Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Mar 25, 1963

141 N.L.R.B. 733 (N.L.R.B. 1963)

WESTINGHOUSE ELECTRIC CORPORATION 733
(d) Notify the Regional Director for the Fifth Region in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, as to
what steps the Respondent has taken to comply herewith 33
as In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, as to what steps the Respondent has taken
to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Local No. 28, Brotherhood of Elec-
trical Workers, formerly International Brotherhood of Electrical Workers, AFL-
CIO, or in any other labor organization, or encourage membership in Local No.
24, Internatonal Brotherhood of Electrical Workers, AFL-CIO, or in any other
labor organization, by discharging employees or discriminating against them
in any other manner in regard to their hire or tenure of employment, except
to the extent that their rights in that regard may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed in Section 7 of the Act,
except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL offer the employees listed below immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges and make them whole for any loss
suffered by reason of the discrimination against him, as provided in the section
entitled "The Remedy" of the Intermediate Report:
Edwin A. Sweglar, Jr. James C. Dunn, Sr.
G. Howard Groscup C. Robert Fenner
RIGGS DISTLER & CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 707 N.
Calvert Street, Baltimore 2, Maryland, Telephone No. Plaza 2-8460, Extension 2104,
if they have any question concerning this notice or compliance with its provisions.
Westinghouse Electric Corporation and Local 1105, United Elec-
trical , Radio and Machine Workers of America . Case No. 13-
CA-4964. March 25, 1963
DECISION AND ORDER
On December 4, 1962, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had not engaged in unfair labor practices as alleged in
141 NLRB No. 61.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint, and recommending the dismissal of the complaint in its
entirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and
a supporting brief. The Respondent filed a brief in support of the
Intermediate Report.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations only to the extent that they are consistent herewith.
The Trial Examiner found that the Respondent did not unilaterally
change the existing grievance procedure in violation of Section
8(a) (5) and (1) of the Act. We-do not agree that the facts support
such a conclusion.
The current contract between the Respondent and the Union, which
is the exclusive bargaining representative of the former's employees,
provides for a three-step grievance procedure the first step of which
calls for presentation of grievances by the immediate Local representa-
tive to the immediate supervisor to be followed by their discussion and
effort to resolve the grievances at this stage.
As noted in the Intermediate Report, Respondent officials at the
Chicago, Illinois, plant involved herein on June 21 and 26, 1962,
respectively, conducted two workplace meetings during which they
read letters to the employees concerning grievances and the grievance
procedure. Thus, the first letter (1) explained that "a grievance comes
into existence when a particular employee or a particular group of
employees feel they have been denied some contractual right," and
(2) stressed the need for presenting grievances clearly and com-
pletely. In the second letter, the Respondent made the following
statements :
"Last time we discussed what a grievance is. Today we want to
discuss how the grievance procedure should work.
"First if an employee feels aggrieved, he should contact his foreman
and discuss the problem with him. The foreman is the Management
representative responsible for the area where his employees work so
he should naturally be contacted first.
1 For reasons stated infra, we deny Respondent' s motion to dismiss the complaint.
WESTINGHOUSE ELECTRIC CORPORATION 735
"If the foreman and the employee do not reach mutual accord, the
employee may request his foreman for the presence of his steward.
Following this discussion the employee or steward may submit a writ-
ten grievance to the foreman ...."
The Trial Examiner found in agreement with the Respondent that
the latter in the foregoing communications to the employees was not
advocating contractual changes but was engaging in an expression of
its views as to how grievances should be handled under the terms and
conditions of the existing agreement. This conclusion does not take
cognizance of the procedure existing pursuant to the terms of the
contract, or the second proviso to Section 9(a) of the Act which
explicitly guarantees to the bargaining representative an opportunity,
to be present at the adjustment of employee grievances by manage-
ment. The issue in this case is therefore whether the Respondent at
the workplace meetings unilaterally changed the terms and conditions
of employment in violation of the second proviso in Section 9 (a)
of the Act and in derogation of the Union's representative status 2
It is clear from the language of the letter of June 26, 1962, that the
Respondent unilaterally altered the existing contractual grievance
procedure, which requires the handling and adjustment of grievances
by both Union and management representatives at each of the three
steps, by directing 3 "aggrieved employees" as a preliminary step
first to discuss their "problem" with the foreman for the purpose of
reaching "mutual accord." 4 Under this arrangement , an adjustment
of the grievance may take place without affording the Union as the
bargaining representative an opportunity to be present in recognition
of its interest in administering its contract. Assuming, as the Respond-
ent asserted in a statement to the employees on August 31, 1962, that
"employees have never been denied the presence of a bargaining
representative if they so desire," this would entitle the Union to attend
the adjustment of grievances only if the aggrieved employee so elects.
