Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1955

113 N.L.R.B. 954 (N.L.R.B. 1955)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trary to the statutory purpose to encourage the voluntary adjustment
of jurisdictional disputes. Othe'rwise,-any party adversely affected by
determination made pursuant to the agreement could breach the agree-
ment with impunity, and then have recourse to this Board for a rede-
termination of the dispute in the hope that the redetermination might
be favorable.7
As we have found that as of the time of the charge herein was filed,
the parties had agreed upon methods for the voluntary adjustment
of the dispute, we find that we are without authority to determine this
dispute, and shall accordingly quash the notice of hearing issued in
this proceeding.
[The Board quashed the notice of hearing.]
MEMBER LEEDom took no part in the consideration of the above De-
cision and Order Quashing Notice of Hearing.
I Ibid.
Westinghouse Electric Corporation and Association of Westing-
house Salaried Employees ( Federation of Westinghouse Inde-
pendent Salaried Unions). Case No. 6-CA-808. August 05,1955
DECISION AND ORDER
On December' 28, 1954, Trial Examiner Arthur Leff issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the Responden't's request the Board, on May 5, 1955,
at Washington, D. C., heard oral argument in which the Respondent
and General Counsel participated.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, the oral argument of the
Respondent and the General Counsel, and the entire record in this
case. A majority of the Board is agreed that the complaint in this
proceeding should be dismissed, but for the different reasons set forth
in their separate opinions. Because of the bases for their decision to
dismiss the complaint, the majority finds it unnecessary to pass on the
`Trial Examiner's findings and conclusions as to the appropriate unit.
[The Board dismissed the complaint.]
113 NLRB No. 105.
1
WESTINGHOUSE ELECTRIC CORPORATION 955
CHAIRMAN FARMER, concurring : -
I agree with my majority colleagues that Respondent has not vio-
lated the Act by refusing to accede to the Union's demand that two
of its representatives be permitted to come into Respondent's plant
and make an on-the-job analysis of the duties of Mr. Edmonds, an
employee.
It seems to me that issues of this kind, involving the processing of
an individual grievance under a labor agreement, are as a general
proposition best left to the mutual give and take of the collective-
bargaining process. I am convinced that Congress, in giving Federal
sanction to free collective bargaining, never intended to withdraw
issues of this kind from the area of voluntary agreement and vest this
Agency with the authority to order an employer to grant the union
representing his employees free and unlimited access to his plant for
the purpose of making job studies or pursuing whatever lines of in-
vestigation it might consider desirable in processing grievances. The
theory of the complaint in this case, elaborated at length by the Trial
Examiner, portends a degree of Government interference in the day-
to-day relationships between employers and unions under collective
agreements which I am unable to believe was within the contempla-
tion of Congress when it enacted the National Labor Relations Act.
The dispute which gave rise to this proceeding is a simple one, and
I see no reason to suspect that it is not an honest one. The Employer
and the Union have had a continuing contractual relationship for
about 15 years. Their dealings apparently have been harmonious.
The Union is an independent association representing salaried em-
ployees in various plants of the Westinghouse Corporation, includ-
ing the Homewood plant involved in the case. There was a contract
in effect at the time this dispute arose which contained the customary
provisions relating to wages, hours, 'and working conditions, as well
as a step-by-step procedure for handling grievances culminating in
arbitration by mutual consent if agreement should not be reached
at an earlier stage.
It is clear that the dispute which arose over the Union's asserted
right of access to the plant for the purpose of making such investiga-
tions was one which could have been resolved through the grievance
and arbitration machinery. In fact, several months before this par-
ticular dispute over Edmonds arose, the Union filed a grievance charg-
ing that the Employer had violated section XVI A of the contract by
refusing to grant members of the union committee access to the Home-
wood plant to investigate certain then-current grievances. This griev-
ance was finally rejected by the Employer, and there is no evidence
that the Union ever sought to take the issue to arbitration.
About 1 month after this union grievance was rejected, the Union
filed an individual grievance on behalf of Edmonds. He was em-
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed as a class C time-and-motion analyst at the Homewood plant.
The basis of the grievance was that Edmonds was performing work in
the nature of "special assignments" which entitled him to the higher
class B, which carried with it an overlapping but ultimately higher
salary range.
Edmonds' grievance was processed through the first two steps of
the grievance procedure. At both stages it was rejected by manage-
ment on the ground that Edmonds was properly placed in class C.
There appeared to be no dispute as to what Edmonds actually did, and
there is no evidence that Respondent at any time refused to furnish
the Union any information in its possession bearing on Edmonds'
duties or his grievance. The only disagreement which arose was a
difference of opinion between the Union and the Employer as to
whether Edmonds was or was not performing "special assignments."
The subjective character of this argument was accentuated by the lack
of agreement as to the definition of that term.
At this point, on December 29, 1953, the Union requested permission
to send its "analysis committee" into the plant to investigate Edmonds'
duties. This request was rejected by local management on January 25,
1954. Meanwhile, pursuant to the existing contract, which provided
for semiannual salary reviews, the Respondent and the Union agreed
on a salary increase for Edmonds. At the next salary review, com-
pleted on April 27, 1954, Edmonds' then-current salary was approved
by both parties.
There was no effort by the Union to press Edmonds' grievance to a
conclusion. Instead, the charge in this case was filed on February 17,
1954, and the complaint issued on August 25, 1954, charging that the
action of the Respondent constituted a refusal to bargain in violation
of the Act. Mr. Edmonds' grievance seems to have been overshadowed
by a keener,interest in litigating the case.
There is no charge or evidence of antiunion animus or bad faith on
the part of the Employer. In order to sustain this complaint, we
would have to hold, as the Trial Examiner did, that the Respondent
was under a statutory obligation to allow the Union access to its plant
for the purpose of investigating this particular grievance. In this
case, this apparently would have meant that a committee of two repre-
sentatives would have followed Edmonds around in the performance
of his job and observed his work for whatever period of time they
thought necessary to accomplish their task. A union witness, iden-
tified as an "expert" on job analyses of this kind, testified that this
might have taken as long as 3 months. This record does not disclose
how union observation of Edmonds' job would have aided in a deter-
mination of whether his job duties did or did not include "special
assignments." This is especially difficult to understand in view of
the fact that the parties were already in agreement as to what
WESTINGHOUSE ELECTRIC CORPORATION. 957
Edmonds' duties were, and in disagreement only as to what constituted
a "special assignment."
Since there appear to be no special circumstances relating to this
particular grievance, I must assume that, if this right of access exists
as a matter of law, it would be equally applicable to any grievance or
multitude of grievances in this or any other plant. I must also assume
that this asserted legal right of access by union representatives would
also attach to various and sundry other kinds of information which a
union might wish to obtain by on-the-spot observation and investiga-
tion in connection not only with the administration of collective-
bargaining agreements but with their negotiation as well. Moreover,
if the right exists as a matter of statutory edict, it is not at all clear
to me that an employer, or even the Board, could impose limitations
upon its exercise, such as restricting the number of union representa-
tives who could enter his plant, when they could enter, where they
should go, what they should see, what they should do, or how much
time they should spend there. Yet, these are matters which deserve
consideration, for it is not difficult to conceive of the chaos and dis-
ruption which could result from the unrestricted exercise of this pre-
sumed right.
The Trial Examiner has not concerned himself with these problems
because, in his view, the Union was entitled to access as a matter of
absolute statutory right. I do not agree with that conclusion, and the
authorities which the Trial Examiner cites in his carefully written
report do not support it.
The Trial Examiner relies primarily on the Whitin Machine de-
cision and other Board and court decisions relating to the obligation
of an employer to furnish wage data to the bargaining agent of his
employees. But the Respondent's duty to furnish information to the
Union relating to Edmonds' grievance is not in issue here. This case
involves the right of the Union to enter production areas of the plant
to make on-the-spot investigations of the job duties and performance
of an employee who is at work. This is a. different question which
brings into play entirely different considerations.
One of these considerations is an employer's right to control the use
of his property and to regulate the working time of his employees in
the interest of efficient and orderly production. The Trial Examiner
is correct in saying that this right is not unlimited. But it is no
better answer to say that the right of the union to engage in organiza-
tional and bargaining activities partakes of the absolute. The courts
have told us over and over again that when these interests collide, the
rights of the employer to manage his business and run his plant must
be balanced against the right of the union to engage in organizational
and bargaining activities.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Viewed in this light, the law now seems to be well settled that an
employer may deny union representatives access to the work areas
of his plant unless special circumstances are shown to exist which
demonstrate that the denial of access would effectively deprive em-
ployees of their rights to self-organization and collective bargaining.
Thus, it has been held that union representatives may go aboard ships
while in port to contact members about grievances 1 and enter lumber
camps,2 or company towns,' or isolated plants for organizational pur-
poses. Even in such cases, however, the Board and the courts have
made it plain that entry upon the employer's premises can be justified
only if there is affirmative proof that the denial of access would con-
stitute an unreasonable impediment to the exercise by employees of
their statutory rights. None of these cases stands for the blanket
proposition that a union has an unrestricted statutory right of access
to the production areas of a plant.
I do not say that a situation could not arise in which an employer
as a token of his good faith might be required to permit union repre-
sentatives to enter the productive areas of his plant. An employer
has no blanket statutory obligation to furnish information as to his
financial status to the union, but he may find himself in the position
of having to do so if he pleads inability to grant a requested wage in-
crease. It is therefore entirely conceivable that an employer may have
to demonstrate his good faith by inviting union representatives out
on his production floor to substantiate positions or statements which
he makes at the bargaining table and which are challenged by the
union.
But we need not decide these issues here. There is no allegation of
had faith, and no refusal by the Employer to furnish any information
pertinent to Edmonds' grievance. Indeed, there was no factual dis-
pute as to Edmonds' job duties. There is a complete lack of evidence
that the Union was seriously handicapped or impeded in processing
Edmonds' grievance by the Respondent's refusal to permit the Union
to make an on-the-job study of Edmonds' work. In fact, the failure
of the Union to press Edmonds' grievance to a final conclusion makes
it completely speculative as to what the ultimate outcome would have
been. Accordingly, there is no necessity to decide in this case the cir-
cumstances under which an employer, in pursuance of his obligation
to bargain collectively in good faith, may be required to admit union
representatives to the production areas of his plant. It is enough for
me that there is no showing that the Respondent has breached its
statutory obligation to bargain in this case.
1 N L. R B v. Cities Service Oil Co, 122 F 2d 149 (C. A 2)
2 N L R B v. Lake Sulpertior Lumber Corporation, ] 67 F 2d 147 (C A 6)
3 N L. R B v Stowe Spinning Company, 336 U S 226.
WESTINGHOUSE ELECTRIC CORPORATION 959
The question of union access to production areas is of course a bar-
gainable issue, as are the conditions under which this privilege may
be exercised . This is, in my opinion , the kind of dispute which can
be best resolved by collective bargaining rather than administrative
fiat or judicial decree . The issue of whether or not and under what
circumstances union representatives should have access to productive
areas to investigate a grievance is inextricably tied in with the oper-
ation of the agreed-upon grievance procedure , and it belongs on the
bargaining table when the grievance machinery is under negotiation.
The agreement which eventuates between the parties will then become
an integral part of the collective -bargaining contract . In this way
only can this aspect of grievance handling be made to fit in with the
orderly step -by-step handling and disposition of individual grievances.
This should be infinitely more desirable to both parties than any at-
tempt to remove this problem from the area of free collective bar-
gaining and place it in a context of administrative regulation. In the
McDonnell Aircraft case,' the Board held that disputes which arise in
the handling of grievances under a labor agreement should be re-
solved by the parties through the collective-bargaining process. I
think that principle , which I regard as salutary , is squarely applicable
here.
I, therefore , join in dismissing this complaint.
MEMBER RODGERS, concurring :
Like Chairman Farmer and Member Leedom , I would dismiss this
complaint . While I do not share their view that this case is akin to the
right -of-access rather than to the wage -data line of cases, I agree with
their conclusion that the Respondent 's denial of the Union's request
to make an on-the-job analysis of Edmonds ' duties did not violate the
Act.
The facts which I deem dispositive of this case are undisputed.
Briefly, they are as follows : The filing of the grievance herein was
initiated by a union representative who, as an employee of the Re-
spondent , was in a position to observe Edmonds at work as a class C
time-and-motion analyst. This union representative told Edmonds
that he was going to file a grievance on his behalf because he "thought
the duties . . . [Edmonds] was performing were over and above the
scope of his present classification and they should fit into a higher
classification , which would be class `B ."' The grievance , filed on
November 6, 1953, charged the Edmonds was performing the duties
of a class B analyst in view of his work on "special assignments."
At the grievance meetings , the Union took the position that Ed-
monds' work entitled him to a class B classification , whereas the Re-
4 109 NLRB 930
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent argued that Edmonds' duties were in line with those called
for in the class C job. The resolution of the grievance involved a com-
parison of Edmonds' job content with the position descriptions for
analysts classes B and C, respectively.
