the other is a determination
through the methodology of contract interpretation and
application. The Board has yet to defer to a picket line
to decide a legal question arising under the Act, and it
should not do so here.
C & C Plywood, supra, stands for the further proposi-
tion that a waiver of the right to bargain over changes in
wages, hours, and terms and conditions of employment
must be a clear waiver. Others have used the phrase
"clear and unmistakable." Timken Roller Bearing Co. v.
NLRB, 325 F.2d 746 (6th Cir. 1963). Such a waiver will
not be lightly inferred, and contractual language which
reserves to the employer the right to make unilateral
midterm changes will be strictly construed. Pepsi-Cola
Distributing Co.,, 241 NLRB 869 (1979); Southern Florida
Hotel Assn., 245 NLRB 561 (1979); Capitol Trucking, 246
NLRB 135 (1979). In short, the risk of ambiguity nor-
mally falls upon the party asserting the existence of a
contract waiver. However, I do not think that these gen-
eral considerations are of critical importance in this case,
because the relevant contract clauses relied on by the
Respondent clearly do not support its position and are
not ambiguous in their terms. Indeed, much of the testi-
mony adduced at the trial was an effort to create ambi-
guity, not to explain it.
The national agreement can provide the Respondent
with no basis for arguing that it has satisfied its obliga-
tion to the unions with respect to the 52 downgradings
at issue herein .28 The general function of the national
agreement is not to address the subject of wages or em-
ployee classifications. By its terms, as well as the prac-
tice of the parties, this agreement has left these matters
to separate local negotiations which arrive at separate
26 NLRB v C & C Plywood Corp., supra, Mastro Plastics v. NLRB, 350
U.S. 270 ( 1956); Perry Rubber Co, 133 NLRB 225 (1961 ); Milwaukee
Spring Division , 268 NLRB 601 (1983); Indianapolis Power Co, 273 NLRB
1715 (1985); Continental Telephone Co., 274 NLRB 1452 (1985).
27 Morton Salt Co., 119 NLRB 1402 (1958); NCR Corp., 271 NLRB
1212 (1984); Plasterers Local 627 (Hart Concrete), 274 NLRB 1286 (1985).
28 Pettit testified that the management -rights clause in the local supple-
ments were what gave the Respondent the right to take the unilateral ac-
tions it took . The texts of these clauses in the Seattle and Chicago local
agreements have not been made known to me.
and differing wage scales. More -precisely, there is noth-
ing in the management-rights clause in that agreement,
styled "Cooperation," which talks of bumping, wages or
job classifications, and to infer that this clause addresses
these subjects is simply to ignore its language and to read
into it matters which are simply not there. If the Re-
spondent has any basis for contending that it has satisfied
its bargaining obligations-and these obligations are 12 in
number with respect to UE locals-it must find its pre-
rogatives, and corresponding waivers by various locals,
in the several local supplements, where questions of
wages, classifications, and what to do in the event of fur-
loughs, increases , and decreases in the work force are
specifically addressed.
The bumping provisions in each of the three local sup-
plements are the provisions which the Respondent osten-
sibly followed at each of its repair plants in order to ef-
fectuate the downgradings. They are found in contract
sections entitled "Decrease in Force" or having similar
titles. In the Seattle agreement, the pertinent provision
begins "when production schedules make it necessary to
effect a decrease in force" and goes on to outline what is
to be done in such an instance. The procedure relied on
in Detroit is found in a section entitled "Decrease in
Working Force," and subtitled "Layoff Procedure." In
the Chicago agreement, the relevant section is entitled
"Decrease in Work Force" and begins with the phrase
"in the event of a layoff, the Company shall give the
Union as much advance notice as possible .... In a re-
duction in working force, an employee will be permitted
to replace an employee with less seniority . . . ." Not-
withstanding McRae's statement to union officials that
"this was just like a layoff only no one is going to lose
his job," there is nothing in any of these local supple-
ments which remotely suggests that they cover situations
in which no one is being laid off. The use of these sec-
tions to authorize wholesale grade reductions and a con-
sequent restructuring of the wage scale is a gratuitous re-
writing of the contracts and is a matter which should be
taken up in collective bargaining at the time established
for collective bargaining, not for unilateral action subject
to a grievance procedure which leads only to a picket
line.
