Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Oct 31, 1973

206 N.L.R.B. 812 (N.L.R.B. 1973)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse Electric Corporation and International
Brotherhood of Electrical Workers, AFL-CIO, Lo-
cal Union No. 1446 . Case 5-CA-5714
October 31, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On June 14, 1973, Administrative Law Judge Nan-
cy M. Sherman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Westinghouse Electric
Corporation, Laurel, Maryland, and Manassas, Vir-
ginia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraph 1(d) and reletter the following
paragraph "(d)."
1 We agree with the Administrative Law Judge' s findings that the Manas-
sas facility constituted an accretion to the certified unit at Laurel and that
Respondent was obligated to bargain with the Union as the representative
of the employees transferred to the new facility . However, we find merit in
Respondent 's exception to the Administrative Law Judge's finding that Re-
spondent was obligated to notify the Union of the positions in Manassas and
bargain concerning the identity of employees at Laurel who would be noti-
fied of the availability of these positions . Our disagreement stems from the
finding that the Manassas facility was an accretion to the certified unit at
Laurel. In this circumstance , Respondent's right initially to select employees
for the Manassas facility was within its contractual right "to direct employees
in the available work," subject, of course, to the right of the employees
and/or the Union to utilize the grievance procedure in the event of any claim
that Respondent had violated any contractual provisions relating to transfers
of employees within the unit. Accordingly, we shall modify the recommended
Order to conform with our conclusions herein.
In view of the above conclusion , we find it unnecessary to reach or pass
on the finding of the Administrative Law Judge that the Union did not waive
its rights to bargain about the selection of employees for reassignment to the
Manassas facility.
2. Delete paragraph 2(c) and reletter the following
paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize International
Brotherhood of Electrical Workers, AFL-CIO,
Local Union No. 1446, as the representative of
our employees attached to our Manassas, Virgin-
ia, facility in the following appropriate unit:
All servicemen, including senior servicemen
and shop servicemen, employed by us (1) at
Baltimore-Washington, D.C., distribution cen-
ter located at Laurel, Maryland, and (2) at our
facility in Manassas, Virginia; excluding all
other employees, clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
WE WILL NOT refuse to honor, as to these Ma-
nassas facility employees, the collective-bargain-
ing agreement (except the union-security
provisions) which we and the Union signed on or
about July 1, 1970.
WE WILL NOT alter the wages, hours, working
conditions, and other terms and conditions of
employment of these Manassas facility employ-
ees without giving the Union prior notice and an
opportunity to bargain.
WE WILL NOT in any like or related manner in-
terfere with the Union's exercise of its right to
bargain collectively, or interfere with, restrain, or
coerce employees in the exercise of their statuto-
ry rights.
WE WILL, upon the Union's request, bargain
with the Union with respect to the Manassas fa-
cility employees as part of the appropriate unit;
and we will honor the contract and give it retro-
active effect with respect to the Manassas facility
employees in the unit.
WE WILL make the employees whole, with inter-
est, for any losses suffered by reason of our fail-
ure to honor the contract as to the Manassas
employees.
WESTINGHOUSE ELECTRIC
CORPORATION
(Employer)
206 NLRB No. 113
WESTINGHOUSE ELECTRIC CORP. 813
Dated By
(Representative) (Title)
ate the policies of the Act. The Union is a labor organization
within the meaning of the Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered, by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 1019 Federal Building, Charles
Center, Baltimore, Maryland 21201, Telephone 301-
962-2822.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This pro-
ceeding was heard at Washington, D. C., on April 18 and
19, 1973, pursuant to a charge filed on August 2, 1972, and
a complaint issued on March 14, 1973. The question pre-
sented is whether Respondent Westinghouse Electric Cor-
poration violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended (herein called the Act), by
(1) refusing to recognize and bargain with the Charging
Party (International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 1446, herein called the Union)
with respect to the servicemen attached to Respondent's
Laurel, Maryland, facility; (2) failing to honor with respect
to such Manassas employees Respondent's bargaining
agreement with the Union; (3) unilaterally changing such
employees' conditions of employment; (4) directly dealing
with such employees regarding these matters; and (5) failing
to notify and bargain with the Union with respect to the
identity of the servicemen to be detached from the Laurel
facility and attached to the Manassas facility.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and Respondent, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATION
INVOLVED
Respondent is a Pennsylvania corporation having various
locations throughout the United States, including Laurel,
Maryland, and Manassas, Virginia. At these latter two loca-
tions, Respondent is engaged in the business of rendering
service for appliances and other electrical products sold to
its customers. During the 12 months preceding the issuance
of the complaint, a representative period, Respondent re-
ceived shipments valued in excess of $50,000 at these latter
two locations directly from points located outside Maryland
and Virginia. I find that, as Respondent concedes, it is
engaged in commerce within the meaning of the Act, and
that assertion of jurisdiction over its operation will effectu-
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
1. The Union's certification and contract
On April 2, 1964, the Board certified the Union as the
collective-bargaining representative with respect to a unit
specifically described below. About July 1, 1970, Respon-
dent and the Union executed an agreement, terminable on
June 29, 1973, which stated in part:
Article I-Certification
This Agreement shall cover the following unit of em-
ployees as certified by the National Labor Relations
Board on April 2, 1964.
"All servicemen, including senior servicemen and shop
servicemen, employed by Westinghouse Appliance
Sales at the Baltimore/Washington, D. C. distribution
center located at Laurel, Maryland; excluding all other
employes, clerical employes, salesmen, guards and su-
pervisors as defined in the Act.
Article 11-Recognition
The Corporation recognizes the Union as the sole bar-
gaining representative of the employes covered by this
Agreement with respect to rates of pay, wages, hours of
employment, and other conditions of employment so
long as the Union continues to be the certified repre-
sentative of the employes in such unit subject to the
requirements of any applicable State or Federal Laws.
2. The creation of the Manassas facility and the assign-
ment of bargaining unit employees thereto
a. Respondent's plans to create the Manassas facility
Prior to the events which gave raise to this case, the
employees in the bargaining unit were servicing Westing-
house appliances in part of Maryland and of Northern Vir-
ginia, a compact area except for enclaves consisting of
Baltimore, Maryland, and Washington, D. C.I Almost all
of the service work on Westinghouse appliances in other
parts of Northern Virginia was performed by independent
companies pursuant to contracts with Respondent. About
October 1970, Respondent's sales department advised then
regional service manager, Wilfred G. Huelin, that some-
thing had to be done to satisfy numerous complaints from
dealers, contractors, apartment builders, and salesmen
about the service performed in Northern Virginia outside
1 However, servicemen in the unit occasionally made service calls outside
this area when a customer could not obtain qualified or satisfactory service.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the area being served by the Laurel facility, and that West-
inghouse sales in the former area had a "growth potential."
On the basis of this recommendation and subsequent con-
firming reports prepared with the assistance of (inter alia)
then Laurel Branch Service Manager H. W. Harris and
then Area Service Manager Lou Kirchner, in early 1971
Respondent's management concluded that insofar as possi-
ble, the contracts with independent companies should be
terminated and service work in that area should be per-
formed by Respondent's own employees. In addition,
Respondent's management concluded that the Laurel facili-
ty was too small to accomodate the increases in storage and
office space called for by increasing appliance sales (and,
therefore, probable service calls) in the Virginia area. Also,
Respondent's management concluded that the distance be-
tween Laurel and the anticipated area to be newly served by
Respondent's own employees "would create a lot of lost
time, mileage, and create a problem in delivery of parts and
considerable expense in handling out of Laurel." For these
reasons, Respondent decided to establish a service facility
in Manassas, Prince William County, Virginia.
Pursuant to the February or March 1971 request of then
Regional Service Manager Huelin, then Laurel Branch Ser-
vice Manager Harris drafted a letter to Huelin, dated April
5, 1971, which read, in part:
I propose that in 1971 a satellite be set up in Virginia.
To be located in the city of Manassas, County of Prince
Williams [sic]. At this point in time Manassas will be
in the lower service area, but with the building of new
developments and sales increasing, it would be the cen-
ter of the service area in the year of 1974.
s s s s s
The proposed service center should start with a su-
pervisor, one clerical, and six technicians on the road,
one being a refrigeration/component man. In 1972
with the expected sales increase to add two more field
technicians. The original technicians positions will be
filled by [Westinghouse Appliance Sales and Service
Company] Laurel technicians who live and work in the
area.
The advantages of this would be:
(1) Full line productive men.
(2) No low productive trainees.
The General Counsel does not contend that these deci-
sions were motivated by other than lawful business reasons,
or that Respondent was under any duty to bargain with the
Union about whether to build the Manassas distribution
facility or whether to have work in particular areas per-
formed by servicemen attached to that facility rather than
by those attached to Laurel .2
2 The contractual "Management Operational Facility" clause (article III),
which is discussed further, infra, affords Respondent "freedom" and "res-
ponsibility" regarding , inter alia, "the determination of the number and
After this letter was reviewed and was forwarded to
Respondent's national sales manager , Huelin was instruct-
ed to "proceed with the preparation" and to prepare a bud-
get for the expansion satellite. The budget was submitted in
October 1971 and approved late that month. Huelin also got
in touch with a real estate firm, which advised him about
November 19 that a Manassas building site was available
for review.3 Moreover, between October 1971 and April
1972, in anticipation of the establishment of an Manassas
facility, Respondent increased the number of servicemen
attached to the Laurel facility by five, thereby increasing the
total number from 33 to 38. The April 1972 Laurel comple-
ment was four employees above the authorized productive
manpower for the Laurel location. However, there is no
claim or evidence that when thus adding to the work force
attached to the Laurel facility. Respondent advised the
Union that Respondent expected the increase to be tempo-
rary. The five employees so added to the work force (whose
identity is not shown by the record) were treated as part of
the Union's contract unit.
On November 8, 1971, R. G. McQueen, Respondent's
industrial relations manager for major appliances, advised
Huelin of formal approval of a budget allowing for five
servicemen to be attached to the projected Manassas facili-
ty. About January 1, 1972, Respondent changed the initial
digits of five Laurel servicemen's personnel numbers from
the digits indicating assignment to the Laurel facility to
digits indicating assignment to the Manassas facility (which
did not begin operation until more than 4 months later).