It was allegedly to determine Edmonds' job content or duties that
the Union sought to send its analysis committee into the plant to make
an on-the-job study of Edmonds at work. The record establishes,
however, that there,was no dispute between the parties as to Edmonds'
duties. The dispute was only as to the meaning to be given the various
factors, and in particular, the factor of "special assignments," which
went into the classification of analysts as class B or C. Thus, Stephen
Miketic testified without contradiction that "at no time was there any
question or disagreement as to what Mr. Edmonds was doing on the
part of either Management or the Union." Moreover, the Edmonds
grievance passed through the first two levels of the grievance pro-
cedure and was referred to the third level without any question being
raised concerning Edmonds' job content. It is also to be noted that
when the Union made its request for an on-the-job analysis, it did not
claim that the facts then in its possession concerning Edmonds' duties
were insufficient to enable it to continue to process the grievance prop-
erly, or that an on-the-job analysis would furnish it any facts not
already available to it. Indeed, there is not a scintilla of evidence in
this case to indicate that the Union did not possess all the facts con-
cerning Edmonds' job content that were relevant and necessary to
process the grievance.
The minority contends that the fact that the Union asked for an
on-the-job analysis proves that there was a dispute between the parties
as to Edmonds' duties. That is, of course, mere speculation and cannot
serve to refute Miketic's testimony referred to above.' Equally specu-
lative and without any foundation in the record is the minority's
claim that, although the Union may have had the "limited" facts as to
Edmonds' duties, it did not have the "actual" facts. In my opinion
the basic error of the minority, as well as of the Trial Examiner, is
that they would decide this case not on the basis of its own facts but
on the basis of assumed facts arrived at by speculation and so-called
expert testimony.
It is manifest from the foregoing that when the Union made its
request for an on-the-job analysis, the only disagreement between the.
parties was whether Edmonds' duties, known to both of them, were
such as to entitle Edmonds to a class B rather than a class C rating.
The resolution of this dispute turned not on Edmonds' job content but
5 Another explanation for the Union 's request for an on -the-job analysis , and one far
more supportable by the record in this case than that offered by the minority is that the
Union sought thereby to reestablish at the Homewood plant the right of access for the
purpose of investigating grievances which it enjoyed there prior to April 1953 and which
was still available to it at the East Pittsburgh plant of the Respondent.
WESTINGHOUSE ELECTRIC CORPORATION 961
on the meaning of certain terms in the contract dealing with classi-
fication factors, and more particularly on the interpretation to be
given the words "special assignments," contained in the class B job
description. In these circumstances it is plain beyond challenge that
an on-the-job study of Edmonds at work would not have yielded
information relevant and necessary to the processing of the alleged
grievance. Accordingly, under the rule of Whitin Machine and re-
lated cases,6 I do not believe that the Respondent herein violated the
Act by refusing to accede to the Union's demand for an on-the-job
analysis of Edmonds' duties.
For the reasons given, I join in dismissing the complaint.
MEMBER LEEDOM, concurring :
I agree with Chairman Farmer and Member Rodgers that the com-
plaint in this proceeding should be dismissed, but rest my decision on
the proposition that the General Counsel has failed to establish that
the Respondent's denial of the Union's request for access to its plant
constituted an unreasonable impediment to the Union's exercise of its
bargaining rights. Consequently, I cannot subscribe to all of the
reasoning by which they reach their result.
The facts which are material to a resolution of the issue in this case
are substantially undisputed. The Association had filed a grievance
with the Respondent, charging that Homewood employee Edmonds,
classified as a class C time-and-motion analyst, had been assigned
duties which entitled him to the higher, class B, classification. After
this grievance had been processed without resolution through the first
two steps of the contractual grievance procedure, the Association re-
quested the Respondent's permission to send certain experts into the
Homewood plant, for the purpose of making an analysis of Edmonds'
duties while Edmonds was at work. The Respondent rejected this
request by reference to an earlier letter, set forth in full in the Inter-
mediate Report, in which a previous similar request had been rejected.
Insofar as appears from the record, the Association made no further
attempt to secure the information which it desired, either from the
Respondent, from Edmonds, or from other employees or supervisors
who might have knowledge of relevant facts. Nor in fact is there any
evidence that there was any dispute between the Association and the
Respondent .as to the facts relevant to Edmonds' grievance , as dis-
tinguished from the interpretation of those facts.
In concluding that the Respondent's refusal to grant the Associa-
tion's request violated Section 8 (a) (5) of the Act, the Trial Ex-
aminer held that the principles applicable to an employer's obligation
to furnish information in its possession to the representative of its
ON. L R. B v. Yawman & Erbe , 187 F. 2d 947 , 949 (C. A. 2) ; Boston Herald-Traveler
Corporation v. N L. R B., 210 F. 2d 134 (C. A. 1) ; Whiten Machine Works, 108 NLRB
1537.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees ° were applicable to the issue in this case. In my opinion,
however, the Respondent's obligation to furnish the Association with
information in its possession, relevant to the Edmonds' grievance, is
not in issue in this proceeding. There is no contention in this case
that the Respondent was in any way derelict in furnishing informa-
tion and the record would not, in any event, support such a contention.
The issue, rather, as I see it, is whether the Respondent, in addition
to furnishing information in its possession , must, as part of its obliga-
tion to bargain collectively concerning the grievance, also permit the
Association's representatives to enter the production areas of the plant
for the purpose of securing information through their own studies,
made while the employees involved are supposed to be at work. On
the facts in this case, I must answer that question in the negative.
This case involves an employer's right to control the use of its
property and the working time of its employees, and therefore brings
into focus entirely different considerations than those involved in
wage data cases. Apart from questions of favoritism or discrimina-
tion, which are not involved in this case, a union's right of access to
an employer's property has been strictly limited to situations such as
those existing on shipboard,' in lumber camps,' in company towns,10 or
in isolated plants," in which a denial of the right of access would con-
stitute an unreasonable impediment to the exercise of rights guaran-
teed by the Act; and in all such cases, the burden is on the General
Counsel to show the existence of such an unreasonable impediment as
would warrant limitation of the employer's property rights. None of
these cases, moreover, stands for the proposition that a union may
conduct its business in the production areas of the plant while the
employees are at work, even though that business includes the investi-
gation of grievances involving working conditions."
7 10, g., Whitin Machine Works, 108 NLRB 1537 ; N. L. R. B . v. Yawman & Erbe Mfg.
Co., 187 F. 2d 947 (C. A 2).
8 N. L R B. v. Cities Service Oil Co., 122 F. 2d 149 (C . A. 2) ; Richfield Oil Corp. v.
N. L. R. B , 143 F. 2d 860 (C A. 9).
9 N. L It. B. v Lake Superior Lumber Corporation 167 F 2d 147 (C. A. 6).
io N. L R B. v. Stowe Spinning Company, 336 U. S 226.
li N. L. It. B v LeTourneau Company of Georgia, 324 U. S. 793.
19 Cf. N. L. R B. v. Cities Service Oil Co., supra, at 151-152, where the court pointed
out that its affirmation of the right of the union representatives to board ship for the
purpose of investigating grievances did not include a requirement that the employees be
permitted "to engage in activities affecting labor relations during their own working
hours " The union representatives in that case were seeking to board ship for the pur-
pose of discussing grievances with employees who were not working in areas where no
work was being performed (see Cities Service Oil Company, 25 NLRB 36, 45-46), and the
court , in the quotations cited by my dissenting colleagues, was concerned with the conten-
tion that the union representatives ' presence on the ship would distract other employees
who were supposed to be working That case, accordingly, does not support the proposi-
tion that a union may investigate grievances during the working time of the affected em-
ployees , and involves substantially different considerations from the instant case, in
which the study which the Association proposed to make was to be conducted by inter-
viewing "the affected employee , his supervisor , and perhaps others familiar with the
content of his job or related jobs " at their places of work while they were supposed to
be working.
WESTINGHOUSE ELECTRIC CORPORATION 963
Although none of the above-cited cases involved an alleged viola-
tion of the employers' obligation to bargain collectively, I believe that
the principles applied therein necessarily govern the disposition of
the issue in this case. As a union's right of access to an employer's
property depends upon proof that a denial of the right of access would
constitute an unreasonable impediment to the exercise of rights guar-
anteed by the Act, it follows that such proof is a necessary prerequisite
to any possible finding that an employer is under an obligation to ad-
mit union representatives to the production areas of its plant while
the employees are at work.13 In the absence of evidence that there was
a factual dispute between the parties, and in view of the Association's
failure to make all reasonable efforts to secure the desired information
from other sources, I find that such proof is lacking in this case. I
cannot -agree that the requisite proof is established here by expert
testimony as to the relative reliability of the various sources of infor-
mation; nor is it established by the past practice at Homewood and
the present practice at other of the Respondent's plants in the area.
Accordingly assuming, without deciding, that under some circum-
stances an employer may be under an obligation to admit union repre-
sentatives to the production areas of the plant while the employees
are at work, for the purpose of investigating grievances, I find that
the Respondent was not under such an obligation in the circumstances
of this case.14 It is therefore unnecessary for me to consider whether
the reasons which the Respondent gave the Association in rejecting its
request would have been a valid defense under other circumstances; nor
is it necessary for me to consider the grounds on which Chairman
Farmer would predicate his dismissal of the complaint, insofar as
they differ from those which I have relied on. I find, accordingly,
that the Respondent's rejection of the Association's request in con-
nection with the Edmonds' grievance did not violate Section 8 (a)
(5) and (1) of the Act.
MEMBERS MiiRIOCK and. PETERSON, dissenting:
We dissent from our colleagues' reversal of the Trial Examiner's
finding that, by refusing to permit the Association's evaluation com-
>s See Peyton Packing Company, Ino, 49 NLRB 828, 843
14 Contrary to the assertion of my dissenting colleagues , the issue decided by the Board
in Otis Elevator Company/, 102 NLRB 770 , is not the same as the issue posed in the instant
case Reading the language of the Board 's decision in Otis in the light of the findings
and conclusions of the Tiial Examiner which the Board adopted (see 102 NLRB 770, at
771. 779), the Board these decided only that the union was entitled to make its own time
study in order to supplement information to be made available to it from the company's
records, in the event the information in the company 's records proved insufficient to en-
able it to bargain intelligently Here, the Association is asking the Board to hold that
it is entitled to make an on-the-job study as a substitute for information available to it
from other sources, including the Respondent 's records, and without putting to the test
its ability or inability to bargain intelligently on the basis of such other information
The cases are therefore clearly distinguishable, and the Board's decision in the instant
case is not inconsistent with the decision in the Otis case.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mittee, composed of employees of Respondent's East Pittsburgh plant,
to make an analysis of the duties of employee Edmonds at Respond-
ent's Homewood plant as a part of the Association's processing of
Edmonds' classification grievance, the Respondent refused to bargain
with the Association in violation of Section 8 (a) (5).
Inasmuch as none of the three different opinions of the majority
members sets forth a complete statement of the relevant facts and
there nowhere appears in any of these several opinions any statement
of the Respondent's position in this proceeding, we think it desirable
first to set forth a more complete statement of the facts and the Re-
spondent's position.
For some years, the Association has had an evaluation and analysis
committee for the East Pittsburgh-Homewood unit. The committee,
composed of nine specially trained members, deals with technical
problems relating to job descriptions, evaluations, and classifications.
The committee is authorized to determine whether grievances relating
to these matters have merit. If the committee thinks a grievance
meritorious, it prepares factual material for further processing of the
grievance. As part of its investigation of grievances, the union com-
mittee sometimes designates two of its members to make an analysis
of the job while it is being performed. This is done in the presence
of a management representative and a union representative of the
group to which the employee involved belongs. During the 2 years
beginning August 1949, the committee made 46 on-the-job evaluations,
including 4 at the Homewood plant.
The Respondent still permits the union committee to make on-the-
job studies at the East Pittsburgh plant, but sometime before April
1953 the Respondent refused to admit the committee to the Home-
wood plant. The Association filed a grievance on this. On October
8, 1953, the Respondent denied this grievance and affirmed the refusal
of admission in a letter to the Association which stated :
. .. the Management Appeal Grievance Committee does not
believe that anything in the National Agreement permits access
to the Homewood M&R Plant of employees other than those em-
ployed at Homewood for the investigation of local grievances, job
evaluation and the like. [Emphasis supplied.]
The letter said further :
One reason for this position is the disturbance in an activity
resulting from such investigations by outsiders. Secondly, there
is a sincere belief that industrial relations problems can best be
resolved in the interest of the employee and the Company by
having day to day procedures between persons in both the Union
and Management who are a part of and familiar with the ac-
tivity. [Emphasis supplied.]
WESTINGHOUSE ELECTRIC CORPORATION 965
On November 6, 1953, the Association filed with the Respondent a
grievance alleging that an employee named Edmonds at the Home-
wood plant had been improperly classified . After the grievance had
passed through two levels of procedure , the Union requested that the
Respondent set a date for the analysis committee to come to Home-
wood to analyze the position.