The procedures quoted above are bumping proce-
dures. Bumping is a practice designed to ease the pain of
layoffs by giving a displaced employee a choice to take a
lower paying job in preference to having no job at all. In
Seattle and Chicago, this is not the situation which arose.
No one at those two plants was given any choice of
taking a lower rated job in preference to no job at all.
They were simply told that their takehome pay was
being reduced, although many of them continued to do
the same work for less money than they were doing pre-
viously. To fit a wage restructuring program into con-
tract procedures obviously designed to meet a totally dif-
ferent situation is a torturing of the plain meaning of the
provisions.
Language loses its meaning and collective bargaining
its function if language such as the above can be
stretched in the manner suggested by the Respondent.
Such language does not need to be interpreted; it is clear
WESTINGHOUSE ELECTRIC CORP.
and unambiguous and needs only to be read and applied
as written . In no way can it be deemed a clear and un-
ambiguous waiver of bargaining over matters which are
not even addressed.
To keep this language from 'being applied as written,
the Respondent has taken great pains to describe the past
practice of the Company with respect to downgradings,
and to urge that this practice , as outlined, rather than the
plain terms of, the agreement should be relied on to ab-
solve Westinghouse of its obligation to bargain. In re-
viewing this contention, one initial observation should be
made concering loose use of the phrase "past practice."
Previous contract violations do not serve as precedents
for future contract violations , nor do previous unfair
labor practices , timebarred from prosecution by Section
10(b) of the Act, constitute viable past practices justify-
ing further similar conduct. In presenting evidence of
"past practice," the Respondent persisted in blurring the
essential and dispositive distinction involved in this case,
namely, whether a layoff provision in a contract applies
to situations in which employees are not laid off but are
simply required to keep on working for less money.
Generalities on this score , presented by certain corpo-
rate officers, were not only fuzzy with respect to the
precise point at issue but were contradicted by specific
information supplied by their plant managers at the af-
fected plants . Pettit and Hester said that, throughout the
Westinghouse system, the Company has always been
contractually allowed to reduce wages and to lay off in-
dividuals in the manner followed at the three apparatus
repair plants. Necessarily involved in these general state-
ments were situations in which layoffs also took place,
situations arising in unrepresented plants, and situations
arising in other plants operating under other contracts.
This is hardly past practice with respect to the three
local supplements on which the Respondent must rely in
this case to excuse itself from bargaining about what it
did. In contrast to these statements, Hammond, the Seat-
tle manager, testified that , in his experience in the Seattle
plant, he could remember only one time when an em-
ployee was downgraded (other than for incompetence)
when a layoff did not take place , and that was a tempo-
rary demotion during a strike. Spevetz testified that, in
his 10 years in Detroit, no downgradings unaccompanied
by layoffs had ever occurred. Kauffunger and McRae
brought in, lists of previous downgradings of employees
in accordance with the layoff provisions of the Chicago
contract but, when pressed, they had to admit that most
of these instances involved bumpings which occurred in
a layoff situation. Kauffunger admitted that it was quite
possible that, in Chicago , a demotion (other than for
poor performance) had never taken place except in a
layoff situation. This is not evidence of past practice jus-
tifying the use of the layoff, provisions for wage restruc-
turing purposes . It is past practice supporting the Gener-
al Counsel's contention that these contract clauses are
wholly irrelevant to the question here at issue because
they relate, as their terms state, exclusively to layoffs and
to nothing else.