These five servicemen-all of whom were eventually as-
signed to the Manassas facility-were Childs, Ferguson,
Wenk, Connors, and Union Steward Andrick. Childs lived
in the District of Columbia and the others in Virginia. There
is no evidence that the numbers of any other Laurel employ-
ees were similarly changed. Huelin credibly testified that the
numbers were changed to indicate that the work performed
by these servicemen was to be charged to the Manassas
budget notwithstanding their assignment to Laurel; that the
numbers of these particular servicemen were changed be-
cause they were performing work in the area to be served
by the Manassas facility and were most likely to go there;
and that in the event any of them had remained with Laurel
and others had been shifted to the Manassas facility, the
numbers of the former would have been changed back and
the numbers of the latter would have been changed to re-
flect the Manassas location." I infer that none of these five
individuals was among the three added to the work force
between October 1971 and January 1972, pursuant to the
budgetary arrangement.'
location of its facilities."
3 The record fails to show whether this was the site actually used by
Respondent.
° I do not credit Huelin's additional testimony that the January selection
of these five servicemen 's numbers to be changed was motivated partly by
Kirchner's alleged February (actually, April) discussion with them in which
they indicated willingness to move. This obviously inaccurate testimony, and
Huelin's initial evasiveness in explaining why these particular employees'
numbers were changed, reflect on Heulin's credibility generally. While the
employees noticed that their numbers had been changed, there is no claim
or evidence that before being advised of the transfer they had any reason to
suspect what the significance of the change might be.
5 The record affirmatively so shows as to Andrick, who had been attached
to the Laurel facility for 14 years. My inference as to the others is based on
WESTINGHOUSE ELECTRIC CORP. 815
b. The Union 's information regarding the projected-
Manassas operation
At a union membership meeting on March 22, someone
remarked that he had heard that Respondent was opening
up a new plant in Manassas . At that meeting, there was also
"talk" that "members were going to be transferred down
there to work that plant." Within the next week, Union
Business Agent Spitznagel (who had attended the March 22
meeting) telephoned Union Steward Andrick (who had not
attended) about the transfer. Andrick stated that all he
knew was there was going to be a transfer or a new plant,
that he had heard noting concrete, and that "No definite
plans had been made."
In early April, Spitznagel telephoned then Laurel Branch
Service Manager Harris, described a Laurel employee griev-
ance unrelated to the issues here, and then stated that he
had "heard rumors that there's going to be a plant down in
Manassas, or a service center down in Manassas ." Harris
rephed that it was his "understanding" that there was going
to be one. Spitznagel asked "if they were going to use people
out of our Local to go down there and man it, as the rumors
were saying." Harris replied that he "understood" this was
true. Spitznagel then asked, "Well, what's going to happen
as far as the operation of that goes? Is it going to be some-
thing that's coming up right now? Is it going to be something
official sent out on it? Or how are you going to handle it?"
Harris rephed that "he couldn't give [Spitznagel] any more
answers, that's all he knew, that when [the Manassas facili-
ty] opened up, they would no longer have jurisdiction over
it," and he "didn't have the knowledge to give any more
answers. He didn't know when or how or why." Thereafter,
Spitznagel telephoned then Regional Service Manager Hue-
lin several times, but was unable to reach him. Spitznagel
testified that on one occasion, Huelin telephoned Spitznagel
at his home, but he was not there. Huelin's testimony fails
to disclose the purpose of this call. The two never did make
contact.
On April 12, the Union held a special meeting at
Andrick's house. Present at the meeting were Spitznagel,
three (including Andrick) of the five members who were
eventually transferred in May 1972, and several other mem-
bers.6 Spitznagel credibly testified that during this meeting:
We held a discussion concerning [the transfer] and the
working conditions in the area, and how things were
going generally down there, but we couldn't reach any
conclusion. There was no conclusion to reach. There
was no facts, or anything, that had been presented by
the company, or that we knew, in addition, to say that
they were actually going to open one of these plants.
As of that date, Spitznagel did not know when the Manas-
Hams' April 1971 letter to Huelin (supra) stating that "Full line productive
men" and "No low productive trainees" would be assigned to the Manassas
facility.
6 These other members included a shop steward from the Baltimore area,
two other members who were apparently employed at the Laurel facility but
were never attached to Manassas, and the Union's assistant business agent,
Doukas. Andnck testified that when he first heard (in mid-March) about a
possible Manassas operation, he thereupon decided that he wanted to go
there, and that he then discussed the matter with Doukas. The record fails
to show any further details about this conversation or when it occurred.
sas facility would be open. Harris had not told him nor
indicated that Harris knew. None of the persons who at-
tended this meeting indicated that he knew when the Ma-
nassas location would be opened. During this meeting,
Spitznagel gave Andrick some union authorization cards,
with the instructions that maybe as a last resort, if it became
necessary, the Union could use the cards to file a petition
for an election.
c. The announcement and effectuation of the transfer
About April 24,1972 ,7 when all the servicemen were gath-
ered at Laurel for their monthly company meeting, Harris
told these five employees to report to his office after the
meeting. When the five employees (including Union Stew-
ard Andrick) entered Harris' office, they met Kirchner (then
the area service manager for the area which included the
territory to be serviced by the Manassas operation) 8 and
Shero (whom Respondent had transferred from its Akron,
Ohio, facility to become satellite service manager at Manas-
sas). Management told the employees that on May 15, Re-
spondent was opening up a branch in Manassas under a
nonunion shop and that it would be up to the men whether
it would be union or nonunion; and advised them of their
prospective assignment to that facility. Respondent neither
intended to nor did say anything to the employees which led
them to believe that they could not choose to continue
working in connection with the Laurel facility or that reject-
ing Respondent's proposal would affect their Laurel tenure
in any way. All five employees agreed to accept the new
arrangement.9 These were the only employees whom Re-
spondent ever advised of these openings at the Manassas
facility.
Shortly after that, on a date not shown by the record,
Andrick told Spitznagel, ". . . we were being moved to
Manassas and we'd like to take our local with us." Spitzna-
gel replied that he thought Manassas was out of the Local's
jurisdiction and would have to find out.10
7 My finding as to the date is based on Andrick's credible testimony that
this meeting occurred 2 or 3 weeks before the May 15 transfer to Manassas
and that the monthly servicemen's meetings usually took place toward the
end of the month. I do not accept Huelin's testimony that this meeting
occurred in late February. The date given by Huelm makes inexplicable the
uncontradicted and credible testimony regarding various conversations and
meetings in March and April, and was tendered in a context which tempted
Huehn to place the date as early as possible (supra fn 4). Further, on the basis
of their demeanor I regard Andrick as a more reliable witness than Huehn.
8 Prior to the hearing, Kirchner died and was replaced by Dennis Capo.
See part II,B,1, infra.
9 Andnck was the only person admittedly present at the meeting who
testified about what happened there, Shero testified on Respondent's behalf
but was not asked about the meeting. Andrick testified that Huelm was
present for a short period, but Huehn testified that he did not attend. While
I find Andrick a generally more credible witness than Huehn, I believe that
Andrick was mistaken about Huelin's presence. Huelin testified to the con-
tent of a subsequent report about the meeting given to him by Kirchner, who
died before the hearing. While I regard Andnck's first-hand version of the
meeting as more probative than Huehn's hearsay account of what happened
there, I see no significant differences between them. My findings as to what
was said at the meeting are also based on Huelin's credible testimony that
Respondent had no intention of requiring these five employees (or any
others) to accept the change, and on Andnck's credible testimony that it
never entered his mind that he might be out of a job if he refused. The
General Counsel disclaimed any contention of coercion or forcing.
10 My findings as to this conversation are based on Andrick's credible
testimony, not specifically denied by Spitznagel
(Continued)
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About May 8, during a farewell dinner given by manage-
ment for the five transferees-or, possibly, during the late
April conference in Harris' office-management advised
the five,employees that "all non-union employees through-
out the Company were getting a raise but not to be disap=
pointed it [they] did not get it."
On May 15, 1972, these five employees were detached
from the Laurel facility and attached to the Manassas facili-
ty. Spitznagel had received no prior communication from
Respondent,advising that these men were to be transferred;
nor did he ever receive any such communication from Re-
spondent relating directly to the transfer. Effective May 15,
all of these employees received wage, sick leave, and vaca-
tion improvements which were inconsistent with the collec-
tive-bargaining agreement and were not received by the
employees at the Laurel facility. In percentage terms, the
wage increase (which raised their gross weekly pay to
$187.25 from $180) was the same as that simultaneously
afforded Respondent's salaried employees (both organized
and unorganized) throughout the country; 11 and the other
improvements conformed these fringe benefits to those en-
joyed countrywide by such salaried employees. Employee
Andrick, at least, first learned about his raise when he re-
ceived his paycheck.12
d. The Union's bargaining requests
During a union meeting in late June, the Union's finan-
cial secretary brought to Spitznagel's attention the fact that
the Union had not received June dues checked off from the
wages of these members. A member of the Union's execu-
tive board informed the membership that the men definitely
had been transferred down to Manassas, and that one of the
transferees had told him about the improved wages and
fringe benefits.13 By letter to Industrial Relations Manager
R. G. McQueen dated July 3, 1972, Spitznagel complained
that notwithstanding the contractual checkoff clause, the
Union had not received dues checked off from these five
employees' wages for June 1972. The letter further stated:
We know these men are performing their work in the
same area as before they started reporting to a different
station, therefore, we still consider-them under our ju-
The record fails to show either the precise nature of or any warrant for the
doubts then expressed by Spitznagel , who subsequently advised Respondent
that the Union regarded the transferees as still under its jurisdiction. In any
event , in view of the Union 's desire to represent the Manassas employees (as
evidenced by its filing of the charge herein), possible defects in the Union's
"jurisdiction" under its own or its parent International 's internal rules would
not preclude a bargaining order in its favor . Mayfair Industries, Inc, 126
NLRB 223, 224 In. 1; A F. Publicover and Company, 134 NLRB 573, 574-
575; F. C. Russell Co., 116 NLRB 1015 , fn. 5; Gina Morena Enterprises, 181
NLRB 808, Indeed, failure to seek to represent the Manassas employees
might imperil the Union's certification. See infra fn 49 and attached text.
The employees at the Laurel facility are hourly rated
12 Thereafter, in November 1972, both the Manassas and the Laurel ser-
vicemen received a wage increase of 8 cents an hour. The bargaining agree-
ment called for such an increase to unit members , and Respondent granted
this increase to all of its employees nationwide , salaried and otherwise. No
contention is made that this November 1972 increase constituted an unfair
labor practice.
13 Spitznagel admitted that prior to this time, Assistant Business Agent
Doukas "might have" told Spitznagel that he understood or had "heard" that
a transfer from Laurel to Manassas "might have taken place," without,
however, giving a specific date
risdiction. Also, it has come to our attention that West-
inghouse has offered these same employees a consider-
able raise in salary and increased fringe benefits to stay
out of the Union. Does this sound like a good relation-
ship? We have had a very good one here mainly be-
cause of Mr. Hank Harris, who has proven to be a fine
Branch Manager. If you are giving raises and increased
sick leave so easy now, how about your employees at
Laurel, Md., the other ones who [are in] our bargaining
unit? You promised you would do a wage survey peri-
odically here anyway and if raises are warranted, then
they would be forthcoming. One has been given, but if
you are giving another to some of our members, how
about including all of them. I am sure they can use it!