Obviously, such a limitation on the unqualified right of the Union to
be present at the adjustment of grievances is contrary to the plain
language of the second proviso to Section 9(a) of the Act.
2 See Bethlehem Steel Company , et al., 89 NLRB 341 ; Motoresearch Company and Kerns
Corporation, 138 NLRB 1490.
sAs indicated above, the Trial Examiner and the Respondent take the position that the
latter was not seeking to impose any changes and was merely expressing Respondent's
view as to how the grievance procedure should work. We do not agree with this conten-
tion as the Respondent in its second letter expressly told employees that they "should"
follow a new course of action as to the presentation and treatment of grievances.
* The Trial Examiner found that grievances are not defined in the agreement and
determination of what is "a grievance," as distinguished from an informal complaint on
behalf of an individual , is a matter of interpretation between the parties at the time the
grievance or "gripe" arises. Contrary to the Trial Examiner, it is evident from the
Respondent 's letters that its instructions to the employees as to the new step dealt with
grievances.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, we find that the Respondent's unilateral
action in altering the existing grievance procedure changed its em-
ployees' terms and conditions of employment in derogation of the
Union's representative status and was therefore a violation of Section
8(a) (5) and (1) of the Act'
Upon the basis of the foregoing findings of fact, and on the record
as a whole, we make the following :
CONCLUSIONS OF LAW
1. Local 1105, United Electrical, Radio and Machine Workers of
America is a labor organization within the meaning of the Act and is
the exclusive representative of the employees in the appropriate unit
described in the Intermediate Report.
2. Westinghouse Electric Corporation, the Respondent herein,
violated Section 8 (a) (5) and (1) of the Act on or about June 26, 1962,
when it refused to bargain collectively with the Union by unilaterally
adding to the grievance procedure a preliminary step permitting the
adjustment of grievances without affording the Union the opportunity
to be present at such adjustment.
3. The aforesaid labor practices are unfair labor practices affecting
commerce.
THE REMEDY
We have found that the Respondent has violated Section 8(a) (5)
and (1) of the Act by its unlawful unilateral action in adding to the
grievance procedure a preliminary step which impairs the Union's
right to be given an opportunity to be present at the adjustment of em-
ployee grievances by the management representative. We shall there-
fore direct the Respondent to cease and desist from the proscribed con-
duct. We shall also order the Respondent to cease and desist from
engaging in like or related conduct.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
The Trial Examiner and the Respondent rely on (1) Cranston Print Works Company,
115 NLRB 537 , wherein the Board found that an employer 's mere advocacy during nego-
tiations with the union of a change in the grievance procedure was not unlawful, and
on (2) United Telephone Company of the West, etc., 112 NLRB 779, wherein the Board
found that the overtime provision in a contract was not sufficiently clear to avoid a dis-
pute between the parties over Its terms and refrained from deciding whether the com-
pany's position as to such dispute constituted an unfair labor practice. We find the
foregoing cases involve different facts from those herein and are therefore Inapposite as
the grievance procedure in the instant case is clearly set forth in the contract and the
Respondent went beyond mere advocacy of a change therein by unilaterally adding with-
out any discussion with the Union a preliminary step which was obviously contrary to
the second proviso of Section 9 ( a) of the Act and to the agreement itself.
WESTINGHOUSE ELECTRIC CORPORATION 737
Relations Board hereby orders that Westinghouse Electric Corpora-
tion, Chicago, Illinois, its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 1105, United Elec-
trical, Radio and Machine Workers of America, as the exclusive rep-
resentative of the Respondent's employees in the appropriate unit de-
scribed in the Intermediate Report by unilaterally adding to the
grievance procedure a preliminary step permitting the adjustment of
grievances without affording the Union the opportunity to be present
at such adjustment.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Rescind its unilateral addition of the preliminary step to
the grievance procedure which permits the adjustment of grievances
without affording the Union an opportunity to be present at such
adjustment.
