Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Feb 16, 1959

122 N.L.R.B. 1466 (N.L.R.B. 1959)

1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning Local 66, and has interfered with, restrained, and coerced its employees
in derogation of their rights secured by Section 7 of the Act, I shall recommend
that it cease and desist therefrom.
Having found that the Respondent on August 15, 1956, discriminatorily dis-
charged Mary Boza and has since failed to reinstate her, I shall recommend that
the Respondent be ordered to offer her immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her seniority and
other rights and privileges, and make her whole for any loss she may have suffered
because of the discrimination against her by payment of a sum of money equal to
the amount she normally would have earned as wages from the date of the dis-
crimination to the date of the offer of reinstatement, less her net earnings during
said period, with back pay computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth, 90 NLRB 289. The Respondent shall
upon request make avaiable to the Board or its agents payroll and other records
to facilitate the checking of the amount of back pay.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 66, Local 1614 and Local 810, are each labor organizations within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Mary Boza the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices in violation of
Section 8(a)(2) and (5) of the Act, as alleged in the complaint as amended.
7. The Respondent has not engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act, by refusing to reinstate the strikers as alleged
in the complaint as amended.
[Recommendations omitted from publication.]
Westinghouse Electric Corporation and International Union of
Electrical, Radio and Machine Workers , AFL-CIO. Case No.
6-CA-1162. February 16, 1959
DECISION AND ORDER
On August 11, 1958, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8(a) (5) and (1) of
the Act, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the ruling of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
122 NLRB No. 173.
WESTINGHOUSE ELECTRIC CORPORATION 1467
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and adopts the Trial Examiner's findings and conclusions
only to the extent consistent herewith.
The Trial Examiner found that under Richfield Oil 1 the Respond-
ent's employee stock purchase plan was a mandatory subject of
collective bargaining because the $6 discount which Respondent al-
lowed employees on the purchase of its stock was an "emolument of
value or wages within the meaning of the Act." He further found
that on and after April 22, 1957, the Respondent refused to bargain
about the plan in violation of Section 8(a) (5) and (1) of the Act.
In its exceptions, the Respondent contends that (1) the instant
case is not controlled by Richfield Oil because the factors upon which
the court relied in that case are absent here; (2) the IUE did not
make a request to bargain in an appropriate unit; and (3) there was
no refusal to bargain. As we find merit in the Respondent's third
contention, we find it unnecessary to consider the first two.
The Trial Examiner concluded that the Respondent violated Sec-
tion 8 (a.) (5) and (1) of the Act by (1) refusing to bargain with
the IUE as requested by it on the institution of the plan; and (2) by
putting said plan into effect for employees in units represented by
the IUE without having engaged in such bargaining. As to (1),
the Trial Examiner refused to credit certain testimony by IUE
representatives that at the various meetings with Frame, the Re-
spondent's director of labor relations, the latter categorically stated
that the plan was not subject to negotiation. He found, however,
that in view of Frame's admission that in the April 25 meeting he
told Nellis, the IUE representative, that the plan was not subject
to change "as far as the company-wide application of the plan was
concerned," the only issue left open for discussion was whether the
plan would be applied to the IUE's units notwithstanding its objec-
tions, which did not constitute bargaining as required by the Act.
He further found that, while the IUE stated at the close of the
April 25 meeting that the Respondent would hear more concerning
the IUE's views in the near future, nevertheless, in view of Re-
spondent's foreclosure of any discussion on the merits of the plan,
it would have been futile for the IUE to make any substantive pro-
posal on the plan, or any further effort after the April 25 meeting
to contact the Respondent.
Unlike the Trial Examiner, we do not construe the Respondent's
refusal to bargain about the "company-wide application of the plan"
to mean that the Respondent would not have bargained with the
IUE with respect to the units it represented, but only that it would
' Richfield Oil Corporation v. N.L.R.B., 231 F. 2d 717 (C.A., D.C., 1956).
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not bargain With the IUE on a company2vide basis.' Moreover, the
record shows that at the conclusion of the April 25 meeting the Re-
spondent stated that it was still Willing to bargain with the IUE.
Accordingly, we do not find that it would have been futile for the
TUE to have renewed its request to bargain after the April 25 meet-
ing, as it indicated it would do.3 Accordingly, We find no refusal
by the Respondent to bargain on the merits of the plan as it affected
the employees represented by the IUE, but rather a voluntary
abandonment of negotiations by the IUE at a time when the Re-
spondent vas still professing its willingness to bargain.
As to (2), the Respondent contends that, contrary to the implica-
tions of the Trial Examiner's findings, its actual institution of the
plan was not unlawful, unilateral action, citing its prior notice to,
and consultation with, the ME and the ME's final, ambiguous
statement, "make up your own idea about that, and go ahead if you
want to." We construe this statement as, in effect, acquiescence in
the institution of the plan, and find, unlike the Trial Examiner,
that the effectuation of the plan was not unlawful, unilateral action.
Accordingly, we shall dismiss the complaint herein.
[The Board dismissed the complaint.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
2 As the IUE represented only a segment of the Respondent's employees, it was under
no duty to discuss with the IUE any changes in the plan on a companywide basis.
3 While, as the Trial Examiner found, the April 25 meeting was limited to a discussion
of the IUE's position with respect to the institution of the plan, that circumstance, in
itself, is not persuasive evidence that the Respondent was opposed to discussing the
-merits of the plan at that meeting or any subsequent meeting proposed by the IUE,
particularly in view of the Respondent's assurance to the IUE at the close of the April 25
meeting that it was still willing to bargain about the plan.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by International Union of Electrical, Radio and Machine
Workers, AFL-CIO, herein called the Union, the International or the IUE, the
General Counsel of the National Labor Relations Board, herein called the General
Counsel and the Board respectively by the Regional Director for the Sixth Region
(Pittsburgh, Pennsylvania), issued a complaint dated March 11, 1958, against
Westinghouse Electric Corporation, herein called the Respondent or the Company.