Also, we have noticed that other companies are paying
more than Westinghouse at this time, and by Novem-
ber, it will be an even wider gap.
So, Mr. McQueen, we would appreciate it if you
would investigate these latest moves by your Company
and correct same, so we can continue to maintain the
near perfect harmonious relationship that has existed
here during the life of this Contract. We would hate to
have to carry this problem any further.
By letter to Spitznagel dated July 21, 1972, McQueen
asserted:
In your letter of July 3 you requested that certain of our
employes working at our Manassas, Virginia service
facility be included within the certification of your
Laurel, Maryland bargaining unit and agreement cur-'
rently in effect at that location, including the payment
of dues. I consider your request inappropriate since
employes working out of our Manassas office do not
come within the certification of your bargaining unit.
The certification by the National Labor Relations
Board, as well as the recognition clause of our agree-
ment, establishes the bargaining unit as follows:
All servicemen, including senior servicemen and
shop servicemen, employed by Westinghouse Appli-
ance Sales at the Baltimore/Washington, D. C. dis-
tribution center located at Laurel, Maryland;
excluding all other employes, clerical employes, pro-
fessional employes, salesmen, guards and supervi-
sors as defined in the Act.
The employes you referred to and others as well are
employed by Westinghouse Consumer Service at its
office located at 9109 Euclid Avenue, Manassas, Vir-
ginia, and therefore are not part of the unit described
in the above language.
The service operation at Manassas is not only geo-
graphically separate and distinct from our operation
located at Laurel, Maryland, but it is also completely
separate with regard to its organization and operation.
The Manassas operation functions completely separate
from and independent of the Laurel operation . Manas-
sas is not connected by management organization, or
personnel administration or by any other operational
tie to Laurel. In view of the above, I must disagree with
the request embodied in your July 3 letter.14
In view of Respondent's hearing concession , after the Union's July 3
14
WESTINGHOUSE ELECTRIC CORP.
Effective July 10, 1972, two more employees (Hammiel
and Pickrell), one a Maryland resident and one a resident
of the District of Columbia, were detached from the Laurel
facility and attached to the Manassas facility. The record
fails to show whether other employees were advised of the
vacancies or given an opportunity to move, why Hammiel
and Pickrell were the ones who transferred, the extent (if at
all) that they moved because of persuasion by Respondent,
or the extent (if at all) that they wanted to change irrespec-
tive of Respondent's wishes.15 There is no claim or evidence
that prior to the time when the Union failed to receive their
checked-off dues for August (which Respondent was con-
tractually obligated to forward to the Union by August 18
if they worked during the payroll week ending August 3),
the Union had any reason to suppose that these transfers
would be or had been effected. This personnel action in-
creased the Manassas servicemen complement from five to
seven, all of these servicemen having been shifted to the
Manassas facility from the Laurel facility.
On August 4, 1972, Respondent received the charge here-
in, signed by Spitznagel, which alleged that Respondent had
violated Section 8(a)(1) and (5) "Sometime in May 1972 ' by
"unilaterally chang[ing] the rates of pay, wages, hours and
location of employment and other conditions of employ-
ment of certain of its employees who are represented by the
undersigned Charging Party, which is a labor organization
chosen by a majority of the Employer's servicemen at its
Laurel, Maryland, location, without bargaining over such
change." By letter to McQueen dated October 2, 1972,
Spitznagel stated:
Recently, I sent you a letter regarding the unilateral
transfer by Westinghouse of five of our members from
Laurel, Maryland to the Manassas, Virginia service
facility. They still continue to service the same area as
before the transfer, but you are not using the checkoff
procedure in our current agreement in order to collect
their Union dues. Now, two more of our members have
been sent down there by some devious manner. How
many more of our members is Westinghouse going to
take from our Local before it is all over? We are losing
both men from our unit and jobs. Also, the increase in
pay and fringe benefits being given these transferred
men is demoralizing and damaging to•the members left
at the Laurel, Maryland station.
We believe this issue should be taken up immediately
by use of our bargaining procedure. We will meet with
you or your representative forthwith in order to resolve
this important issue. We have a contract with you til
June, 1973. If this is not settled amicably, think of the
effects it will have on our future negotiations . We await
letter was received in evidence, that a "demand was made," and in view of
the unambiguous response in Respondent's July 21 letter (which not only
conceded that the July 3 letter contained a request to include the Manassas
employees within the Laurel certification and contract, but also expressly
"disagree[d]" with this "inappropriate" request on the ground that the Ma
nassas.employees were not in the unit), r reject Respondent's apparent con-
tention that the July 3 letter did not constitute a bargaining demand adequate
to impose a duty to bargain with respect to the Manassas employees as part
of the existing unit. See N L R B. v. L. E. Farrell Company, Inc, 360 F.2d 205,
208-209 (CA. 2, 1966).
15 The General Counsel disavowed any contention that any employees,
were coerced or forced to transfer
your prompt reply.
Spitznagel never received a reply to this letter.
817
e. The Employee complement at the Laurel and Manassas
facilities
About December 1972, Respondent hired for its Manas-
sas facility two servicemen who had never been attached to
the Laurel facility. At the time of the hearing, 33 servicemen
were attached to the Laurel facility and 8 to the Manassas
facility. Of this latter group, all but two had previously
reported to the Laurel facility and had been union members
on checkoff when first attached to the Manassas facility.16
The Laurel facility's "authorized productive manpower"
(which is, determined by Respondent's headquarters
through Respondent's workload and its budgeting proce-
dures) was 34 servicemen in 1971, 1972, and 1973. The
actual number of servicemen attached to that facility during
this period has ranged from 3'0 (in December 1972 and
January 1973) to 38 (in March and April 1972).
B. The Laurel and Manassas Operations
1. The managerial hierarchy
Respondent's Consumer Service Division is headed by
Respondent's "general manager, service." Directly under
him are the national manager and the national manager of
field service. Directly under the latter official are six region-
al service managers. The Laurel and Manassas operations
are under the regional service manager for the eastern re-
gion, whose office is in Philadelphia, Pennsylvania.
All labor relations for the Consumer Service Division,
including the Laurel and Manassas facilities, are handled by
Industrial Relations Manager McQueen and his assistants.
In exercising these responsibilities, McQueen, whose office
is in Pittsburgh, Pennsylvania, has occasion to travel to
service locations areas around the country, including Ma-
nassas and Laurel.
A regional service manager's immediate subordinates are
classified as branch service managers or as area service
managers . A "branch service manager" heads an operation
which employs more than 10 servicemen with full adminis-
trative facilities and personnel, including clerical employ-
ees, a warehouse staffed by warehousemen, and supervisory
personnel. A branch service manager is responsible only for
the service performed out of his branch, and not for inde-
pendent service contractors or servicing dealers.
Respondent's Laurel facility is headed by a branch service
manager, who makes sales reports and monthly reports di-
rectly to the regional service manager. Under the bargaining
agreement, grievances are handled by the branch service
manager at the first step and by the regional service manag-
er or "his designated member of management" at the sec-
ond step. Immediately under the Laurel branch service
manager are two branch service supervisors, one responsi-
ble for the servicemen in the Baltimore area and the other
16 The bargaining agreement contains a union-security clause applicable
only to present members and new lures and'with an annual escape period.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Boyer) for the servicemen in the Washington area. Also
attached to the Laurel branch are seven clerical employees,
two warehousemen, and (in addition to the branch service
manager and the two branch service supervisors) about nine
administrative personnel. The five employees initially shift-
ed to the Manassas facility in May 1972 had all previously
been supervised by Boyer. Because the two shifted from the
Laurel facility in July had both used the College Park "drop
point" (a term explained below) near Washington (as had
one of the May transferees), I infer that they too had been
supervised by Boyer.
An "area service manager" is responsible for the service
coverage in an assigned geographical area. Where the work
is not to be performed by Respondent's own employees
through a "satellite service center" (a term explained be-
low)-which may or may not exist in the territory in ques-
tion-the area service manager is responsible for seeing to
it that the service is performed by independent service con-
tractors and/or servicing dealers. An area service manager,
unlike a branch manager, travels throughout the territory
with the servicing dealers and contractors and has a compa-
ny vehicle and expense account for this purpose.
A "satellite service center" is a service center manned by
Respondent's own employees and under an area service
manager.17 A "satellite service center," to which warehouse
or storage facilities are attached, consists of 3 to 10 ser-
vicemen supervised by a satellite service supervisor, and
clerical employees whose supervision is not disclosed by the
record. A satellite service supervisor sends his monthly sales
reports to the regional service manager , either directly or
through the area service manager. The satellite service su-
pervisor reports directly to the area service manager and, in
his absence, to the regional service manager. However, the
satellite service supervisor is free to make direct calls to the
regional service manager, who himself sometimes makes
direct calls to the former. Every month, the satellite service
manager must prepare a written report as to "Personnel,
training, competitive information, contracts, et cetera."
These reports are received by the regional service manager,
either through the area service manager or (at the former's
request or in the latters absence) from the satellite service
supervisor. Respondent' s Manassas facility is one of three
satellite service centers under area service manager Dennis
Capo, whose office is in Richmond, Virginia, and whose
area includes Virginia and parts of West Virginia and North
Carolina but does not include any part of Maryland. The
Manassas servicemen are directly supervised by Satellite
Service Supervisor James Shero. The record fails to show
who handles grievances at this facility.
2. The employees' duties
All the servicemen at both facilities repair Westinghouse
appliances (refrigerators, washers, dryers, garbage dispo-
sers , and dishwashers) in the customer's home or in apart-
ment houses. The servicemen at both facilities do their work
in the same fashion and manner, and using the same tools.
Each serviceman uses a company truck which he keeps at
17 The record fails to show whether a "satellite service center" may eventu-
ally become a "branch."
his home when he is not operating it on company business.18
Every morning, a serviceman drives to a designated "drop
point" where he receives written assignments for the day,
leaves orders for parts, and picks up any parts he may have
ordered previously. Before the first five-man group was at-
tached to Manassas, the four Virginia residents used as a
"drop point" an Alexandria, Virginia, gasoline station; the
fifth employee, who lived in the District of Cloumbia, went
to a "drop point" in College Park, Prince George's County,
Maryland, about 6 miles from the Maryland-D. C. line.