The Respondent , in reply by letter dated January 25, 1954, referred
to its letter of October 8 , stating : "This outlines our policy very
clearly."
It is apparent from the foregoing that the Respondent 's refusal
to permit the evaluation and analysis committee to enter its Home-
wood plant , for the purpose of making an on -the-job analysis of Ed-
monds' job in connection with his classification grievance , was not
predicated on the ground that a bargaining representative has no right
to do this in performing its functions ; but rather that only a union
committee composed of employees of the same Homewood plant, could
perform this function . Not only was this the Respondent 's position
at the time of the events in question , but it continued to be its posi-
tion during the litigation of this proceeding . Thus, in its exceptions
to the Intermediate Report, the Respondent urged that the Trial Ex-
aminer erred in
#52 Rejecting Respondent 's Request for Conclusions of Law No.
2, reading , "The Company rule against persons not employed at
Homewood coming into the plant during working hours and ob-
serving, questioning and studying employees at work was a rea-
sonable and non-discriminatory rule." [Emphasis supplied.]
This position raised the issue of whether the Respondent could law-
fully restrict the Association 's choice of its representatives for the
purpose of the study . The Trial Examiner found that the Respondent
could not do so under the circumstances of this case , a finding with
which we agree, and which no member of the majority disputes. Thus,
a consideration of the Respondent 's position and defense requires a
finding that the Respondent violated Section 8 (a) (5) in limiting the
Association 's choice of representatives to make the study.
We note that our majority colleagues, however, have gone far be-
yond the Respondent 's position and defense , stating the issue to be
whether the Respondent was obliged to permit any union representa-
tives to enter the plant to make a job-analysis study in connection with
the grievance . Having thus raised a defense which the Respondent
could have raised but did not raise , the majority sustains that defense
with a negative answer to the issue thus posed.
In disposing of the case on the defense thus raised , Chairman
Farmer and Member Leedom assert that this case is not analogous to
those cases involving an employer 's statutory obligation to furnish a
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative with information in its posses-
sion, such as wage data, which is relevant to the issues involved in
collective bargaining; 15 but is rather analogous to those cases involv-
ing a union's right to gain access to an employer's property for the
purpose of engaging in union activities or conducting union business,
in -the face of the employer's right to control the use of its property.18
We disagree, as does Member Rodgers, the third member of the ma-
jority. As pointed out by Chairman Farmer and Member Leedom
themselves, none of the latter cases involved an alleged violation of
the employer's obligation to bargain collectively. Those access cases
were concerned only with an alleged interference with a union's or-
ganizational and other rights under Section 8 (a) (1) of the Act.
In the instant case, we are concerned with an alleged violation of an
employer's statutory obligation to bargain collectively, and with a
union's right to properly perform its collective-bargaining function,
under Section 8 (a) (5) of the Act. It is one thing to say that an
employer is under no obligation to open the doors of his premises to
any union which seeks to organize his employees, except under very
unusual circumstances, and to place the burden on a union and the
General Counsel to show evidence of the existence of such an unreason-
able impediment to self-organization as would warrant limitation of
the employer's property rights in those unusual circumstances. It is
a very different thing to say that the one bargaining representative
chosen by the employees may not have its representatives enter the
employer's premises in connection with the prosecution of a grievance
except where the same burden of showing an unreasonable impediment
has been sustained by the General Counsel. Of course, it is true that,
as in the cases involving a union's organizational rights, there is pres-
ent here the conflicting right of the Respondent to control the use
of its property. However, in the cases involving an employer's statu-
tory obligation to furnish wage data, there was also present there a
conflicting property right of the employer, viz, the right of privacy
with respect to its business records. Nonetheless, the Board, with the
approval of the courts, has held that the right of the collective-
bargaining representative to gain access to such information in order
to properly perform its collective-bargaining function must take
precedence over such property rights, unless the employer can show
that he would thereby be subjected to an unwarranted and undue
burden.17 Moreover, there are other similarities between this case
15 E g TVhitin Machine Works, 108 NLRB 1537; N. L. R. B. v. Yawman & Erbe Mfg. Co ,
187 F 2d 947 (C A 2).
10 E g N. L. R B v Stowe Spinning Company, 336 U. S. 226; N. L. R. B. v. LeTour•
neau Company of Georgia, 324 U. S 793.
17 See Whiten Machine Works, 108 NLRB 1537; N. L. R. B. v Yawman & Erbe Mfg Co,
187 F 2d 947 (C A 2) See also Boston Herald-Trw,eler Corp, 102 NLRB 627, 635,
636, where the Board held that such property right must be subordinated to the public
interest in this type of case.
WESTINGHOUSE ELECTRIC CORPORATION 967
and the wage-data cases. Thus, as in the wage-data cases, the Asso-
ciation here sought access to information which was solely within the
control of the Respondent to furnish; in this case, an opportunity to
observe the actual duties performed by an employee in order properly
to process his classification grievance. Accordingly, as this case in-
volves an employer's statutory obligation to bargain collectively, and
a collective-bargaining representative's right of access to information
solely within the control of the employer, it should be equated with
the wage-data cases rather than with the organizational cases; there-
fore the only valid defense to a refusal to permit such access would
be if the information sought is not relevant to the issues involved in
collective bargaining, or, if relevant, that permitting such access would
subject it to an unwarranted and undue burden. In the Yawman and
Erbe wage-data case, the Court of Appeals for the Second Circuit
made clear that need for the information is not the test (contrary to
the approach of some members of the majority) but simply relevance.
The court said: ". . . the information must be disclosed unless it
plainly appears irrelevant. Any less lenient rule in labor disputes
would greatly hamper the bargaining process. . . ." [Emphasis sup-
plied.] There can be no serious question in this case as to the relevance
of the data sought. Also, the Respondent offered no evidence to show
that the investigation requested by the Association would cause any
interference with production. On the contrary, the evidence shows
that 46 of these analyses have been made by the Association, including
4 in the Homewood plant, with no indication of any interference with
production.
We further note that the Board has already decided the issue here
posed by the majority, and has given an affirmative rather than a nega-
tive answer. See Otis Elevator Company, 102 NLRB 770, reversed
on other grounds 208 F. 2d 176 (C. A. 2), where the Board held that
the employer violated Section 8 (a) (5) by refusing to permit the
collective-bargaining representative to make its own on-the-job time
study of a job involved in a grievance in order to permit it to ap-
praise the merits of the grievance and to bargain intelligently.18 Ap-
plication of the proper legal principles to this case, therefore, even on
the issue posed by the majority, requires a finding that the Respond-
is Member Leedom is in in error when he asserts that in the Otis case the Board decided
that the union was entitled to make its own time study only in the event the information in
the company' s records proved insufficient to enable the union to bargain intelligently,
and therefoie that the Otis case is distinguishable There was no such condition laid
down in the Otis case The only qualification which the Board placed on the union's
tight to make its own time study in that case was the time when the union should be
permitted to make the study, viz, "at such stage in the giievance procedure as is neces-
sary for the Union to appraise the merits of the guevance and to bargain intelligently."
Having gone through two levels of the grievance procedure without resolution of Ed-
monds' grievance, it is clear that the Association in the instant case sought its study of
Edmonds' job at such stage in the guevance pioceduie as was deemed necessary for the
Association to appraise the merits of the grievance and to bargain intelligently.
379288-56-vol 113-62
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's refusal to permit the Association's evaluation and analysis com-
mittee to make an on-the-job study of the duties of employee Edmonds
as an incident to the processing of Edmonds' classification grievance
was a violation of Section 8 (a) (5).
Moreover, even assuming, without conceding, that the two members
of the majority are correct in their contention that this case should be
equated with the organizational cases rather than with the wage-data
cases, and therefore that the burden was on the Association and the
General Counsel to show that the Respondent's denial of the Associa-
tion's right of access to the Respondent's property constituted an un-
reasonable impediment to the Association's exercise of its statutory
duties, we believe that burden has been sustained so as to warrant a
limitation of the Respondent's property, rights even under that theory
of the case. Thus, there was expert testimony, credited by the Trial
Examiner and not discredited by the majority, that while it is possible
to gather facts on a grievance of this type from the grievant himself
and others already familiar with his work, the facts thus gathered will
not be as trustworthy, as accurate, and as informative as would an
on-the-job study by those who have expert knowledge in the art of
position analysis; that the grievant will have an understandable
tendency to oversell his job, while a supervisor opposed to the grievance
would tend to undersell the job; and that since job content to some
extent involves relative factors such as degrees of complexity and
departures from the norm, and often must be related to associated
work, direct observation and study by specialists in analysis of job
content will secure a more objective and dependable determination of
the relevant facts than would reports from others, however familiar
the others might be with the work of the grievant. And of course
it was just such experts in job analysis whom the Association wanted
to make the study of Edmonds' job in this case. Moreover, the parties
are agreed that Edmonds' grievance related to classification "slotting"
in which the prepared descriptions and their evaluation were not in
issue, and that resolution of his grievance depended entirely upon
a determination of the particular job content of the work performed
by Edmonds as an individual and a comparison of the factual find-
ings thus made with the position descriptions for such jobs generally.
It is evident, therefore, that an on-the-job study of Edmonds' duties
was not only a more reliable and accurate method of determining the
facts with respect to Edmonds' grievance, but that utilization of such
method was indeed a necessity for a proper processing of Edmonds'
grievance. Under such circumstances, we think it clear that the As-
sociation and the General Counsel have sustained any possible burden
of proving that the Respondent's denial to the committee of the right
of access to its property for such purpose was an unreasonable im-
pediment to the Association's statutory right to properly and intel-
WESTINGHOUSE ELECTRIC CORPORATION 969
ligently represent Edmonds as his collective-bargaining representa-
tive.
In support of his assertion that this burden of proof was not sus-
tained here, Member Leedom points to the Association's failure to
attempt to secure the desired information from other sources. In view
of the fact that a proper processing of Edmonds' grievance required
an on-the-job study of his duties, our colleague is thus apparently con-
tent to risk an iuadequate processing of Edmonds' grievance by the
use of substitute information from other sources which was not com-
pletely dependable or accurate. We do not believe the Association can
be required to take that risk. In our view, the policies of the Act
require that a collective-bargaining representative have a right of
access to the necessary information to properly perform its collective-
bargaining function, subject only to the limitations stated above. All
three members of the majority contradictorily also point to an alleged
absence of evidence that there was a dispute between the parties as to
the facts relevant to Edmonds' grievance. We disagree first with the
assertion that there is such an absence of evidence. In our opinion,
there is clear and convincing evidence that there was a dispute as to
the facts relevant to Edmonds' grievance in the very fact that the
Association sought the job study. The most logical explanation for
seeking such a study is that there was a disagreement on the facts.1°
In any event, even if there is such an absence of evidence, it indicates
only that the parties did not disagree on the limited facts which they
had without the job study, and does not affect the proof that the denial
of access to the actual facts constituted an unreasonable impediment
to the Association's collective-bargaining rights. Similarly, it is also
clear, contrary to the assertion of Member Rodgers, that the Union did
not possess all the facts concerning Edmonds' job that were relevant
and necessary to process his grievance under the rule of the } hitin
Machine and related cases.
It is clear, therefore, that even under the more stringent legal theory
which two members of the majority contend should be applied to this
case, there should be a finding that the Respondent violated Section
8 (a) (5) .11
1D Member Rodgers offers another explanation , which he claims is-"far more supportable
by the record ," but he cites no evidence in support thereof
'D See N. L R B v Cities Service Oil Co ., supra ; Richfield Oil Corp v . N L R. B.
supra Contrary to the assertion of Member Leedom, the Cities Service Oil case does stand
for the proposition that a union may investigate grievances involving working condi-
tions both on the employer 's property and during working time . Thus, the court stated
that. "The objection that the presence of union representatives on the ship is likely to
cause the men to leave their posts and to divert them from their work , to the danger of
the ship and cargo , is not entirely unfounded " The court concluded as follows , however
'But their presence on the ship only involves a slightly greater danger of interference
with the ship 's business than would any mode of negotiation in which the attention of
the men may be distracted from their work. Safeguards against interference with the
vessels' operations have been worked out in other cases where passes have been allowed
and, we believe , may readily be arranged here, if the employers are fair in affording oppor-
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chairman Farmer also contends that there are reasons related to.
the basic policies of the Act which require dismissal of the complaint.
These purported reasons are, in substance, that the right which the
Association sought to assert here is properly left to collective bargain-
ing. As already indicated, we view this case as one involving, in
effect, a refusal by an employer to furnish a collective-bargaining
representative with information relevant to the issues involved in
collective bargaining, and therefore involving a statutory right. In
such cases, the Board has held that the obligation to grant a union
access to such information so that it may properly perform its statu-
tory function is not satisfied by a substitution of collective bargaining
on the subject.21 But even if this case be viewed as one involving the
"unreasonable impediment" theory of Chairman Farmer and Member
Leedom, it must still be viewed, as we have also indicated, as one in-
volving the right of a collective-bargaining representative to properly
perform its statutory function, and therefore involving a statutory
right. In such cases, the Board has established and enforced such
right as a statutory right, and left to collective bargaining only the
,conditions under which the right might be exercised.22 Accordingly,
we believe that the right sought to be asserted here is a statutory right
which the Board should enforce, subject only to the limitation that
reasonable conditions under which the right may be exercised shall
be left to collective bargaining between the parties.
