White-Westinghouse Corp.

National Labor Relations Board - Board Decisions

May 13, 1977

229 N.L.R.B. 667 (N.L.R.B. 1977)

WHITE-WESTINGHOUSE CORPORATION
White-Westinghouse Corporation, a wholly-owned
subsidiary of White Consolidated Industries, Inc.
and International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC. Case 8-CA-
10009
May 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On January 27, 1977, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
Union filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings
and conclusionsI of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, White-Westing-
house Corporation, a wholly-owned subsidiary of
White Consolidated Industries, Inc., Cleveland,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
i Administrative Law Judge Giannasi, citing Libbey-Owens-Ford Glass
Company. 169 NLRB 126 (1%8), noted that, if multiplant bargaining does
become burdensome because of changes in plant operation, the parties have
the option of petitioning the Board for unit clarinfication. Although
Chairman Fanning agrees with that general statement, he continues to
adhere to the position set out in his dissent in that case that the direction of
a unit clarification election where no question concerning representation is
raised is not properly within the scope of the Board's powers.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard before me in Cleveland, Ohio on August 2
and 3, 1976, upon a complaint which issued on July 15,
1976. The complaint alleges that Respondent violated
International Union of Electrical, Radio and Machine Workers, AFL-
CIO-CLC.
2 The five plants were part of a larger number of plants purchased by
Respondent. The 6 units were part of 42 units represented by the Union in
its National Agreement with Westinghouse.
229 NLRB No. 113
Section 8(aX5) and (1) of the Act by insisting that
bargaining with the Union' concerning six units of
employees at five plants-part of the appliance division of
Westinghouse Electric Corp. purchased by Respondent's
parent company, White Consolidated Industries, Inc.
(hereafter White)-be separate and distinct in each of the
six units. Each unit had been separately certified by the
Board but all had been included in a single National
Agreement with local supplements under Westinghouse. 2
The National Agreement had been applied by Respondent
from about March 1975, when it took over Westinghouse's
appliance division, until the expiration of that contract in
July 1976. After Respondent's insistence upon separate
bargaining at the expiration of the Westinghouse agree-
ment, the employees struck at the six units involved herein
and General Counsel also urges a finding that the strike is
an unfair labor practice strike. Respondent denies that its
insistence upon separate bargaining in the individual units
is a violation of the Act. The Respondent, the Union, and
the General Counsel have filed briefs. 3
Upon the entire record, including my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent White-Westinghouse Corporation, a wholly-
owned subsidiary of White, at all times material herein was
a corporation organized under the laws of the State of
Delaware, with facilities located in Mansfield, Columbus,
and Newark, Ohio; Edison, New Jersey; and Miami-Fort
Lauderdale, Florida. Respondent is engaged in the manu-
facture of major appliances and annually ships goods
valued in excess of $50,000 from its Ohio facilities to points
outside of Ohio. Respondent's parent, White, is a corpora-
tion organized under the laws of Delaware with its
principal office and place of business located in Cleveland,
Ohio. Respondent is engaged in the manufacture of plastic
products, and annually ships goods valued in excess of
$50,000 from Ohio to points located outside of Ohio.
Respondent White-Westinghouse Corporation and
White are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The Union and its Locals, 746, 711, 401, 680, and 714,
are labor organizations within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In 1950, the Union was certified as bargaining represen-
tative for employees covering 22 units at various plants
owned and operated by Westinghouse throughout the
country. Westinghouse Electric Corporation, 89 NLRB 8
(1950). In July 1950, the Union and Westinghouse
executed a partial agreement and, in October 1950, a
3 Upon an application by the General Counsel. the Federal District
Court for the Northern District of Ohio issued a temporary injunction under
Sec. IO(j) of the Act ordering Respondent to bargain in the multiplant unit
pending resolution of the issue by the Board in this proceeding.
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complete agreement covering all employees in the then-
existing 22 certified units. In the latter agreement, Westing-
house agreed to recognize the Union as bargaining
representative on behalf of and in conjunction with 13
Locals for those units in which the Union or its Locals were
certified. The agreement, herein called the National
Agreement, also provided that any units in which the
Union or its Locals were subsequently certified would be
included in and covered by the agreement upon the assent
of such representative in writing. One of the units included
in this agreement was the Mansfield, Ohio, facility involved
herein.
Between 1950 and 1971 the Union or one of its Locals
was separately certified as bargaining representative for 20
additional units of Westinghouse employees. The units at
the Newark, Ohio; Edison, New Jersey; Columbus, Ohio;
and Miami-Fort Lauderdale, Florida, facilities, the other
units involved herein, were certified in 1951, 1952, 1954,
and 1971, respectively. Pursuant to the provision in the
National Agreement mentioned above, upon its certifica-
tion and assent, each separately certified unit was immedi-
ately covered by that agreement.4
Since 1950, bargaining on behalf of all units included in
the National Agreement was conducted on a national level
by Westinghouse and the Union, through a union commit-
tee described as the Westinghouse conference board. The
Union and Westinghouse also administered this agreement
on a national basis. Pursuant to the authority granted in
the National Agreement, negotiations are conducted on the
local level for local supplements. The local supplements
cover matters deemed to be purely local in nature and
implement the provisions of the National Agreement at the
local level. The local supplements cannot be inconsistent
with the National Agreement and local union's agreement
to the local supplements requires approval by the Union's
Westinghouse conference board.
The Westinghouse conference board is a body of the
Union established pursuant to the Union's constitution
and is the instrument through which the Union bargained
with Westinghouse at the national level. Delegates to the
Westinghouse conference board are elected by a secret
ballot vote cast by members of their respective local
unions. The delegates are elected on the basis of one
delegate per each one thousand members and an additional
delegate for each major fraction of the next one thousand.
A Local may have not more than four nor less than one
conference board delegate regardless of its size. The duties
of the conference board include designating a negotiating
committee from among the conference board members to
formulate proposals and negotiate contracts, determining
whether proposed agreements will be accepted, administer-
ing the National Agreement, and determining whether or
not strikes will be called. The negotiating committee is
elected from the conference board and obtains suggestions
4 The Union was certified as bargaining representative for employees at
the Columbus plant (Cases 9-RC-2141, 2149); the Union's Local 711 was
certified as representative in the Mansfield plant (Case 5-RM-100); the
Union was certified as representative of the hourly employees in the Edison
plant (Case 4-RC-419) and for the salaried employees in the Edison plant
(Case 4-RC-1591): the Union's Local 714 was certified as representative of
the employees at the Newark, Ohio, location; and the Union's Local 680
was certified for the Miami-Fort I.auderdale locations (Case 12 RC 3399).
for bargaining proposals from the conference board and
from local meetings throughout the country. When the
conference board approves and accepts the National
Agreement, that agreement is binding immediately upon
all local unions covered by the agreement. When the
conference board determines to strike to obtain a National
Agreement or to terminate a strike called for that purpose,
all local unions are bound by such action. Upon termina-
tion of the National Agreement all local supplements are
also automatically terminated.5
B. The National Agreement and the Local
Supplements
The most recent National Agreement between Westing-
house and the Union-the one in effect from July 1973 to
July 1976-includes the terms normally found in collec-
tive-bargaining agreements. It includes subjects such as
wages, seniority, hours of work, holidays and vacations,
grievance and arbitration procedures, strikes, and dues
checkoff provisions. The negotiation, ratification, and
execution of the National Agreement is by the Union and
its conference board, not by the Local Unions originally
certified. Strike action upon the termination of the
National Agreement must be authorized by the Union, not
by the Locals; and strikes by a Local over an exhausted
grievance must be authorized by Union headquarters.