After the Manassas facility began operations, all the em-
ployees who had previously been attached to Laurel (in-
cluding the two who were shifted to the Manassas operation
in July 197219 ) used the Alexandria "drop point." The two
employees attached to the Manassas facility who have never
been attached to Laurel use the Manassas facility as a "drop
point." 20
Prior to the activation of the Manassas facility, parts,
orders for parts, and written assignment sheets were trans-
ported between the Laurel facility and the Alexandria "drop
point" by Laurel serviceman Dwyer, a member of the bar-
gaining unit who was not shifted to the Manassas facility 21
Thereafter, such items were transported between the Ma-
nassas facility and the Alexandria "drop point" by ser-
viceman Andrick22 A serviceman who performs these
duties, and the two servicemen who use the Manassas facili-
ty itself as a "drop point," report to their respective facilities
every day. The other servicemen attached to the Laurel or
Manassas facility visit that facility only once a month, for
a servicemen's meeting.23 During these meetings, they have
virtually their only contact with their superiors."' The
branch service manager or branch service supervisor, Boyer,
represents management at the Laurel meetings, and the sat-
ellite service supervisor represents management at the Ma-
nassas meetings. After every second service call, a
serviceman is required to telephone the dispatcher at his
respective facility to report on completed calls. On these
occasions , the dispatcher may advise the serviceman of
emergency service calls (e.g., no refrigeration) and convey
messages from the serviceman's immediate supervisor.25
The Manassas facility and the Laurel facility are 60 miles
apart. Andrick did not move his residence after being shift-
ed to the Manassas operation, and to his knowledge neither
18 The record directly shows that at least four of the servicemen who
shifted from the Laurel to the Manassas facility continued to use the same
trucks they had used before. Huelin credibly testified that all the trucks used
at the Manassas facility had previously been either in use or in storage at the
Laurel facility.
19 These two employees (one a Maryland resident and the other a District
resident) had previously used the College Park "drop point."
20 One of these employees lives in Manassas , and the other about 18 miles
northwest of Manassas , which is about 20 miles west of Alexandria.
21 The record fails to show whether Dwyer also performs this service for
the College Park "drop point." When Dwyer was sick or on vacation, the
Alexandria "drop point" was served by Branch Service Supervisor Boyer.
22 When Andrick is sick or on vacation, these duties are performed by
serviceman Pickrell.
23 The record fails to show whether any of the Laurel servicemen uses the
Laurel facility itself as a "drop point."
24 Andrick credibly testified that when attached to the Laurel facility, he
spoke to Branch Service Supervisor Boyer on the telephone less than once
a month.
25 A dispatcher is attached to each facility. The bargaining unit does not
include dispatchers, but the record fails to show that they are supervisors.
WESTINGHOUSE ELECTRIC CORP. 819
did any of the other men who shifted. Respondent stipulat-
ed that at all relevant times, two lived in. the District of
Columbia, one in Maryland, and the rest in Virginia; nor
did Respondent offer any evidence that any of them had
changed his address within these areas. Both the Laurel and
the Manassas employees are paid by check every Friday.
3. The areas served
Prior to the establishment of the Manassas facility,-the
Laurel servicemen initially assigned thereto made service
calls in a compact portion of Northern Virginia consisting
of Arlington and Fairfax Counties, Loudoun County, as far
west as Leesburg, Prince William County as far south as
Dumfries, and Fauquier County, as far west as Warren-
ton.26 In addition, serviceman Andrick, at least, occasional-
ly made calls in Maryland.
After the establishment of the Manassas facility, the ser-
vicemen attached to that facility made calls in Virginia
alone. While it is clear that the Manassas facility's "area of
responsibility" upon its May 1972 opening included the
Virginia area previously served by the Laurel facility, the
then, "area of responsibility" may have included some addi-
tional territory as well. In September 1972, the Manassas
facility's "area of responsibility" was enlarged to the area
which it encompassed at the time of the hearing-namely,
the contiguous Virginia counties of Arlington, Fairfax,
Prince William, Loudoun, Fauquier, and Stafford, and also
a contiguous area consisting of much of Culpeper and Ra-
pahannock Counties and parts of Madison, Spotsylvania,
and Orange Counties .17 As of the time of the hearing in
April 1973, the Manassas servicemen who used the Alexan-
dria "drop point" (including Childs, apparently the facility's
only refrigeration serviceman) had made calls in the Virgin-
ia area, previously served by the Laurel facility and, in addi-
tion, in the rest of Loudoun County, all of Fauquier County,
and Culpeper County as far south as Culpeper. Calls outside
this area, some of which were made in the outermost por-
tions of the Manassas facility's "area of responsibility" as
it existed after the September 1972 expansion, were being
made by the two servicemen who used the Manassas "drop
point." 28
u These findings are based on serviceman Andnck's credible testimony.
I do not accept Huelm's testimony as to the area then served except to the
extent that that it is corroborated by Andnck. Huelm's testimony in this
connection contains internal inconsistencies . Moreover, Andrick was a more
honest witness with a better opportunity to know the facts. While it is true
that Andrick had only limited knowledge of the pretransfer assignments of
servicemen other than himself, Respondent 's January 1972 action in bud-
geting the jobs of all five transferees (including Andrick ) to the future Manas-
sas facility corroborates Andrick's testimony that all five were making calls
in essentially the same area . Moreover , Huelin testified that when the five
servicemen's identification numbers were changed , they were working in the
area where Manassas would function.
27 I see nothing in the record to support the General Counsel's contention
that this enlargement was motivated by the pendency of the instant proceed-
ing. Rather, expansion to this area was contemplated by Harris ' April 1971
letter recommending the establishment of the Manassas facility.
28 My findings in the foregoing two sentences are based upon the credible
testimony of Andrick (who transmitted assignments to the servicemen using
the Alexandria "drop point" but was not shown to have any knowledge of
other servicemen 's assignments), Satellite Service Manager Shero's credible
testimony, and inferences drawn from their reconciliation . The record fails
to show whether the latter two servicemen also made calls in the area serviced
At the time of the hearing, an undisclosed proportion of
service calls in the Manassas facility's "area of responsibili-
ty" were still being made by servicemen from independent
companies. Respondent's right to have its own employees
perform work in this area is limited by Respondent's con-
tractual arrangements, which Respondent is not free to ter-
minate on short notice without cause, affording certain
independent firms the right to make some of these calls. So
far as the record shows, Respondent has cancelled such
arrangements with only one firm in the area. I;Iuelin credi-
bly testified that Respondent believes the Laurel business to
have a "growth potential."
C. Analysis and Conclusions
1. Whether disposition of the instant case should be de-
ferred under the Collyer doctrine
Respondent contends in its brief that I should defer deci-
sion in this case to the Board arbitration-deferral policies
articulated in Collyer Insulated Wire, 192 NLRB 837 29 Re-
spondent concedes that the issues presented here are not
subject to compulsory arbitration under the contractual ar-
bitration clause, which is limited to grievances protesting a
disciplinary penalty or discharge. However, Respondent
contends that decision herein should be deferred pending
processing of the Union's claim under the following con-
tract clause:
ARTICLE XVI-SETTLEMENT OF DISPUTES
A. General
Should differences arise between the Union and the
Corporation as to the meaning and application, or the
observance or performance by either party, of any of
the provisions of the Agreement, the following shall be
the procedure for the adjustment and settlement there-
of:
First Step-The grievance shall be discussed by the
Union steward, the employe and the Branch Service
Manager within ten (10) days of the incident causing
the complaint. If the matter is not settled, it shall be
reduced to writing, and a written answer given by the
Branch Service Manager within two (2) working days.
Second Step-If the grievance is not settled at the first
step, it shall be referred to the Regional Service Manag-
er or his designated member of Management, and a
written reply will be given within three (3) days after
the date of the meeting.
Third Step-If the grievance is not resolved at the sec-
ond step, a meeting will be held between the Union
grievance committee, composed of the Business Agent
by those who used the Alexandria "drop point "
29 It appears that Respondent had never raised this contention prior to the
hearing herein However, Respondent 's'counsel states that the Union's claim
is subject to the contract grievance procedure; and that although the Union
has never filed a grievance under the contract relating to the instant dispute,
Respondent would entertain such a grievance now if it were filed now.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and no more than two (2) representatives who are em-
ployes and a committee composed of not more than
three (3) representatives of Management. A written an-
swer to the grievance will be given not later than ten
(10) working days following the meeting.
B. Extension of Reply Period
Management Council, 203 NLRB No. 165. Moreover, as
shown infra fn. 48 and' attached text, as to critical issues
herein the Board does not appear to give Collyer full play.
2. Whether (absent a contractual waiver) Respondent is
under a duty to bargain with respect to the Manassas fa-
cility as part of the certified unit
The indicated time limits within the grievance proce-
dure will prevail unless there is an understanding be-
tween the parties to the contrary.
C. Closed Grievance
The reply of either party to a grievance of the other
party will be considered final, and the grievance closed,
if the grievance is not advanced to the next step or a
written notification to the contrary is not received with-
in fifteen (15) calendar days from the date of such
reply.
In support of the deferral contention, Respondent cites,
inter alia, Brotherhood of Teamsters & Auto Truck Drivers
Local No. 70 (National Biscuit Co.), 198 NLRB No. 4. In that
case, the Board applied its Collyer policy where the contract
provided for mandatory submission of the dispute to a bi-
partite panel, composed of equal numbers of management
.and of union representatives, who could,finally dispose of
the controversy by majority vote.30 In contrast, as the Gen-
eral Counsel points out in his brief, the decision at the last
step of the instant grievance procedure (although made af-
ter the convening of a committee composed of three em-
ployerand three union,representatives) is made by the same
party which decided to take the action being grieved, wheth-
er or not that decision accords with the conclusion of a
majority of the committee 31 See National Football League
30 Deadlocked disputes were arbitrable only on majority vote of the bipar-
tite panel. See also, Tyee Construction Co, 202 NLRB 307, where the Board
deferred to a grievance procedure whose last step was subject to a bipartite
council whose decisions were required to be unanimous (see ALJD fn 7)
31 This is evidenced by the contract's reference to a third-step "answer" or
"reply" to the grievance (article XVI, sections A, B, C, and E), by the absence
of any provision applicable to grievances deadlocked at the 'third step, and
by the provision (article XVI E) affording the Union the right to strike in
support of an unarbitrable grievance where Respondent's third-step reply is
unsatisfactory.
Although not mconsistent with Chairman Edward B. Miller's analysis of
the bipartite-panel cases ("Little Collyer Grows Up," remarks before Industri-
al Relations Research Association, Oakland, California, September 12, 1972,
pp. 14-15), my own analysis is deliberately based upon more limited grounds.