(b) Post at its Chicago, Illinois, plant, copies of the notice attached
hereto marked "Appendix." I Copies of such notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by the Respondent, be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL rescind the preliminary step to the grievance procedure
which permits the adjustment of grievances without affording the
Union an opportunity to be present at such adjustment.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed
in Section 7 of the Act.
All of our employees are free to become or remain members of any
labor organziation.
WESTINGHOUSE ELECTRIC CORPORATION,
Employer.
Dated---------------- By -------------------------------------
(Representative ) ( Title)
This notice must be posted for 60 consecutive days from the date of
posting and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 176 West Adams Street, Chicago 3 , Illinois, Telephone No.
Central 6-9660, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
In this proceeding , brought by the General Counsel of the National Labor Rela-
tions Board , on behalf of the Board , by the Regional Director for the Thirteenth
Region , under Section 10(b) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151 et seq., herein called the Act) Local 1105, United Electrical,
Radio and Machine Workers of America (hereinafter called the Union), had filed a
charge on December 22, 1961, and a first amended charge on July 13, 1962. Based
thereon , a complaint was issued by the General Counsel on August 23, 1962, against
Westinghouse Electric Corporation , the Respondent herein , setting forth certain al-
leged unfair labor practices said to have been engaged in by the Respondent in con-
travention of Section 8(a) (1) and ( 5) and Section 2(6) and (7) of the Act.'
Pursuant to notice , this matter came on to be heard before Trial Examiner Arthur E.
Reyman at Chicago , Illinois, on October 15, 1962 . The hearing was closed on that
day.
The issues are framed by the complaint and an answer timely filed on behalf of the
Respondent , the answer effectively denying the allegations of substantive violations
of the Act as set forth in the complaint.
At the hearing, all parties were represented by counsel and each was afforded an
opportunity to call , examine and cross-examine witnesses and to participate fully in
the hearing , to argue orally upon the record , and to submit proposed findings of fact
or conclusions of law or both . Briefs were filed on behalf of the General Counsel and
the Respondent.
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 WESTINGHOUSE ELECTRIC CORPORATION
Westinghouse Electric Corporation , the Respondent , is, and has been at all times
material herein , a corporation duly organized under and existing by virtue of the laws
of the State of Pennsylvania . The Respondent during such times has maintained a
1 The agreement referred to herein is the collective agreement effective as of October 22,
1960, and the signatories thereto are Westinghouse Electric Corporation , acting on behalf
of itself and the Bryant Electric Company , a subsidiary , and the United Electrical, Radio
and Machine Workers of America , acting in behalf of and in conjunction with its various
Locals. There are some seven Locals covered by this master agreement ( National Agree-
ment), and an appendix to the master agreement sets forth the bargaining unit repre-
sented by a Local at each of the several locations where the Company is engaged in
business.
WESTINGHOUSE ELECTRIC CORPORATION 739
manufacturing and repair plant at 3900 West 41st Street, Chicago, Illinois, and has
manufacturing plants in States other than the State of Illinois; the manufacturing and
repair plant at 3900 West 44th Street, Chicago, Illinois, however, is the only plant in-
volved herein. During the calendar year 1961 the Respondent, in the course and
conduct of its business operation at its Chicago manufacturing and repair plant shipped
goods and materials in excess of $50,000 directly to States other than the State of
Illinois; and during the same calendar year purchased and received goods and mate-
rials in excess of $50,000 directly from States other than the State of Illinois. The
Respondent is now and at all times material hereto has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1105, United Electrical, Radio and Machine Workers of America is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE (ALLEGED) UNFAIR LABOR PRACTICES
a. The bargaining relationship between the Union and the Respondent
The complaint sets forth, in substance, and in the answer the Respondent admits,
that:
All production, maintenance and service employees employed by the Respond-
ent at its Chicago manufacturing and repair plant at 3900 West 41st Street, Chi-
cago, Illinois, have constituted and now constitutes a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the
Act, .. .
and that
Prior to July 21, 1962, . . the Union represented a majority of employees and
was and now is the exclusive bargaining representative of all employees in the
unit as described . for the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms and conditions of
employment, and the Respondent and the Union have a collective bargaining
agreement dated October 22, 1960, with respect to wages, hours, and working
conditions for the unit.