Section II of the agreement provides that the conference
board is the representative of the Union for the administra-
tion of the agreement and for consideration of all matters
which the parties deem generally applicable to the various
units. The conference board is also the Union's agent for
modification and termination of the agreement. The
National Agreement also provides for local supplements
which cover "the procedures for administering the provi-
sions in this agreement and other items of collective
bargaining not Company wide in character and generally
applicable to the various collective bargaining units." The
National Agreement also includes, as a separate agree-
ment, the pension and insurance agreement between
Westinghouse and the Union. This agreement provides
that the Employer make available benefit plans to all
employees. The benefits provided include an insurance
plan, a pension plan, a savings plan, a personal accident
insurance plan, and a long term disability benefit plan.
Under the grievance and arbitration procedure of the
National Agreement, the Local Unions handle grievances
arising at their respective locations through the first three
steps. At the next step the grievance is referred to the
national appeal level, where representatives of Westing-
house and of the Union's Westinghouse conference board
meet in an effort to resolve the grievance. The most recent
National Agreement between Westinghouse and the Union
provides that employees in the bargaining units covered by
Since then other locals have been assigned administrative responsibilities for
local supplements at all the locations.
I More detailed findings consistent with the above factual statement
concerning the bargaining relationship between Westinghouse and the
Union is found in Administrative Law Judge Marvin Roth's decision in
Case 6-CA-7680 issued on February 17, 1976, and now pending before the
Board.
668
WHITE-WESTINGHOUSE CORPORATION
the agreement cannot invoke the arbitration proceedings
set forth therein except through the Union.
The wage provision of the National Agreement recog-
nizes that wages are paid in accordance with wage
schedules in the various local units. However, it sets forth
provisions that are generally applicable to all units,
including night turn adjustment compensation, guaranteed
time, and salary reviews. In addition, the National
Agreement provides for periodic and general wage and
salary adjustments. The 1973 supplement on wages
includes provisions increasing the pay of certain employees
by 15 percent and provides specific increases for salaried
employees in accordance with detailed tables. There is also
a provision for cost-of-living increases.
The local supplements between Westinghouse and the
Union or its Locals include matters affecting individual
plants. Some of the subjects include grievance procedures,
hours of work, and specifics on application of seniority and
wage schedules. The local supplements include the original
supplements running generally from the date of inclusion
in the National Agreement and subsequent revisions.
Reference is made in all supplements to the National
Agreement. For example, the Columbus local supplement
includes references to the applicable grievance-arbitration
provisions of the National Agreement and states, in
another supplement, that "Seniority dates will be estab-
lished in accordance with Section XII of the National
Agreement." Another supplement on daywork states that
the "established plan of payment for all employees in the
bargaining unit will be daywork in accordance with the
provisions of the National Agreement, Section VII, Wages,
Paragraph 9."
C. The Purchase of the Westinghouse Plants
In early January 1975, Vincent Vingle, the Union's
Westinghouse conference secretary, received a telephone
call from W. A. Towle, director of personnel relations at
Westinghouse. Towle requested that Vingle advise Robert
Nellis, chairman of the Westinghouse conference board,
that Westinghouse was contemplating the sale of its
appliance division to White Consolidated Industries.
Vingle questioned Towle as to whether he knew the
intentions of White with respect to the collective-bargain-
ing agreement between the Union and Westinghouse.
Towle replied that he could not speak for White and that
the Union itself should discuss this with White officials.
Vingle requested that a meeting be arranged between the
Union and White.
On January 16, 1975, representatives of White and of the
Union met at Westinghouse headquarters in Pittsburgh,
Pennsylvania, to discuss issues respecting the sale of the
Westinghouse appliance division. The Union was repre-
sented by Paul Jennings, International president; Robert
Nellis, chairman of the Westinghouse conference board;
Ted Wierzbic, assistant to Nellis; Winn Newman, the
Union's general counsel, and Vingle. White was represent-
6 At the hearing, there was a minibattle over Reddig's exact reply to
Jennings. Vingle testified Reddig said, "If it is good enough for Westing-
house, it is good enough for us and all you have to do is send your attorney
out and they will come up with an agreement substituting the two names."
Lynch testified that Reddig replied. "If it is good enough for you, it is good
ed by Edward Reddig, chairman of White's board of
directors; Charles Conlin, vice president of labor relations;
and Vice President Chiarrucci, of White's appliance
division. George Lynch, counsel for White, was also
present. Towle introduced the union representatives to the
White representatives and left the room.
At the meeting, Union President Jennings asked White
representatives what their intentions were with respect to
the existing Westinghouse agreement. Reddig responded
that he intended to abide by the Westinghouse agreement.
Someone also indicated that all that had to be done was to
substitute the name White-Consolidated Industries for
Westinghouse. Thereafter, some representatives, including
attorneys for each side, went into another room and
worked out an agreement. 6
The agreement provided as follows:
Subject to the final approval of the sale of certain
Westinghouse facilities including its plants at Mans-
field, Ohio; Newark, Ohio; Columbus, Ohio; Edison,
New Jersey; and Miami, Florida, referred to in the
Appendix of the National Agreement as Items 12, 26,
27, 28, 29 and 34, it is hereby agreed that the
outstanding National Agreement and Pension and
Insurance Agreement between Westinghouse and IUE,
executed June 16, 1973, including the In Hospital
Indemnity Plan effective as of January 1, 1974, and
Local Supplements at each of these locations shall be
binding upon White Consolidated Industries, Inc., and
IUE.
Accordingly, the parties agree that the name of
White Consolidated Industries, Inc.... as may be
designated by W.C.I. to receive the above assets shall
be substituted for the name of Westinghouse Electric
Corporation wherever it appears in said Agreements,
and that all seniority, as presently computed under said
Agreements, shall be credited as seniority with White
Consolidated Industries, Inc., under the applicable
Labor Agreements.
Representatives of White Consolidated Industries,
Inc., and the Union shall meet promptly following the
completion of the purchase to discuss a suitable
termination of the Westinghouse Savings Plan applica-
ble to employees at the above plants. The parties agree
to apply the value of the Westinghouse monetary
contribution for the most recent completed Savings
Plan year to the Union-represented employees at the
above plants. The monetary application shall be in the
form of a general wage adjustment or such other
benefit as the parties may determine.