The Board's heretofore refusal to extend Collyer so as to withhold Board
processes pending exhaustion of grievance procedures regarding a grievance
not subject to compulsory arbitration is perhaps based partly on the view that
as a practical matter a complaint is unlikely to issue in a case where the party
against which the grievance has been brought has indicated possible willing-
ness to find the grievance meritorious if processed through the grievance
procedure. Accordingly, I believe it desirable to refrain from language ex-
tendable to a case where (unlike here) a breaking of ranks at the last stage
of the grievance procedure might lead to favorable action on the grievance
or to an arbitration agreement, even though such intraparty disagreement
would be less likely in cases where the panel members are (as here ) from the
disputing parties themselves than in cases where (as in existing bipartite-
panel precedents) the panel members are from other employers and unions.
Thus, Roadway Express, Inc, 145 NLRB 513 (cited in National Biscuit, supra,
198 NLRB No. 4, stated at 515:
Where contract grievance procedures simply provide lot the submission
a. Whether the Manassas facility constitutes an accretion to
the certified unit
The scope of any bargaining duty imposed on Respon-
dent with respect to the Manassas facility turns largely on
whether that facility is an accretion to the certified unit (as
the General Counsel contends) or, is a new and separate
operation (as contended by Respondent). "Whether or not
a particular operation constitutes an accretion or a separate
unit turns, of course, on the entire congeries of facts in each
case. In determining that a newly established facility or
operation is an accretion to an existing unit, the Board has
given weight to a variety of factors, such as integration of
the operations; centralization of managerial and adminis-
trative control; geographic proximity; similarity of working
conditions, skills, and functions; common control over la-
bor relations; collective-bargaining history; and inter-
changeability of employees. Obviously, cases in which all of
these, or only these, positive accretion' factors are present
are rare. For, the normal situation presents a variety of
elements, some militating toward and some against accre-
tion, so that a balancing of factors is necessary." The Great
Atlantic and Pacific Tea Co., 140 NLRB 1011, 1021.
In my view, the "entire congeries of facts" militates in
favor of finding that the Manassas operation constitutes an
accretion to the certified unit. All of the first seven ser-
vicemen who worked at Manassas, and six of the eight
servicemen working there at the time of the hearing 11
months after the Manassas operation began, had previously
been attached to the Laurel facility and had been union
members admittedly within the certified unit. The most sig-
nificant part (if not all) of the Manassas facility's initial area
of responsibility, and much of its subsequent area of respon-
sibility, had been served prior to the establishment of the
Manassas facility by employees admittedly within the certi-,
lied unit before being shifted to the Manassas facility. Fur-
ther, most of the area where such transferees make calls is
the same as the area where they had made calls when at-
tached to the Laurel facility. The Manassas facility's "area
of responsibility" is contiguous to the area served by the
Laurel facility. The servicemen attached to both facilities
perform the same work in the same fashion and manner,
and using the same tools. They receive their paychecks on
the same paydays. Servicemen attached to both facilities
have company trucks which they take home when not using
them. Most of the servicemen transferred from the Laurel
facility continued to use the same trucks, and all the trucks
of a dispute to a bipartite cornnuttee, composed of representatives of the
contracting parties, the absence of a public, or impartial, member will not
necessarily foreclose the exercise of our discretion to give binding effect
to decisions of the committee, for each representative is customarily
prepared to argue for or against the merits of the employee's grievance.
[Emphasis supplied.]
WESTINGHOUSE ELECTRIC CORP.\ 821
used at the Manassas facility had previously been used or
stored at the Laurel facility. Although the Manassas facility
is 60 miles from the Laurel facility, most of the servicemen
(whose day-to-day duties require them to drive considerable
distances between the locations where they make calls) re-
port to their respective facilities only once a month; and
most of the Manassas servicemen shifted from Laurel con-
tinue to use the same daily "drop point" they had used
previously. Indeed, so far as appears, the transfer from the
Laurel facility to the Manassas facility did not cause any of
the affected servicemen to change his residence. The Ma-
nassas complement has ranged from 15 percent (in May
1,972) to 30 percent (in December 1972) of the Laurel com-
plement.
While it is true that the shift to the Manassas facility
caused a change in the identity of the two individuals who
were the affected servicemen's immediate superiors-more
specifically, from the Washington branch service supervisor
and the Laurel branch service manager to the Manassas
satellite service supervisor and an area service manager-
the servicemen have very limited contact with their superi-
ors, whoever such superiors may be. Moreover, the ser-
vicemen remained under the same regional service manager,
and labor relations for both operations are actively super-
vised by the same industrial relations manager. From the
record as a whole, I conclude that the Manassas servicemen
constitute an accretion to the certified unit. Burroughs Cor-
poration, 172 NLRB 2146. Particularly because much of the
territory served by the Manassas facility was previously
served by the Laurel facility, I attach little significance'to
the fact that the certification names the Laurel facility.
Montgomery Ward & Co., Inc_, 195 NLRB 1031; Goodyear
Tire & Rubber Co., 195 NLRB 767, enfd. 474 F.2d 1336
(C.A. 2, 1973).
Respondent operates a total of about 72 branch and satel-
lite service centers,32 24 of which have one or more union
contracts in existence or under negotiation. Laying the Lau-
r>el contract to one side, none of these contracts covers more
than one location, although a number of them do or may
cover units different in composition from the certified unit
here.33 At the hearing, Respondent seems to be resisting the
General Counsel's accretion contention on the ground that
it allegedly requires the application of principles which, if
applied to other newly created facilities in Respondent's
Consumer Service Division, would improperly establish
other multifacility units which might (as here) include facili-
ties under different second-level as well as immediate super-
vision. In attempting support of this contention, at the
hearing Respondent made an offer of proof, which I reject-
ed, that "the manner in which the Manassas operation was
set up, in particular, by encompassing part of an area previ-
ously served by an established location, in addition to a new
area in which arrangements had been made, to provide
service ... , is an established practice with the employer in
the manner of opening new locations." 34 However, this
argument tacitly assumes that establishment of one or more
multifacility units would interfere (allegedly without justifi-
cation) with a policy (which Respondent would otherwise
allegedly follow) of treating each facility separately as to
labor relations matters. So far as the instant case is con-
cerned, the difficulty with this contention is that far from
attempting to treat the Manassas employees differently
from all other servicemen in its employ, in May 1972 Re-
spondent deliberately gave them the same percentage wage
increase which it gave all organized and unorganized sala-
ried servicemen (but not the Laurel servicemen, who are
hourly rated) throughout the country; and deliberately
modified the transferees' fringe benefits so as to conform
them to the benefits enjoyed by these other salaried ser-
vicemen. As Respondent thus disregarded administrative
lines with respect to wage increases and fringes from Seattle
to Fort Lauderdale, I conclude that the instant two-facility
unit is not rendered inappropriate by the administrative
lines drawn between them within Respondent's eastern re-
gion.
b. Whether an accretion finding herein is procedurally
barred
I find unmeritorious Respondent's contention that the
Union's failure to file a unit clarification petition under
Section 102.61 of the Board's Rules and Regulations pre-
cludes an accretion finding in the instant unfair labor prac-
tice proceeding35 ". . . the unit clarification procedure is
designed to present an alternative to an unfair labor practice
charge as a means for obtaining an official determination
for the correct bargaining units." Smith Steel Workers v.
A. D. Smith Corporation, 420 F.2d 1, 9 (C.A. 7). Indeed, the
procedure actually used herein might well be the more effi-
cient, because an unfair labor practice proceeding resulting
in a bargaining order would be necessary if Respondent
were to refuse to honor an amended certification obtained
by the Union following a unit clarification proceeding.
Smith Steel, supra, at 9. Moreover, Respondent could itself
have initiated a unit clarification proceeding without pre-
judicing its unit position. Oyster Creek Division, Dow Chemi-
cal Co., 179 NLRB 71936
32 Resp. Exh . 6 lists 69 locations where such centers exist. Resp . Exh. 7,
which lists all the service facilities covered by union contracts, lists three
locations not on Resp. Exh. 6 (New York, Newark, and San Lorenzo).
33 In Eebrwny 1973 (the only month for which the record shows the
number of service calls at each facility), 3 of these 72 offices (Los Angeles,
which has a union contract covering warehousemen ; and Woodside and
Union, which have no union contracts) handled more calls than Laurel and
Manassas combined , a fourth office (Miami, with a umon contract or con-
tracts covering service department, clerical employees , and warehousemen)
handled more than Laurel alone; and 17 more (5 with union contracts)
handled more than Manassas alone.
34 Acceptance of such evidence would have compelled acceptance, as to
each of such incidents , of evidence bearing on what would have been appro-
priate units in each of such operations , even though Respondent made no
contention that this practice had ever been followed where a union repre-
sented employees at the established location.
45 Vernon Calhoun Packing Co., 173 NLRB 753, 762, enfd. 436 F 2d 588
(C.A. 5,19,71); J. W. Rex Co., 155 NLRB 775, enfd. 243 F.2d 356, 359 (C.A.
3)
36 Respondent's contention that the Union contractually waived its right
to benefit by a Board accretion finding is discussed infra Section II,C,4,a.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Whether (absent a contractual waiver) Respondent
was under a duty to bargain about the identity of ser-
vicemen to be shifted from the Laurel to the Manassas
facility.
a. Whether the identity of such servicemen was a mandato-
ry subject of collective bargaining
My conclusion that the servicemen attached to the Ma-
nassas facility are included in the certified unit calls for the
further conclusion that the basis on which the servicemen
were to be given the opportunity or required to shift to
Manassas from Laurel was a mandatory subject of collec-
tive bargaining. The transfer affected the area where trans-
ferees performed their work, the location of their "drop
points" where they reported to work each morning, the
location of the servicemen's required monthly meeting, the
location where some unit members daily picked up the
servicemen's parts and assignments, and (as matters turned
out) transferees' wages, vacation benefits, and sick leave
benefits-in short, affected unit employees' wages and con-
ditions of employment.
It is true that neither the General Counsel nor the Union
attacks the lawfulness of the considerations (experience and
residence) which led Respondent to select the first five
transferees as those to be given the first opportunity to
transfer; and that unit employees assigned to the Manassas
facility may themselves have been satisfied with the change
(see infra fn. 41). However, the unit employees as a whole,
speaking through their exclusive statutory bargaining repre-
sentative, might well have thought that different unit em-
ployees should be given the first opportunity to move, on
the basis of considerations thought to have been ignored or
given improper weight by Respondent. Thus, the Union
might have pointed out (if such were the case) that other
employees in the unit, in addition to those actually transfer-
red, lived in Virginia or in the District of Columbia; that (as
was undoubtedly the case) others, in addition to one of the
employees transferred in July 1972, lived in Maryland; 31 or
that others planned or wanted to live in such areas . Further,
the Union might have wanted Respondent to give all em-
ployees in the unit (regardless of present residence) an op-
portunity to request a transfer, with the successful
applicants to be selected on the basis of (for example) sen-
iority, on the ground that some employees might decide that
the resulting improved economic benefits and/or changes in
the locations where they worked could compensate for, or
justify a change in their present residence.