The pertinent and perhaps the only crucial provisions of the agreement involved
in this case are contained in section XV-settlement of disputes, pages 29-32,
as set forth in the printed agreement dated October 22, 1960, in evidence herein.
The procedure is elaborate-perhaps too much so. For convenience section XV
is set forth in the footnote hereof.2
L Section XV provides:
1. Local Managements are to be kept advised by the Locals as to the names of their
authorized representatives.
2. For the purposes of his section, union business is defined to mean (a) investiga-
tion of a problem concerning rates of pay, wages, hours of employment or other
conditions of employment , or (b) attendance at a meeting with a representative or
representatives of Management for handling or adjustment of grievances or (c) at-
tendance at a meeting with a representative or representatives of Management for
the purpose of collective bargaining, or (d) absence from the Plant to conduct union
business off Company property.
3. Before leaving work to conduct union business , the Local officer or steward will
report to his foreman or supervisor to request permission to leave his job. Such re-
quest will be granted unless his departure would cause serious interference with
operations . In such cases the foreman or supervisor will make arrangements for
the Local officer or steward to leave his job as promptly as possible.
4. (a) There will not be more than three steps In the local grievance procedure.
The Immediate Local representative and the immediate supervisor will discuss and
make an effort to resolve grievances at the first step. There will not be more than
four representatives of the Local at the second step and not more than six repre-
sentatives of the Local at the third step. The designation of the Management and
Local representatives at the second and third steps will be included in local
supplements.
(b) A Local representative will present the grievance to the designated local
Management representative at each step . A meeting will be held promptly at a
705-006-64-vol. 141-43
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The essential allegations of the complaint, in regard to violations, are these:
On or about June 21, 1962, and continuing thereafter through June 26, 1962,
Respondent held meetings with employees of the Union herein and attempted
to change the grievance proceeding and bypass the Union as the exclusive bar-
mutually convenient time within a specified number of working days at each step as
established locally to discuss-the grievance and an answer will be given by a Man-
agement representative following the final meeting ( if more than one meeting is
necessary ) within a maximum of one working day at the first step, two working
days at the second step, and five working days at the third step. The above time
limits at each step may be extended by mutual agreement of the Management and
Local representatives designated for that step of the grievance procedure.
(c) The Local representative at step 1 if he desires to investigate a problem con-
cerning rates of pay, wages, hours of employment or other conditions of employment
within his area of representation will advise the foreman of the nature of the investi-
gation and location of the individual or group problem when requesting permission
to leave his work.
(d) When a grievance is unresolved at step 1 or 2 , It will be presented to the
supervisor of that step who will arrange for the next step meeting which will be
convenient to both parties.
(e) Other details of the above provisions will be negotiated locally and will be
included in local supplements.
5. The Company 's only obligation to pay for time spent on union business by Local
representatives shall be to divide equally with the respective Locals the payment for
time spent within the Plant by Local representatives (who are in the active employ
of the Company) during the representative's regular working hours while meeting
with a member or members of local Management either ( a) for handling or adjust-
ment of grievances, or (b) for the purposes of collective bargaining, or (c) for Investi-
gation of grievances When the Local representative requests that no member of
supervision participate in the investigation of a grievance, the representative will
not be paid by the Company for time spent thereon.
0. It Is the Intention of this Agreement that local Management and the Locals shall
make every effort to settle all grievances at the local level.
7. Should the local Management and the Local fail to adjust a grievance arising
under this Agreement or local supplements, such grievance may be referred to the
Company and to the Union ofilcers.
8 (a) If local Management's final reply to a grievance of the Local Is unsatis-
factory, the Local or the Union may choose to refer such grievance to the national
level, in which case the Union will so notify the Company's headquarters in writing.
The Local will inform local Management in writing when it refers a grievance to the
national appeal level.
