Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 452 (N.L.R.B. 1993)

452
313 NLRB No. 60
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On March 12, 1993, Administrative Law Judge James L. Rose
issued the attached decision. The General Counsel and the Union
filed exceptions and a supporting brief. The Respondent filed cross-
exceptions and a brief supporting cross-exceptions and answering the
General Counsel’s exceptions. The General Counsel filed a reply
brief. The Baltimore Salaried Employees Association and the Federa-
tion of Westinghouse Independent Salaried Unions submitted an
amicus brief and exceptions.
2 The General Counsel and the Union have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions un-
less 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 reversing the findings.
3 We do not rely on the judge’s comments about the relative suit-
ability of Board litigation and private arbitration for resolution of the
issue presented.
Westinghouse Electric Corporation and Salaried
Employees Association of the Baltimore Divi-
sion, Federation of Westinghouse Independent
Salaried Unions. Cases 5–CA–22392 and 5–CA–
23106
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues in this case are whether the judge cor-
rectly found that the Respondent did not violate Sec-
tion 8(a)(5) and (1) of the Act: (1) by failing to permit
senior employees who were ‘‘dispositioned’’ by lay-
offs to exercise contractual bumping rights against jun-
ior employees in jobs requiring ‘‘special access clear-
ance’’; and (2) by failing to bargain about a decision
to lay off unit employees and to transfer their work.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions only to the extent con-
sistent with this Decision and Order.
1. We agree with the judge, for the reasons fully de-
scribed in his decision, that the Respondent acted pur-
suant to its longstanding and plausible interpretation of
relevant contractual provisions in excepting employees
with ‘‘special access clearance’’ from seniority-based
bumping procedures during layoffs in December 1991
and 1992. The General Counsel’s theory of violation
depends on a contrary plausible interpretation of those
provisions. The Board has repeatedly held that
‘‘[w]here . . . the dispute is solely one of contract in-
terpretation, and there is no evidence of animus, bad
faith, or an intent to undermine the Union, we will not
seek to determine which of two equally plausible con-
tract interpretations is correct.’’ Atwood & Morrill Co.,
289 NLRB 794, 795 (1988). In accord with this prece-
dent, we adopt the judge’s recommendation to dismiss
the complaint’s allegation of an 8(a)(5) contract
breach.3
2. We reach a different conclusion with respect to
the judge’s dismissal of the complaint’s allegation that
the Respondent violated Section 8(a)(5) by its unilat-
eral decision to lay off four employees and to transfer
their work. We find that the Respondent unlawfully
failed to bargain about a mandatory subject of bargain-
ing.
The Union has been the representative of several
bargaining units of the Respondent’s employees at its
Baltimore, Maryland facility. The Command and Con-
trol Division unit included employees working in the
West Building Calibration Laboratory. The Baltimore
Aerospace Division unit included employees working
in the East Building Calibration Laboratory.
On October 30, 1991, the Respondent gave the
Union a list of employees whose positions would be
eliminated in a December layoff. According to the
uncontradicted testimony of Union President Gary
Eber, he telephoned Charles Berger, the Respondent’s
manager of human resources programs and salaried
employees relations, to ask about the inclusion on the
layoff list of four unit employees working in the West
Building lab. Berger disclosed the Respondent’s intent
to close that laboratory and to transfer work performed
there to current employees working in the more mod-
ern and efficient East Building lab. Eber argued that
the collective-bargaining agreement required a ‘‘de-
crease in work load’’ before any layoff could occur.
Berger’s response was ‘‘that it’s management’s right,
they have the right to do it, and so they’re doing it.’’
Eber subsequently discussed the matter with Michael
Jackson, the Respondent’s manager of personnel and
union relations. Jackson ultimately told Eber that
‘‘[i]t’s a management decision and that’s it.’’ In De-
cember 1991, the Respondent implemented its pre-
viously announced lab closing, layoff, and work trans-
fer plan. In early 1992, the Respondent denied the
Union’s grievance of this action and declined to pro-
ceed to arbitration.