One other consideration in the area of past practice,
hardly adverted to by, any of the, parties, should be kept
in mind . Wages in each of these plants , and indeed in
435
most Westinghouse plants, are a combination of a key
sheet and an employee's labor grade . The key sheets,
which are locally negotiated and locally revised , estab-
lish dollar figures for each grade . None of these key
sheets were revised, although, at each plant, overtures
were made by company officials preliminary to the "re-
distributions" to revise the key sheets, because wages at
all of these plants were assertedly out of line with what
the competition was paying . ` Midterm revisions in key
sheet rates were uniformly rejected at all three plants,
and what occurred thereafter was an attempt to reap the
benefit of midterm revisions in key sheets through indi-
rect means, because the Respondent recognized that any
unilateral revision of these scales during the terms of the
respective contracts would be a clear and obvious viola-
tion of Section 8(d) of the Act.
Attention then turned to labor grades . Respondent in-
sists, and devoted much testimony to the fact that, no
employee has a contract right to hold any labor grade,
nor is there any contract right to maintain any given
number of labor grades at any time in any plant. Labor
grades are assigned to job classifications , so a change of
an employee's job classification brings about a change in
labor grade and hence a change in his hourly earnings.
At each plant, there are a myriad of job classifications
and various job ladders, e.g., winder, welder, fitter, etc.
Within these job ladders there are several classifications,
depending on the complexity of the job and the skill re-
quired. Job descriptions were generally written at the
corporate headquarters in Pittsburgh. Most of them are
quite old. They are formulated in general terms and at-
tempt to lend a' patina of objectivity to matters which,
within wide parameters, are quite subjective. For in-
stance, one classification says that an employee holding
that position must be able to do "complex" work while
anemployee in the next higher rated position must be
able to do "intricate" work of the same general nature.
Within each job' ladder, each classification includes all of
the work in similar lower rated positions . In, other
words, a grade 9 fitter is required to do all of the work
of a grade 7 fitter, and then some . The classification pro-
gram _ is, within limits, an effort to codify degree of skill
to be possessed rather than kind of work to be done.
One thing which is not to be found in writing, either
in a contract, company manual, memo, or standard oper-
ating procedure , ' is how particular job classifications are
to be mated or meshed into particular work in the shop.
In a repair plant, the work to be done is of widely differ-
ing complexity requiring greater or lesser degree of skill
depending on the item the employee is called on to
repair. Of necessity, a single assignment involves varying
degrees of skill, as well as different kinds of skill. The
repair of a transformer may include work classified as
grade 11 work and it may include work also classified as
grade 5 work. How the Respondent arrives at evaluation
of which classification of employee should be assigned to
a particular job is a question of management estimate.
For instance, it is a matter ' of shop practice, not contract
requirement, that the steam cleaning of a transformer is
grade 5 work while stripping , the stater is grade 6 work.
Since plants are called on over and over again to do the
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same kind of repair work, assignments of employee by
classification have become a matter of shop practice, and
a. more enduring practice than anything which was
squarely addressed by the parties in writing.
The Respondent's principal economic complaint was
that' it had to confront a situation sometimes described in
Government circles as "grade creep." In other words,
the Respondent was upset that, over a long period of
time, higher rated employees were repeatedly being as-
signed to perform work that had formerly been per-
formed, and which could be performed, by lower rated
employees. As a result, labor costs to repair the same
item had gradually increased because the work was
being done by higher priced workmen than before. A
major purpose of the 1983-1984 redistribution was an
effort to correct grade creep.