For the reasons stated above, and for the additional reasons stated
by the Trial Examiner, we would adopt the Trial Examiner's finding
that, by refusing the Association's committee permission to make an
on-the-job study of Edmonds' duties as an incident to the processing
of Edmonds' classification grievance, the Respondent violated Section
8 (a) (5) and (1) of the Act, and the Trial Examiner's recommenda-
tion that the Respondent be ordered to permit such study subject only
to such reasonable and lawful regulations as it may impose.23
tunities to present grievances through the union and firm in requiring the men not to
engage in activities affecting labor relations during their own working hours." [Emphasis
supplied ] We find no different considerations present in the instant case.
21 See Leland-Gifford Company, 95 NLRB 1306 , 1322; Hekman Furniture Company, 101
NLRB 631, 632
23 See Cities Service Oil Company , 25 NLRB 36 , 57, enfd . 122 F 2d 149 (C. A. 2).
23 For the reasons stated by him , we would also adopt the Trial Examiner 's findings
that. (1) The Respondent ' s East Pittsburgh unit , including the Homewood plant , consti-
tutes an appropiiate unit within the meaning of Section 9 (b) of the Act; and ( 2) there
is no merit to the Respondent 's contention that the complaint is barred by Section 10 (b)
of the Act
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed by Association of Westinghouse Salaried Employees,
herein called the Association , against Westinghouse Electric Company , herein called
the Respondent , the General Counsel issued a complaint alleging that the Respondent
had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and
( 5) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136.
WESTINGHOUSE ELECTRIC CORPORATION 971
More specifically, the complaint alleged that the Respondent failed to bargain in
,good faith with the Association as the exclusive representative of employees in an
appropriate unit, by refusing the Association permission to make, through repre-
-sentatives of its own choosing , an independent job evaluation or audit of a position
held by Howell Edmonds, an employee of the Respondent in the alleged appropriate
bargaining unit. The Respondent in its verified answer denied that it refused to bar-
gain in good faith with the Association; alleged that the charge brought by the
Union was barred by the restrictions of Section 10 (b) of the Act; and also alleged
certain affirmative matter that will be considered in the findings made below.
Pursuant to notice, a hearing was held on September 28, 29, and 30, 1954, at Pitts-
burgh, Pennsylvania, before Arthur Leff, the duly designated Trial Examiner. All
parties were represented by counsel at the hearing and were afforded full oppor-
tunity to examine and cross-examine witnesses, to present oral argument at the
close of the hearing, and thereafter to file briefs and proposed findings of fact and
conclusions of law.' At the conclusion of the hearing, a motion was granted to con-
form the pleadings to the proof with respect to minor variances. At that time, rul-
ing was reserved on a motion by the Respondent to dismiss the complaint for in-
sufficiency of proof. That motion is now disposed of in accordance with the findings
of fact and conclusions of law made below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Westinghouse Electric Company, a Pennsylvania corporation engaged in the manu-
facture, sale, and distribution of electrical equipment and appliances, has plants and
manufacturing facilities located in more than one-half the States of the United
States, and offices and places of business in all the major cities of the United States.
The Respondent's purchases of materials as well as its sales of products crossing State
lines exceeded $10,000,000 in value during the past year. The Company concedes
that it is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Association of Westinghouse Salaried Employees, affiliated with the Federation
of Westinghouse Independent Salaried Unions, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
1. Introduction
As will more fully appear below, the alleged refusal to bargain grows out of the
Respondent's denial of a request by the Association to permit the Association, through
an expert committee, to make an independent on-the-job analysis of the position
occupied by one Howell Edmonds, on whose behalf the Association had filed a
grievance, resisted by the Respondent, asserting that Edmonds properly belonged
in a higher classification than the one that had been assigned to him. Edmonds
worked as a time-and-motion analyst at the Respondent's Homewood Manufacturing
and Repair plant.
The Respondent admits that at the times material herein Edmonds was in an ap-
propriate bargaining unit for which the Association was the recognized exclusive
bargaining representative. But it takes issue with the scope of the unit as alleged
in the complaint. The complaint defines the appropriate unit as composed of:
All salaried employees of East Pittsburgh Works of Respondent (including the
Homewood Manufacturing and Repair plant), including all junior and senior
order clerks in the shipping department, all junior tool designers, associate tool
designers, tool designers and senior tool designers, but excluding telephone main-
tenance employees and supervisors as defined in the Act.
According to the Respondent, the salaried employees in the Homewood plant con-
stitute a separate appropriate bargaining unit entirely distinct from that in which
the salaried employees in East Pittsburgh are contained.
'Following the hearing the General Counsel and the Respondent filed briefs, and the
Respondent accompanied its brief with proposed findings and conclusions,
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Determination of the basic issue in this case-the alleged refusal to bargain-does•
not in my view necessarily turn on whether Homewood is found part of the East
Pittsburgh unit, as the General Counsel urges, or whether it is found a separate and
distinct unit, as the Respondent insists; the result reached on that issue would be the
same whether one or the other of the respectively claimed bargaining units were found
appropriate. Nevertheless, the rule enunciated in United Mine Workers, 83 NLRB
916, appears to require a definitive choice of the alternatives as a predicate for any
finding of a Section 8 (a) (5) violation in this case. Moreover, the Respondent's
position on the unit question appears to be related at least in substantial part to the
position it took on the Association's request for an analysis of Edmonds' position.
For these reasons the unit question which was sharply litigated at the hearing will be
considered here at perhaps greater length than may at once appear necessary.
2. Factual considerations
On May 22, 1940, the Board certified the Association as the exclusive bargaining
representative of "the salaried employees of [the Respondent] at its East Pittsburgh
Unit" (23 NLRB 1049). As disclosed in the Decisions and Directions of Elections
in that proceeding (19 NLRB 610, 22 NLRB 956) the East Pittsburgh unit consisted of
a multiplant grouping composed of the Respondent's East Pittsburgh Works, Linhart
Foundry, Copper Mill, Trafford Foundry, Trafford Micarta, and Homewood Works
-the last mentioned being now known as the Homewood Manufacturing and Repair
plant. There was no contest at the time with regard to the multiplant grouping in
the East Pittsburgh unit. That grouping was the same as had earlier been found
appropriate for hourly rated employees of the Respondent who were then, and are
now, represented by another union. See 3 NLRB 1 (July 9, 1937).
The plants included in the multiplant group are all located in the Pittsburgh area,
lying generally east and southeast of the center of that city. Of the plants included,
the largest by far is the East Pittsburgh Works, located outside the city limits about
10 miles southeast of the downtown area of Pittsburgh. There the Respondent manu-
factures the biggest electrical equipment it produces, such as waterwheel generators,
and employs over 11,000 people, including about 4,000 salaried employees. The
other plants, which are smaller operations, are all physically separated from the East
Pittsburgh Works. The Linhart and Copper Mill plants, which are adjacent to each
other, are perhaps 10 miles separated from the East Pittsburgh Works, and the Traf-
ford plants are a comparable distance removed. The Linhart plant, the Copper Mill,
and the Trafford Foundry (or at least part of it) are functionally and administra-
tively integrated with the East Pittsburgh Works. Trafford Micarta is not. Neither
is the Homewood Manufacturing and Repair plant, which is located in the Homewood
section of Pittsburgh about 10 miles east of downtown Pittsburgh, and about 6 to 10
miles northwest of the East Pittsburgh Works. The Homewood plant, at which
about 400 hourly rated and 125 salaried employees are employed, is I of about 40
so-called M & R plants, scattered throughout the country, used by the Respondent to
repair electrical equipment and to manufacture renewal parts for smaller electrical
apparatus. In addition to the plants grouped in the multiplant unit found appropriate
by the Board as aforesaid, the Respondent has a number of other facilities in the
Pittsburgh area at which salaried employees work. Some of such employees are
contained in separate certified bargaining units represented by either the Association
or its parent Federation?
The salaried employees' unit certified by the Board in 23 NLRB 1049 has never
been cut down or split up by any subsequent Board determination, although it has
been added to. In January 1949, the Board in Cases Nos. 6-RC-62 and 6-RC-150
(81 NLRB 336) ordered elections in two voting groups-(l) junior and senior order
clerks in the shipping department of the East Pittsburgh plant; and (2) junior tool
designers, associate tool designers, tool designers, and senior tool designers in the
East Pittsburgh plant,3 providing that if a majority in either or both of such voting
groups selected the Association, they would be severed from the hourly rated em-
2 The National Agreement between the Respondent and the Federation of Westinghouse
Independent Salaried Union reflects that there are five such units apart from that in
controversy: They are (1) salaried employees of the R. 0 Nuttal (Pittsburgh) plant; (2)
employees of the Central District Sales main office; (3) salaried employees in 2 sections
of the Respondent's main office building and at 2 other office buildings in the city of
Pittsburgh, (4) office, technical, and clerical workers at the offices of the Respondent's
elevator division in Pittsburgh; and (5) employees in the Respondent's research labora-
tory in East Pittsburgh
3 No similar categories are employed at Homewood.
WESTINGHOUSE ELECTRIC CORPORATION 973
ployees' unit and added to the Association represented salaried employees' unit
established in 23 NLRB 1049.4 The elections in both groups were won by the
Association.
Although the Respondent has never sought modification by the Board of the multi-
plant salaried employees' unit established in 23 NLRB 1049, it did seek Board ap-
proval for modification of the hourly rated employees' unit. In 1950 the Respondent
petitioned the Boaid to sever from the East Pittsburgh unit, the employees in the
Trafford Micarta division of the Trafford plant and in the Homewood M & R plant,
and to establish separate hourly rated units for each of those plant groupings. The
Respondents' petition for severance was denied. See 81 NLRB 8, at pp. 18-20.
The Association is an affiliate of a group of unions known as the Federation of
Westinghouse Salaried Unions, herein referred to as the Federation. Since about
1940 the practice has been for the Federation and the Respondent to enter into
so-called "National Agreements" covering all of the numerous bargaining units rep-
resented by Federation affiliates throughout the Nation. Such agreements cover the
general area of collective bargaining, including union security, checkoff, seniority,
salaries, hours of work, grievance procedure, overtime, and the like. The National
Agreements, however, leave it open to the respective affiliates and local managements
to make local supplements to the National Agreement.
Before 1948 the inclusion of the Homewood salaried employees in the East Pitts-
burgh unit was never in question. With regard to local matters, they were repre-
sented, as indeed they still are, by the Association's bargaining committee for the
East Pittsburgh unit, and the provisions of the local supplements covering the East
Pittsburgh unit were generally understood to be equally applicable to the Homewood
employees.
On January 28, 1948, the Association and the Respondent entered into a local
supplement agreement under which the Respondent recognized the Association as the
exclusive bargaining representative for salaried employees at the Homewood plant .5
In a supplement to the National Agreement then in existence the Homewood unit
was added to an appendix listing all bargaining units for which Federation affiliates
were recognized-no change being made, however, in the old description of the East
Pittsburgh unit. On July 2, 1948, the Federation notified the Respondent that the
supplement to the National Agreement, which included the new unit description,
had been ratified at membership meetings of Federation affiliates.
Apparently, the Association made an effort, after Homewood was agreed upon
as a unit apart, to negotiate a separate local supplement setting up certain terms and
conditions of employment applicable to Homewood alone, but its efforts met with
failure-just why, the record does not disclose.
On May 20, 1949, the Association advised the Respondent that it was canceling
its January 28, 1948, supplemental recognition agreement for Homewood, and
under date of June 2, 1949, the Federation sent the Respondent a letter approving
the Association's position. In its letter, the Federation asserted that "local manage-
ment at Homewood [had] made no effort to negotiate supplements applying to the
Homewood M & R Unit," and charged that "the Homewood management had al-
ready abrogated the supplement in not fulfilling their promise to negotiate other
supplements applying to Homewood." The letter also stated that Homewood had
never been certified as a separate unit by the Board and therefore had no legal
status as such. It announced that the Federation would thereafter consider Home-
wood as "again under the coverage of the East Pittsburgh Unit."
Further correspondence between the parties reveals that the Respondent objected
to the Association's cancellation action and to the reasons the Association gave
therefor. Apparently one or more meetings were held between union and manage-
ment representatives in an effort to resolve their differences concerning the unit.
IThe two groups in question, together with a third group composed of telephone main-
tenance employees although salaried at least in part, had previously been added to the
hourly rated unit established in 3 NLRB 1, after elections ordered by the Board in 1941
to resolve a dispute as to whether those groups properly belonged in the hourly rated
unit or in the salaried employees' unit See 32 NLRB 188 and 33 NLRB 462.