(b) The Union shall submit to the Company any grievances referred to them or
taken by them to the national appeal level, and , at a mutually agreeable time,
within thirty (30) days following such submission, the representatives of the Com-
pany and the Union shall meet In an effort to settle such grievances.
(c) Written replies shall be given to grievances at the appeal level within fif-
teen ( 15) days following conclusion of the appeal level meeting unless Management
advises the Union at such meeting that additional time may be required . In that
event, the written reply shall be given within thirty ( 30) days following the con-
clusion of the appeal level meeting. The foregoing time limit may be extended by
mutual agreement.
(d) When a Local refers a grievance to the national appeal level, or when the
Union takes such a grievance to the national appeal level , which in either case must
be done within thirty ( 30) days from the date of local Management 's final answer,
the grievance procedure shall be considered as having been fully exhausted only after
the Union advises the Company in writing that the Company 's reply at the national
appeal level is unsatisfactory.
(e) Where the Company or the Union believes that an emergency exists, every
effort will be made to hold promptly an appeal level grievance meeting and the
written answer will be given to the Union as soon as practical following the con-
clusion of the meeting.
9. The Union and the Company may consider referring a grievance to an impartial
umpire or board by mutual agreement at any time.
10. Should the parties fail to settle any grievance after exhausting the grievance
procedure at the national level, and if the Union and the Company do not agree to
refer it to an Impartial umpire or board, then either party shall be free, without
obligation , however, upon the other party , except as provided by law, to request the
WESTINGHOUSE ELECTRIC CORPORATION 741
gaining representative and unilaterally change the grievance procedure as above
alleged without negotiating with the Union.
Counsel for the General Counsel in his brief, defines the issue to be this:
Is an employer guilty of violating Section 8(a)(5) when that employer without
first negotiating or bargaining with the Union as exclusive bargaining representa-
tive of employer's employees, tells employees to take their grievances to em-
ployer's foreman first, and if the employee is not satisfied, then request the
foreman for the presence of his steward?
I do not agree with counsel for the General Counsel that the issue as stated by
him is precise. With a collective-bargaining agreement in effect, with stewards
properly appointed, and with the foremen present and available, it is incorrect to
say that the issue so stated is accurate or did or does reflect the position of the
Respondent.
b. The facts
Four persons appeared as witnesses at the hearing. Dorothy Brunet, a witness
called by the General Counsel, said she had been working in the wiring department
of the Respondent for some 20 years and that she had a talk or discussion on
October 1, 1962, with Robert Trumpy, identified by her as "our new supervisor."
Paul Sanders, another witness called by the General Counsel, testified that he has
been employed in the repair department of the Westinghouse plant at Chicago for
something over 6 years and he remembered a meeting among the employees held
on or about June 26, 1962. A third witness called by the General Counsel was
Hymen H. Shubin, who said that he had been employed for some 20 years by the
Respondent; that he has since the year 1955 held the office of chief steward for
the Union, and that he recalled a meeting of the employees on June 21, 1962. The
fourth witness, L. E. Kivela, called by the Respondent has been employed since
December 1961, as industrial relations manager for the Chicago plant of the
Respondent.
The testimony of these four witnesses, taken together with the documentary
evidence herein, shows these relevant facts:
On June 21 and June 26, 1962, work place meetings were conducted at the instal-
lation of the Respondent in Chicago. Kivela had prepared the text of the material
to be presented to employees. Present were union stewards and officials. According
to the testimony of Kivela the purpose of these talks was to let employees know
the views of members of management as to what they considered a grievance, and
what the views of management were as to how the grievance procedure had been
intended to work. Kivela said that there was no intention to change the grievance
procedure by the June 26 work-place meeting and that the grievance procedure was
not in fact changed. On the evidence presented, I think Kivela is correct in his
statement.
The General Counsel, in the position taken by his counsel, apparently construes
a portion of the June 26 meeting as an attempt by the Respondent to change the
existing grievance procedure, by adding a preliminary step under which an employee
would discuss his particular grievance with a foreman or Kivela before taking it
to the steward.
The evidence shows that thereafter, on August 31, the Respondent held another
workplace meeting, informed the employees that a Labor Board complaint had been
issued against the Respondent (the complaint herein), and attempted to make clear
that the employees had not been denied a union representative at any time prior to
this meeting, and that here was no future intent to deprive union representation
to any employee at any time.