The complaint alleges that Respondent on and after April 22, 1957, failed and
refused to bargain with the Union and its constituent locals as the duly certified
bargaining representatives of the employees in appropriate units (1) regarding the
particulars and institution of an "Employee Stock Plan"; (2) by failing to afford
the Union and its locals adequate opportunity to bargain with Respondent on said
plan as it affected the employees in said units; and (3) by unilaterally announcing
and putting said plan into effect on May 13, 1957. The answer denies any viola-
tion of law.
On April 7 to 9 a hearing was held on the matter before the duly designated
Trial Examiner. All parties appeared by counsel and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce rele-
vant and competent evidence. Oral argument was waived but briefs were filed by
the General Counsel, the Respondent, and the Union.
WESTINGHOUSE ELECTRIC CORPORATION 1469
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is a Pennsylvania corporation engaged in the manufacture and dis-
tribution of electrical appliances and products in Pittsburgh , Pennsylvania, and
plants in various places throughout the United States. During the calendar year
1957, which period is representative of all times material hereto, the Respondent
in the course and conduct of its business operations purchased raw and other mate-
rials of a value in excess of $10,000,000 , of which in excess of $ 10,000,000 was
caused to be shipped in interstate commerce to various plants of the Respondent
from points outside those States in which said plants are situated . During the
calendar year 1957, which period is representative of all times material hereto, the
Respondent manufactured , sold, and shipped in interstate commerce from its vari-
ous plants throughout the United States to points outside the States of manufacture,
finished products of a value in excess of $ 10,000,000 . Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The International Union of Electrical, Radio and Machine Workers, AFL-CIO,
and its Locals Nos. 111, 130, 202, 219, 239, 302, 315, 401, 410, 412, 426, 449,
456, 486, 491, 601, 617, 627, 670, 711, 714, 724, 746, 760, 777, 906, 1502, and
1581 are labor organizations within the meaning of Section 2(5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
In April 1957 Respondent had approximately 127,000 employees , about 94,000
of whom were represented by labor organizations in 268 collective -bargaining
units. Thirty-nine of these bargaining units were represented by the IUE and cov-
ered some 39,000 or more employees .' Other unions representing large numbers
of employees were the Federation of Westinghouse Salaried Employees ( herein
called the Federation ) which represented about 16,000 , the International Brother-
hood of Electrical Workers (herein called the 1BEW ) which represented about
12,000 ; and the United Electrical , Radio and Machine Workers (herein called
the UE ) which represented about 8,000.
Beginning about 1948 , the Company instituted a stock purchase plan enabling
employees to acquire common stock in the Company at a reduced price. Partici-
pation in the plan was voluntary. Other than making the stock available at a
discount, the Company made no contribution to the purchase price nor did it con-
dition the distribution of the accumulated stock or cash in an employee 's account
on continued employment , length of service, or age . This plan was in effect until
1955. Under it, employees purchased over a million shares of the Company's
stock. When the plan terminated the employees were notified by letter that the
Company would consider reinstating the plan in the future . In the several years
during which the plan was in effect none of the unions representing Respondent's
employees ever discussed the plan or requested bargaining on it.
On April 8, 1957 ,2 Robert Nellis , chairman of the Westinghouse Conference
Board (an employee organization composed of representatives from various IUE
units in Respondent 's plants) and a member of the Union 's negotiating committee
which is made up of members of the Conference Board, wrote to Clark Frame,
Respondent 's director of labor relations , requesting a meeting with the Company
for the purpose of discussing certain specified problems the Union was having with
the existing pension and insurance programs in effect between the Company and
the Union . On April 15 Nellis sent Frame another letter proposing an addition
to the agenda of the meeting which was set for April 22. On April 18, Frame
informed the Union by telephone of his desire to place on the agenda of the
April 22 meeting a proposal for an employee stock purchase plan. This call was
I The units constitute appropriate units for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act. The International and/or all of the constituent
Locals set forth in section II hereof , having been duly designated and selected by a
majority of Respondent ' s employees in each of the above-described units and having been
duly certified for such units, now are and at all times material have been the exclusive
bargaining representative of the said employees in each of the said units within the
meaning of Section 9(a) of the Act.
2 All dates are in 1957 unless otherwise noted.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken by Ellis Hockenberry, secretary of the Conference Board and also a mem-
ber of the Union's negotiating committee who agreed that the subject be added to
the agenda.
At the meeting on April 22 the Union was represented by Nellis, Hockenberry,
and Joseph Swire, an IUE pension and insurance specialist; the Company by
Frame, Kenneth Smith, and George Nicholson, both assistant directors of labor
relations, Tom Berthram, staff supervisor of labor relations, and Neil Anderson,
the Company's administrator of pension and insurance plans. After discussing the
pension and insurance matters, the subject placed on the agenda by the Company
was taken up. There is some conflict in the versions of each side as to what
transpired at this conference. For this reason I shall summarize the testimony of
both sides in some detail.
Nellis' testimony, largely corroborated by Hockenberry's, was as follows: Frame
opened the discussion by saying that "the company was going to initiate a new
stock purchase plan for the employees." He pointed out that the plan was similar
to a previous plan the Company had in effect between 1950 and 1955 and appar-
ently had in hand a copy of the prospectus of the old plan.3 The differences in
the new plan, he said, involved the minimum and maximum prices of the stock
and the coverage of some minor officials of the Company who would not be able
to participate in the new plan but had been included under the old.