5 The agreement was confined to the recognition provision and a description of the
unit The unit was defined as follows •
All salaried employees in the Manufacturing & Repair Departments and Central Dis-
trict Accounting Department who are located at the Homewood Plant, except Confi-
dential Secretaries (including the secretary to the Central District Industrial Rela-
tions Representative) and supervisory employees with authority to hire, promote,
discipline, or otherwise effect changes in the status of employees or effectively recom-
mend such action
i
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not show that any definite resolution was reached. The Associa-
tion and the Federation continued thereafter to insist that Homewood be recognized
only as part of the East Pittsburgh unit in accordance with the Board's original cer-
tification which, at least as to its multiplant aspect, had never been modified by the
Board.
In 1950, as a result of the United Electrical Workers Union schism, the Respond-
ent canceled all its existing collective-bargaining agreements, including its contract
with the Federation and all supplements thereto.6 Later that year, on November
1, 1950, a new National Agreement was entered into between the Respondent and
the Federation. Section 1 of that agreement states:
The Company recognizes the Federation on behalf of and in conjunction with
its affiliates for those units where the Federation or an affiliate, respectively,
through a National Labor Relations Board certification has been lawfully
designated as the exclusive bargaining agent. The units for which the Federa-
tion and its Affiliates have been certified and which are included within this
Agreement are set forth in the Appendix attached hereto and made a part
of this Agreement.
The appendix lists separately 40 unit-descriptions covering various locations of the
Respondent. Item 14 covers the Respondent's salaried employees at its East Pitts-
burgh unit, with exclusions of employee categories as set out in the unit descrip-
tion in the complaint. Item 17 defines a unit for salaried employees in the same
language as that to be found in the local supplement agreement of January 28, 1948,
referred to above.
Leo Bollens, the Federation's president, testified that he objected to the inclusion
of Homewood in the appendix as a separate unit, but did not explain why under the
circumstances he nevertheless affixed his signature to the 1950 National Agreement.
Clark C. Frame, the Respondent's director of labor relations, agreed that during
the negotiations the Federation had asserted that Homewood had been dissolved as a
separate unit, a position with which the Respondent had taken issue, but, while testi-
fying he pointed to the signed agreement as containing what he viewed as the
resolution of that difference.
In any event it is clear that after the signing of the 1950 National Agreement-
which as supplemented from time to time continues in existence today-the Associa-
tion and the Federation have persisted in their position that Homewood must be
considered as part of the East Pittsburgh unit as established by the Board. Except
for the January 1948 recognition agreement referred to above, no supplemental
agreement has ever been executed covering the Homewood salaried employees alone.
Nor have any negotiations toward that end been conducted between local manage-
ment and authorized representatives of the Association.? The salary ranges for like
classifications at Homewood and at the East Pittsburgh Works are identical, and, so
far as appears, there are no variances in other contractual terms and conditions of
employment.
There is no interchange of employees between Homewood and the East Pittsburgh
Works. As a result of an informal understanding reached some time ago, salaried
9 Just why the Federation agreement should have been affected by the schism is not
entirely clear. The only explanation given at the hearing was that there were also salaried
employees' units represented by the United Electrical Workers Union.
7 Stephen Miketic, Homewood's superintendent, testified that in 1952 he "negotiated"
with the Association a supplement agreement for Homewood with regard to key sheets, that
is salary ranges, covering the various classifications of employees in the Homewood salaried
employees' unit. The Respondent introduced in evidence what purports to be a local
supplement for Homewood to that effect, signed by Miketic, for management, and J T.
Michaels, the Union's district representative at Homewood. Michaels denied that any
such agreement was "negotiated " According to him, Miketic merely asked him to sign
the agreement, and that he did so after comparing the figures with those applicable to the
East Pittsburgh unit generally and finding them to be identical. To the extent that
Michaels' testimony is in conflict with \[iketic's, I ci edit Michaels' The record shows
that the coding and key sheet figures for Homewood were identical to those for East Pitts-
burgh Michaels was unauthorized to sign local supplements for the Association. When
the matter was brought to the Association's attention, Michaels' action was disavowed.
On August 13, 1953, the president of the Association advised Miket[c that there was no
need for separate supplements at that plant as Homewood "operated under the East Pitts-
burgh supplements "
WESTINGHOUSE ELECTRIC CORPORATION 975
employees at Homewood and at East Pittsburgh are not commingled in seniority
lists and when layoffs occur have no "bumping " across plant lines.3
3. Analysis and conclusions
To support the unit allegation of the complaint , the Geneial Counsel relies mainly
upon the record of prior Board decisions and certifications . The Respondent, re-
sisting because the allegation includes Homewood , points to the agreements men-
tioned above , to the geographical separation between Homewood and the East
Pittsburgh Works, to the differences in the products produced , to the want of
administrative integration , to the absence of employee interchange , and to the main-
tenance of separate seniority lists The Respondent argues that " the interests of
the small group at Homewood would be adversely affected by their inclusion in the
large unit, for the hundred would be lost and submerged in the thousands."
The earlier Board determinations substantially support the unit allegations of the
complaint . While they do not necessarily preclude a subsequent redetermination of
the unit question , they nevertheless must be given great presumptive force. The
statute does not require that the unit for collective bargaining be the only appropriate
unit , or even the most appropriate unit, but only that the unit be "appropriate." In
the absence of clearly compelling circumstances dictating a contrary result, sound
-administrative policy suggests that once the Board has made a unit determination
followed by a certification , that determination should be adhered to until modified
by subsequent formal action of the Board . The question here is whether the circum-
stances relied upon by the Respondent are sufficiently compelling to justify a con-
clusion that at the time of the Respondent 's alleged refusal to bargain , the bargaining
unit that the Board had found appropriate was no longer so.
The principal circumstance urged by the Respondent is that the Association at
one time agreed to sever Homewood from the East Pittsburgh unit. Section 9 (b)
of the Act , however, imposes the obligation upon the Board to determine the appro-
priate unit . Though the Board may give consideration to private agreements between
the parties , such agreements cannot be regarded as concluding the Board . An agree-
ment that establishes a pattern of bargaining is of course entitled to substantial
weight. But no such pattern was established here. During the 7 years that have
elapsed since the separate recognition agreement for Homewood , no separate con-
tract for Homewood has been made , nor has effective bargaining with Homewood
as a separate unit otherwise taken place . It was because of the inability of the parties
to deal effectively for Homewood as a separate unit that the Association felt obliged
to repudiate the separate recognition agreement . The course of events since the
making of the separate recognition agreement , and the controversies it has engendered,
serve to repel rather than to sustain a finding that severance of Homewood from the
East Pittsburgh unit would promote the interests of collective bargaining.
The other considerations urged by the Respondent can be dealt with briefly. The
geographical separation of Homewood from the East Pittsburgh Works is no greater
than that of other plants in the multiple plant grouping forming the East Pittsburgh
unit. All lie in the Pittsburgh area, where the Respondent traditionally has pursued
a uniform area policy as to wages and related matters . The same factor of geo-
graphical separation was, moreover , equally present when the East Pittsburgh unit
was first established . So, too, was the fact that Homewood and the East Pittsburgh
Works are engaged in different functional operations. The difference in products
produced is in any event of less consequence than the kind of employees involved,
and the record here reflects that the employee classifications at Homewood have
their counterparts at the East Pittsburgh Works. As to the absence of administrative
integration , it is particulaily to be noted that with the Respondent 's consent the East
Pittsburgh unit was originally established without regard to administrative lines, and
even with Homewood severed from the East Pittsburgh unit, the remainder of that
unit nevertheless would still not entirely conform to the Respondent 's organizational
and administrative structure . The lack of functional and administrative integration,
employee interchange, and common seniority rolls, while undeniably factors tending
to support the Respondent 's position , support it less firmly now than if the unit
determination were bdfore the Board for the first time. As for the Respondent's
argument that Homewood employees ' interests would be adversely affected by their
inclusion in the large unit , it is observed that there is no evidence that the Homewood
8 Under the applicable national Agreement seniority need not be bargaining -unitwide
The contract provides that the composition of seniority ,units "may consist of the certified
bargaining unit or a subdivision theieof ," depending on local agreement
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees desire separation; indeed the position here of the only interested union
indicates the contrary to be true.
On the other side of the ledger, the earlier Board determination is not the only
factor favoring indivisibility. Others are that Homewood and East Pittsburgh have
the same classification rating system, that they have traditionally followed the same
wage pattern, that the employees at both plants have a common bargaining com-
mittee, and that past efforts have failed to achieve a successful bargaining relation-
ship at Homewood alone. Moreover, as evidenced by the comprehensive National
Agreements covering the more significant items of bargaining, the tendency at the
Respondent's plants has been to deal on a basis broader than the established individual
units, and to carve out at this time an additional local unit would be to go cross-
current. But even more significant in my view is that the East Pittsburgh unit,
including Homewood, is the established bargaining unit for hourly paid employees.
Under comparable circumstances, the Board at times has said that the pattern of
organization of a special classification of employees ought to follow the pattern
of bargaining established for other employees. To separate Homewood from the
East Pittsburgh unit for salaried employees while continuing it in the unit established
for hourly rated employees might well have a disruptive tendency.
Considering all factors in balance, and guided largely by the Board's precedent in
89 NLRB 8, wherein the Board disallowed the Respondent's petition to sever Home-
wood from the East Pittsburgh unit for hourly rated employees, I am of the view
that the salaried employees at Homewood appropriately form part of the salaried em-
ployees East Pittsburgh unit as previously established by Board decisions. Accord-
ingly, it is found that the bargaining unit alleged in the complaint, as modified by
the additional exclusions set out in the marginal note , constitutes a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act. 9
B. The refusal to bargain
1. Background
The contract between the Federation and the Respondent provides:
Salaries will be paid according to a local schedule based upon the classification
system in each bargaining unit. The place on the schedule of each position
will be in relation to other positions in the bargaining unit and in reference to
the lowest and highest paid positions.
The method of classifying and rating positions is not substantially unlike that used
in the Federal Government. The classification system is concerned not with par-
ticular individuals, but with the job content of assigned positions. A position identi-
fied by a given position title often broken down into more specific classifications,10
is defined by a written position description describing the duties of the position, not
only in terms of work tasks involved, but also in terms of other pertinent factors,
such as, for example, the relative importance and value of the operation or product
associated with the work tasks; the relative complexity of the operations involved;
the degree to which the operations are of a variable or of a repetitive character or
call for the exercise of individual judgment; the education, skill, training, experience,
and knowledge required for the competent performance of the work ; the extent to
which the necessary data or information needed for the performance of the work
tasks is already available or must be independently developed; the analytical ability
and ingenuity required; the extent to which the position may include special assign-
ments; and the degree of individual responsibility or supervision that will be re-
quired.ii The position description is based, upon an analysis and study of the range
of tasks, requirements , and responsibilities involved in the particular position being
described, and represents a writeup of that analysis. The analysis is made and the
9 By agreement between the Respondent and the Federation, dated July 28, 1953, there
were added the following additional exclusions of employee categories Secretaries to the
vice president, the vice president's staff, the principal managers and industrial relations
manager's staff, executive staff assistants and industrial relations staff assistant; patent
attorneys; plant and staff physicians; supervisory trainees; position and job analysts;
employment interviewers ; and industrial relations assistants
10 For example, the classification of time-and-motion analyst is further broken down,
identified, and described as time-and-motion analyst A, B, C, and D respectively
"The factors outlined above are drawn from those given special weight in distinguish-
ing the various classifications of time-and-motion study analysts They are illustrative
only. In the case of other positions other factors may be taken into account.
WESTINGHOUSE ELECTRIC CORPORATION 977
position description is prepared in the first instance by one or more members of the
Respondent's staff of position and job analysts , who are experienced and trained in
studying , describing , and evaluating the content of different positions . On the basis
-of the prepared descriptions , the position is then evaluated in all its aspects so that
it may be given an appropriate value rating in relation to the entire hierarchy of posi-
tions of which it is part , and thus receive its proper place on the local schedule. The
,evaluation given the position and its place on the schedule determines the salary
range the position will carry.
The governing contract provides that "the duties to be covered by a position,
the preparation of position descriptions , and evaluation of new or changed posi-
tions, are functions of Management ." But at the same time the contract makes
,clear that, while management retains the prerogative to prescribe duties to be per-
formed, questions relating to the proper description of a position and its evalua-
tion are matters for collective bargaining . The Respondent must notify the unit
bargaining representative of any new or changed position descriptions and their
evaluation at least 15 days before making them effective, and upon request bargain
with the representative on the proper description and evaluation of the position.
Though the Respondent has the right to make its most recent proposals effective
if no agreement is reached within the 15-day period , the right is still reserved to
the bargaining agent to process a grievance with respect thereto. With regard to
existing positions , the contract also provides that the Respondent is to bargain on
request with the unit representative on their proper descriptions and evaluations, and
grant the representative the right to process grievances as to such matters.