The Respondent defends its unilateral action by con-
tending that it had no obligation to bargain or, alter-
natively, that the Union waived its right to bargain by
failing to request bargaining after timely advance noti-
fication of the intended action. The judge addressed
only the former defense. Based on the test set forth in
Dubuque Packing, 303 NLRB 386 (1991), he found
that the General Counsel had presented a prima facie
case that the work transfer and layoff decision was a
mandatory subject of bargaining because it did not in-
volve a basic change in the nature of the Respondent’s
operation. He further found, however, that the Re-
453WESTINGHOUSE ELECTRIC CORP.
4 It bears reiterating that the statutory obligation to bargain never
requires that an employer agree to whatever the bargaining rep-
resentative seeks or that it forgo efforts to achieve greater effi-
ciencies. Doubtless it is desirable, from an employer’s point of view,
to speed up production and perform the same work with fewer em-
ployees. Clearly, the Respondent could save money by having all the
calibration laboratory work performed by fewer employees working
in a single laboratory. The Act simply requires that such fundamen-
tally employee-focused decisions be negotitated with the bargaining
representative.
5 We nevertheless specifically disavow the judge’s mistaken state-
ment that financial savings gained from the layoffs here are not the
kind of labor costs contemplated by Dubuque. We also disavow any
implication that an evaluation of labor costs as a factor in a manage-
rial decision to transfer work is limited to a comparison of the wages
of the employees involved.
6 For the reasons set forth in Member Raudabaugh’s concurring
opinion in Holmes & Narver, he would apply the Dubuque test to
analyze the Respondent’s obligation to bargain about the entre-
preneurial decision at issue here. Indeed, this case is even more
clearly subject to the Dubuque test than was Holmes & Narver.
Holmes & Narver involved an employer’s decision to do the same
work with fewer employees. The instant case involves the closing
of a laboratory and the transfer of the work elsewhere. In sum, the
decision in this case, even more clearly than the one in Holmes &
Narver, is within category 3 of First National Maintenance v. NLRB,
452 U.S. 666 (1981). Accordingly, Member Raudabaugh finds that
the instant case is particularly appropriate for the application of Du-
buque, a test for category 3 cases. Applying the Dubuque test, Mem-
ber Raudabaugh agrees with the judge that the General Counsel has
established a prima facie case that the decision was a mandatory bar-
gaining subject. Contrary to the judge, however, Member
Raudabaugh finds that the Respondent failed to meet its affirmative
burden of proving either that labor costs were not a factor in the de-
cision or that the Union could not have offered cost concessions
which could have altered the decision. In this regard, Member
Raudabaugh agrees with his colleagues that the financial savings ef-
fected by laying off employees constitutes a savings of labor costs
within the meaning of the Dubuque test. Further, the Respondent did
not show that the Union could not have made concessions sufficient
to change the decision.
Finally, Member Raudabaugh notes the D.C. Circuit’s formulation
of the above-mentioned aspect of the Dubuque test. Commercial
Workers Local 150-A v. NLRB, review denied mem. 998 F.2d 7
(1993). In Dubuque, the Board said that the employer is not required
to bargain if the employer shows that the union could not make suf-
ficient concessions. The court added that the employer is not re-
quired to bargain if the employer could show that the union would
not make those concessions, i.e., was unwilling to make them. Ac-
cepting arguendo the D.C. Circuit’s formulation, Member
Raudabaugh finds that the Respondent here has not made either of
the showings contemplated by the D.C. Circuit.
spondent met its burden of proving that it had no duty
to bargain because labor costs were not a factor in its
decision. In this regard, the judge relied on the identity
of wage scales for employees in both labs and the fact
that the East Building lab was more modern and effi-
cient than the West Building lab. The judge acknowl-
edged that the layoff of employees for whom there was
no longer work entailed labor cost savings, but he rea-
soned that ‘‘this is not the kind of labor costs the
Board contemplated in Dubuque.’’