On the facts of this case, I conclude that the identity of
the transferees was a mandatory collective-bargaining sub-
ject assuming that the transfer removed the transferees from
the bargaining unit. Fraser & Johnston Co., 189 NLRB 142,
enfd. in pertinent part, 469 F.2d 1259, 1262-63, 1264-65
(C.A. 9, 1972), and cases cited; Weltronic Co., 173 NLRB
37 Huelin testified that he was not sure whether other Laurel servicemen,
in addition to all but one of the five initially transferred , lived in Virginia.
Moreover , one of the two Laurel servicemen transferred in July 1972, one
lived in the District of Columbia (as did the fifth in the first group) and one
in Maryland , the only state served by the Laurel facility after the estab-
lishment of the Manassas facility.
235, enfd. 419 F.2d 1120 (C.A. 6, 1969), cert. den. 398 U.S.
938 (1970). The undisputed evidence shows that the trans-
fers permanently reduced by 10 to 21 percent the number
of Laurel jobs in the bargaining unit 38 Moreover, contrary
to Respondent, I conclude that the record established a
significant diminution in the work performed by the Laurel
branch after the Manassas facility began operations. Thus,
the Laurel location had 38 servicemen in March and April
1972, but after the Manassas facility began operations in
May 1972 Laurel had only 30 to 33 servicemen. Moreover,
the authorized productive manpower budgeted for Laurel
for 1973 was the same (34) as for 1972, even though (until
May 1972) five servicemen budgeted for Manassas were
actually working at Laurel. Also, the number of Laurel
employees after the Manassas activation never reached the
maximum number (34) employed prior to the October
1971-January 1972 hires in anticipation of the Manassas
activation. Furthermore, the Manassas location served part
of the area previously served by the Laurel facility 39 Be-
cause of this loss of Laurel jobs and work occasioned by the
transfer, I find inapposite here the Board decisions cited by
Respondent' as well as Westinghouse Electric Corp., 174
NLRB 636.41 Cf. Weltronic, supra, 419 F.2d at 1123; Interna-
tional Union, United Automobile Workers v. N.L.R.B. (Gener-
al Motors), 381 F.2d 265, 266 (C.A.D.C., 1967), cert. denied
389 U.S. 857 (1967).
38 As found supra, the five employees added to the Laurel facility pursuant
to Respondent's internal budgetary arrangements in anticipation of the Ma-
nassas activation were not the same five individuals who were transferred to
the Manassas facility when it first opened . Moreover , all the servicemen were
treated as members of the bargaining unit while attached to the Laurel
facility, and there is no claim or evidence that the Union or any of the
employees was advised that management intended the employee increase at
Laurel to be temporary only. Accordingly, I do not think that management's
private intentions about the size of the employee complement at Laurel
render Respondent's bargaining duties different from those which would be
imposed on it absent such intentions. In any event, there is no contention or
evidence that the July 1972 transfers from Laurel reduced a temporary aug-
mentation of the Laurel work force.
39 I discredit as an understatement Huelin 's testimony that the amount of
work done by the Laurel location before and after the opening of the Manas-
sas location was "basically the same; a slight difference ." I rely on (1) the
inconsistency between this testimony and the undisputed employment statis-
tics in the text , which reveal a post-Manassas drop in Laurel employment of
between 10 and 21 percent ; (2) Respondent's failure to produce the records
on which Huelin's testimony was assertedly based (International Union, Unit-
ed Automobile, Aerospace and Agricultural Implement Workers v . N.L.R.B.
(Gyrodyne), 459 F.2d 1329 (C.A.D.C., 1972) ); (3) Huelin's effort to adjust
other testimony to accord with Respondent's supposed interests (supra, fn.
4) (N.L.R. B. v. Pittsburgh Steamship Co., 337 U.S . 656, 659 ; and (4) Huelin's
demeanor (N. L. R. B . v. Walton Mfg. Co., 369 U.S. 404, 408 (1962) ).
40 American Oil Co., 151 NLRB 421, 422; Kennecott Copper Corp., 148
NLRB 1653, 1654, fn . 1. Additionally, in Kennecott, unlike here, the employer
agreed to and did bargain about its action as soon as the union protested.
41 In dismissing the refusal-to-bargain complaint in that case , the Board
noted that "the employees who transferred did so voluntarily and with the
full knowledge and consent of the Union." 174 NLRB at 638. I am unsure
of this finding's significance to such dismissal, in view of the Board's finding
that the identity of the transferees was not a mandatory subject of collective
bargaining under the facts presented there . However, the transfers here were
plainly not with the Union 's "full knowledge and consent ." As to the views
of the transferees here , the record shows that Andrick welcomed the transfer,
and that all five of the May 1972 transferees accepted the transfer without
threat of any economic reprisals . Other than the General Counsel's conces-
sion that the July 1972 transfers were not forced or coerced , there is no
evidence of these transferees ' views.
WESTINGHOUSE ELECTRIC CORP.
b. Whether the Union lost any right which it may have had
to compel bargaining about the identity of the transferees
by failing timely to request such bargaining
Respondent further contends that it was under no duty
to bargain with respect to the transfers because the Union
did not request bargaining until after they had taken place.
It is, of course, "well settled that when a union has suffi-
ciently clear and timely notice of an employer's plan to
relocate, close or subcontract and thereafter makes no pro-
test or effort to bargain about the plan, it waives its right to
complain that the employer acted in violation of Sections
8(a)(5) and (1)." International Ladies' Garment Workers
Union v. N.L.R.B. (McLoughlin Manufacturing Corp.), 463
F.2d 907, 918 (C.A.D:C., 1972). However, there is no evi-
dence that the Union learned about the July 1972 transfers
until their actual effectuation had to a large extent preclud-
ed meaningful bargaining (see McLoughlin, supra, 463 F.2d
at 919) and after the Union had filed the instant charge
, seeking bargaining about the May transfers.
Moreover, I am inclined to doubt that the Union waived
by inaction its right to bargain about the identity of the May
1972 transferees. Thus, it seems clear to me that prior to
Respondent's action (about April 24) in directly advising
five unit employees about the transfer opportunity, the
Union did not have sufficient notice of an impending trans-
fer to put it on notice that the time was ripe for bargaining
about the basis on which transfers were to be made. Rather,
on the only pretransfer occasion when Respondent told the
Union anything at all about the Manassas plan, then Laurel
Branch Manager Harris merely told the Union that it was
his "understanding" that there was going to be a service
center in Manassas, that he "understood" it was going to be
manned by servicemen presently in the bargaining unit, and
that it would be a "separate operation" which did not come
under Harris' jurisdiction. Harris further stated that he
"didn't have the knowledge to give any more answers. He
didn't know when or how or why." Contrary to such repre-
sentations, however, Harris must then have known the Ma-
nassas facts most critical to the Union, including the fact
that it was to open within the next few weeks with part of
his own Laurel branch's area and tentatively selected ser-
vicemen from his own Laurel staff.42 Accordingly, I con-
clude that far from attempting to fulfill Respondent's
statutory duty to give the Union notice of management's
decisions at a time sufficiently in advance of actual imple-
mentation to allow reasonable scope for bargaining, Harris
was deliberately concealing from the Union the existence of
facts pointing to the timeliness (and perhaps urgency) of
asking for bargaining about the matter, which by that time
had been "in the works" for some 18 months.
Furthermore, the other pre-April 24 information acquired
by Spitznagel, from sources other than Respondent, consist-
ed of rumors about a project which had been under way for
many months, and about whose likely completion date (a
fact critical to proper timing of a bargaining demand) the
rumors provided no guidance. "Knowing what [Respon-
r
42 Indeed, it was Hams who drafted the detailed April 1971 Manassas
proposal, most of which was eventually carried out, and which was partly
based on a report prepared with Hams' assistance.
823
dent] intended to do is not the same as being notified that
it is about to do it." Overnite Transportation Co. v. N.L.R.B.,
372 F.2d 765, 769 (C.A. 4, 1967), cert. denied 389 U.S: 838
(1967). Moreover, any disquieting effects of these rumors
were to some extent eased by Harris' disavowals to Spitzna-
gel of information which he would undoubtedly have if the
Manassas opening were imminent-disavowals lent cre-
dence by Spitznagel's prior good bargaining relationship
with Harris. Cf. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149,
152 (1956).
However, as previously found, after the April 24 confer-
ence with Respondent, employee Andrick advised Union
Business Agent Spitznagel that "we were being moved to
Manassas and we'd like to take the local with us." While
Andrick was not sure about the date of this conversation,
its phrasing and his testimony that it occurred shortly after
the April 24 meeting lead me to conclude that it occurred
long enough before the May 15 transfer to premit mean-
ingful bargaining about the matter.43
To be sure, the record indicates not only that
Respondent's action in going ahead with its transfer plans
was in no respect based on any belief that the Union did not
want to bargain with respect to the identity to the transfer- ,
ees, but also that Respondent would not have bargained
about the matter even if asked prior to May 15. Thus, I can
see no possible reason for Harris' April 1972 concealment
of the imminent Manassas activation other than apprehen-
sion of a bargaining request if the Union learned the facts,
and a desire to forestall such a request. Further, in rejecting
the Union's July 1972 bargaining demand and ignoring its
demand in October 1972, Respondent made no claim that
the Union's bargaining demands were being dishonored
because they were too late and would or even might have
been honored if made earlier. Moreover, although on July
3 the Union claimed bargaining rights with respect to the
May transferees, Respondent failed to give the Union no-
tice about the July 10 transfers. Furthermore, the Union did
not learn about Respondent's plans until after Respondent's
action in tendering transfer offers to five individual employ-
ees had made it more difficult for the Union to seek or agree
to a different result more satisfactory to the unit as a
whole." Nevertheless, I am unclear whether a union which
was aware of but failed to protest an employer's plans be-
fore their effectuation can thereafter attack either their an-
nouncement or their effectuation as a violation of his
bargaining duty, even on the instant showing that a bargain-
ing demand would have been futile, that the employer did
not rely on the Union's silence to his detriment, and that he
announced his plans to the directly affected unit employees
before the union found out about them.45 For this reason,
43 Accordingly, I need not and do not decide whether the inclusion of
Union Steward Andnck among the employees tendered a transfer was in
itself sufficient to put the Union on notice thereof.