Frame went on to say that Respondent's board of directors was meeting "next
Wednesday" (April 22 was Monday) and it was hoped the board's approval of
the plan would be secured at that time. It was then planned to get the approval
of the Securities and Exchange Commission so as to be able to have the first 6
months of the plan start June 1. This would require those employees desiring to
participate in the first 6 months of the plan to subscribe to it by May 24. Frame
pointed out that the Company had hired many new employees since the old plan
had been discontinued and that there were some new Westinghouse plants. He
explained that under the old plan about a million shares of stock had been sold
to about 35,000 employees who still retained about half the shares purchased.
Nellis asked Frame if the Company could discontinue the plan at its discretion
and was informed that it could. He also asked "if the plan was (a) subject for
negotiations." Frame replied that "the plan was not a subject of negotiations and
that he believed that the IUE had waived their rights to bargain on the plan" by
reason of the existing contract between the Company and the Union. Frame also
stated that the reason the Company had brought the matter up at this meeting
was "to inform the union as to what the company was going to do." During a
recess Nellis told Frame he "thought it would be much better if the company
would make the plan a subject of negotiations" so that by an agreement on the
plan "the union would more or less be in a position of sponsoring the plan" which
would assure wider participation by employees in IUE units. Frame's rejoinder
was "that the plan was not a subject for negotiations." The meeting ended with
Nellis' statement that "the union would give the company the union's thinking
before next Wednesday.. . " Both Nellis and Hockenberry denied ever receiving
a copy of the proposed plan or of being offered one by the Company.
Frame's testimony largely corroborated by Smith's and Nicholson's as it con-
flicts with or augments Nellis' is as follows: He generally heads the company's
"negotiating team". and is the "chief or main contact" between the Company and
the various unions representing* -Respondent's employees. He first -learned that
management was about to propose an employee stock purchase plan to the board
of directors on April 17 or 18. He thereupon "tried to formulate some plans as
to informing the various unions" of the matter since he "had some responsibilities
as to seeing it was properly announced." Among other acts in this connection was
his call to Hockenberry on the 18th in which he specifically mentioned the "rein-
stitution" of the employee stock purchase plan.
At the. meeting of April 22 .after discussion of the matters on the original agenda
(some of which called for a change in the basic pension and insurance agreements
and one involving a change in the national agreement between the Company and
the Union) Frame brought up the subject of the "reinstitution" of the stock pur-
chase plan. He mentioned several reasons why the Company felt the time propi-
tious for "reinstitution of the plan." He stated that the Company was "sorry there
was such a short notice involved" andspecificaliv mentioned that "the board of
directors were meeting on Wednesday, April 24th" to consider management's pro-
posal to reinstate the plan. He pointed out that if the board approved the, plan
3 Nellis' testimony was that "Air. Frame said that. he was looking at a booklet or a
book which was a copy of the old prospectus'.
WESTINGHOUSE ELECTRIC CORPORATION 1471
at the scheduled meeting and the SEC acted as expected, applications for partici-
pation could be accepted from the employees between May 13 and 24 with pay-
roll deductions beginning June 1. He further explained the operation of the plan 4
and stated that the Company desired to issue the stock in December to avoid the
year-end rush in the accounting department. He also told the union representa-
tives that he was "sure they would like to have a copy of the plan" but that since
the decision to place the plan before the board of directors had only been made
within the past few days the prospectus was not yet available. However, because
he thought the Union would want something in writing he had with him "several
copies of the plan which had been in effect prior to 1955" two of which were
given to the Union at that time.5 These, since there were no significant changes
in the new plan, would adequately serve to apprise the Union of its current
features.
Nellis asked whether or not the Company considered the plan a matter of col-
lective bargaining. Frame replied that he had had no legal opinion on the ques-
tion and consequently was not "prepared to take a position, but from a very
practical point of view [the Company] had a relationship to build and uphold, and
... was discussing it with [the Union], regardless of whether it was a matter of
negotiations or not a matter of negotiations; that [Frame] felt it was more impor-
tant to sit down and review the matter with [the Union] and try and make certain
that they understand what [management] [was] considering, without any technical
point of view." Nellis also asked whether or not the Company would proceed
with the plan regardless of objections from the Union. Frame replied that if
there were "any substantial objection on the part of the 1UE" the Company would
at that point decide whether or not to "proceed with the plan as regards the em-
ployees represented by the IUE." Frame further commented that "in any event,
although it was a company-wide plan, that there were provisions that it needn't be
applied that way," and that the Company would put it into effect in the "non-
bargaining areas" and in the union represented areas where "there were no sub-
stantial objections" to it.
Just before the meeting terminated, the Union asked for a caucus. During the
caucus period Nellis and Frame had a short conversation in the hall. Nellis
asked if the Company "would consider a joint announcement of the plan," Frame
replied that while the Company would appreciate a separate statement by the
Union in support of the plan, since it was companywide and there were other
unions involved, a joint announcement by the IUE would not be appropriate. The
meeting closed with Frame's statement that he would appreciate hearing from the
Union "in the next few days, inasmuch as the Board was meeting on the 24th of
April" and the Company "would like to know of any feeling [the Union] had be-
fore that time."
Immediately upon leaving the meeting Nellis took steps to inform his union
associates of the Company's plan and to poll them on their opinion as to whether
it was a matter for collective bargaining.
4In reply to a question "as to what the financial arrangements might be as far as the
employees were concerned" he told them that the minimum and maximum prices and the
"back-off or amount below the market price which the employees would pay" would all
be identical with those of the previous plan and that the plan would be identical in every
way with the previous plan as it affected the employees except that certain assistant
.officers of the Company could now participate who were not eligible under the previous
'flan.