The problem with a unilateral correction of grade
creep, effectuated in the manner that it was done, is that
the key sheets which established rates for each grade
(and which are periodically revised) were negotiated in
1982 at each of these plants against the backdrop of ex-
isting shop practices, so key sheet rates which were
agreed on were set in light of assignments routinely
being made, irrespective of whether those assignments
strictly complied with the language of written job classi-
fications which were in effect. Another facet of this situ-
ation is also important to note. The mere fact that an em-
ployee does not perform, during the course of a given
day or week, the complexity of work set forth in his as-
signed classification has- not, in times past, brought about
a reduction in his labor grade . Respondent witnesses tes-
tified to a rule of thumb that an employee should devote
at least 50 percent of his time to work requiring the
highest degree of skill in his classification. However, this
could hardly be found to be a fixed practice. If an em-
ployee was assigned, for a considerable period of time,
work which was more difficult than what was required
of him by his job description, he would be temporarily
paid at a higher rate. These payments were never more
than 5 percent of the Respondent's total wage cost. Not
surprisingly, when these wholesale demotions took place,
TRA assignments increased. Since, with rare exception,
employees were never demoted in grade except for in-
competence, neglect of duty, or as part of the bumping
procedure in a layoff situation, it is plain that, through-
out all of these three apparatus repair plants, job classifi-
cations followed the man, not the job, Spevetz to ' the
contrary notwithstanding.29 When these classifications
were unilaterally reduced, the Respondent created a situ-
ation which the Board addressed long ago in Bergen
Point Iron Works, supra. It should come to the same con-
clusion here.
Using the layoff provisions of local contracts or the
"Cooperation" provision of the national agreement to
justify unilateral actions taken by the Respondent at Chi-
cago and Seattle is plainly a posthoc rationalization of a
refusal to bargain over a midterm reduction in wages and
job classifications. Such bargaining is required by the
Act. Dust-Tex Service., 214 NLRB 398 (1974). Having
failed to comply with this obligation, the Respondent
herein violated Section 8(a)(1) and (5) of the Act.
The Respondent's actions in Detroit present a some-
what different situation. In Detroit, 15 employees were
laid off on December 22 and some were not recalled for
several months. One laid-off employee, Baker, is still out
of work. In addition, six employees were reclassified
downward but retained on the payroll. Two of those
who were reclassified and retained-Kniffen and Ler-
chenfeldt-grieved that they were doing the same work
before their demotions as before but were being paid
less. Their grievances were denied.
The General Counsel does not challenge the right of
the Respondent to lay off employees - on December 22,
1983, without the necessity of negotiating the question
with UE Local 957, since there are layoff provisions in
the Detroit contract which can be read to satisfy the Re-
spondent's bargaining obligation in that respect. The
thrust of the General Counsel's complaint in Detroit is
that, when the Respondent recalled 12 of the laid-off De-
troit employees, it recalled all but 3 of them to different
and lower labor grades and wage rates than the ones
they enjoyed before they were laid off. In his view and
that of the Charging Party, this action constitutes a uni-
lateral reduction in wages of bargaining unit employees,
during the contract term, without bargaining. While ad-
mitting the factual premises outlined by the General
Counsel, the Respondent contends that it satisfied its ob-
ligation to bargain over this question by virtue of various
contract provisions set forth above, and that it was free
under those contracts to recall employees at lower wage
rates than they held on their dates of layoff.
The following is a listing of the laid-off Detroit em-
ployees in their order of recall, except for Kramer and
Green, who quit during the layoff. Included in this list-
ing is the seniority ranking of these employees, except
for Ferrell and Collett, whose personnel cards and se-
niority ranking are not in the record:
Employee Seniority Old Labor Grade Labor Grade Upon Recall
1. Stewart 3 Driver 9 ................................ Welder 9*
2. Krasic 5 Fitter 9 .................................. Fitter 5
3. Ferrell ? Fitter 10 ................................ Fitter 5
4. Peterson 4 Fitter 10 ................................ Fitter 5
5. Wallace 8 Fitter 6 .................................. Janitor 1
6. Andrews 6 Fitter 11 ................................ Fitter 5
7. Blaylock 1 Winder 10 ............................. Winder 9
29 Spevetz testified that, at the time of the layoff, he kept two grade 11
winders on the payroll although he did not have any grade 11 work for
one of them, because he needed to have that kid of employee on hand
just in case some more grade 11 winding work came into the shop. Other
managers also testified that these evaluations of the grades they needed
reflected not only work which was in the shop but work they anticipated
getting. Such testimony is in marked contrast to the contention that
grades followed work, except in a TRA situation
WESTINGHOUSE ELECTRIC CORP. 437
Employee Seniority Old Labor Grade Labor Grade Upon Recall
8. Linton 2 Winder 11 ............................. Winder 9
9. Robinson 9 Fitter 6 .................................. Janitor 1
10. Wilson 11 Welder 11 ............................. Welder 9
11. Pettit 10 Fitter 5 .................................. Fitter 5
12. Collett 7 Fitter 5 .................................. Fitter 5
13. Baker 7 Winder 10 ............................. Not yet recalled
* Subdesignations of probationary (P), qualifying (Q), and standard (S) are omitted as unnecessary to this analysis.