Contrary to the judge, we find that the Respondent
had a statutory obligation to bargain about the decision
in dispute. We view the analysis of an employer’s un-
lawful unilateral decision to consolidate jobs and to lay
off employees in Holmes & Narver, 309 NLRB 148
(1992), as dispositive here. In both Holmes & Narver
and the present case, the employer has essentially de-
cided to continue doing the same work with fewer em-
ployees. There was no change in the scope and direc-
tion of the corporate enterprise; and a shift of work
from a group of employees in one building on an em-
ployer’s corporate premises to a group of employees in
another employer-owned building at the same site is
not the kind of relocation which we dealt with in Du-
buque. The present case involves essentially one plant,
albeit operations were located in several different
buildings, and the reassignment of work from one
group of calibration employees to another was asking
to ‘‘assignment of work among potentially eligible
groups within the plant,’’ which is among those mat-
ters ‘‘recognized as subjects of compulsory bargaining.
Fibreboard Corp. v. NLRB, 379 U.S. 203, 224 (1964)
(Stewart, J. concurring; footnote omitted).4 Accord-
ingly, as the Board held in Holmes & Narver, it is un-
necessary to engage in the Dubuque multistep analysis
to justify the conclusion that a decision in this category
is a mandatory subject of bargaining.5 The Respondent
could not implement such a decision prior to giving
the Union adequate notice and opportunity to bargain
about it.6
We find no merit in the Respondent’s alternative
contention that the Union waived its right to bargain
by failing to request bargaining in the nearly 2-month
period between disclosure of the Respondent’s plans
and the implementation of those plans. According to
Union President Eber’s uncontradicted testimony, the
Respondent’s labor officials clearly indicated their
view that the decisions involved here were matters
solely within management’s discretion and not subject
to collective bargaining. In these circumstances, it
would have been futile for the Union to make a formal
request for bargaining about a decision which was ef-
fectively presented as a fait accompli. We therefore
find that the Respondent violated Section 8(a)(5) by
failing to bargain with the Union about the decision to
transfer work from the West Building Calibration lab
to the East Building lab and to lay off four employees
who had been performing the work in the West Build-
ing lab.
CONCLUSIONS OF LAW
l. The Respondent, Westinghouse Electric Corpora-
tion, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Salaried Employees Association of the Baltimore
Division, Federation of Westinghouse Independent Sal-
aried Unions (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
3. By failing to bargain with the Union about a deci-
sion to transfer Command and Control Division bar-
gaining unit work and to lay off four employees in that
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by failing to bargain
with the Union about a decision to transfer bargaining
unit work and to lay off unit employees, we shall order
it to cease and desist from engaging in such conduct
and to bargain on request with the Union about this
decision. We shall further order the Respondent to
offer the four employees who were laid off pursuant
to its unlawful unilateral action immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions. If
necessary to fulfill its reinstatement obligation, the Re-
spondent shall reopen the West Building Calibration
Laboratory. The Respondent shall also make whole
these employees for any loss of earnings and other
benefits suffered as a result of its unlawful unilateral
action. Backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The Respondent, Westinghouse Electric Corporation,
Baltimore, Maryland, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union, as the exclu-
sive collective-bargaining representative of a unit of
the Respondent’s employees in the Command and
Control Division, about a decision to transfer work
from the West Building Calibration Laboratory to the
East Building Calibration Laboratory and to lay off
unit employees who had been performing this work in
the West Building.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union in good faith
about the decision to transfer work from and to lay off
bargaining unit employees working in the West Build-
ing lab.
(b) Offer the four employees who were laid off as
part of the unilateral decision to transfer work from the
West Building lab immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, reopening, if nec-
essary, the West Building lab, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole, with interest,
for any loss of earnings or benefits suffered as the re-
sult of Employer’s unlawful action in the manner set
forth in the remedy section of this Decision and Order.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facilities in Baltimore, Maryland, cop-
ies of the attached notice marked ‘‘Appendix.’’7 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days 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 al-
tered, 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.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain with Salaried Em-
ployees Association of the Baltimore Division, Federa-
455WESTINGHOUSE ELECTRIC CORP.
1 The General Counsel’s posthearing motion to add three docu-
ments to the record is granted.
tion of Westinghouse Independent Salaried Unions (the
Union), as the exclusive collective-bargaining rep-
resentative of a unit of our employees in the Command
and Control Division, about a decision to transfer work
from the West Building Calibration Laboratory to the
East Building Calibration Laboratory and to lay off
unit employees who had been performing this work in
the West Building.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union in
good faith about the decision to transfer work from
and to lay off bargaining unit employees working in
the West Building lab.