In brief the plan, which is purely voluntary and open to employees only, provides that
payroll reductions within certain ranges will be made for 6-month periods with stock to
be purchased on behalf of the employee in accordance with the amount accumulated
under his deductions at $6 per share less than the average market price for the first
20 days in November, the maximum price. to be no more than $70 nor no less than $46.
The only condition to participation is a continued employment status. In addition to
the $6 back-off differential given to the employees by the plan, it also provides that the
Company will absorb the income tax accruing on the differential since it is deemed to be
income and taxable as such to the employee. By its terms the plan is. terminable and
changeable by the Company at its discretion.
G As to exactly how the proffer was made Frame testified, "I believe that I put them
both on the table, in the center of the table, and pushed one towards Mr. Nellis, and one
towards Mr. Hockenberry." Frame was then asked if the prospectus was discussed and if
the "Union" picked "it up," to which he replied, "The union picked it up. It was
thumbed through, but there was no extended discussion of the prospectus."
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two days later , on April 24 , according to the General Counsel 's evidence,
Frame called Hockenberry to find out what the Union "had done about the stock
purchase plan." Hockenberry informed Nellis that it was his understanding that
the Wednesday referred to by Frame in the April 22 meeting was May 1-Frame
denied this , saying that it was April 24. This information was relayed to Nellis
who directed Hockenberry to draft a telegram and send it to the Company after
getting approval of the Union 's general counsel . Pursuant to this instruction the
following telegram was sent to the Company.
C. C. FRAME, DIRECTOR OF LABOR RELATIONS , W. E. CORP ON
MONDAY, APRIL 22ND, 1957, A SMALL COMMITTEE OF THE IUE-
WESTINGHOUSE CONFERENCE BOARD MET WITH YOU AND
OTHER REPRESENTATIVES OF WESTINGHOUSE TO DISCUSS SOME
PENSION AND INSURANCE MATTERS. AT THAT MEETING YOU
PRESENTED A PROPOSAL WHEREBY EMPLOYEES OF WESTING-
HOUSE COULD PURCHASE STOCK OF THE CORPORATION. YOU
HAD INFORMED US ORALLY ON APRIL 18 THAT YOU INTENDED
TO PRESENT SUCH A PROPOSAL ON APRIL 22ND. YOU ADVISED
MR. HOCKENBERRY THAT THE ONLY MATTER OPEN FOR NEGO-
TIATIONS WAS WHETHER OR NOT IEU WOULD ACCEPT THE
PLAN. YOU STATED THAT A REPLY FROM IEU WAS REQUIRED
ON OR BEFORE WEDNESDAY , APRIL 24, 1957 THE DATE ON
WHICH THE WESTINGHOUSE BOARD OF DIRECTORS WAS SCHED-
ULED TO MEET.
THIS TELEGRAM IS TO CONFIRM THE POSITION OF THE OFFI-
CERS OF THE IUE WESTINGHOUSE CONFERENCE BOARD WHICH
WAS CONVEYED TO YOU ORALLY TODAY BY MR HOCKENBERRY
AS FOLLOWS.
FIRST, THE COMMITTEE TO WHICH YOU PRESENTED THE PLAN
WAS NOT AUTHORIZED TO CONCLUDE AN AGREEMENT WITH
YOU CONCERNING A STOCK PURCHASE PLAN. THIS COMMIT-
TEE IS NOT NOW AUTHORIZED, THEREFORE , EITHER TO ACCEPT
OR REJECT YOUR PROPOSAL.
SECOND , WHEN WESTINGHOUSE SUBMITTED ITS PLAN TO THIS
COMMITTEE ON A TAKE IT OR LEAVE IT BASIS, AND ALLOWED
ONLY TWO DAYS FOR A REPLY, IT FAILED TO BARGAIN IN GOOD
FAITH. WESTINGHOUSE OFFICIALS HAD AMPLE NOTICE OF THE
FACT THAT THIS PLAN WAS TO BE ACTED UPON BY THE WEST-
INGHOUSE BOARD OF DIRECTORS ON THIS DATE. GOOD FAITH
ON YOUR PART REQUIRED, AMONG OTHER THINGS, THAT YOU
GIVE US SUBSTANTIALLY MORE NOTICE OF YOUR DESIRE TO
DISCUSS THIS MATTER THAN YOU DID, AND THAT YOU ALLOW
SUBSTANTIALLY MORE TIME FOR NEGOTIATION AND DISCUS-
SION OF THE PLAN THAN YOU DID.
WE DEMAND THAT WESTINGHOUSE WITHDRAW ITS ULTIMA-
TUM AND BARGAIN IN GOOD FAITH WITH IEU-AFL-CIO ABOUT
ITS PROPOSED STOCK PURCHASE PLAN. WE ARE PREPARED TO
MEET WITH YOU WITHOUT DELAY FOR SUCH BARGAINING.
IEU WESTINGHOUSE CONFERENCE BOARD , ROBERT NELLIS,
CHAIRMAN , ELLIS HOCKENBERRY , SECY.
On the same date the Company replied by wire as follows:
ROBERT NELLIS
PE 106090 OR SY 3-4081
706-8 SHIELDS BLDG 822 WOOD ST
YOUR TELEGRAM OF TODAY CONTAINS A NUMBER OF INACCU-
RATE STATEMENTS OF OUR POSITION . RATHER THAN TRY TO
COVER THESE POINTS BY TELEGRAM WE WILL BE WILLING TO
MEET WITH YOU TOMORROW TO FURTHER DISCUSS THIS
MATTER.