All of the above shall be effective upon the transfer
of ownership of the above plants to White Consolidated
Industries, Inc.
Nothing was said, one way or the other, by any responsible
official on either side about the unit in which future
bargaining would take place.
enough for us." Conlin testified that Reddig responded, '[ If it's good
enough for the Union it is good enough for White." Whatever Reddig said,
it is clear he expressed an intent to adopt the existing National and Pension
Agreements and local supplements.
669
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only provision of the Westinghouse National
Agreement which White did not agree to assume was the
provision dealing with the savings plan. Because the
original January 16, 1975, agreement included some
handwritten notations, Vingle had the agreement retyped
to include the handwriting and submitted the retyped copy
to White for signature. The retyped copy of the January 16,
1975, agreement was signed by Conlin and Chiarrucci on
behalf of White and returned to the Union.
On March 1, 1975, White-Westinghouse, the Respondent
herein, was incorporated, and, on that date, the five
facilities involved herein, constituting Westinghouse's
major appliance division, were transferred to the Respon-
dent. It is conceded that Respondent is a successor to
Westinghouse with respect to the ownership and operation
of the facilities which it purchased from Westinghouse. It is
also conceded that Respondent engaged in substantially
the same business operations and employed substantially
the same employees and supervisors at the same locations
operated by Westinghouse. 7
D. Administration of the Westinghouse Agreement
by Respondent and the Union
On March 5, 1975, shortly after Respondent took over
the Westinghouse facilities, Vingle received a telephone
call from Towle informing him of the consummation of the
sale and advising him that all grievances at the appeal level
would be transferred to Respondent.
After the takeover, Respondent answered grievances and
administered the grievance-arbitration provisions of the
National Agreement. It dealt with the Union's newly
redesignated White-Westinghouse conference board, which
was reconstituted to represent employees in the former
Westinghouse appliance division. Appeal level grievances
and arbitration proceedings were conducted by the Union
through the conference board and Respondent in the same
manner as they were conducted under Westinghouse. The
only differences were that the appeal level meetings were
held, at Respondent's insistence, in cities where the
individual plants were located instead of in a central
location, and Respondent designated local instead of
headquarters representatives as its agents at these meetings.
Neither of these changes was inconsistent with the
National Agreement.
Section VII, paragraph 12(c) of the National Agreement
provides that a summarization of local union dues
remittance summaries will be forwarded to the Internation-
al Union on or about the 20th of the following month. By
letter dated April 30, 1975, the Union notified Conlin that
the White-Westinghouse locations represented by the
Union were not complying with the above-mentioned
provision of the National Agreement and further requested
Conlin to advise management at each of the five locations
as to their responsibility to submit dues summaries to the
International headquarters. By letter dated May 8, 1975,
7 There was testimony from a White representative that after the
acquisition of the Westinghouse plants they were set up and operated as
individual business centers just as the other White appliance plants. The
testimony also indicates that there may have been some regrouping in
December 1975. However, Respondent continues to function as a financial
Conlin responded that he had contacted all of the
appropriate locations with respect to the dues problem.
On March 18, 1975, the Union met with the Respondent
in Pittsburgh. The Respondent was represented by Conlin,
Joe Burke, an industrial relations staff assistant, the
managers of the Mansfield, Columbus, Newark, and
Miami-Fort Lauderdale facilities, and James Tritschler,
counsel for Respondent. The Union was represented by
Nellis, Wierzbic, Rex Clifford, the union pension and
insurance representative from the Union's Washington
office, Vingle, and a representative from each of the local
unions with the exception of the Miami-Fort Lauderdale
local. The meeting primarily concerned the pension funds,
longterm disability plan funds, personal accident insurance
funds, and involved all of the White-Westinghouse units
covered under the January 16, 1975, agreement, including
the Miami-Fort Lauderdale location. At the meeting,
Tritschler informed the Union that the White actuaries
were working with actuaries from Westinghouse to deter-
mine the amounts involved in the various funds and that,
when this was completed, Respondent would report to the
Union. The parties also discussed problems concerning
appeal level grievance meetings.
On October 31, 1975, during a telephone conversation
with Conlin, Vingle requested that a meeting be arranged
between the Union and the Respondent to discuss
problems under dues-checkoff and military leave provi-
sions of the National Agreement, as well as problems
concerning moneys in the Westinghouse savings plan, long
term disability, and personal accident insurance plan, and
establishing a date for upcoming contract negotiations. As
a result of the conversation, a meeting between the Union
and the Respondent was held in Pittsburgh on November
12, 1975. The Union was represented by Nellis, Wierzbic,
and Boren Chertkov, its assistant general counsel. Respon-
dent was represented by Conlin, Burkel, and Tritschler.
The first item discussed at the November 12 meeting
concerned the matter of an agreement to increase union
dues. An amendment to the National Agreement was
required before the Union could increase the amount of
union dues deductions more often than once in a 2-year
period. An agreement to permit the proposed dues increase
was negotiated by members of Respondent's corporate
staff and officials of the White-Westinghouse conference
board and was to affect all employees employed by the
Respondent who were represented by the Union. Subse-
quent to the November 12 meeting a memorandum of
agreement was drafted by counsel for Respondent to be
executed by Conlin and by Union President Jennings, and
Conference Board Chairman Nellis. Copies of this docu-
ment were mailed by Respondent's representative to Union
Representative Wierzbic. Copies were also sent by Respon-
dent to the two local union presidents at the New Jersey
facility and were executed by them.
Also at the November 12 meeting, the Union discussed
with Respondent the subject of military leave provisions of
the National Agreement. The military leave issue was
division which owns and accounts for the results of the acquired
Westinghouse plants. The Westinghouse agreements were applied in the
acquired plants. The same products were produced but under different
names or labels.
670
WHITE-WESTINGHOUSE CORPORATION
apparently not resolved at that meeting. Respondent
indicated that it would consider the Union's proposals.
During the meeting Nellis questioned Respondent's repre-
sentatives concerning the disposition of savings plan funds,
long term personal disability plan funds, and personal
insurance plan funds which had been funded by the
employees when the facilities were managed and owned by
Westinghouse. Respondent indicated that it was unsure as
to the disposition of those funds and that it would check
with its accountants to determine the exact status of the
funds.
At the November meeting, Nellis also raised the issue of
negotiations for a new National Agreement, noting that the
contract expired in July 1976 and suggesting that national
negotiations should begin in May. Nellis further stated that
while the Union would prefer Pittsburgh as the site of
national negotiations because it was headquartered there, it
would consider meeting in Cleveland since that was the
location of Respondent's headquarters. Conlin replied that
he would get back with Nellis concerning the details of the
negotiations and also asked Nellis how local supplemental
negotiations were conducted. Nellis referred Conlin to
sections of the National Agreement which govern the
subject of negotiations at the local level.