Not all grievances that arise under the classification system involve disputes as to
the propriety of given position descriptions or their evaluation . Because position
descriptions of necessity contain many relative terms that are vague and inexact
standing alone, and acquire meaning only by reference to tasks, duties, and re-
sponsibilities involved in other associated positions , and because there may be a
shadowy area separating a given position description from an associated one, claims
are sometimes made that an individual employee because of the particular duties he
performs properly belongs in another , usually a higher , classification than the
one that has been assigned him. Though not explicitly referred to in the con-
tract, the parties recognize that such claims may be appropriately raised and processed
-as grievances . The Respondent and the Association agree that the proper approach
to a determination of such grievances is to analyze precisely the job content of the
work performed by the grievant in all its aspects , and, on the basis of the findings thus
made, to determine by comparison with the established position descriptions govern-
ing the classification the grievant is in and the one he claims he should be in whether
the work he does properly places him in the one or the other . 12 As will be noted
below, however, they part company as to whether for purposes of obtaining the full
information required for that analysis , it is necessary for the Association to have
specialists trained in position analysis make an on -the-job observation and study
of the duties being performed by the grievant . The Respondent says, at least now,
that it is not necessary ; that adequate information may be obtained in other ways,
for example , by reports to the Union made by the grievant and others already familiar
with his work. The Association , on the other hand, supported by expert testimony
believed reliable , insists that while it is possible to gather facts in the manner sug-
gested by the Respondent , the facts thus gathered will not be as trustworthy, as
accurate , and as informative as would an on-the-job study by those who have expert
knowledge in the art of position analysis. As the expert testimony reasonably points
out, an employee working in a job will have an understandable tendency to over-
sell his job by overemphasizing its more important aspects and overlooking others,
just as a supervisor defending such a grievance would tend to undersell the job;
moreover , since job content to some extent involves relative factors, such as degrees
of complexity and departures from the norm , and often must be related to associated
work , direct observation and study by specialists in analysis of job content will
secure a more objective and dependable determination of the relevant facts than
would reports from others, however familiar the others might be with the work of
the employee whose classification is in question.
For purposes of assisting the Association intelligently to deal with the Respond-
ent on matters relating to position analysis, description and evaluation , and bet-
ter enabling it to correct existing inequities in the wage structure and to prevent
future inequities from occurring , the Association some years ago set up its own evalu-
ation and analysis committee . The committee at the present time is composed of 9
19 It may be that analysis will show that he fits in neither , in which event a new classi-
fication based upon a new evaluated job description may be required.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, all employed by the Respondent in the East Pittsburgh unit, 1 of whom,
Ira Matthews, is employed at Homewood. The original members of the committee
were sent by the Association to a school where they were given a formal course of
instruction in the fundamentals of job analysis and evaluation. Although some of
the original members have since left the committee, their successors have been in-
structed in the science of job analysis and evaluation at committee-conducted classes
where the school outline of instruction is followed.
The Association's committee operates in the following manner: A request for an
analysis may be made of the committee either by an Association representative in
conjunction with a pending grievance, or by an Association member who claims
either that his position is improperly classified or that he, individually, properly be-
longs in a higher classification. Where such requests are made by employees, the
employees are required to fill out forms setting forth the basis for their claim. If,
following examination of the form, the committee is of the opinion that there is
sufficient prima facie evidence to warrant an investigation, it assigns two members
of the committee to make a study and analysis at the location'of the job and while
it is being performed. Before the study is made, management is informed that the
study is desired and arrangements are made with it for the time when it is to take
place. The study by the subcommittee of two is made in the presence of manage-
ment representatives and the Association's group representative. It is conducted both
by interviewing the affected employee, his supervisor, and perhaps others familiar with
the content of his job or related jobs that may have a bearing on it, and by direct
observation of relevant details, such as the kind of work being done, the procedures
that must be followed, the conditions under which the work is being performed, the
relative complexities and responsibilities involved in the operations, the resourceful-
ness and analytical requirements of the job, etc. On the basis of such interviews and
observations a written statement of the job content is then prepared. Before sub-
mission to the full committee the statement is exhibited to both the employee and
management so that they may have an opportunity at that time to suggest any correc-
tions they consider should be made. The statement describing the job content is
then submitted to the full committee, and, if the matter is such as to require an
evaluation, the evaluation is made by the full committee. Neither the analysis nor
the evaluation made by the committee is binding upon the Respondent, unless, of
course, formally agreed to. But on the basis of the committee's analysis, the Associa-
tion is in a position to form its own independent judgment as to whether the grievance
has merit and should be further processed, and, if so, on what factual basis. If the
grievance is pressed, it is presented and negotiated by the Association's representatives
who are designated to handle grievances. The primary function of the committee
with regard to grievances appears to be the collation and analysis of pertinent factual
information to assist the Association's determination on whether the grievances have
merit, and, if so, on what basis they should be processed.
Although the collective-bargaining agreement makes no specific reference to the
Association's evaluation and analysis committee, the Respondent at the East Pitts-
burgh unit-except in recent years at Homewood, as will appear below-has ac-
quiesced in the operations of the committee and, practically speaking, has recognized
such operations as an integral part of the procedures followed by the Association in
investigating classification and position evaluation grievances. As appears from the
credited testimony of Charles J. Vogel, the Association's executive secretary at the
East Pittsburgh unit, the Respondent has never objected to the Association's com-
mittee making its job analyses at East Pittsburgh, although in recent years it has
interposed such objection at Homewood. While the record does not contain full
information on this point, some idea of the extent of the committee's operations may
be gleaned from an Association chart in evidence surveying the requests made for
analysis and their disposition during approximately a 2-year period beginning in
August 1949. The survey shows that during that period some 47 requests were made
of the committee, most involving requests for position evaluations, but others ap-
parently concerned with individual claims for reclassification. It appears that in all
but one of these cases an analysis was conducted. It further appears that analyses
were made not only at the East Pittsburgh Works, but at other plants in the East
Pittsburgh unit, including Homewood-the survey showing that during the period
mentioned, four analyses were conducted at Homewood, the last in January 1950.
It is of interest to note that in a substantial proportion of the cases where recommenda-
tions are shown by the chart to have been made by the full committee-in more than
one-third of them-the recommendation was that the grievance was without merit.
As has been stated, the Respondent still allows the Association's committee to
make on-the-job analyses in connection with grievances at the East Pittsburgh Works,
but not so at Homewood. As far as this record discloses, management at Homewood
WESTINGHOUSE ELECTRIC CORPORATION 979
first took that position sometime before April 1953 . On April 6 , 1953, the Association
filed a grievance charging management with a contract violation in refusing it permis-
sion to bring in its evaluation and analysis committee in regard to the handling of
two grievances then being processed at Homewood . The grievance , after rejection
at the local management level, was carried to the appeal level of the grievance pro-
cedure where it was submitted by the Federation to the Respondent 's headquarters.
The final answer was given the Federation in a letter , dated October 8 , 1953, directed
to Leo F. Bollens, the Federation 's president , reading as follows:
DEAR MR. BOLLENS:
Federation Appeal Grievance No. 360 A. W. S. E.-East Pittsburgh, Pa.
(M & R) Contract Violation of Section XVI A
In this grievance , the affiliate claims that local management has violated Sec-
tion XVI of the National Agreement by refusing A. W. S. E. permission to
bring a member or members of their Evaluation Committee into the Homewood
M & R Plant to evaluate certain jobs that have been a subject of discussion be-
tween the parties.
The Management Appeal Grievance Committee , for the following reasons,
does not believe that there has been any violation of the Section referred to.
First, though there is a difference of opinion on this subject , Management is
of the opinion that, though Homewood M & R is a part of A. W . S. E., it is a
separate entity and as such, should handle its own labor relations matters by
dealing with its own employees. It appears to the Management Committee
that there is sufficient evidence to substantiate that the Homewood unit has
been separated for bargaining purposes , though the Federation committee denies
this.
The evidence is as follows:
(a) The National Agreement which has been signed by the Federation
lists Homewood as separate and apart from East Pittsburgh.
(b) Attached is a copy of Supplement VI to the Agreement dated April
1, 1947 between the Company and the Federation which clearly sets out
Homewood as a separate unit.
(c) The A. W. S. E . Reporter , Volume 7, No. 9 September, 1948
issue on Pages 13 and 15 clearly states that the Homewood district was
set up as a separate local bargaining unit within A. W. S. E.
(d) The A. W. S. E. Reporter Volume VII, No. 2 of February, 1948,
states that Management and A. W. S. E. agreed to the arrangement re-
ferred to in (c) above.
Paragraph A of Section XVI refers to "officers and other representatives of
the Affiliate and/or Federation ." The word "representatives" was intended to
mean the "steward body" of the Affiliate, known in most locations as District
and Division Representatives . It was never contemplated to be an all - inclusive
catch-all word that could encompass any sort of Committee the Affiliate saw
fit to appoint. Management does not contend that it can direct the Federation
or Affiliate in what committees they may choose to establish but Management
does contend that there is a limitation within the Agreement as to those repre-
sentatives of the Federation or Affiliate who it will grant permission to investigate
grievances and conditions within its plants. Based on this premise , the Manage-
ment Appeal Grievance Committee does not believe that anything in the
National Agreement permits access to the Homewood M & R Plant of employes
other than those employed at Homewood for the investigation of local griev-
ances, job evaluation and the like. One reason for this position is the dis-
turbance in an activity resulting from such investigations by outsiders Secondly,
there is a sincere belief that industrial relations problems can best be resolved
in the interest of the employee and the Company by having day to day pro-
cedures between persons in both the Union and Management who are a part
of and familiar with the activity.
The Management Appeal Grievance Committee believes that Homewood
Management was correct in refusing permission for East Pittsburgh employes
to analyze and evaluate jobs at Homewood . The grievance should be con-
sidered closed on that basis.
Yours very truly,
(Signed ) B. H. Goodenough, Asst. Director,
B. H. GOODENOUGH,
Asst. Director Labor Relations.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The request and the refusal in the Edmonds case
We come now to the specific incident of refusal to bargain alleged in the com-
plaint-the Respondent's denial of the Association's request to allow its evaluation
and analysis committee to make an on-the-job analysis of Howell Edmonds' position
in connection with a pending grievance concerning the propriety of Edmonds'
classification.
Edmonds, who is employed at the Homewood M & R plant, is classified as a
time-and-motion analyst C. His classification is 1 of 4 specific classifications of
time-and-motion analyst-the others being identified by the letters A, B, and D.
There are in existence written position descriptions covering the positions of time-
and-motion analyst and each of its subdivisions. Such position descriptions and
their evaluation had been agreed to by the Association some time prior to the filing
of Edmonds' grievance.
On November 6, 1953, the Association filed a grievance charging that manage-
ment had assigned Edmonds to perform duties of a class B time-and-motion analyst
although he was classified in Class C.13 Under the position descriptions, the lines.
of demarcation between various time-and-motion analyst classifications depend pri-
marily upon the following relative factors: (1) the type of product associated with
the work-detail items and simple assemblies for class C, more intricate and variable
for class B; (2) the nature of operations and degree of repetition involved--of a
more well-established pattern and less varied in class C than in class B; (3)
knowledge and experience required-more in class B than in class C; (4) extent
of data available-usually available or readily established in class C, more often not
available and necessary to establish through comparison, estimates, and time study in
class B; (5) complexity of required formula construction-simple with few variables
in class C, involving many variables and often requiring considerable ingenuity and
analytical ability in class C; and (6) the extent to which the work tasks may involve
special assignments-as to which the differences between the position descrip-
tions of class B and class C, respectively, are indicated in the marginal note.14 A
particular basis urged for the grievance, although perhaps not the only one, was
that the particular work to which Edmonds was assigned involved a "special assign-
ment" within the intended scope of the class B position description, and not covered
by the class C description. The parties are agreed that Edmonds' grievance related
to classification "slotting" in which the prepared position descriptions and their
evaluation were not in issue. They are also agreed that resolution of the merit
of the grievance depended entirely upon a determination of the particular job con-
tent of the work performed by Edmonds as an individual and a comparison of the
factual findings thus made with the position descriptions for time-and-motion study
analysts classes B and C, respectively.
The Edmonds grievance passed through the first two levels of the grievance proce-
dure without resolution. At the first level management was represented by Ed-
monds' supervisor and the Association by 1 of the Association's 3 group representa-
tives at Homewood. At the second level management was again represented by the
same supervisor and the Association this time by J. T. Michaels, the Association's
district representative at Homewood who is employed at that plant. Meetings and
discussions were held by the respective representatives at both levels. In accordance
with the contractual provisions, written answers were given the Association's rep-
resentatives at both levels. At the first level, the Respondent's answer in substance
was that Edmonds' position duties and requirements met the criteria in all 6 factors of
the class C position description. At the second level, the answer argued that the
extra coordinating work Edmonds was being assigned to perform was not of such
Class B carried a maximum salary rate $514 60 a month, class C, $449 25.