C C FRAME
DIRECTOR LABOR
RELATIONS WESTINGHOUSE
ELEC CORP
BD/SG
CFN FURNISHED
GATEWAY # 3 PGH 30
WESTINGHOUSE ELECTRIC CORPORATION 1473
On the same date in addition to this exchange of wires, a meeting was arranged
over the telephone between the Company and the Union for the following day.
The meeting began at 10 a.m. with Nellis and Hockenberry representing the
Union and Frame, Nicholson, and Sam Lemon, a staff supervisor, representing
the Company.
According to Nellis' testimony Frame referred to the use of the word "proposal"
in the-Union's telegram and "said that he wanted to make it clear on April 22nd
he had not given the union a formal proposal . . . that he only wanted to inform
the union of what the company was intending to do." He also referred to the
Union's use of the word "negotiate" and said that the matter was not a subject
for negotiation and that "he didn't require the IUE to agree or disagree to the
employees' stock purchase plan." Frame also stated "that the IBEW, the UE and
the Federation of Salaried Employees had not objected to the employee stock
purchase plan, and that the company's machinery was in motion."
On his part, Nellis "complained about the short notice period that the IUE was
given to consider the employee stock purchase plan" pointing out that even if the
period had been to May 1, it would have been disappointingly short but that when
it turned out to be "two days it was just inconceivable that [the Union] could
possibly have sufficient time to even give it proper consideration." To this, Frame
reiterated the Company's reason for haste, going again into some of the details of
the plan which he described again as being similar to the former plan.
Nellis asked Frame "if the company was willing to meet further on the matter."
Frame replied that the Company was willing. Nellis also asked "if the company
was willing to make the plan a subject of negotiations" to which Frame replied
in the negative. Frame further "said the company was unwilling to make the
plan a subject of negotiations since the company did not want to liberalize the
maximum and minimum figure or the six-dollar differential" and that it did not
want to be bound by contract since it wanted to be in the position to discontinue
the plan if the Company was losing money. Nellis asked if the Company was
going to put the plan into effect in IUE units without bargaining. Frame an-
swered by saying that "if the IUE did not object to the plan the company would
put the plan into effect in the units covered by the IUE. He said `if the IUE just
objects to the plan the company will probably put the plan into effect in the units
covered by the IUE.' He said, `if the IUE strenuously rejects the plan [he did not]
know what the company's policy will be on that.' " He also said the Company
was definitely going to put the plan into effect in units other than those covered
by the IUE and further indicated that none of those units had objected to the
plans
Nellis told Frame "that the IUE was willing to negotiate" and wanted to nego-
tiate but that "a meeting of the type that he suggested, wihout it being a subject
of collective bargaining , and his having a take-it-or-leave-it attitude, would be a
little useless; . that it would be silly . to get . . . employees of the Interna-
tional Union who would be familiar with the stock purchase plan into the City of
Pittsburgh and also [the union's negotiating] committee from various cities through-
out the United States into Pittsburgh to have the company say `Here is a plan.
Take it or leave it.' " Nellis added that the Union would meet "immediately"
with the Company in any city in the country with its committee and "the proper
people" if Frame "would make the plan a subject of negotiations." Nellis also
asked Frame "if the company was going to publicize the employee stock purchase
plan before bargaining it with the IUE" Frame indicated that the first publicity
would probably go out about May 13 and "that the company was then in the
process of informing all of the supervisors in all of the locations, including IUE
locations, the details of the employees' stock purchase plan."
Towards the end of the meeting Nellis again asked Frame "if the company
would make the plan a subject of negotiations." Frame "explained that the plan
was not a subject of negotiations" and indicated that he felt the Union had waived
its right to bargain by reason of the contract between the Company and the
Union. At this point Frame "point blank" asked the union representatives "if the
company could put the employee stock purchase plan into effect in the units cov-
ered by the TUE." To this inquiry Nellis replied that neither he nor Hockenberry
was in a position to either accept or reject the plan; that Frame was familiar with
the Union's bargaining "mechanics" and that the Union was willing to meet the
9 According to Respondent's evidence, received over objections, the IBEW and the UE
took a position that they would neither approve nor object to the plan. The Federation
was in favor of the plan.
505395-59-vol. 122-94
1474 DECISIONS OF NATIONAL _ LABOR. RELATIONS BOARD
Company with its committee "to discuss the plan if he would make it a subject
of collective bargaining." At the close of the meeting Nellis told Frame that "the
company would hear more of the union's views in the near future."
According to Frame's direct testimony he told the union representatives at the
April 25 meeting that he "felt there was a misunderstanding when the union be-
lieved that [the Company] had placed [the plan] on a take-it-or-leave-it basis" or
that the Company had not meant its plan was on a take-it-or-leave-it basis on
both of which statements there was "some discussion" 7 and "that, if it made it any
easier from the union's standpoint," the thing the Company was interested in was
whether or not the Union "had a substantial objection" to the reinstitution of the
plan. After telling of the other bargaining agents' reaction to the plan, Frame
asked Nellis "if he .was. prepared to state whether or not he had any substantial
objections to the plan, the reinstitution of the plan." Nellis replied - that "he
wasn't yet ready, in a position that he could say anything about whether the plan
was acceptable to the IUE or not." Frame then asked, "Well, how do you feel
about it if we go ahead?" Nellis replied, "Well, you will have to make up your
own idea about that, and go ahead, if you want to." Nellis then asked Frame
if the Company was "going ahead with the plan for the other unions." Frame
replied that in view of the discussions with the other Unions, the Company was
"going to go ahead with the plan for the nonrepresented and other union groups."
Realizing at the. close . of the;.meeting that there were some matters that perhaps
each side did not understand as to the other side's position Frame-stated, "Now,
I want you to know we are not refusing to bargain over this question."