On January 12, 1976, Nellis sent a letter to Conlin in
which various items of information were requested to
enable the Union to prepare for the upcoming negotiations
for a new agreement with Respondent. Nellis' letter also
suggested a date for negotiations. By letter dated February
17, 1976, Conlin responded to Nellis' letter, indicating that
Respondent operated on a highly decentralized basis,
acknowledging that the facilities which Respondent had
acquired from Westinghouse had been operated by the
predecessor as a single appliance group highly integrated
with its Pittsburgh headquarters.
On January 22, Nellis transmitted to Conlin a copy of a
letter from W. A. Towle, Westinghouse's personnel
relations director, concerning changes in the Westinghouse
pension plan, and, on February 2, Nellis again mentioned
his interest in setting a date for national negotiations. By
letter dated February 16, Conlin responded to Nellis' letter,
advising Nellis that Respondent would administer the
Westinghouse pension plan assumed by Respondent
generally in accordance with the principles set forth in
Towle's letter. However, Conlin did not respond to the
Union's letters asking to establish a date and place for
commencing contract negotiations.
E. Respondent's Refiusal To Bargain on a
Multiplant Basis and the Ensuing Strike
On March 2, 1976, Conlin called Vingle and asked him
to inform Nellis that Respondent was still having difficulty
in compiling some of the information Nellis had requested
and that Respondent was working on this and would
forward the information to the Union's office as soon as it
became available. During the telephone conversation,
Vingle reminded Conlin that he had still not replied to the
Union's letter requesting designation of a location and a
time to commence negotiations for a new national
agreement. At this point, Conlin advised Vingle that
Respondent had no intention of bargaining with the Union
on a national basis.
By letter dated March 5, 1976, Conlin confirmed his
March 2 telephone conversation with Vingle. In the first
paragraph of the letter, Conlin recites that Respondent had
substituted itself in place of Westinghouse as the contract-
ing employer under the existing labor agreements and that
those labor agreements include the National Agreement,
the pension and insurance agreement, and various local
supplements. The second paragraph notifies the Union of
the termination of the above-specified agreements as of
midnight July 11, 1976, absent a mutually agreed-upon
modification. The third paragraph is in effect a refusal to
bargain in a single multiplant unit and an offer to negotiate
in the separate single-plant units.
At the expiration of the National Agreement, on July I I,
1976, Respondent's Union-represented employees struck.
It is undisputed that the reason for the strike was the
Respondent's insistence on bargaining in the single-plant
units. Resolutions to this effect were passed by vote of the
employees. The strike was still in progress at the time of the
hearing in this case, but I was advised by letter, copies of
which were sent to all parties, that the strike has ended.
II1. DISCUSSION AND ANALYSIS
A. The Issue and Applicable Principles
The question in this case is whether Respondent may
insist on separate bargaining in the single-plant units where
the Union or its locals were originally certified as
bargaining representatives, rather than the multiplant unit
which comprised Westinghouse's appliance division pur-
chased by Respondent and covered under the Westing-
house National Agreement. The General Counsel asserts
that Respondent was obligated to bargain, and indeed
assumed an agreement to bargain in the multiplant unit.
He also asserts that Respondent could not unilaterally
insist on alteration of the unit because the scope of a
bargaining unit is a permissive and not a mandatory
subject of bargaining, and insistence upon a nonmandatory
subject as a condition for bargaining is a violation of the
Act. Respondent urges that its conduct was not violative of
the Act because the Westinghouse bargaining unit to which
it succeeded was not a multiplant bargaining unit, it did
not assume the multiplant bargaining obligation of its
predecessor either by operation of law or by contract and,
in any event, the multiplant unit of Union-represented
former Westinghouse plants was inappropriate. Respon-
dent also agrues that, if it is obligated to bargain in a
multiplant unit, it should be given the opportunity
unilaterally to break loose from that obligation upon
proper notice.
It is settled law that an employer or a union which insists,
as a condition for bargaining, upon a nonmandatory or
permissive subject of bargaining violates Section 8(a)(5) or
8(bX3) of the Act respectively. N. L R.B. v. Wooster Division
of Borg-Warner Corporation, 356 U.S. 342, 349-350 (1958).
It is also settled that the existing appropriate collective-
bargaining unit, whether established by certification or by
671
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutual consent, is not a mandatory but rather a permissive
subject of bargaining.8
In situations where a change in ownership does not affect
the essential nature of the enterprise, a successor employer
who purchases the business of a union-represented employ-
er is not obligated to honor the collective-bargaining
agreement entered into by the predecessor and the
incumbent union. N.L.R.B. v. Burns International Security
Services, Inc., 406 U.S. 272 (1972). However, it is required
to recognize and bargain with the incumbent union which
represented the predecessor's employees in the unit to
which the employer succeeded provided it remains intact
as an appropriate unit within the meaning of the Act.
N.L.R. B. v. Burns, supra. The usual factors which support a
successorship finding include the retention of the employ-
ees of the successor in the same job function, the operation
of the same facilities, the use of the same supervisors, and
production of the same products. In deciding the issue, the
Board must examine the "totality of the circumstances,"
the essential questions being whether the successorship unit
remains intact as an appropriate unit and as one in which
the union's majority can be presumed to continue.
N.L.R.B. v. Band-Age, Inc., 534 F.2d 1, 3 (C.A. 1, 1976). 9
In this case, the Respondent did assume the obligations
of the Westinghouse National Agreement and other
agreements as they applied to the purchased plants and it
does not dispute that it succeeded to a bargaining
obligation with the incumbent Union. The question here is
what are the contours of the bargaining obligation of the
successor, i.e., a multiplant unit made up of the appliance
division represented by the Union in its relationship with
Westinghouse or the single-plant units which were sepa-
rately certified. To answer this question it is necessary to
examine the bargaining relationship between Westinghouse
and the Union as well as the circumstances of Respon-
dent's takeover of the Westinghouse operations.
B. The Bargaining Relationship Under Westinghouse
It is axiomatic that parties to a collective-bargaining
relationship may, by contract, bargaining history, and a
course of conduct, merge existing certified units into
multiplant appropriate units. General Electric Company,
180 NLRB 1094, 1095 (1970); Oil, Chemical Atomic
Workers v. N.L.R.B., supra at 1268. The merger of
separately certified units, in effect, destroys the separate
identity of the individual units. General Electric Co., supra
at 1095.