14 As to this the class C position description provides :
It is also intended that the classification may be used for a time-and-motion analyst
working as an assistant to and under the guidance of a higher classed analyst where
he performs a specified portion of the work within the scope of the points covered
above
The class B position description provides
It is intended that this classification may be used for an analyst on special assign-
ment at any point in the shop where, under general supervision, he may perform a
specific function not involving the normal full range of a regular tine-study assign-
ment.
The italics have been added to emphasize the character of what appears to be the key
differences between the two classes on this factor.
WESTINGHOUSE ELECTRIC CORPORATION 981
a character as to be classified a "special assignment" in all the circumstances, and
that the product he was working on should be classified a "simple product."
Under the applicable procedures, grievances at the third level are negotiated be-
tween the industrial relations supervisor for management and one or more officers
of the Association, with management and union representatives who handled the
grievance at lower levels also present. Having failed to reach agreement at the
lower levels, Michaels asked that the grievance be passed on to the industrial re-
lations level
Before any meeting was arranged at the third level, the Association, over the name
of Thomas O'Leary, the Association's vice president, forwarded to the industrial re-
lations department on a regular grievance form, dated December 29, 1953, the follow-
ing request relating to the classification grievance of Edmonds:
We request Management set up a date for our Analysis Committee to come to
Homewood to analyze the position.
Under date of January 25, 1954, the Respondent, through L. D. Gibson, supervisor
of industrial relations at Homewood, answered the Association's request as follows:
Please refer to Mr. B. H. Goodenough's letter dated October 8, 1953, on
Federation Appeal Grievance No. 360. This outlines our policy very clearly.
The Association did not attempt to process the Edmonds grievance further. In-
stead, on February 17, 1954, it filed its charge with the Board in the instant proceed-
ing, claiming in substance that the Respondent's answer constituted a refusal to
bargain.
Analysis and Conclusions
The primary issue to be decided is whether the Respondent violated Section 8
(a) (1) and (5) of the Act, by denying the Association's request to allow its analysis
committee to make an independent on-the-job study of Edmonds' work for the
purpose of gathering information relevant to an evaluation and processing of Ed-
monds' grievance. There is also a collateral issue raised by the Respondent's con-
tention that the subject of the charge relates to a stand first taken by the Respondent
more than 6 months prior to the charge and is therefore barred under Section 10
(b) of the Act
Contrary to the contention of the Respondent, it is not controlling on decision here
that the Respondent bargained with the Association and agreed with it upon a
grievance procedure, and under that procedure met and conferred with the Associa-
tion on the Edmonds grievance whenever requested so to do. The law must by now
be regarded as settled that an employer does not necessarily fully satisfy his statutory
obligation merely by meeting and conferring with union representatives. Where perti-
nent for the purpose of enabling the bargaining agent intelligently to evaluate and
bargain on a grievance, the employer must also normally provide the bargaining agent
upon request with access to information relevant to the subject matter, including a
reasonable opportunity itself adequately to make its own independent investigation
of the conditions in complaint. See Whitin Machine Works, 108 NLRB 223, and
cases cited in footnote 2. See also N. L. R. B. v. Cities Service Oil Co., 122 F. 2d
149 (C. A. 2); Richfield Oil Corp. v. N. L. R. B., 143 F. 2d 860 (C. A. 9).
In this case, the factual data concerning Edmonds' job content that the Association
sought to assemble through independent investigation by its analysis committee was
clearly relevant to the matter in issue on Edmonds' grievance. The Respondent does
not question the relevance of that data. It does assert now-although it made no
such claim in rejecting the Association's request-that there was no genuine necessity
for the Association to send its analysis committee to Homewood to obtain the desired
factual data, and hence no legal obligation on its part to grant such access. It argues
that the factual data concerning Edmonds' job content could have been supplied the
Association by Edmonds himself as well as by others employed at Homewood, who,
because of their daily contacts with him were already familiar with his work. But,
as I read the decisions touching the subject, the duty to grant access to information
turns not on the unavailability of a substitute method for acquiring the information,
but on the question of its relevance to the bargainable issue.15 Besides, credible ex-
pert testimony in this record convincingly demonstrates that, while it would have been
possible on the basis of reports from Edmonds and others employed at Homewood
for the Association committee to have drawn up without its own visual observation
an analysis of Edmonds' work for comparison with the established position descrip-
15 See e g., Whittin Alachxne We, ks, supra ; N L. R B. v Yaavman d Erbe Mfg Go, 187
F. 2d 947 (C. A. 2). See also N. L. It. B . v. Cities Service Oil Co., supra.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, such an analysis and comparison would not have been as adequate, dependable,
and satisfactory as one based upon its own on-the-job survey.is Further, the job
descriptions, against which Edmonds' work duties and requirements were to be tested
in determining the merits of his grievance, contained terms of relative description
that were vague and without exact meaning in themselves. To place the relative
terms in accurate focus, it , alone, was not enough to acquire full familiarity with
all aspects of Edmonds' work; it was also necessary to see how his job duties and re-
quirements compared in degree with those in the hierarchy of positions to which his
work was related.17 The factual data to be gathered involved a task that lay within
the special competence of an expert committee trained and experienced in the skill
of position analysis. Though perhaps not indispensable to the Association's evalua-
tion and processing of the Edmonds grievance, the specialized advice and assistance
of that committee based upon its own study would clearly add to the intelligence and
adequacy with which the Association could deal with the grievance. If, as is not
disputed, the data is relevant, little reason appears why the Association should be
stopped short of gathering the most useful and reliable information it can develop
simply because by following some other method it may somehow get by with less.
From the point of view of achieving an underlying policy of the Act, the promotion
of industrial harmony, it is desirable that both parties to a grievance controversy
have at their disposal the most complete factual picture that can be obtained. The
value of studies made by the analysis committee in furthering that end has in part
been practically demonstrated by the experience records showing the substantial pro-
portion of cases where, as a result of studies made by the committee, the Associa-
tion was able to come to the conclusion that given grievances were without merit,
thus bringing an end to controversy. Reserving for the time other considerations,
such as the question of whether the Respondent was entitled to restrict the compo-
sition of such a committee to employees employed at the Homewood plant, I find
without merit the Respondent's contention that there was no genuine need for a job
analysis by a specialized union committee in Edmonds' case, and that, if only for
that reason, the Respondent was under no duty to allow it.18
It has already been pointed up that in rejecting the Association's request for an
analysis of Edmonds' work, the Respondent did not then claim, as it does now, that
there was no genuine need for such an analysis. It must be pointed up, too, that in
the past the Respondent had in effect acknowledged that such analyses serve a proper
and needful function in grievances involving position evaluations and classifications,
by allowing analysis committee investigations to be made as a regular practice-as it
still does at the East Pittsburgh plant, and as it did at least until 1950 at Homewood.
ii It may be noted that authorities in the field of job analysis recognize the importance
of direct observation in making job analyses. See Otis and Leukart, Job Evaluation,
Prentice Hall, Inc, 1949 pp 189-191. Smyth and Murphy, Job Evaluation and Em-
ployer Rating, McGraw-Hill, 1946, p 74.
17 For example, with regard to the phrase "special assignment," which was one of the
key phrases involved in the grievance, James Tamarelli, a supervisor of job and position
evaluation for the Respondent at East Pittsburgh and a witness for the Respondent, testi-
fied that he would not be able to understand the meaning of that term without being com-
pletely familiar with the precise duties Edmonds was performing and its comparison with
related duties. Although he testified that he would "not necessarily" have to observe the
job to make his determination, he conceded that the "information would have to be forth-
coming from somewhere." '
18 N. L R B v. Otis Elevator Co., 208 F 2d 176 (C A. 2), relied upon by the Respond-
ent, is distinguishable In the instant case the data sought by the position analysis was
both directly relevant and involved in the bargainable issue of the grievance, but not so
the data sought by the time study in the Otis case, at least not in the view of a majority
of the court which reversed the Boaid on that issue Under the applicable contract in
the Otis case management concededly had the exclusive right to set up standards and
the Union's only right was to question the fairness of the standard established by man-
agement by showing after a fair trial that it was impossible to earn the minimum premium
wage guaranteed by the contract The issue involved in the Otis grievance, and the facts
relevant thereto, concerned the fairness of the standard in the light of actual experience
or, put another way, whether the standards set after having been put to actual applica-
tion in fact allowed affected employees reasonable leeway to earn premium pay by the
exertion of extra effort. But, according to the court, the Union was going outside that
issue, by seeking a time study to obtain new data to formulate new standards different
from these at issue in the pending grievance Besides, in seeking data on which to formu-
late new standards, it was attempting to usurp a function reserved exclusively for man-
agement under the exuress terms of the contract. That is not the situation here.
WESTINGHOUSE ELECTRIC CORPORATION 983
The Respondent's rejection of the Association's request was predicated upon an
entirely different basis. It is set out in the Goodenough letter, quoted in full above,
to which the Respondent referred. Boiled down, the Respondent's position as there
stated amounts to this: that in the Respondent's view-a view contrary to the finding
made above-Homewood was a bargaining unit apart from East Pittsburgh; that,
as such, Homewood "should handle its own labor relations matters by dealing with
its own employees"; and that under its collective-bargaining agreement, the Re-
spondent was not required to, and would not, for that and other reasons, permit ac-
cess to the Homewood plant "of employees other than those employed at Homewood
for the investigation of local grievances, job evaluations, and the like." The reasons
given by the Respondent were these: (1) Though there was concededly a difference
of opinion on the subject, the Respondent believed there was sufficient evidence to
substantiate its own view that Homewood had been effectively separated from the
East Pittsburgh unit by agreement of the parties; (2) the Respondent was not required
under the governing collective-bargaining agreement with the Federation to permit
plant access to union representatives other than members of the "steward body"
employed at Homewood for the purposes of investigating into plant grievances and
conditions, because, in the Respondent's opinion, the contract, although it did not
explicate it, did not contemplate that the term "representatives" as there used, would
be "an all-inclusive catch-all word that could encompass any sort of committee the
affiliate saw fit to appoint"; and (3) apart from the unit and contract considerations
the Respondent did not want East Pittsburgh employees to investigate grievances or
engage in position analyses at Homewood, because (a) "the disturbance of an ac-
tivity [not otherwise defined] resulting in such activities from outsiders," and (b)
it believed that industrial relations problems could best be resolved "by having day to
day procedures between the persons in both the Union and Management who are a
part of and familiar with the activity."
The General Counsel maintains that the Respondent, by thus restricting to Home-
e wood employees the Association's representatives it would be willing to accredit,
unilaterally, unreasonably, and without statutory warrant invaded the Association's
freedom to select the persons who are to represent it for purposes of collective bar-
gaining and related matters.
As a general proposition of law, it is of course clear that an employer, at least in
the absence of exceptional circumstances, may not dictate either affirmatively or
negatively the choice of a bargaining agent's representatives with whom he will deal.
For the right of employees to organize their union and to select their union repre-
sentatives, whether employees or nonemployees of a particular employer or plant,
ordinarily is no less than the right of an employer to organize its business and select
its own officers and agents. N. L. R. B. v. Roscoe Skipper, Inc., 213 F. 2d 793 (C. A.
5). Shell Oil Company, 93 NLRB 161, 163. Are there, then, present in this case such
exceptional circumstances as would warrant a departure from that general rule? The
Respondent has advanced a number of contentions in asserted justification for its
position. It is to a consideration of such contentions that we now turn, directing
inquiry both to the reasons stated in the Goodenough letter and to added arguments
made in the Respondent's brief.
The contention based on the claimed separateness of Homewood as a bargaining
unit need not detain us long. In point of fact Homewood has been found part of
the East Pittsburgh unit. But even if it were otherwise it would not matter. For I
think it clear that the Act does not require that each bargaining unit, although iso-
lated for other purposes, must be regarded as an island containing within its own
shores, all those persons who may appropriately speak or act for management or
labor.
The contention that the collective-bargaining agreement did not require the Re-
spondent to permit Association representatives other than members of the "steward
body" to investigate grievances in the plant calls for more detailed consideration.
Though a union has the statutory right to act through representatives of its own selec-
tion, the Board recognizes that a union, if it so chooses, may waive that right by
agreement with an employer restricting the class of persons or the composition of
committees that may act for it. Shell Oil Company, 93 NLRB 161. But, as such
a waiver would be in derogation of a statutory right, any agreement purporting to
contain it must be strictly construed. And the Board will not give effect to any
purported waiver of such right, unless it is expressed in clear and unmistakable terms.
California Portland Cement Company, 101 NLRB 1436, 1439; Hekman Furniture
Company, 101 NLRB 631, 632; Leland Gifford Company, 95 NLRB 1306. In the
instant case, I find in the contract no such waiver in the form of a restriction, either
expressed or unequivocally implied, with regard to those who on behalf of the
379288-56-vol. 113-63
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association might investigate grievances or conduct position analyses . ia Bearing
in mind that before the 1950 contract was made it was already an established prac-
tice for the Association to use its analysis committee to investigate position classifica-
tion grievances, I do not think that a waiver by the Association to designate such
representatives for that purpose can be spelled out simply from the contract's silence.