WE WILL offer the four employees whom we laid
off as part of our unilateral decision to transfer work
from the West Building lab immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, re-
opening, if necessary, the West Building lab, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make them
whole, with interest, for any loss of earnings or bene-
fits suffered as the result of their layoff.
WESTINGHOUSE ELECTRIC CORPORA-
TION
Steven Sokolow and Paula Sawyer, Esqs., for the General
Counsel.
Barnett O. Brooks and Robert A. Edwards, Esqs., of Balti-
more, Maryland, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Baltimore, Maryland, on November
30 through December 4, 1992, upon the General Counsel’s
complaints which alleged, generally, that the Respondent
breached its bargaining obligations by repudiating provisions
of its collective-bargaining agreement with the Charging
Party in violation of Section 8(a)(5) of the National Labor
Relations Act. The Respondent generally denied that it en-
gaged in any unfair labor practices, and raised several affirm-
ative defenses.
The General Counsel and Respondent appeared by counsel
and were given the opportunity to call, examine, and cross-
examine witnesses. Following the hearing, they submitted ex-
tensive briefs.
On the record as a whole,1 including my observation of
the witnesses, briefs, and arguments of counsel.
FINDINGS OF FACT
I. JURISDICTION
Westinghouse Electric Corporation (the Respondent) is a
Pennsylvania corporation with an office and manufacturing
facility at Baltimore, Maryland, engaged in the manufacture
and nonretail sale of defense and radar systems and related
products primarily to the United States Government. In the
course and conduct of its business, the Respondent annually
purchases and receives directly from points outside the State
of Maryland goods, products, and materials valued in excess
of $50,000.
The Respondent admitted, and I find, that it is an em-
ployer engaged in interstate commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Salaried Employees Association of the Baltimore Division,
Federation of Westinghouse Independent Salaried Unions
(the Union) is admitted to be, and I find is, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
There is no serious dispute concerning the substantive
facts of these cases. To summarize, the Respondent has fa-
cilities throughout the United States. Several labor organiza-
tions represent units of its employees, including the Federa-
tion of Westinghouse Salaried Unions (the Federation) which
is the bargaining representative of employees in numerous
bargaining units throughout the United States. The Union is
an affiliate of the Federation and its president, Gary Eder, is
a vice president of the Federation. The units involved in this
matter are (1) the Command Control Division bargaining
unit, (2) the Baltimore Aerospace Division bargaining unit,
(3) the Management Services Building bargaining unit, (4)
the Friendship Square bargaining unit, and (5) the Materials
Acquisition Center bargaining unit.
The first collective-bargaining agreement between the Fed-
eration and the Respondent was effective November 1, 1950.
The parties have subsequently negotiated a series of succes-
sive agreements, the most recent of which was effective Au-
gust 28, 1991. In addition to the national agreement, local
supplements are negotiated, one of which covers the employ-
ees in the bargaining units in these cases.
Section IX in the most recent national contract deals with
seniority and includes in subsection 7 the principles to guide
local supplements with regard to how employees may exer-
cise their seniority when they are up for disposition (the par-
ties’ word for layoff). Material to this case is Local Supple-
ment No. 6, which tracks the language of the national agree-
ment.
Though the procedure can be complicated in practice, basi-
cally it involves the following: when the Respondent deter-
mines that a layoff is necessary, it designates the jobs which
will be eliminated. The incumbent in such a job then can
bump a less senior employee in his particular job progres-
sion, and if such is not available, then he can bump into an-
other seniority unit under certain conditions, and finally he
can bump into the common seniority unit ‘‘provided the em-
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Federation of Westinghouse Independent Salaried Unions v. Wes-
tinghouse Electric Corp., D.C. Civil Action No. 86-2577 (U.S.D.C.
W. D. PA 1987).
3 Federation of Westinghouse Independent Salaried Unions v. Wes-
tinghouse Electric Corp., No. 87-3453 (3d Cir. 1988).
ployee’s occupational experience, education, and suitability
indicate that he can acceptably do the job.’’