An examination of the evidence of bargaining history
between the Union and Westinghouse as well as the
National Agreement itself and its application establishes
that the parties had merged individually certified units into
a multiplant contractual unit. The parties negotiated on a
multiplant basis through the Union's Westinghouse confer-
ence board. The conference board contained representa-
H Utility Workers Union of America, AFL-CIO, and its Locals Nos. 111,
116, 138, et al. (Ohio Power Company), 203 NLRB 230, 238 (1973), enfd. 490
F.2d 1383 (C.A. 6, 1974); Oil, Chemical and Atomic Workers, International
Union, AFL-CIO [Shell Oil Companyl v. N.L.R.B., 486 F.2d 1266, 1268
(C.A.D.C., 1973); Hess Oil & Chemical Corporation v. N.L.R.B., 415 F.2d
440, 444 445 (C.A. 5, 1969), cert. denied 397 U.S. 916 (1970).
9 See also Boston-Needham Industrial Cleaning Co., Inc., 216 NLRB 26
(1975), enfd. 526 F.2d 74. 77 (C.A. I, 1975): Zim's Foodliner, Inc., d/b/a
tion from employees in all Westinghouse plants represent-
ed by the Union or its locals. The National Agreement
provides for coverage of all newly certified units. The
evidence shows that every such unit was covered by the
National Agreement upon its certification and no unit ever
negotiated a separate single-plant agreement. The plants
involved herein had long been covered by the National
Agreement. Grievance and arbitration matters are covered
under the National Agreement. The processing of grievanc-
es is controlled by the conference board which dealt with
Westinghouse at a national level in the final grievance
appeal step and in arbitration. Local unions are not
permitted to bring cases to arbitration. Strike action upon
the termination of the National Agreement is controlled by
the Union and applies to all locals; strikes by locals over
grievances must be authorized by the Union. The National
Agreement contains other substantive terms normally
found in collective-bargaining agreements such as wages,
hours of work, overtime, seniority, holidays, and vacations,
which, for all practical purposes, govern the employment
relationship. In addition, there is a separate National
Pension Agreement covering all Westinghouse employees.
Details on many provisions in the National Agreement are
left to local supplements. However, local provisions may
not be inconsistent with the provisions of the National
Agreement and must be approved, in the case of the Union
or its locals, by the Union's Westinghouse conference
board.
The facts mentioned above are virtually indistinguish-
able from those which the Board found, in General Electric,
supra at 1094, had established a merger of individual units
into a national multiplant unit. Respondent has not
attempted to distinguish the General Electric case. As in
that case and unlike those cases cited by Respondent,' 0 the
evidence here establishes that the parties had by their own
conduct effected a merger of local plant units into a
multiplant bargaining unit. Some language in the cases
cited by Respondent seems to require an explicitly stated
contractual intent to effect a merger of local plant units. In
General Electric Co., supra at 1095, fn. 6, however, the
Board clearly eschewed such a requirement in favor of a
course of conduct approach.
As in General Electric but unlike the cited cases, the units
involved herein have had a long history of participation in
bargaining in a multiplant basis and coverage under
successive national agreements. Moreover, the bargaining
history, as well as the terms of the National Agreement,
shows that local units gave up important rights, such as the
right to bargain over pensions and fringe benefits, the right
to take cases to arbitration, and the right to make local
supplements that were inconsistent with the National
Agreement. Finally the employer, Westinghouse, had dealt
with the Union's Westinghouse conference board for all
practical purposes as a defacto accredited representative of
Zim's IGA Foodliner v. N.LR.B., 495 F.2d 1131, 1140-42 (C.A. 7, 1974),
cert. denied 419 U.S. 838; N.LR.B. v. Zayre Corp., 424 F.2d 1159, 1163-64
(C.A. 5, 1970); Ranch-Way, Inc., 183 NLRB 1168, 1169 (1970), enfd. 445
F.2d 625 (C.A. 10, 1971).
10 Radio Corporation of America, 127 NLRB 1563(1960); Continental Can
Company, Inc., Plant No. 11, 110 NLRB 1042 (1954); American Can
Company, 109 NLRB 1284(1954).
672
WHITE-WESTINGHOUSE CORPORATION
Union-represented employees in a single overall unit.
Although there exist in this case, as in General Electric,
some factors, such as the use of local supplements, which
might tend to support a contrary finding, on balance the
evidence, the national agreement, bargaining history, and
the reality of the bargaining relationship show that the
parties had merged the single-plant units into a national
multiplant unit. This evidence distinguishes the instant case
factually from those cited by Respondent.
C. The Bargaining Obligation of Respondent After
the Takeover
In its answer to the complaint herein, the Respondent
admitted it was a successor employer to Westinghouse with
respect to the ownership and operation of the Union-
represented plants in the appliance division. It also
admitted that it operated these facilities and engaged in
substantially the same business operations and employed
substantially the same employees and supervisors at the
same locations as Westinghouse. Thus, I find, in accord-
ance with N.L.R.B. v. Burns, supra, and the other
authorities cited, supra, in section III,A, paragraph 3, that
the employing industry purchased by Respondent re-
mained the same and Respondent was a successor
employer with respect to the Westinghouse appliance
division plants represented by the Union.
1. The five-plant unit was the successor unit
which remained intact after Respondent's purchase
As indicated above, the individually certified units lost
their identity such that the bargaining obligation of the
predecessor was defined in terms of a multiplant unit.
Respondent's conduct immediately following the takeover
confirms the continuity of multiplant bargaining in the
successor unit. That unit was defined more specifically
after the takeover in terms of the Union-represented
appliance division plants. Respondent assumed and ap-
plied the National Agreement and other agreements with
respect to this unit. Accordingly, I find that the successor
unit which remained intact after Respondent's takeover
was the five-plant Union-represented appliance division
which was the unit covered under the assumption agree-
ment signed on January 16, 1975, and applied for over a
year thereafter by Respondent and the Union.
The evidence surrounding the assumption agreement
supports a finding that the parties-Respondent and the
Union-intended to continue, for the purchased five-plant
unit, the same bargaining relationship in the same
manner-namely a multiplant basis-as under Westing-
house. The assumption agreement of January 16 provides
that the outstanding National Agreement, the Pension
Agreement, and local supplements were to be binding on
White for the purchased five-plant unit and that Respon-
dent's name would be substituted for that of Westinghouse
on all agreements. The parties did not discuss whether their
relationship during the remainder of the contract term
would be multiplant or single-plant bargaining. Nor did
" For example. Respondent did attempt to have local union officials
sign the dues-checkoff modification which had been agreed upon at the
November 12 meeting between union and management officials. I do not
they state that the relationship would change at the
expiration of the agreement. The absence of any expressed
intent to change the existing bargaining relationship under
Westinghouse is significant. I note that when Respondent
meant not to assume a provision of the National Agree-
ment-the Westinghouse savings plan-it said so explicit-
ly. That it did not take a position on the recognition and
other provisions of the National Agreement, which togeth-
er with prior bargaining history established a national
multiplant bargaining unit, tends to support the inference
that Respondent as well as the Union intended to bargain
in the same manner and relationship as under Westing-
house.