The General Counsel argues that the differences set forth
above are merely an indirect way of doing what the Re-
spondent did at Chicago and Seattle and they should
suffer the same legal consequences . Certainly unilateral
changes in recalling procedures violate Section 8(a)(5) of
the Act, unless bargaining has been excused, D. H.
Farms Co., supra, and an employer may not resort to
subterfuge to impose unilateral changes in job classifica-
tions, Limpco Mfg. Co., supra , but subterfuge is a hard
matter to argue when motive is immaterial. The ultimate
question here, as in Seattle and Chicago, is whether the
Respondent, in recalling employees to different job clas-
sifications and wage rates, was excused from bargaining
over these differences by virtue of some provision or
provisions in outstanding labor agreements.
The reduced wage rates which are the gravamen of
the Detroit complaint, were not imposed until recall. Ac-
cordingly, the layoff and bumping provisions of the De-
troit contract are irrelevant to what took place thereaf-
ter. They afford, none of the parties any support for their
respective contentions. In the view of the General Coun-
sel and the Charging Party, the question should then
arise as to where in the agreements between these parties
has the Union waived the right to bargain, and the Re-
spondent acquired the right to recall, employees at lower
rates than they were paid before they were laid off. If
there are no such provisions, then, in their view, a unilat-
eral reclassification of employees has taken place similar
to the ones in Seattle and Detroit. The only difference is
that employees were working in two instances while in
layoff status in the other.
The "Cooperation" section of the national agreement
does not address this matter any more than it encom-
passed the actions of the Respondent at Chicago and Se-
attle. In Detroit, as in those other locations, wages and
job classifications were and are the subject of local nego-
tiations and the cooperation section of the national agree-
ment provides specifically that it "does not limit or
modify the rights of the parties under any other provi-
sions [of the national agreement] or of the applicable
local supplements."
The only provision in the Detroit local supplement rel-
ative to recalling employees is in the section entitled "In-
crease in Working Force." It reads as follows:
1. Job openings will be filled in the following se-
quence:
a. First consideration will be given to the most
senior qualified employee on the active seniority
list who previously performed the open job
within the past twelve (12) months at standard
rate and lost the job as a result of a reduction in
force.
It then goes on to list the order of preference for filling
vacancies among other employees on the payroll and fi-
nally provides:
d. If the opening is not thus filled, consider-
ation passes to the most senior qualified former
employee on the inactive seniority list.
e. If the job is not thus filled, the Company
will fill the job by other means at its discretion.
All of the fitters who were laid off on December 22
were recalled to Fitter 5 positions, an entry level_ job, or
to a janitor job. They were recalled in the following
order of seniority, omitting Ferrell and Collett, whose
seniority is unknown: 5, 4, 8, 6, 9, and 10. Whether these
unilateral departures from the contract requirement also
constitute an unfair labor practice was not placed in issue
in this case . What was placed at issue is whether the Re-
spondent was obligated to bargain with the Union about
the labor grades at which it recalls employees and, if so,
has it satisfied that obligation by the provisions of any
outstanding contract.