Many of the jobs in the various bargaining units rep-
resented by the Union require some kind of security clear-
ance—top secret, secret, or confidential. In addition, the
Government sometimes requires that the employee have Spe-
cial Access Clearance (SAC). Such a clearance is not given
in advance of need. When the Respondent acquires a contract
where SAC is required for certain employees, those employ-
ees are nominated and the clearance process is undertaken,
however, the employees continue to work on their other jobs
until clearance is finalized. This process usually takes several
months. But such is apparently no problem when a project
is being staffed because there is sufficient lead time.
Who has an SAC is not generally known. Nor, often, is
it known if a particular nominee is not cleared. The matter
of who has what clearance for what job is itself a classified
matter, known only to those who need to know and are
cleared for such information.
Further, an SAC (unlike the other security clearances) is
job specific. Thus one who has an SAC for a particular job
cannot transfer to another SAC required job without being
recleared. However, in such a situation, the reclearance does
not take as long. For instance, in the 1991 layoff, Edna Pat-
terson bumped into an SAC job because she had held such
a clearance previously was able to be recleared within 2
weeks.
Since a layoff in late 1985, the parties have disagreed
about how this procedure should work where an employee up
for disposition could otherwise bump into a job which is held
by an employee with a Special Access Clearance (SAC). The
Respondent has maintained that where having an SAC is re-
quired in order to do a particular job, one without such a
clearance cannot bump into that job, and that having an SAC
is a job qualification to be considered along with seniority.
(Testimony of the Respondent’s witnesses do not precisely
support this. Since an SAC is specific to particular govern-
ment contracts, even if one up for disposition had such a
clearance, it would not necessarily allow him to work on an-
other job requiring an SAC.)
The Union has always taken the position that seniority is
absolute. Thus in those cases where bumping by seniority is
not allowed because the junior employee has an SAC, the
Respondent has breached an explicit term of the contract.
When this issue first arose, the Union filed a grievance on
behalf of the senior employees laid off, which the Respond-
ent denied. The Union asked that the matter be arbitrated,
which was also denied. Binding arbitration is not a right
under the current or preceding contracts, except as to specific
issues. Seniority bypass is not such an issue and arbitration
would be available on a case-by-case basis only if the parties
agreed. The Respondent did not agree.
Thus the Union was authorized to strike, but rather than
doing so, it filed a lawsuit under Section 301 in Federal dis-
trict court, which was dismissed on grounds that the court
lacked subject matter jurisdiction.2 The United States Court
of Appeals for the Third Circuit affirmed the dismissal, but
on grounds that the Federation had failed to state a claim on
which relief could be granted.3 The court concluded that in
fact the parties had reached a final and binding resolution of
their dispute under the arbitration clause of the collective-
bargaining agreement. The court noted that upon exhaustion
of the grievance procedure, the Federation ‘‘could have gone
to court under Section XV-A 4 to compel arbitration. In-
stead, the Federation chose to authorize a strike.’’ Therefore
the Federation had elected its choice of remedy and the fact
that it did not carry through with the strike was of no con-
sequence.
During negotiations for the 1988 contract, Eder proposed
making seniority bypass the subject of arbitration under the
contract. The Respondent would not agree. Subsequently,
there have been many discussions between the Union (usu-
ally Eder) and the Respondent but they have not been able
to reconcile their differences.
The Union has taken the position that strict seniority is
written into the contract and must prevail. The Respondent
has argued that where a customer requires SAC, in the event
of a layoff, it could not replace an SAC employee with one
without a clearance. Therefore, if bumping was allowed, the
Respondent would have to wait until the senior employee
was cleared before giving him work to do. This would not
be cost effective, since it takes from a few weeks to several
months to process a clearance application. In addition, clear-
ance investigations are expensive, though the cost is borne
by the customer and become part of the total contract.
New collective-bargaining agreements were negotiated in
1988 and 1991 without the parties having changed their re-
spective positions on this issue, and the language concerning
dispositions was unchanged.