It further appears from Frame's testimony; that there was no question in his
mind that Nellis considered the plan to be a bargainable issue; that when he met
with the Union on April 25 he had no advice and had sought none as to whether
the plan was a bargainable issue; that he had sought no such advice because he
thought he "had but one problem and that was whether or not the Union had a
strong objection" to the reinstitution of the plan. He further testified that not-
withstanding his having told Nellis he was willing to meet again with the Union
on the matter, he also ". . . told Mr. Nellis that as far as the company-wide
application of the plan was concerned it was not subject to change." Elsewhere
in his testimony he claims to have told Nellis that the plan was not open for
amendment "to the group aside from the IUE. . I believe the first version
more accurately reflects what he actually-said. He also testified-that ``strenuous"
objections from the Union regarding the reinstitution of the plan would probably
not have resulted in any changes in the plan on a national basis and so informed
the Union in the April 25 meeting. He further testified that the company repre-
sentatives "discuss with the union lots of questions on matters which do not neces-
sarily mean we consider the matters in negotiation."
On or about May 13 the Company circularized its employees, including those
employees in units represented by the IUE, about the plan, giving them until
May 24, to enroll in the first offering and enclosing election-to-buy forms and
copies of the prospectuses. The next the Company heard from the Union about
the matter was when the Union filed its unfair labor practice charges with the
Board.8 In addition to the foregoing testimony, Frame denied that at any time
had the Company received a demand from the Union to bargain about the plan
and further .denied, that ' he or any member of his committee had ever said that
the Company.-would'. not bargain on the' plan.
Defenses
In defense against the allegations of the complaint, Respondent makes two con-
tentions (a) that the employee stock purchase plan as put into effect by Westing-
house is not a mandatory subject of collective bargaining under the Act; and (b)
that even if it is such a subject, the evidence shows that Respondent did not
refuse to bargain. I believe Respondent is in error on both contentions.
First, let us examine the question of bargaining. The General Counsel relies
chiefly on Richfield Oil Corporation, 110 NLRB 356, in which the Board held that
an employee stock purchase plan was a bargainable matter. In that case the evi-
dence revealed the following facts as to the pertinent provisions of the plan:
Employees were permitted to invest a portion of their regular pay up to 5 per-
cent of their monthly salary to he matched by a contribution from the Company
in the purchase of the Company' s common stock.. The Company' s ' . contribution
I ft does not appear from Frame's testimony just what was said in, this discussion.
g The charges were filed July 19, 1957.
WESTINGHOUSE ELECTRIC CORPORATION 1475
ranged from 50 to 75 percent of the amount invested by the employee depending
on the profit position of the Company. All employee investments and company
contributions were to be turned over to a trustee and credited to separate accounts
both maintained under the participating employee's name. All funds thus accumu-
lated were to be used by the trustee in the purchase of company stock on behalf
of the employee. Participation in the plan was voluntary and restricted to em-
ployees between 30 and 65 years of age with 1 or more years of service with the
Company. At no time during his participation in the plan could an employee sell
or otherwise enjoy the benefits of the stock or money credited to his account.
Only upon termination of his service with the Company did a distribution to the
employee occur. A terminated employee at age 55 if he had 10 or more years
of service with the Company, would get the full amount of stock and cash cred-
ited to his account. Provision was also made for a full payment in connection
with death or permanent disability. A participating employee leaving his employ-
ment before reaching age 55 would receive less than the full amount of the Com-
pany's contribution on his behalf, the amount varying in proportion to the number
of years he had been with the Company. If he had been employed by the Com-
Tany for less than 5 years, he would receive only the shares purchased with his
own contributions, but would receive no part of the Company's contribution. Par-
ticipation in the plan was voluntary. The Company's purpose in establishing the
.plan was "to foster a closer and continuing association" between the Company
.and its employees.
On these facts the Board held (and was sustained by the court, 231 F. 2d 717
(C.A., D.C.), cert. denied, 351 U.S. 909) that the Company's contributions were
-an emolument of value" to the employees which "flowed from the employment
relationship" and therefore were "wages" within the meaning of Sections 9(a) and
.8(d) of the Act and thus subject to the bargaining requirement of Section 8(a)
(5). The Board further held with the court's approval that the plan also came
within the term "other conditions of employment" and for that additional reason
was a proper subject of collective bargaining under the Act.
Respondent contends that the $6-a-share "backoff" in its plan is not wages within
The meaning of the Act. "This is not money which the Company has and pays to
,employees,": Respondent says, "it is simply a sale by the Company at a predeter-
mined price which is probably, but not necessarily lower than the price on the oppen
market at the moment of sale." Pointing also to the many features of the Richfield
plan (absent in its own plan) which were relied on by the Board and the court in
'finding it to be also a condition of employment, Respondent contends its plan is
not controlled by the Richfield case in that respect and that it does not involve a
condition of employment within the meaning of the Act.
Whether or not there is merit in the latter contention I find it unnecessary to
decide since it seems obvious to me that the $6 "backoff" is an emolument of value
,and thus wages within the meaning of the Act as found in Richfield Oil. That it
"is not money which the Company has and pays to employees" begs the question.
It is a discount 9 given to the employees on the purchase of its stock which can
range from approximately 8 to 13 percent of the market price and is no less
valuable to the employees whether it comes from the Company's cash reserves
,or other assets.