In resolving these questions, it must be remembered
that an employee cannot be recalled to a job which does
not exist. A grade 9 fitter cannot be recalled to a grade 9
fitting job if there is no such opening. What occurred
here, in most instances, was that laid-off employees were
offered lower-rated jobs than the ones they previously
held and were thus put in a position of taking it or leav-
ing it . The same take-it-or-leave-it option faced several
employees in two of the three previous layoffs at the De-
troit plant, and most of them took lower rated jobs in
preference to remaining unemployed. Quite possibly, by
this strategem, the Respondent was generally accom-
plishing, in an indirect way and over a period of time,
what it tried to do directly and immediately in Chicago
and Seattle, namely, lowering the hourly earnings of its
employees during a contract term without negotiating
this move with the affected bargaining agents. However,
similarity of result does not mandate a similar evaluation
of the legality of what achieves that result.
The simple fact is that the laid-off Detroit employees
to whom lower rated jobs were offered held no jobs and
no labor grade classifications at the times they were of-
fered employment. While a classification may follow the
man and not the work, it can hardly follow him into
layoff status. Employees in Detroit were offered what
existed and they could choose to accept it or not. Appar-
ently two employees rejected the offers made to them
and permanently separated themselves from the Re-
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's roster. A laid-off employee has no classifica-
tion and no labor grade because he is out of work, so his
return to the payroll cannot be a reclassification from
one labor grade to another. It is a move from out-of-
work status to the classification offered. Accordingly,
the process of returning laid-off employees to the compa-
ny payroll can hardly be deemed a reclassification in
labor grade about which bargaining is required. Hence,
none of the laid-off Detroit employees were unilaterally
reclassified from their old grades to newer grades on
recall. They lost their old grades on the date of their
layoff and held no grades until they were restored to
duty. Unless the local contract provides that an employ-
ee has the right to be recalled to the grade he vacated,
and no such provision exists, it cannot be said that the
recall of these individuals constituted a bargainable
change in wages or classifications. Hence, at Detroit, the
first premise of an 8(a)(5) allegation, namely, that of uni-
lateral change, has not been established. In light of these
considerations, I recommend that so much of the com-
plaint that is addressed to the recall of Detroit employees
be dismissed. 30
On the foregoing findings of fact and on the entire
record herein considered as a whole, I make the follow-
ing
CONCLUSIONS OF LAW
1. Westinghouse Electric Corporation is now and at all
times material herein has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. United Electrical, Radio, and Machine Workers of
America (UE), and its Locals- 957, 1105, and 1002, are,
respectively, labor organizations within the meaning of
the Act.
3. All repair and maintenance employees of the Re-
spondent at its Detroit, Seattle, and Chicago apparatus
repair or service plants, but excluding office clerical em-
ployees, guards, professional employees, and supervisors
as defined in the Act, are, individually, units appropriate
for collective bargaining within the meaning of Section
9(b) of the Act. The aforesaid employees, together with
all production and maintenance employees, employed at
eight other Westinghouse plants which are currently
covered by the national agreement between the Re-
spondent and the United Electrical, Radio, and Machine
Workers of America (UE), exclusive of office clerical
employees, guards, professional employees, and supervi-
sors as defined in the Act, also constitute a unit appropri-
ate for collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material herein, UE Locals 957, 1105,
and 1002, respectively, have been the exclusive collective
bargaining representatives of all of the employees in the
respective individual plant units found appropriate in
30 The record is not sufficiently clear to support with any precision a
fording that recalled employees were doing the same work as before but
at lower wages . If so, this might constitute the basis for a valid 8(aX5)
finding, but this is not the basis of the General Counsel's case. In the
same vein, a violation of the furlough provisions in the local contract
might, under some circumstances , violate the Act, but such is not the
case that was litigated herein.
Conclusion of Law 3, for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act,
and the United Electrical, Radio, and Machine Workers
of America (UE), has been the exclusive collective bar-
gaining representative of all of the employees in the na-
tional unit set forth above in Conclusion of Law 3, for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By unilaterally reclassifying bargaining unit employ-
ees at the Chicago and Seattle apparatus repair plants
and reducing their wages, the Respondent herein violat-
ed Section 8(a)(5) of the Act.