In December 1991, the Respondent laid off about 1200
employees, of which 150 were represented by the Union. Of
this number, eight were affected by seniority/security issue—
four were laid off, and the other four bumped into a lower
position than desired. Again grievances were filed and de-
nied. And again, the Respondent denied the Union’s request
to arbitrate the issue. This layoff gave rise to the charge in
Case 5–CA–22392.
Included in this layoff were four employees who had
worked in the West Building Calibration Laboratory. The
Respondent had decided to move the work which was being
done at the West Building Laboratory to the East Building
Calibration Laboratory, whose employees are represented by
the Union but in a different bargaining unit. Thus included
in the initial complaint is the allegation that the Respondent
made an unlawful midterm modification of the contract by
‘‘transferring work from the Command and Control Division
bargaining unit calibration lab and storeroom to the Balti-
more Aerospace Division bargaining unit calibration lab.’’
In October 1992, the Respondent announced additional
layoffs to be effective as of December 31, 1992. Again the
Respondent announced to the Union that having an SAC
could be determinative in whether a particular employee up
for disposition would be allowed to bump into another job.
This announcement gave rise to the charge in Case 5–CA–
23106. The supplemental exhibits are the Respondent’s state-
ment of which senior employees were not allowed to bump
and the union grievance.
457WESTINGHOUSE ELECTRIC CORP.
B. Analysis and Concluding Findings
1. The seniority/security issue
The question here is whether, under all the facts, the Re-
spondent’s implementation of the disposition procedure
amounts to a unilateral midterm modification of the contract
in violation of Section 8(a)(5).
No doubt the repudiation of a contract term, such as se-
niority, is violative of a company’s bargaining obligation.
Thus, in General Equipment Manufacturer, 266 NLRB 1285
(1976), the Board rejected the company’s claim that dis-
regard of the seniority provisions of the contract in effecting
layoffs was necessitated by considerations of plant efficiency.
See also Johns-Manville Sales Corp., 282 NLRB 182 (1986),
where the Board found it an unfair labor practice for the
company to change its policy of laying off in order of senior-
ity.
Here, however, the Respondent did not repudiate the se-
niority clause nor did it change its policy concerning layoffs.
It simply applied the contract in a manner inconsistent with
the Union’s understanding. The Respondent did as it had
done since 1985.
Much of the record and argument of both parties is de-
voted to whether SAC is a job qualification and whether
one’s right to bump into a lower job requires him to have
the qualifications to do the job.
In neither the basic contract nor the local supplement is
there any kind of qualifier such as ‘‘suitability’’ or ‘‘quali-
fication’’ for bumping within one’s seniority unit. Thus,
within his seniority unit, an employee may replace ‘‘the least
senior employee in the same or next lower level in his posi-
tion progression.’’ Only when one must go to the common
seniority unit would his ‘‘suitability’’ for a job be in issue.
The General Counsel argues that as a matter of contract
interpretation, since the word ‘‘qualified’’ is used in the up-
ward bidding procedure, and is absent in the disposition pro-
cedure, the parties necessarily meant that qualification would
not be a factor in bumping. This argument is a stretch, I be-
lieve, particularly when one considers the ‘‘suitability’’ lan-
guage in the disposition procedure. Further, since by contract
an employee up for disposition ‘‘may replace the least senior
employee in the same or next lower level in his position pro-
gression within the seniority unit,’’ he is presumptively
qualified to do the job. An employee up for disposition is
also presumptively qualified to do a job which his has ‘‘sat-
isfactorily’’ held previously.
Thus the Respondent argues that implicit in the bumping
procedure is the matter of qualification. And a proper secu-
rity clearance is clearly a qualification.
The General Counsel argues that only for the security de-
partment is SAC made a job prerequisite. Therefore, the ab-
sence of such from the other job descriptions means that the
parties did not intend such to be a job qualification. It ap-
pears, however, that only for the security department does
the Respondent have the decision-making authority to require
SAC. Such a clearance, or the lack of it, for all other jobs
is controlled by the customer (the Government).
I reject the General Counsel’s argument and conclude that
a necessary requirement for bumping is one’s qualification to
do the job. I am unpersuaded that the parties wrote a bump-
ing procedure which would allow for the placement of an un-
qualified person. Surely having the appropriate security clear-
ance must be considered a job requirement, for one could
scarcely bump into a job he could not do.