Another contention by.,Respondent as to why its plan is not a bargainable sub-
ject is, if I understand it rightly, that the Securities Act of -1933 as amended 10
as a matter of law prevents any bargaining about the plan prior to the filing of
a registration statement with the Securities and Exchange Commission. Respond-
ent's brief states, "when a company determines to make an offering of shares to
its employees under a share purchase plan, it would not be free,. prior to filing a
registration statement, to discuss the merits of the securities or the terms of the
offering with union representatives as agents of the employee offerees because
such negotiations looking toward an ultimate sale are a part of the offering prog-
ress." Respondent takes too broad a view of the "offering process." To say.that
representations made by the Company in bargaining negotiations about a proposed
6 That it is viewed by the Company and meant to be a discount is shown in a letter by
the Company ' s president , Gwilym A. Price , to the employees regarding the previous plan
in which he refers to their "opportunity to buy shares at a discount through payroll
'deductions ." It was also referred to as a discount by Smith in his testimony.
i°'Approved May 27 , 1933, 15 U.S . C., ch. 2A , amended by , Securities Exchange Act of
1934 , approved June 6 , 1934, 15 U . S.C., ch. 23 , and by 1954 Securities Exchange Act
Amendments , approved August 10, 1954.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee stock purchase plan would be considered the same as illegal representa-
tions made for the purpose of inducing a purchase of stock is absurd. I can find
nothing in the Securities Act as amended nor in S.E.C. v. Starmont, 31 F. Supp.
264, cited by Respondent, to require such a conclusion. Accordingly, this con-
tention, as well as the others by Respondent that the plan is not a bargainable
subject under the Act is rejected. I find it to be a mandatory subject for collective
bargaining within the meaning of the Act.
We turn now to the Company's alternative contention that in any event it did
not refuse to bargain. Pointing to the long unchallenged operation of the previous
plan and the current need for speed, the Company impugns the Union's good faith
in this matter. It claims that the IUE representatives were not interested in any
plan or "practical disposition of the immediate problem"; that by refusing to say
whether or not they were opposed to the plan they were playing "technical hide
and go seek" with the Company and "were more interested in springing the tech-
nical trap that they thought they had created than in any genuine discussion of
the details of the plan"; that under these circumstances the Company's action was
not a refusal to bargain.
Turning to more "technical considerations" the Company also contends that
there was no "genuine union request to bargain"; that the Union made no pro-
posals; that the Union's representatives deliberately avoided getting authority to
bargain; and that (by inference if not specifically claimed) the two meetings satis-
fied all requests for bargaining by the Union and that the Company was awaiting
word from the Union (pursuant to its parting statement at the meeting of April 25
that the Company would hear more from the Union in the near future) as to
future meeting.
Before weighing these contentions it is of course necessary to resolve any mate-
rial conflicts in the evidence. The most important of these are the oft repeated
statements attributed to the Company that the plan was not a subject of negotia-
tion and that it would not bargain thereon. For a number of reasons I do not
believe the company representatives made any such categorical assertions. While
I am reluctant to resolve credibility on the basis of what would appear logical or
on how I believe someone should have reacted, the facts is that here I have diffi-
culty in believing that a man of Frame's experience and position would have made
the statements attributed to him." It is clearly apparent and I find that the
General Counsel's witnesses were mistaken in their recollection of what Frame
told them about the details of the new plan. I also find more convincing the
Company's testimony as to having given the union representatives copies of the
plan's prospectus in the April 22 meeting. It seems quite likely, as suggested in
the company brief, that the union representatives really did not pay too much
attention to Frame's statements in these meetings since the substance of them was
a matter beyond their authority. In this light it is also possible that their testi-
mony as to what Frame said on those two occasions regarding negotiability of
the plan and the Company's willingness to negotiate reflects their interpretation
of what Frame said rather than the actual words spoken by him. I suspect that
what really happened was that Nellis repeatedly insisted that the Company was
unwilling to bargain on the plan itself and that Frame repeatedly denied this
reiterating his willingness to "meet" and "discuss" the matter further but at the
same time taking the position that the plan itself was not subject to change.
Nevertheless, even though I substantially accept the Respondent's version of this
matter I still find that the evidence shows a refusal to bargain. I believe that the
following statement in the Union's telegram to the Company states a fact and
epitomizes the entire case:
When Westinghouse submitted its plan to [the Unions on a take it or leave
it basis, and allowed only two days for a reply, it failed to bargain in good
faith.
In my opinion that is what the Company's conduct amounted to and I see
nothing in events subsequent to the wire to change this conclusion.
The Company insists that it was not presenting its plan to the Union on a
"take-it or leave-it basis." The effect of the Company's attitude and action it
n From 1943 to 1931 Frame was staff supervisor of industrial relations at the Pitts-
burgh headquarters of the Company. From 1951 to 1952 he was manager of industrial
relations of the East Pittsburgh Division of Westinghouse. Since 1952 Frame has been
director of labor relations for the Company.
WESTINGHOUSE ELECTRIC CORPORATION 1477
seems to me was just that. No matter what words were used by the Company
to the Union in its discussions, on the witness stand in its testimony, or in its
brief, it is quite clear that what the Company wanted was either acceptance or
rejection of the plan.12 The Company's position is that any serious objection on
the part of the IUE would have been given "consideration." But it appears that
in view of Frame's admission that in the April 25 meeting he "told Mr. Nellis
that as far as the company-wide application of the plan was concerned it was not
subject to change," the only kind of consideration the Union could expect was
whether or not the plan would be applied to the IUE units notwithstanding the
Union's objections.13 The only bargaining thus possible for the Union was on
whether or not the plan was to be applied to the units it represented-not on the
plan itself. And even this possibility was highly conjectural in view of the Com-
pany's position that it had not decided whether the plan was bargainable in any
respect.
The Company accuses the Union of being interested only in springing a techni-
cal trap. There may be a suspicion of this but the equities in this respect are not
one sided by any means. The Company, it seems to me, was offering the Union
a "Hobson's choice." By rejecting the plan the Union ran a chance of antago-
nizing its members if for that reason they were excluded from its operation. By
accepting it without bargaining on its merits the Union also ran a chance of being
criticized for failing to adequately protect the interests of those it represented.