6. The unfair labor practices set forth above in Con-
clusion of Law 5 violate Section 8(a)(1) of the Act, and
have a close, intimate, and adverse effect on the free
flow of commerce, within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take other
affirmative actions designed to effectuate the purposes
and policies of the Act. The recommended Order will
require that the Respondent cease and desist from unilat-
erally reclassifying bargaining unit employees and reduc-
ing their wages, and will require it to bargain collective-
ly in good faith with the appropriate bargaining agents as
the representative of their employees. It will also require
the Respondent to restore the job classifications and
labor grades of all illegally reclassified employees, and to
make them whole for any loss of wages they may have
suffered by reason of the acts found herein to be illegal.
The requirement to make employees whole will include
interest on back wages due, computed in accordance
with the adjusted prime rate used by the Internal Reve-
nue Service for the computation of tax payments. Olym-
pic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing
Co., 138 NLRB 716 (1962). I will also require the Re-
spondent to post the usual notice advising its employees
of their rights and of the results in this case.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed31
ORDER
The Respondent, Westinghouse Electric Corporation,
Pittsburgh, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Elec-
trical, Radio, and Machine Workers of America (UE),
and its Locals: 1105 and 1002, as the exclusive collective-
bargaining representatives of its repair and maintenance
employees at its Seattle and Chicago plants, and as the
31 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
WESTINGHOUSE ELECTRIC CORP.
exclusive collective-bargaining representative of its
repair, production, and maintenance employees in its
UE-represented plants throughout the United States, ex-
cluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
(b) Unilaterally instituting reductions in job classifica-
tions and labor grades without first notifying the collec-
tive-bargaining representative and bargaining collectively
in good faith concerning such changes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) Recognize and, on request, bargain collectively in
good faith with the United Electrical, Radio, and Ma-
chine Workers of America (UE), and its Locals 1105 and
1002, as the exclusive collective-bargaining representa-
tives of its repair, production, and maintenance employ-
ees in the Chicago, Seattle, and national bargaining units,
excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
(b) Restore to employees in its Seattle and Chicago ap-
paratus repair plants the job classifications and wage
rates which they lost about March 2, 1984, and make
them whole for any loss of pay or benefits which they
have suffered by reason of the reductions, with interest.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll and other records necessary to analyze the amounts
of backpay due under the terms of this Order.
(d) Post at its Chicago, Illinois, and Seattle, Washing-
ton, apparatus repair plants copies of the attached notice
marked "Appendix."32 Copies of said notice, on forms
provided by the Regional Directors for Regions 13 and
19, shall be posted for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered,' defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
439
IT IS FURTHER RECOMMENDED that insofar as any
complaint consolidated for hearing herein alleges matters
which have not been found to be violations of the Act,
the complaint is dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL, bargain collectively in good faith with
United Electrical, Radio, and Machine Workers of
America (UE), and its Locals 1105 and 1002, as the ex-
clusive collective-bargaining representatives of our Seat-
tle and Chicago apparatus repair plant employees, and of
the employees in the national UE bargaining unit.
WE WILL NOT unilaterally reduce the job classifica-
tions and labor grades of our bargaining unit employees,
and WE WILL bargain collectively in good faith with the
appropriate bargaining agents concerning any proposed
changes in wages, hours, and terms and conditions of
employment of our bargaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights guaranteed by Section 7 of the Act.
WE WILL restore the job classifications and wage rates
of the employees in our Chicago and Seattle apparatus
repair plants which were reduced about March 2, 1984,
and we will make them whole for any losses in wages or
benefits which they may have suffered by reason of
those reductions in job classifications and wage rates,
with interest.
WESTINGHOUSE ELECTRIC CORPORATION
sa If 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 Nation-
al 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 "