There is no question that selection of those employees to
be laid off was within the discretion of the Respondent. The
General Counsel argues only that those employees should
have been allowed to bump into SAC jobs prior to getting
their own clearance. The General Counsel does not suggest
what these individuals were to do to earn their wages pend-
ing clearance, except to propose that nonclassified work
could be found for them. But there is no evidence to support
this assertion. Indeed that the Respondent had to lay off
some 1200 employees in 1991 shows that there was less
work available than employees. It would not seem consistent
with the policies of the Act to require the Respondent to
keep nonproductive employees on its payroll for several
months and lay off some who could be productive.
I therefore conclude that the more reasonable interpretation
of the disposition clause would allow the Respondent to by-
pass from bumping those employees who have an SAC.
Fundamentally, however, on the facts presented I do not
believe that the Respondent made a unilateral change in the
collective-bargaining agreement. At best it simply applied its
interpretation of the contract in the way it had since 1985.
The Respondent’s act in 1991 was no departure from past
practice. It was quite in line with the kind of practice the
Union found objectionable and had tried to change since
1986. That the Respondent would apply the bumping proce-
dure in 1991, as it did, could not have come as a surprise.
Since 1985 when the Respondent first applied the SAC
factor, the Union has objected. It filed grievances, sought ar-
bitration and filed an action in Federal district court. Union
representatives met many times with management to discuss
the issue. And in negotiations for the 1991 contract (before
the 1991 layoffs were announced) the Union proposed man-
datory arbitration of the issue.
This 7-year history demonstrates that the Union has been
unsuccessful in getting its way on this issue. Such does not
mean that the Respondent thereby committed an unfair labor
practice.
When the Union signed the 1991 contract it knew full well
the Respondent’s interpretation of the seniority clause. By
accepting the contract as written the Union may not have ac-
cepted the Respondent’s position, but neither did the Re-
spondent accept the Union’s position.
To sustain the General Counsel’s argument would require
concluding that in the 1991 contract, the Respondent agreed
to an interpretation of language which it had rejected in the
two previous contracts. I do not believe such a conclusion
is justified. Rather, I conclude that in its application of the
disposition procedure, the Respondent did not modify the
contract or an existing practice.
Further, to sustain the General Counsel’s argument would
require accepting the Union’s interpretation of contract over
the Respondent’s. On these facts that is not justified. Perhaps
the Union is right, but not patently so, given the nature of
SAC clearances. At best there is a reasonable argument as
to interpretation of the contract clause in question. In such
a case it cannot be said that the Respondent made a unilat-
eral, midterm modification of the contract. To find otherwise
would require accepting the Union’s position and rejecting
the Respondent’s. The Board is really not the proper forum
to resolve subtleties of contract interpretation, here the par-
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Third Circuit seemed to suggest that an action by the Fed-
eration to compel arbitration would be successful.
ties have a contract and the ability to create a mechanism to
resolve such disputes.
Indeed, this is precisely the type of situation which the
Board would defer to arbitration. Collyer Insulated Wire, 192
NLRB 837 (1971). That the parties have not agreed to a dis-
pute resolution mechanism beyond a multistage grievance
procedure4 should not negate the policy that pure contract in-
terpretation is better left to a forum which has expertise in
such matters. The Board, of course, has jurisdiction to inter-
pret contracts and find their breach an unfair labor practice.
But where the parties have a long collective-bargaining his-
tory and a current agreement, disputes arising under the
agreement are better left to resolution by the parties. The
Board is ill-suited through its litigation procedure to police
every nuance and disagreement which can arise between par-
ties concerning what their contracts mean in particular situa-
tions.
However, the Board does sometimes find it necessary to
interpret contract language. Thus in Geo. C. Christopher &
Son, 290 NLRB 472 (1988), with Board approval the admin-
istrative law judge interpreted the word ‘‘qualified’’ in a se-
niority clause, agreeing in part with the General Counsel and
in part with the company. He concluded that 7 of 26 senior
employees were improperly laid off. However, the threshold
issue was the company’s position that it was not bound by
the seniority clause of the contract because the contract had
expired. This was found against the company on grounds that
layoff by seniority had become an existing practice. It then
became necessary to interpret but to determine whether any-
one in fact had been laid off inconsistent with the existing
practice.