Moreover, the Company's self-imposed timetable could easily have been viewed by
the Union as an unreasonable squeeze designed to slip the whole matter past the
Union without adequate consideration so as to avoid collective bargaining on it.
As the Union points out in its brief, there is no reason why the Company could
not have avoided the "administrative difficulties" of year-end accounting by choos-
ing August or November to start its plan. The good-faith concern of the Union
with the Company's proposal, it seems to me, is demonstrated by the Union's
attempt to get the Company to make a joint announcement of the plan. Obvi-
ously (whether wisely or unwisely) the Union was concerned as to what effect the
Company's plan would have on the Union's status as the bargaining representative
of a substantial number of Respondent's employees if the plan were to be put into
effect unilaterally.
Considering all the foregoing and the record as a whole it seems to me that the
practical and "nontechnical" arguments made in Respondent's brief, although very
ably presented, do not state a valid defense herein.
As for the "more technical considerations" alluded to in Respondent's brief, I
have no difficulty in finding that they, too, fall short of an adequate defense.
Thus I find that the request to bargain was clearly stated in the Union's telegram
and constituted a valid and intelligible request. I further find (in accordance with
the General Counsel's testimony and contrary to the Respondent's denial thereof)
that the request to bargain was repeated orally at the April 25 meeting if not in
so many words, certainly by clear implication.14 See Scott & Scott, 113 NLRB 911,
'930 enfd. 245 F. 2d 926 (C.A. 9). I also find that the meeting and discussion of
April 25 being confined as it was to an attempt on the part of the Company to get
12Frame testified that when he asked Nellis if he had any "substantial objections" to
the plan, the latter replied "No, I am not saying that. I am just flatly not prepared . . .
to take a position of either accepting it or rejecting it." Frame's rejoinder was "Well,
how do you feel about it if we go ahead?"
At another point Frame testified that in reply to Nellis' question whether the Company
was going to apply the plan to employees outside the IUE unit, he told Nellis that they
were but did not say anything about applying them in IUE units because Nellis "still
hadn't taken a position of acceptance or rejection or, let's say, of objecting to . . . I don't
mean rejection, excuse me. The terms are mixed up. But he had not yet taken a position
of objecting to the reinstitution of the plan." (Emphasis supplied.)
13 The conclusion is further supported by the fact that the resolution of the board of
directors on April 24 provided that the Company could make "such changes in the classes
of eligible employees . . . deemed advisable as a result of any action by any bargaining
11representative of the employees of the Corporation. . . .
14 Significant in this connection is Frame's statement at the close of the April 25 meeting
that he wanted the Union to know that the Company was "not refusing to bargain over
this question." In any event, whether or not the request was repeated at that ime is
really unimporant as regards the Company's continuing obligation to bargain on the plan
since the Union's telegraphic request was never compiled with by the Company.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union to take only the ultimate action of accepting or rejecting the plan in tote
was not bargaining as required by the Act.
Nor is it any defense that the Union's representatives also made it clear that they
were in no position to either accept or reject the plan.15 Having also found that the
Company's position throughout indicated only a willingness to discuss acceptance or
rejection of the plan, the Union's failure to make any substantive proposal on the
plan or any further effort after the April 25 meeting to contact the Company about
the matter, notwithstanding its promise to do so, would have been futile and in no
way diminished the Union's right to have the Company bargain with it about the
plan and the Company's responsibility to do so. Tower Hosiery Mills, Inc., 81
NLRB 658, enfd. 180 F. 2d 701 (C.A. 4), cert. denied 340 U.S. 811; Burton-Dixie
Corporation, 103 NLRB 880, 890, enfd. 210 F. 2d 199, 201 (C.A. 10).
It follows, and I find, that from April 22, 1957, the Respondent failed and refused
to bargain with the Union as requested by it on the reinstitution of an employee
stock purchase plan. I further find a refusal to bargain by the Company when it
put said plan into effect for employees in units represented by the Union without
having engaged in such bargaining. May -Department Stores Co. v. N.L.R.B., 326
U.S. 376, 384; Carpinteria Lemon Association v. N.L.R.B., 240 F. 2d 554 (C.A. 9).,,
cert. denied 354 U.S. 909.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent set forth in section I, above, have a close,,
intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and obstructing commerce!
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom. and take cer-
tain affirmative action which I find necessary to effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively on
the reinstitution of an "Employee Stock Plan." It will be recommended, in order
to effectuate the policies of the Act, that Respondent, upon request bargain col-
lectively with the Union as the exclusive representative of certain of the employees
in appropriate units regarding said plan. Because of the limited scope of Re-
spondent's unfair labor practices and because of the absence of any indication that
other such practices may be anticipated by Respondent, no broad cease and desist
order will be recommended.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The International Union of Electrical, Radio and Machine Workers, AFL-
CIO, and its Locals Nos. 111, 130, 202, 219, 239, 302, 315, 401, 410, 412, 426,
449, 456, 486, 491, 601, 617, 627, 670, 711, 714, 724, 746, 760, 777, 906, 1502,
and 1581 are labor organizations within the meaning of Section 2(5) of the Act.
2. All of the units constitute units appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. The above-named International and Locals were on April 22, 1957, and at
all times thereafter have been the exclusive representatives of all employees in
said units for the purposes of collective bargaining.
4. By refusing to bargain collectively with the aforesaid International and Locals,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
15 Whether or not the union representatives had authority to bargain would be material
only If the Company had been willing and was attempting to bargain. It is clear and I
find that they did have authority to make a request for bargaining which they did and
which is all they were able to do In view of the Company's position.