Moreover, the Respondent's continued acquiescence to this day in the functioning of
that committee at East Pittsburgh would appear at odds with the contention of the
Goodenough letter that the contract contemplated that such investigations be re-
stricted to members of the "steward body."
Indeed, it is not clear that the Respondent claims a waiver. Its position as ex-
pressed in its brief appears to be, rather, that, having agreed on a contract, the
Respondent's contract obligations now fix the limits of its legal obligation. The
specific points it makes are these: First, that in the absence of an explicit con-
tractual provision therefor it is under no affirmative legal obligation to allow Asso-
ciation representatives access to its plant for position analyses or investigations.
And, secondly, that having by collective bargaining agreed upon a grievance pro-
cedure, its only obligation now under the law is to follow the express provisions of
the grievance procedure, and no more. I find both these points-which are really
different formulations of the same thing-to be without merit. The right of access
to information to enable a union effectively to exercise its legitimate representative
functions, with which we are dealing here, is a right that derives from statute, not
from contract, and it is immaterial therefore that the contract does not speak on
the subject. California Portland Cement Company, supra 20 Moreover, the Board
in the past has rejected expressio unius arguments such as that made by the Respond-
ent with regard to the grievance procedure. Thus, the Board has said that an em-
ployer's obligation under the Act to grant a union access to information enabling it
to perform its statutory function "is not satisfied by a substitution of the grievance
procedure of the contract for its obligation to furnish the Union with information
it needed to perform its statutory function" Hekman Furniture Co., supra; Leland
Gifford Company, supra, at p. 1322.
We pass over quickly the reason given in the Goodenough letter, that in its view
grievances of this kind are better investigated by persons "who are part of and
familiar with the activity"-an opinion with which the Association evidently does
not agree . That is an argument that may appropriately be urged in collective
bargaining , but it has no place as a defense to the complaint made here. The reason
given may explain, but as a matter of law it does not justify, the Respondent's
unilaterally taken position under attack, and the Respondent in its brief does not
contend otherwise.
And so we come to the Respondent's final and most strongly urged argument,
pegged to the sentence in the Goodenough letter declaring as one reason for its
position that "investigations conducted by outsiders" would result in "the disturbance
of an activity." 21 Reasoning on the basis of the Board's established principle gov-
w The contract is entirely silent on the specific subject of position analyses . Nor does
it directly contain any provision with regard to those who may investigate grievances on
the Association's behalf. That matter is touched on only obliquely in section XVI of the
Federation contract-the section that was involved in the earlier Association grievances
claiming a contract violation. Section XVI deals specifically with the subject of payment
for negotiating time. It provides for the notices and time reports that must be given
management by affiliate "officers and other representatives" (without further defining
them) when stopping work to conduct "union business " It implies that the Investiga-
tion of grievances by such undefined union officers and other representatives is allowable
on company time. For "union business" is defined as "including, without limitation
investigation of complaints that may lead to grievances, handling and adjustment of
grievances and attendance at meetings of union committees." Subsequent clauses pro-
vide that time spent by union representatives on such union business shall be compen-
sated for by the Company at the representative's salary rate, but that the Company in
turn is to be reimbursed by the Union for all such payments.
20 For the same reason there is no merit to the Respondent's contention that the Board
is without jurisdiction to add to or to enforce the collective-bargaining contract. This
proceeding seeks vindication of a statutory, not a contractual, right.
m Though principally stressed by the Respondent now, it is doubtful that the Respond-
ent was primarily motivated by that consideration in taking the stand it did. Reading
the Goodenough letter as a whole, one can scarcely avoid the impression that that reason
was added as extra justification, but that the Respondent's position had as its underlying
motivation a desire to divorce Homewood completely from East Pittsburgh in line with
the Respondent 's basic contention that Homewood as a separate unit should handle its'
own labor relations in dealing with its own employees.
s
WESTINGHOUSE ELECTRIC CORPORATION 985
erring employer no-solicitation rules, as declared in Peyton Packing Co., 49 NLRB
828, the Respondent contends that in the interest of maintaining plant discipline and
efficiency it was lawfully privileged to promulgate a rule, such as it says it did here,
prohibiting a form of union activity-in this case the investigation of grievances-on
company time and property. Even if the Respondent's position expressed in the
Goodenough letter could be viewed as a rule prohibiting the investigation of grievances
during working time, the analogy to Peyton Packing would not be an apposite one.
Though membership solicitation and grievance investigations are both in a broad
sense forms of union activity, obviously the considerations which justify the banning
on company time of union solicitation do not apply with equal force to justify the
banning on such time of grievance investigations-and particularly so where, as here,
the grievances relate to conditions or activities that can best be observed while
work is in progress. In any event, it is wrong to formulate the issue as one involving
a restriction on union activity during working time. The Respondent's contract with
the Federation recognizes that grievance investigations may properly be conducted
during working time. The Goodenough letter does not dispute the use of such time
for that purpose. It merely disputes-and restricts-the right of the Association to
designate as representative persons other than those employed at Homewood to make
such investigations.
But the question remaining is whether, in a situation like this the Respondent, for
the reason asserted, was reasonably justified in imposing such a ban on representatives
not employed at Homewood. True, the right of employees to self-selection of their
representatives, whether or not employees of a particular plant, need not under a
reasonable construction of the statute be regarded as one immune from restriction
under any circumstances. There may be, in given cases, compelling overriding rea-
sons, such as considerations of national or plant security, protection of confidential
information, or probable danger of abuse, that might require a yielding of that right
and of the accompanying right of access to accommodate competing employer or
other interests.22 But the burden of proof is on the employer who would restrict the
statutory right to show its necessity by clear and convincing evidence. This the Re-
spondent has not done. There is no claim in this case that security or other special
considerations are involved; only interference with production is claimed. Doubtless
investigations conducted at Homewood by the analysis committee would entail some
interference with production at the plant. But some interference with production is
a normal concomitant of grievance investigations. And there would also be some
interference if like investigations were conducted by Homewood employees; yet the
Goodenough letter implies that the Respondent would have no objection to Home-
wood-employed representatives engaging in that activity. It is difficult to see how
it would cause any greater interference for East Pittsburgh employees to conduct a
position analysis at Homewood than for them to conduct such an analysis, as they
are allowed to do, in a department or plant of the Respondent's version of the East
Pittsburgh unit, other than the one in which they happen to be employed. The
Respondent offered no evidence to show that it would cause any inordinate inter-
ference with production for it to allow investigations at Homewood by the analysis
committee, such as it formerly allowed at that plant and still allows in other plants
in the East Pittsburgh unit. The sweeping declaration in the Respondent's brief that,
if investigations such as was sought in the Edmonds' case were permitted, "the po-
tential effect on production represents a manager's nightmare," is not supported by
experience. The Association's records showing the relatively infrequent occasions on
which the analysis committee visited Homewood, while such visit was permitted,
scarcely reflects abuse, or any reasonable basis for apprehending future abuse. On :
all the record, I am unable to conclude that the risk of interference with production
at Homewood would have been so substantial as to warrant the Respondent in de-
priving the Homewood employees of the legitimate union services which the analysis
committee provides other employees in the East Pittsburgh unit. I further conclude
2A The denial of access may not, however, be justified solely upon an inherent right of
the Respondent to regulate the use of its private property; for it must by now be re-
garded as well settled that where the statutorily guaranteed right of employees to engage
in collective bargaining through representatives of their own choice would be materially
impeded by the inability of union representatives, albeit "outsiders," to come upon plant
property, the right of an employer to regulate entrance to his property must yield so as
reasonably to accommodate itself to employee rights. N. L. R. B. v. Cities Service Co.,
supra ; Richfield Oil Corp. v. N. L. R. B., 143 F. 2d 860 (C. A. 9), enfg. 49 NLRB 593.
Cf. N. L. R. B. v. Stowe Spinning Co., 336 'U. S. 226; N. L R. B v. LeTourneau Company,
824 U . S. 793; N L R B. v Lake Superior Lumber Corp., 167 F 2d_147 (C A. 6), enfg.
70 NLRB 178.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that neither on that basis, nor on any other that has been suggested, was the Respond-
ent reasonably warranted in totally denying the Association's analysis committee
access to the Homewood plant for the purpose of conducting an investigation of
Edmonds' grievance.
Upon the record considered as a whole, it is concluded and found that, by re-
fusing the Association permission on January 25, 1954, and at all times there-
after, to make, through representatives of its own choosing, an analysis of the posi-
tion of Howell Edmonds, the Respondent refused to bargain collectively in good
faith with the Association as exclusive representative of the employees in the unit
found appropriate above, and thereby also interfered with and restrained employees
in the exercise of their rights under Section 7 of the Act.
As the specific violation found occurred within the 6-month period preceding the
filing of the charge on February 17, 1954, I find no merit to the Respondent's con-
tention that because it had, prior to the 6-month period, asserted a like position
with regard to comparable Association requests for analyses of other positions, a
finding of refusal to bargain is barred by the provisions of Section 10 (b) of the
Act. See Leland Gifford Company, supra, footnote 5, enfd. in pertinent part 200
F. 2d 620 (C. A. 1) .23
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent refused to bargain in violation of the Act by
refusing to permit the Association, through its own experts and representatives of
its own choosing, to make its own independent on-the-job analysis and investigation
of the work being performed by Howell Edmonds, relevant to a pending grievance
filed on behalf of Edmonds, thereby also interfering with and restraining employees
in the exercise of their rights under Section 7 of the Act, it will be recommended that
the Respondent be ordered to cease and desist from engaging in such or related
conduct. It will further be recommended that the Respondent be ordered to take
the affirmative action set out in the Recommended Order. Because of the limited
scope of the Respondent's unfair labor practices, and because of the absence of
indication that danger of other violations of the Act is to be anticipated from the
Respondent's past conduct, it will not be recommended that the Respondent be
ordered to cease and desist from the commission of any other unfair labor practices.
On the'basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Association of Westinghouse Salaried Employees, affiliated with the Federa-
tion of Westinghouse Independent Salaried Unions, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All salaried employees of the East Pittsburgh unit of the Respondent (includ-
ing the Homewood Manufacturing and Repair plant), including all junior and senior
order clerks in the shipping department, all junior tool designers, associate tool de-
signers, tool designers, and senior tool designers, but excluding telephone main-
tenance employees, secretaries to the vice president, the vice president's staff, the
principal managers, and industrial relations manager's staff, executive staff assistants
and industrial relations staff assistant, patent attorneys, plant and staff physicians,
supervisory trainees, position and job analysts, employment interviewers, industrial
relations assistants, and supervisors as defined in the Act, constitute a unit appropriate
a3 Following the hearing, the. Respondent submitted itemized requests for findings of
fact. Such requested findings are heieby disposed of as follows: The following requested
findings are substantially supported by the iecord and are adopted • Items 1-15, 21-23, 25,
30, 31 (as qualified by other unmentioned provisions of the agreement), 32-35, 37-48, 51,
52 (the analysts referred to being time-and-motion analysts), 53-55, 59-65, and 67-70.
The remaining requested findings are not substantially supported either in whole.or in
some aspect thereof, or are so materially qualified by other record evidence as to supply
in the precise form presented, an incorrect meaning in whole or in part, and are rejected
for one or more of such reasons
OREGON TEAMSTERS' SECURITY PLAN OFFICE 987
for the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. The Association has been at all times since 1940, and is now, the exclusive
representative of all the employees in the above-described appropriate unit for
the purposes of collective bargaining within the meaning of Section 9 (a) of the
Act.
4. By refusing to permit the Association , through representatives of its own choos-
ing to make its own independent on-the-job analysis and investigation of the work
being performed by Howell Edmonds, relevant to a pending grievance filed on behalf
of Edmonds, the Respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act 24
[Recommendations omitted from publication.1
24 The Respondent's proposed conclusions of law are rejected.
Oregon Teamsters' Security Plan Office and William C. Earhart,
Administrator thereof , and of Teamsters Security Administra-
tion Fund ; and Warehousemen Local No, 206, affiliated with the
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, AFL, and Teamsters Building Association, Inc. and
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL, and its Local No. 223,
Grocery, Meat, Motorcycle and Miscellaneous Drivers and
Warehousemen Local No. 206, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , AFL and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, and Joint Council of Drivers, No. 37 and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, and Its Agents, John J. Sweeney,
and Oregon Teamsters' Security Plan Office, and William C.
Earhart, Administrator thereof, and of Teamsters Security
Administration Fund and Office Employes International
Union, Local No. 11. Cases Nos. 36-CA-410, 36-C.A-637, 36-CA-
638, 36-CA-639, 36-CA--647, and 36-CA-618. August 25, 1955
DECISION AND ORDER
On January 10, 1955, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions together with supporting briefs.
113 NLRB No. 111.