The conduct of the Respondent and the Union under the
assumed Westinghouse agreement confirms the continuity
of the purchased bargaining unit which remained intact
after the takeover. Those provisions of the Westinghouse
agreement which pointed to a multiplant unit were
concededly assumed. The Union's conference board
continued to administer the contract as before with
necessary modifications to reflect the takeover by Respon-
dent. Grievance appeal meetings and arbitration decisions
continued to be handled as before by the Union's
conference board and by Respondent. The only apparent
change was Respondent's insistence that grievance meet-
ings be held in the city where the plant involved in the
dispute was located and local plant officials represented
Respondent. This change, however, is consistent with the
National Agreement which permits the employer to choose
his own representative and leaves open the site of the
meetings. In addition, the Union, through its conference
board, continued to seek agreement on issues affecting all
employees during the period after Respondent's takeover.
Such issues included dues checkoff, veteran's preference,
and pensions. Respondent spoke with union conference
board representatives and at no time suggested that
discussions on these issues should be limited to local
individual units and with local union officials. Although
the evidence tends to show that Respondent at some point
resisted the Union's attempt to bargain nationally on all
issues-perhaps in anticipation of its position now urged
that the National Agreement had not merged the single-
plant units into a multiplant unit-Respondent did not
seek to bargain or administer the National Agreement
separately with local unions at each plant.lt
2. Respondent's contentions in defense to a
successorship obligation are without merit
Respondent argues that Burns recognizes the successor's
obligation to bargain only with the certified representative
of the employees. While the Burns case itself involved the
successorship obligation with respect to a previously
certified unit, the rationale of the decision, and indeed case
law prior to and after Burns, indicates that the successor-
ship bargaining obligation flowing from voluntary or
contractual recognition is as binding as that arising from a
certification, provided that such was in an appropriate unit.
See Zim's Foodliner, Inc. v. N.LR.B., supra, 495 F.2d at
believe, however, that this circumstance negates the evidence which shows
national administration and bargaining on this and other issues.
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1142; Hess Oil & Chemical Corporation, supra, 415 F.2d at
444-445. Thus, the consensual merger of the individually
certified units into a multiplant unit by the predecessor and
the assumption and administration of the National Agree-
ment by Respondent in the five-plant successor unit has
the same force and effect as the certification in Burns.
The Respondent also argues that the Burns rationale
does not apply to this case for other reasons. It alleges that
it substantially reorganized the Westinghouse operations. It
also asserts that any multiplant unit that existed under
Westinghouse consisted of 42 units and 40 locations,
whereas the successor unit here is alleged to be 6 units at 5
locations. To the extent that these contentions are attempts
to escape the bargaining obligation which flows from a
successorship finding, neither is convincing on the record
of this case.
The allegation of changed operations is not supported by
the evidence. Respondent relies on two pieces of evidence:
(I) that production emphasis has changed from national to
private label products; and (2) that this has resulted in
independent profit responsibility for each location. It also
appears that even though Respondent remains as the
financial entity which owns the purchased plants, there has
been some operational regrouping of the appliance plants
owned by White. However, there is no showing that these
changes affected the touchstone of any successorship
determination-the employment relationship at the time of
the takeover. Despite these changes, Respondent assumed
and applied the Westinghouse agreements at all the Union-
represented plants; these agreements defined the employ-
ment relationship in conclusive terms. In these circum-
stances the allegedly changed circumstances mentioned
above are insufficient to outweigh the overwhelming
evidence-and indeed the concession-that Respondent
took over the Westinghouse plants with no significant
change in the employing industry. The evidence shows that
its takeover satisfied all the evidentiary requirements of a
successorship finding under Board law. Thus, Respondent
operated Westinghouse's plants with essentially the same
employees and supervisors at the same plants and locations
and produced the same products-albeit under different
labels; and the employees operated under the same
working conditions-indeed, their Westinghouse collec-
tive-bargaining agreements were assumed. In these circum-
stances, even if Respondent's control was more localized as
it contends, the factors mentioned above establish a
successorship bargaining obligation. See Zim's Foodliner v.
N.L.R.B., supra at 1141-42; N.LR.B. v. Burns, supra at 280,
footnote 4; Ranch-Way, Inc., supra at 1169.
The contention that the purchase of only part of a
preexisting appropriate unit of itself defeats a successorship
bargaining obligation has been rejected by the Board and
the courts. See Zim's Foodliner v. N.L.R.B., supra at 1141-
42; Boston-Needham Industrial Cleaning Co., supra at 28;
N.L.R.B. v. Band-Age, supra at 4, 6. From the standpoint of
the employees in the purchased plants, the employment
relationship remained essentially unchanged and it made
no difference to them whether all Westinghouse plants or
some had been taken over by a new employer. There is no
question concerning the Union's majority status in the
purchased multiplant unit. And bargaining rights had been
implemented in a multiplant unit both by the predecessor
and, by virtue of its assumption of the Westinghouse
agreements, by Respondent. Thus here, as in Boston-
Needham, supra, "diminution in the unit scope" does not
defeat a successorship finding since "the slight changes
instituted by Respondent are not such as to affect
employee attitudes significantly ... " 216 NLRB at 28.
On the other hand, the purchaser's right to make changes
in operations and to bargain in a unit which adequately
reflects business realities after the purchase is protected by
the proviso that the successorship unit must be an
appropriate one. In Burns, the Supreme Court recognized
that there might be some differences and changes in a
takeover, but it also recognized that the crucial question is
whether the bargaining unit remains essentially unchanged
or is otherwise rendered inappropriate after the takeover.
As the Supreme Court stated, "Although the labor policies
of the two companies differed somewhat, the Board's
determination that the bargaining unit remained appropri-
ate after the changeover meant that Burns [the successor]
would face essentially the same labor relations enviroment
as Wackenhut [the predecessor]: it would confront the
same union representing most of the same employees in the
same unit." N.LR.B. v. Burns, supra at 280, footnote 4.
3. The successor unit remained appropriate after
the takeover
Thus, Respondent's contentions are reduced to the
legally significant assertion that the five-plant successor
unit is inappropriate. I find, to the contrary, that the five-
plant successor unit is an appropriate unit for bargaining
by Respondent as the successor employer of Westing-
house's appliance division. The unit sought is made up of a
definable grouping-the Union-represented portion of the
Westinghouse appliance division purchased by White. All
of the employees involved were covered by the same
National Agreement which was assumed by Respondent.
Some plants were covered by National Agreement for 20
years. Although this multiplant unit was only part of the
industrywide unit under Westinghouse and only part of
White's appliance division which included some plants not
represented by the Union, its bargaining history is such
that the wages, terms, and conditions of employment
involved were determined as a group. For example, all
former Westinghouse employees have pension rights
negotiated by the Union on a national basis. All former
Westinghouse employees have wages, benefits, and work-
ing conditions which have been negotiated on a group
basis. All have a national representative in appeal level
grievances and all have surrendered the decision to
arbitrate significant grievances to the Union on a national
basis. Thus, there is a community of interest among the
former Union-represented Westinghouse employees, quite
different from other White employees simply because of
their historical multiplant representation. Any prior differ-
ences, including geographical separation and lack of
interchange of employees-matters sometimes relevant in
determining ab initio unit appropriateness-are rendered
considerably less significant by this common history.