44 "The vice that Medo [Photo Supply Corp v. N Lk B., 321 U.S. 678]
sought to avoid was the practice of undermining the authority of the union's
bargaining representatives through direct dealings with the . . . employees
they represented. Such tactics are inherently divisive; they make negotiations
difficult and uncertain ; they subvert the cooperation necessary to sustain a
reasonable and meaningful union leadership The evil, then, is not in offering
more. It is in the offer itself." N.L.R B. v. General Electric Co., 418 F.2d 736,
755 (CA. 2, 1969), cert. denied 397 U.S 965 (1970).
45 Cf. McLoughhr4 supra, 463 F 2d at 918; U.S 'Lingerie Corp., 170 NLRB
Continued
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and because the unilateral July 1972 transfers are sufficient
to support the remedial order herein, I make no finding as
to the May 1972 transfers.
4. Whether the Union contractually waived the statutory
rights found
Respondent further contends that the current collective-
bargaining agreement waives any right the Union may
otherwise have had to compel bargaining with respect to the
Manassas servicemen as an accretion to the certified unit,46
and to compel bargaining with respect to the identity of the
servicemen to be shifted from the Laurel to the Manassas
facility. In addition to the "Certification" and "Recogni-
tion" clauses quoted supra II,A,1, Respondent relies upon
the following contract language:
ARTICLE III-MANAGEMENT OPERATIONAL RESPONSIBILITY
The Union recognizes that it is the responsibility of the
Corporation and its management to maintain disci-
pline and efficiency and agrees that the Corporation
shall have the freedom necessary to discharge its res-
ponsibility for the successful operation of the Corpora-
tion. This responsibility includes, but is by no means
limited to, the determination of the number and loca-
tion of its facilities, the selection of those with whom
it will do business, the right to hire, lay off, furlough,
discipline or discharge for just cause, the right to direct
employes in the available work, and the number of
working force shall rest solely and exclusively with the
Corporation, except as modified in this Agreement.
[Sic]. This Article does not limit or modify the rights of
the parties under any other provisions of this Agree-
ment.
ARTICLE XXVI-WAIVER
The parties acknowledge that during the negotiations
which resulted in this Agreement, each had the unlimit-
ed right and opportunity to make demands and propos-
als with respect to any subject or matter not removed
by law from the area of collective bargaining, and that
the understandings and agreements arrived at by the
parties after the exercise of the right and opportunity
are set forth in this Agreement (except to the extent
they are set forth in the Insurance and Pension Agree-
ment between the Corporation and the Union). There-
750, 751-752; Durfee's Television Cable Co., 174 NLRB 611, 614; General
Electric, supra 418 F.2d at 755; Westinghouse Electric Corp. v. N L.R.B, 440
F.2d 7, 12 (C.A. 2, 1971), cert denied 404 U.S. 853 (1971).
46 Respondent may also be making the related argument that in any event
the bargaining agreement does not extend to the Manassas facility. See infra
fn 55.
fore, except as specifically provided in this section, the
Corporation and the Union; for the life of this Agree-
ment, each voluntarily and unqualifiedly waives the
right and each agrees that the other shall not be obligat-
ed to bargain collectively with respect to any subject or
matter referred to or covered in this Agreement, or with
respect to any subjects or matters not specifically re-
ferred to or covered in this Agreement which were
discussed or could have been discussed during the neg-
otiations of this Agreement.
There is no evidence regarding the negotiations which led
up to the contract.
a. The accretion issue
An effective contractual waiver by the Union of represen-
tation rights with respect of the Manassas accretion would
appear to preclude such employees from obtaining collec-
tive representation through any union for the fife of the
contract.47 Moreover, if the instant bargaining agreement
had empowered an arbitrator to decide the accretion issue
herein, the Board would have exercised caution in deferring
to his decision even if it had been based on an interpretation
of the parties' agreement regarding the unit.48 Furthermore,
the Manassas employees herein have been found to be an
accretion to a certified unit, whose representative (the
Board has held in nonaccretion contexts) cannot bargain
away its obligation to represent all unit members.49 Assum-
ing (without deciding) that such considerations are insuffi-
cient to render nonwaivable the Union's representation of
the Manassas accretion to the Laurel unit, they indicate at
the very least that such a waiver will be found only where
it is clear and unmistakable. See Budd Company Automotive
Division, 154 NLRB 421, 422-423; N.L.R.B. v. Southern
Materials Co., 447 F.2d 15, 18 (C.A. 4,197 1); cf. infra II,C,4,
b. I find no such clear waiver here.
Thus, as indicated in Respondent's letter to the Union
dated July 21, 1972, the "Certification" and "Recognition"
clauses are geared to the certified unit, which includes the
Manassas operation; I see no reason to give the express
47 Cf Allis-Chalmers Mfg Co., 179 NLRB 1, 3, where, in honoring a
union's agreement with an employer not to seek representation for particular
employees of that employer during the term of a bargaining agreement
covering other employees of that employer, the Board pointed out that under
such an agreement the excluded employees' "options as to which unions are
available to them are merely dmumshed by one"
41 Combustion Engineering, Inc., 195 NLRB 909; Woolwich, Inc., 185
NLRB 783, 784; Revised Guidelines Issued by the General Counsel of the
National Labor Relations Board for Use of Board Regional Offices in Cases
Involving Deferral to Arbitration, May 10, 1973, Part I (F) 1, 83 LRR 41,
47; Edward B. Miller, Deferral to Arbitration-Temperance or Abstmeneei`
(remarks on May 4, 1973, before Georgia Bar Association, Atlanta, Georgia,
p. 6), cf. Champlin Petroleum Co., 201 NLRB 909; Boire v. International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America
(Pilot Freight Motor Carriers, Inc), 479 F.2d 778 (C.A. 5, 1973).
49 Westinghouse Air Brake Co, 123 NLRB 859, 859-860; Cessna Aircraft
Co., 123 NLRB 855, 857; Selzer's Super Markets of Georgui, Inc., 145 NLRB
1500. But see Wallace-Murray Corp., 192 NLRB 1090 (dismissing an
employer's petition for clarification of a certified unit, on the ground that he
was seeking exclusion of a group whom he had consciously agreed to include
in the current contract unit), Monongahela Power Co., 198 NLRB No. 177
(dismissing a union's petition for clarification of an uncertified unit, on the
ground that the union sought to add a group whom it had consciously agreed
to exclude from the current contract unit).
WESTINGHOUSE ELECTRIC CORP.
reference to Laurel more significance in the contract than
in the certification. Cf. The Rittling Corporation, 203 NLRB
No. 59. Nor can I read Respondent's contract right to de-
termine "the number and location of its facilities" as a clear
union agreement to exclude all other facilities from the unit.
See Weltronic, supra at 235, fn. 1, 236-237; Clifton Precision
Products Division, Litton Precision Products, Inc., 156 NLRB
555, 560-563. Finally, I cannot base a finding of waiver as
to the inclusion of the Manassas operation upon the con-
tract language that each party "voluntarily and unquali-
fiedly waives the right and each agrees that the other shall
not be obligated to bargain collectively with respect to any
subject or matter referred to or covered in this Agreement,
or with respect to any subjects or matters not specifically
referred to or covered in this Agreement which were dis-
cussed or could have been discussed during the negotiations of
this Agreement" (emphasis supplied). Plainly, whether to
include the Manassas operation in the unit could not have
been discussed in the precontract negotiations; for.so far as
the record shows, Respondent did not conceive of this oper-
ation until several months after the contract was executed.
The B. F. Goodrich Co., 195 NLRB 914. Nor can I conclude
that any effect this clause may have on the certification,
recognition, and "management operational responsibility"
clause is sufficient to establish the waiver which they fail
to establish standing alone. See General Electric Co. v.
N.LR.B., 414 F.2d 918, 924 (C.A. 4), cert. den. 396 U.S.
1005; Clifton Precision Products, supra, 561-563.
b. The issue relating to the identity of the servicemen to be
shifted from the Laurel to the Manassas facility
In connection with Respondent 's contention that the
Union contractually waived any right which it may have
had to bargain with respect to the identity of the servicemen
to be shifted from the Laurel to the Manassas facility, I am
unsure whether the appropriate standard is the "clear and
unmistakable language" standard articulated in Southern
Materials, supra, 447 F.2d at 18 (C.A. 4) (comparable to "the
rule of `clear and unequivocal' waiver," which-the Board
held in Radioear Corp., 199 NLRB 1161-"may be a realis-
tic appraisal of the bargain reached" in "some situa-
tions") 50 or the less stringent standard which (Radioear
held) may be appropriate "in other situations."
If the appropriate standand is Southern Materials' "clear
and unmistakable" test, I have no difficulty in concluding
that the bargaining agreement did not effectively waive the
Union's statutory right to bargain about the identity of the
employees to be transferred to Manassas . Respondent's
contractual right to determine "the number and location of
its facilities" and to "hire" employees does not in terms
encompass the right to determine the basis on which present
employees were to be given the opportunity or to be re-
quired to shift from the Laurel to the Manassas facility.
Clifton Precision Parts, supra, at 560-563. Nor would article
XXVI of the contract-the so-called "waiver" article-
point to a different result. See supra, section II ,C,4,a.
On the basis of the alternative standard referred to in
50 See also, C & C Plywood Corp., 148 NLRB 414, 416-417, approved, 385
U S. 421, 430-431 (1967); B. F Goodrich Co., 195 NLRB 914.
825
Radioear, I still reject Respondent's waiver contention. C &
C Plywood Corp., supra, 385 U.S. at 424-425, 430-431;
N.L.R.B. v. United Nuclear Corp., 381 F.2d 972, 977 (C.A.