Though the General Counsel makes the same argument
here, in reality the General Counsel contends that a position
which the Union was unable to gain through collective bar-
gaining should be put in place by the Board. This I decline
to recommend.
2. Closure of the West Building Laboratory
As part of the 1991 reduction of force, the Respondent de-
termined that it had excess calibration laboratory capacity
and that moving work from West Building Laboratory to the
East Building was justified. The General Counsel alleges that
such was a unilateral relocation of bargaining unit work vio-
lative of Section 8(a)(5).
After much litigation over many years, the Board settled
on an analytical approach to be used in cases where a com-
pany relocates bargaining unit work. Dubuque Meat Packing
Co., 303 NLRB 386 (1991). A relocation decision is to be
distinguished from a decision to terminate some aspect of the
company’s business, which was the situation in First Na-
tional Maintenance v. NLRB, 452 U.S. 666 (1981), cited by
the Respondent.
In First National Maintenance the Supreme Court con-
cluded that a company’s decision to cease an aspect of its
business was not a mandatory subject of bargaining. The
Court noted that (1) the work in question would not be done
by other employees of the company or through subcontract-
ing, (2) the decision was not one over which the labor orga-
nization which represented employees could have had an im-
pact through collective bargaining, and (3) the decision rep-
resented a significant change in the company’s business.
These factors are not present in a case where a company,
such as the Respondent here, decides that particular work can
more economically be done at a different location and with
different employees.
Thus in Dubuque, the Board held that where the General
Counsel proves that work was relocated out of the bargaining
unit ‘‘unaccompanied by a basic change in the nature of the
employer’s operation,’’ without the company offering the
union a meaningful chance to bargain, then a prima facie
case has been established. The burden then shifts to the com-
pany to prove that (1) labor costs were not a factor in the
decision or (2) if labor costs were a factor, still the union
could not have offered cost concessions which could have al-
tered the decision.
I conclude that the General Counsel did establish prima
facie case that the Respondent refused to bargain by an-
nouncing its decision to relocate the West Building Calibra-
tion Laboratory work to a different bargaining unit, notwith-
standing that the Union represented both units. Nevertheless,
I conclude that the record predominates in favor of finding
that labor costs were not a factor in the decision.
Although the evidence on this aspect of the case is
sketchy, there is little doubt that the relocation was part of
a large overall layoff. The Union did not contest the Re-
spondent’s contention that the East Building equipment was
more modern and efficient than that in the West Building.
Further, the wage scale for employees in both units was
identical and therefore labor costs could not have been a fac-
tor. Though each bargaining unit has a separate contract, it
appears (and is undisputed) that an employee’s compensation
is dependent on which ‘‘code’’ (salary range) his position
carries. While there was no direct evidence of this, it is im-
plicit in the testimony of witnesses for all parties. And this
finding is supported by a document entitled ‘‘Security Issue
by Progression’’ which shows that the rate for each code is
the same in each bargaining unit. Thus, the labor costs would
be the same whether the calibration work is done in the West
Building or the East building, unless the Union would be
willing to negotiate different code for the same work, or dif-
ferent rates for the same code depending on the bargaining
unit. Neither is likely.
Certainly the Respondent sought to save on labor costs in
laying off employees for whom there was no longer work,
and such occurred when the lab work was consolidated. But
this is not the kind of labor costs the Board contemplated in
Dubuque. In Dubuque labor costs as a controlling factor
means that the company could get the work done for less
money and the union could negotiate a wage rate to be com-
petitive. Here the work was to be done for the same costs,
but with overall fewer employees.
I therefore conclude that relocating the work from the
West Building Calibration Laboratory was a mandatory sub-
ject of bargaining which the Respondent did not honor; how-
ever, as the decision did not turn on labor costs, the Re-
spondent did not thereby violate Section 8(a)(5) of the Act.
[Recommended Order for dismissal omitted from publica-
tion.]