Indeed, there is no evidence of separate bargaining in
single-plant units which was not in accordance with or
674
WHITE-WESTINGHOUSE CORPORATION
consistent with the national agreement. Certain issues,
including those arising from the old Westinghouse savings
plan and from the Westinghouse Pension Agreement,
continue to impact on all former Westinghouse employees.
All former Westinghouse plants are owned by Respon-
dent-a separate subsidiary formed specifically to hold the
assets purchased from Westinghouse. Respondent also
assumed the Westinghouse National Agreement covering
all former Westinghouse plants represented by the Union
and applied it to this group of employees. There is no
showing that even in the period in which Respondent
applied the agreement to the multiplant unit that bargain-
ing in such a unit was not successful.
In these circumstances, I find that the multiplant unit of
the former Westinghouse plants is an appropriate unit for
collective bargaining under Section 9(b) of the Act. This is
so even though the unit is less than White's present
employerwide appliance division and even though there
may be other identifiable units which may also be
appropriate. 2
4. Respondent was not relieved of its multiplant
bargaining obligation by virtue of its timely notice
of intent to bargain in individual plant units
Respondent also contends that, even if it were obligated
to bargain in a multiplant unit, it should be permitted to
escape such an obligation and bargain in the separately
certified units by giving timely notice to do so. Respondent
did give such notice herein well before the expiration of the
assumed National Agreement in July 1976. Respondent
relies on the Board's rule providing that an individual
employer may withdraw from multiemployer bargaining
through its bargaining association by giving timely notice
before negotiations begin on a new contract, citing Retail
Associates, Inc., 120 NLRB 388 (1958).13 While imagina-
tive, the analogy is inapposite.
Multiemployer bargaining is a consensual arrangement
by which employers whose employees are represented by
the same union choose to bargain with that union through
an independent negotiating agent. The employerwide unit
does not lose its identity but remains inchoate during the
term of the agency relationship. The union must, of course,
agree to accept that agency relationship. However, there
are two consensual arrangements in multiemployer bar-
gaining: first, that of the individual employers to band
together, and secondly that of the union to accept this
method of bargaining. It is the first consensual arrange-
ment which the Board's rule on timely withdrawal before
negotiations begin on a new contract is meant to address
since it would be unfair to have separate entities tie
themselves permanently to such an agency relationship. On
the other hand, where a single employer and a union decide
to merge existing single-plant units into a multiplant unit,
there is no initial agency relationship since the individual
plants are not separate entities but simply integral parts of
12 See Libbey-Owens-Ford Company v. N.L.R.B., 495 F.2d 1195., 1200
(C.A. 3, 1974), cert. denied 419 U.S. 998; N.LR.B v. Lou De Young's
Market Basket, Inc., 406 F.2d 17, 23-24 (C.A. 6, 1969), vacated and
remanded on other grounds 395 U.S. 828 (1969). affd. on remand 430 F.2d
912 (C.A. 6, 1970).
13 The rule also provides that, once negotiations begin, unilateral
withdrawal is not permitted absent "unusual circumstances."
the single employer's operations. After the merger, the
single-plant units are not treated as independent bargain-
ing units and they lose their separate identity for bargain-
ing purposes. Since such a merger is based entirely on the
consent of both parties to the bargaining relationship, this
arrangement is more properly viewed as a unit rather than
an agency issue. It is thus governed by the rule that unit
issues-because they are permissive subjects of bargain-
ing-may be altered only by mutual agreement of the
union and the employer. See cases cited supra, section III,
A, footnote 8. That rule is compatible with the Retail
Associates rule cited by Respondent which permits with-
drawal by a single employer from its own agency
relationship upon timely notice to the union before
negotiations begin on a new contract.
Nor does the fact that Respondent is a successor render
the Retail Associates rule any more analogous. That rule
does not take into account the fact that, as here, a
predecessor and its bargaining representative may have
merged separate units into a multiplant unit. Nor does the
rule give recognition to the fact that, as here, an employer
has succeeded to a bargaining obligation and voluntarily
continued that obligation in a multiplant unit. Indeed, the
rationale for the successorship obligation is to offer the
employees protection from sudden change in the employ-
ment relationship. See Golden State Bottling Company, Inc.,
d/b/a Pepsi-Cola Bottling Company of Sacramento v.
N.LR.B., 414 U.S. 168, 181-182 (1973). In short, with
respect to its bargaining obligations, Respondent stands in
the shoes of Westinghouse and there is no more reason to
apply the Retail Associates rule in a successorship situation
than in any other situation where single-plant units have
lost their identity through a merger.14
D. Summary
To summarize, I have found that the bargaining
obligation of Westinghouse vis-a-vis the Union was defined
in terms of a multiplant unit. I have also found that the
Respondent was a successor employer with respect to the
Union-represented Westinghouse employees because the
five-plant unit purchased by it from Westinghouse re-
mained intact after the takeover. I have also found that this
unit continued after the takeover as an appropriate
bargaining unit. Accordingly, I conclude that Respondent's
refusal to bargain in such an appropriate multiplant unit
was an attempt unilaterally to alter established bargaining
units and thus to bargain over nonmandatory subjects in
violation of Section 8(aX5) and (1) of the Act.
This conclusion does not mean that an employer who
purchases part of a multiplant unit is required forever to
continue bargaining in that unit. It does mean that when
the circumstances, including the assumption and applica-
tion of an existing multiplant agreement, support a
successorship finding that the purchased unit remains
intact as an appropriate unit at the time of purchase, there is
14 Respondent's reliance upon language in General Electric Company, ISO
NLRB 192. 264 (1964), in support of its analogy is misplaced. The reference
to Retail Associates in that context was dictum and unnecessary to the
resolution of the issues before the Board in that case.
675
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an obligation to continue bargaining in that unit. A
successor employer may not unilaterally alter the existing
appropriate unit which it has purchased and in which it is
obligated to bargain. If circumstances arise, after more
experience in integrating the former Westinghouse opera-
tions into White's operations, which indicate multiplant
bargaining in the former Westinghouse unit is a burden,
Respondent may discuss the matter with the Union.
Bargaining over permissive subjects may well successfully
resolve disputed issues. If this fails to satisfy either party, it
may petition the Board to clarify the unit.'5
In the meantime, the better course and that which
promotes industrial peace and stability is to bargain in the
successor multiplant unit. See Zim's Foodliner, supra, 495
F.2d at 1140-41; United States Gypsum Company, 90
NLRB 964, 966 (1950). The Supreme Court has admon-
ished that a bargaining relationship once rightfully estab-
lished should be given a reasonable chance of success. Ray
Brooks v. N.L.R.B., 348 U.S. 96, 103 (1954), citing Franks
Bros. Company v. N.LR.B., 321 U.S. 702, 705-706 (1944).