10, 1967). The record contains no evidence regarding some
of the "varied factors" which (under Radioear) "should [be
taken] into consideration" in such "other situations"-i.e.,
other proposals advanced and accepted or rejected during
bargaining, and practices under other bargaining agree-
ments. Moreover, the sequence of events excludes the possi-
bility that the contract negotiations encompassed the
Manassas operation in terms. Further, because Respondent
concedes that the issue is not subject to compulsory arbitra-
tion under the current contract,51 to hold that the Union had
no right to compel Respondent to discuss the Union's views
at the bargaining table might lead the Union to strike in
order to compel Respondent to accede to such views,52
thereby undermining the statutory purpose of promoting
the settlement of industrial disputes through bargaining
rather than industrial warfare. Cf. Beacon Journal Pub-
lishing Co., 164 NLRB 734, 737. Such a prospect might be
rendered more likely by the Union's suspicions that the
transferees' improved wages and fringe benefits had been
given them "to stay out of the Union," and by such im-
provements' alleged "demoralizing and damaging" effects
on the Laurel employees, with alleged adverse consequences
in future negotiations.53 While the General Counsel express-
ly refused to contend that antiunion considerations in fact
motivated such improvements, the absence of such motiva-
tion would fail to obviate the threat to industrial peace of
wholly unjustified suspicions to which such unilateral action
may predictably lead. Cf. J. L Case Co. v. N.L.R.B., 321
U.S. 332, 338-339.54
5. Conclusions
Rejecting Respondent's procedural defenses, I have con-
cluded that the servicemen assigned to the Manassas facility
constitute an accretion to the certified unit, that the identity
of servicemen to be shifted from the Laurel to the Manassas
facility is a mandatory subject of collective bargaining, and
that the Union did not lose its right to bargain with respect
to the July 1972 transfers by failing timely to request such
bargaining. In addition, I have found that the Union did not
contractually waive any statutory rights relevant to such
51 The context in which the Radioear waiver standards were articulated-
namely, whether to defer to arbitration where the complaint alleged unilater-
al termination of a previously enjoyed benefit apparently not required by the
current contract, and the employer alleged a contractual waiver of the right
to compel bargaining about such termination-suggests that the second stan-
dard may be the appropriate one mostly in cases where (unlike here) the
dissute is subject to compulsory arbitration under the contract
Articles XVIE and IVA of the contract expressly permit the Union to
strike, upon exhaustion of the grievance procedure, in support of a grievance
not subject to compulsory arbitration.
53 See the Union's October 2 letter to Respondent, supra section II,A,2,d.
sa .. , . advantages to individuals may prove as disruptive of industrial
peace as disadvantages They are a fruitful way of interfering with organiza-
tion and choice of representatives; increased compensation, if individually
deserved, is often earned at the cost of breaking down some other standard
thought to be for the welfare of the group, and always creates the suspicion
of being paid at the long-range expense of the group as a whole . . . if [the
majority] collectivizes the employment bargain, individual advantages or
favors will generally in practice go in as a contribution to the collective
result."
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings.
In accordance with the foregoing findings, I conclude
that Respondent violated Section 8(a)(5) and (1) of the Act
(1) on and after July 21, 1972, by refusing to recognize the
Union as the bargaining representative of the Manassas
accretion as part of the certified unit; (2) on and after May
15, 1972, by failing and then refusing to honor the contract
with respect to the Manassas accretion; 55 (3) on and after
May 15, 1972, by improving such Manassas employees'
wages and fringe benefits, without giving the Union prior
notice and an opportunity to bargain; 56 and (4) on July 10,
1972, by transferring certain employees from the Laurel to
the Manassas facility without giving the Union prior notice
thereof and an opportunity to bargain about the basis on
which employees were to be given the opportunity or re-
quired to transfer.57
Conclusions of Law
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 1466, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees constitute an accretion to the
unit of Respondent's employees for which the Union was
55 Strong Roofing Co., 152 NLRB 9, 13, mod. 386 F.2d 929 (C.A. 9, 1967),
employer's petition for certiorari denied, 390 U.S. 920 ( 1968), modification
reversed , 393 U.S. 357. The finding does not extend to the union -security
provisions (articles VI and VII), which are unlawful in Virginia (Sec. 40.1-58
to 40.1-69, Code of 1950). However, Respondent 's failure and refusal to
honor the contract were not based on the union-security provisions , and the
contract contains a separability clause (article XXV ). See N.L.R.B. v. Tulsa
Sheet Metal Works, 367 F.2d 55, 58-59 (C.A. 10).
Particularly because the contract calls for seniority rights and a steward
within the Baltimore and Washington locations respectively (article XIV G,
article XV), and for first-step grievance procedure participation by a compa-
ny official (the branch service manager) without jurisdiction over the Manas-
sas facility (article XVI), it is arguable that the contract is inapplicable to the
Manassas employees even though the certification encompasses them. How-
ever, the contractual "Certification" and "Recognition" clauses appear to
contemplate that the certified and the contract units are to be the same, the
Union is obligated to represent the entire unit ( Westinghouse Air Brake, supra
at 859-860), and the considerations relevant to determining the coverage of
the contract unit are much the same as those relevant to determining the
scope of the certification (see e .g., Goodyear Tire, supra, 195 NLRB 767;
Rittling, supra, 203 NLRB No. 59). Accordingly , I conclude that the contract
covers the Manassas employees . In any event , assuming that the contract did
not cover them , Respondent nonetheless violated the Act by making unilater-
al changes in wages and working conditions , including those which had their
genesis in the bargaining agreement . Industrial Union of Marine and Ship-
building Workers v. N.L.R.B. (Bethlehem Steel Co.), 320 F.2d 615, 619-623
(C.A. 3, 1963), cert. denied 375 U.S. 984 (1964).
56 C & C Plywood, supra, 385 U.S. 421 (1965); Terrell Machine Co. v.
N.L.R.B., 427 F.2d 1088 , 1091 (C.A. 4, 1970), cert . denied 398 U.S. 929
(1970).
However , the record fails to show that Respondent directly dealt with the
Manassas employees in any sense other than as set forth in items 3 and 4 of
the text . More specifically, the record fails to show that , as the General
Counsel 's brief contends, the employees were told , prior to the May 1972
transfer, that they would receive a wage increase at Manassas . Accordingly,
Section 9(b) of the complaint , to any extent that it may not overlap other
portions of the complaint , is not supported by the evidence.
57 For the reasons stated supra, section II,C,3,a (second paragraph), I
would reach the result specified in item (4)-although not those specified in
items ( 1) through (3)-even if the Manassas group were not an accretion to
the certified unit.
certified as the statutory representative on April 2, 1964: All
servicemen, including senior servicemen and shop ser-
vicemen, employed by Respondent at its facility located at
Manassas, Virginia, excluding all other employees, clerical
employees, professional employees, guards, and supervisors
as defined in the Act.
4. The following employees constitute a unit appropriate
for collective bargaining within the meaning of Section 9(b)
of the Act: All servicemen, including senior servicemen and
shop servicemen, employed by Respondent ( 1) at Balti-
more-Washington, D. C., distribution center located at
Laurel, Maryland, and (2) at Respondent's facility in Ma-
nassas , Virginia; excluding all other employees, clerical em-
ployees, professional employees, guards, and supervisors as
defined in the Act.
5. Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and
(1) and 2(6) and (7) of the Act: (1) on and after July 21,
1972, by refusing to recognize the Union as the statutory
bargaining representative of the employees described in
paragraph 3 as part of the appropriate unit described in
paragraph 4; (2) on and after May 15, 1972, by failing and
then refusing to honor, as to the employees described in
paragraph 3, the collective-bargaining agreement (except
articles VI and VII, the union-security provisions) executed
by Respondent and the Union about July 1, 1970; (3) on
and after May 15, 1972, by improving the wages and fringe
benefits of the employees described in paragraph 3, without
giving the Union prior notice and an opportunity to bar-
gain ; and (4) on July 10, 1972, by transferring certain em-
ployees from the Laurel to the Manassas facility without
giving the Union prior notice thereof and an opportunity to
bargain about the basis on which employees were to be
given the opportunity or required to transfer.
THE REMEDY
Having found that Respondent has breached its duty to
bargain with the Union, I shall require Respondent to cease
and desist from such conduct and to take certain affirmative
action designed to effectuate the policies of the Act. Such
affirmative requirements shall include a requirement that
Respondent, on request by the Union, honor the contract
and give retroactive effect thereto with respect to the Ma-
nassas employees; but, in accordance with the General
Counsel's express request, this shall not require Respondent
to transfer any employees to the Laurel facility, to withdraw
any benefits from the Manassas employees which they may
have received by reason of Respondent's disregard of its
bargaining obligation, nor to honor the union-security pro-
visions with respect to the Manassas employees. While it
seems unlikely that any employees have suffered or will
suffer any monetary loss in consequence of Respondent's
failure to honor the contract with respect to the Manassas
employees, as a precautionary matter I shall require Re-
spondent to make employees whole for any such losses, with
interest as prescribed in Isis Plumbing & Heating Co., 138
NLRB 176, and (as to losses due to separation from employ-
ment) on a quarterly basis as prescribed in F. W. Woolworth
Co., 90 NLRB 289.
Upon the foregoing findings of fact and conclusions of
WESTINGHOUSE ELECTRIC CORP.
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended: 51
ORDER
Respondent Westinghouse Electric Corporation, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize International Brotherhood ,of
Electrical Workers, AFL-CIO, Local Union No. 1466,
herein called the Union, as the statutory representative of
Respondent's employees attached to its Manassas, Virginia,
facility, in the following appropriate unit: All servicemen,
including senior servicemen and shop servicemen, em-
ployed by Respondent (1) at Baltimore-Washington, D. C.
distribution center located at Laurel, Maryland, and (2) at
Respondent's facility in Manassas, Virginia; excluding all
other employees, clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.
(b) Refusing to honor, as to unit employees attached to
the Manassas facility, the collective-bargaining agreement
(except articles VI and VII, the union-security provisions)
executed by Respondent and the Union about July 1, 1970.
(c) Altering the wages, hours, working conditions, 'and
other terms and conditions of employment of the unit em-
ployees in the Manassas facility, without giving the Union
prior notice and an opportunity to bargain.
(d) Offering to transfer and transferring unit employees,
from its Laurel to its Manassas facility, without giving the
Union prior notice thereof and an opportunity to bargain
about the basis on which employees are to be given the
opportunity or required to transfer.
(e) In any like or related manner interfering with the
Union's exercise of its rights to bargain collectively, or inter-
fering with, restraining, or coercing employees in the exer-
cise of their statutory rights.
58 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , and Recommended Order herein shall, as
provided in Sec. 102A8 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.
827
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Upon the Union's request, bargain with the Union
with respect to the unit employees attached to the Manassas
facility as part of the appropriate unit.
(b) Upon the Union's request, honor the contract and
give it retroactive effect with respect to the unit employees
attached to the Manassas facility.
(c) Upon the Union's request, bargain with the Union
about the basis on which unit employees attached to the
Laurel facility are to be given the opportunity or required
to transfer to the Manassas facility.
(d) Make the unit employees whole for any loss they may
suffer or have suffered by reason of Respondent's failure to
honor the aforesaid contract as to the Manassas employees,
in the manner set forth in that part of this Decision entitled
"The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary or
useful to an analysis of the amount of backpay due under
the terms of this Order.
(f) Post at its facilities in Laurel, Maryland, and Manas-
sas, Virginia, copies of the attached notice marked "Appen-
dix." 59 Copies of said notice, on forms to be provided by
the Regional Director for Region 5, shall be posted by Re-
spondent, after being duly signed by its representative, im-
mediately upon receipt thereof, and be maintained by it fot
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
-(g) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
ss In the event the Board 's Order is enforced by a Judgment of the 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."