This is particularly true in a successorship situation where,
as here, the employer has made no immediate or basic
change in the employing industry and has assumed an
agreement covering the employees in the successor unit
which remains intact as an appropriate unit after the
takeover. Adequate protection of the employer's interests
in such a situation-with due respect for employee rights
and stability in bargaining relationships which is funda-
mental to the purposes of the Act-is found in the
application of the successorship doctrine: i.e., if an
employer purchases a predecessor's operations in a sub-
stantially changed form, it is not a successor and does not
assume a bargaining obligation under Burns and its
progeny; and if the purchased unit is rendered inappropri-
ate by virtue of its integration with the successor's
operations, the successor may properly refuse to bargain in
that unit.
Respondent does not dispute that the evidence supports
a finding that the Union's strike was for the purpose of
protesting the Respondent's conduct which I have found
violated the Act. The strike is therefore an unfair labor
practice strike with all the attendant legal protections for
employees engaging in such a strike.
CONCLUSIONS OF LAW
I. The following is an appropriate unit of employees for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production employees, all toolroom (tool depart-
ment) employees, and all maintenance employees,
including the zone maintenance men but excluding all
powerhouse employees at its Columbus, Ohio, plant;
All production and maintenance employees of
Respondent's Mansfield Works plant at 246 East
Fourth Street, Mansfield, Ohio, including group lead-
ers, tool designers, and hourly paid factory production
clerks, but excluding all other clerical employees,
1i See Libbey-Owens-Ford Glass Company., 169 NLRB 126 (1968). Such a
proceeding under Sec. 9 of the Act would permit the parties to elicit much
more detailed evidence on the employer's actual operations after the
takeover.
design and technical engineers, draftsmen, and time-
study employees;
All hourly paid production and maintenance em-
ployees of Respondent's Metuchen, New Jersey, plant,
excluding all salaried employees and Powerhouse
employees;
All salaried clerical and technical employees of
Respondent's Metuchen, New Jersey, plant, including
assistant buyers, but excluding all industrial relations
employees; secretaries to department heads; confiden-
tial salary payroll clerk; general payroll clerk; the
paymaster-cashier; the internal auditor; budget ac-
countants; buyers; outside expeditors; advertising
assistants; sales assistants; rate and tariff analysts;
renewal parts coordinators; all professional employees,
design engineers, senior engineers, junior engineers,
methods engineers, time and motion analysts, manufac-
turing engineers, nurses and doctors;
All service men, countermen, warehousemen, call
takers, dispatchers, service cashier, service stock ledger
coordinator, employed by the Respondent at its 3400
N.W. 31st Street, Miami, Florida, location and its 213
N.E. 9th Street, Ft. Lauderdale, Florida, location,
excluding all office clerical employees, sales employees,
professional employees, and senior service clerk;
All employees of Respondent's Newark plant,
Newark, Ohio, excluding office and clerical employees,
draftsmen, timestudy employees, watchmen, guards,
and design and technical engineers;
Excluding professional employees, guards, and su-
pervisors as defined in the Act.
2. At all times since March 1, 1975, the Union on
behalf of and in conjunction with its Locals-No. 746 at
the Columbus plant, No. 711 at the Mansfield Works, No.
401 for hourly employees at the Metuchen plant and No.
491 for one salaried employee at that plant, No. 680 at the
Miami-Fort Lauderdale locations, and Local 714 at its
Newark plant-has been the representative for the purpose
of collective bargaining of the employees in the unit
described above and by virtue of Section 9(a) of the Act
has been and is now the exclusive representative of all
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.' 6
3. By refusing to bargain with the Union in the above-
named appropriate multiplant unit, Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
4. The strike of employees which commenced July 12,
1976, was for the purpose of protesting Respondent's
unfair labor practices and is therefore an unfair labor
practice strike.
5. The aforementioned unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
16 This is not meant to preclude bargaining in the individually certified
units for and concerning local supplements in accordance with past practice.
676
WHITE-WESTINGHOUSE CORPORATION
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices and bargain in the
multiplant unit set forth above. In view of the fact that
employees engaged in what I have found to be an unfair
labor practice strike and that I have been informed that the
strike has ended but the record does not show whether any
employees were denied reinstatement upon their offer to
return to work, and, in order to guarantee the right to
reinstatement in the event offers were made to return and
rejected, I shall issue a precautionary order for Respondent
to reinstate the returning strikers in accordance with
applicable Board law. See Louisville Chair Company, Inc.,
161 NLRB 358 (1966); Wittock Supply Company 171
NLRB 201, 202-203 (1968).
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
Respondent White-Westinghouse Corporation, a wholly-
owned subsidiary of White Consolidated Industries, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the Interna-
tional Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, as the exclusive bargaining representative
of its employees in the above-mentioned appropriate
multiplant unit comprised of former Westinghouse appli-
ance division plants at Mansfield, Columbus, and Newark,
Ohio; Edison, New Jersey; and Miami-Fort Lauderdale,
Florida.
(b) Insisting on bargaining solely in the individual
certified units which comprise the appropriate multiplant
unit.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the excercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of employees
in the appropriate multiplant unit set forth above.
(b) Upon application, offer immediate and full reinstate-
ment to their former jobs, or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges to all those
employees who went on strike on July 12, 1976, or
thereafter, to the extent this has not yet been accomplished.
(c) Post at its plants in Mansfield, Columbus, and
Newark, Ohio; Edison, New Jersey; and Miami-Fort
Lauderdale, Florida, copies of the attached notice marked
"Appendix." Is Copies of said notice, on forms provided by
the Regional Director for Region 8, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that nothing in this Order
be construed to invalidate bargaining for local supplements
applicable to the individually certified units in accordance
with past practice.
i? In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the Natiolal Labor Relations Board, the findings.
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
it In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with the Internation-
al Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, in an appropriate multiplant unit
comprised of employees represented by the Union and
its Locals in our plants in Mansfield, Columbus, and
Newark, Ohio; Edison, New Jersey; and Miami-Fort
Lauderdale, Florida; and WE WILL NOT insist that
bargaining with the Union take place only in the
individual certified units.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by the Act.
WE WILL, to the extent we have not already done so,
upon application, offer to all employees who went on
strike on July 12, 1976, or thereafter, immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights.
WE WILL, upon request, bargain collectively with the
above-named Union with respect to rates of pay,
wages, hours of work, and other conditions of employ-
ment of employees represented by the Union and its
Locals in the above-mentioned multiplant unit.
WHITE-WEsTINGHOUSE
CORPORATION, A WHOLLY-
OWNED SUBSIDIARY OF
WHITE CONSOLIDATED
INDUSTRIES, INC.
677