It seems useful for the purposes of this report to set forth in the footnote below
the statements prepared by Kivela.3
services of governmental conciliation , mediation or other appropriate government
agency in an effort to settle such grievance.
11. Replies to a grievance will be considered final at any level of the grievance
procedure (local or appeal ) and the grievance closed if the grievance form is not
marked unsatisfactory and forwarded to the next step of the grievance procedure
within thirty ( 30) days of the date of such reply or at the appeal level if other
written notification to the contrary is not received by the Company within such
period.
8 Statements by Kivela:
WORK PLACE MEETING I
Repeatedly during the last few months your negotiating committee has inferred
that local management is not interested in settling grievances and in addition your
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Third and last to be mentioned is the statement made on August 31, after the
issuance of the complaint in this case on August 23, wherein the Respondent contends
committee has accused management of slowing down the grievance procedure through
the following tactics:
( 1) Refusing to accept grievances.
(2) Refusing to allow the stewards and chief steward to communicate and move
about the plant.
(3) Refusing to allow phone calls to come into the plant directly to the chief
steward.
(4) Causing undue delay in answering grievances.
We wish to make the record clear Your local management is interested in
equitably settling grievances. We think you should know that our concept of a griev-
ance and the grievance procedure is:
First of all, a grievance comes into existence when a particular employe or a
particular group of employes feel that they have been denied some contractual right.
If an employe or a group of employes feel that their contractual rights have been
violated then there is no reason why the grievance cannot be clearly and completely
stated. In the past we have recei%ed many grievance forms that have been so general
and unclear that it has been impossible for management to interpret the grievance
in order to intelligently discuss the issues. Rather than waste your committee's
time and your money, as well as the management's time and the Company money, we
have on various occasions returned grievances for more specific information. Each
time we have done so, your committee has accused us of refusing to accept griev-
ances. In some cases they have refused to clarify the grievances stating that "They
don't want to tie themselves and their stewards down. The committee felt they
should be in a position to bring in other points at some higher step of the grievance
procedure." Your committee further tells us that in many cases the steward doesn't
know the ramifications of the grievance and therefore it would not be fair to have
him write a specific grievance.
The local union position does not seem to be sound. If a particular employe, or
more than one employe, feels that his contractual rights have been violated then be
should be in a position to point out the particular right as spelled out in the labor
agreement . That way the foreman can intelligently discuss the specific issue in-
volved and attempt to resolve the problem. In fairness to the foreman and the em-
ploye involved, all known facts should be discussed at the first level. We have never
denied the union an opportunity to bring in additional facts at a higher step of a
grievance procedure. We do object, however, to having a grievance so vague that at
every step of the grievance procedure the discussion centers around different points
than those at the previous step. Basically the central point in the grievance should
be the same even though some additional details may have been uncovered by either
the union or the Company since the previous meeting.
One other point should be made clear. There basically are no "policy" grievances.
Occasionally your committee has referred to "policy" grievances. We want to make
it clear that Company policy is not subject to any grievance procedure. Certainly
no one is so naive to think that the local Management here at the Chicago 1%I&R plant
is going to deviate from or blaze new frontiers for corporate policy. We will live
by with the corporate policy and written labor agreements to the best of our ability
and if we have been in error will return to the correct position as soon as it is
discovered.
Today we have informed you what Management thinks a grievance is. At our
next meeting we will discuss how we feel that the grievance procedure should work.
WORK PLACE MEETING II
Last time we discussed what a grievance is. Today we want to discuss how the
grievance procedure should work.
First, if an employe feels aggrieved, he should contact his foreman and discuss the
problem with him The foreman is the Management representative responsible for the
area where his employes work so he should naturally be contacted first.
If the foreman and the employe do not reach mutual accord, then the employe may
request his foreman for the presence of his steward. Following this discussion the
employe or steward may submit a written grievance to the foreman. The written
grievance must be clear, concise, and specific. A meeting is to be held at a mutually
convenient time within a reasonable period of time. At the meeting the specific
grievance will be discussed and the foreman will give a written answer consistent
with the Labor Agreement and Company policy. If the grievance has been written
clearly and concisely, normally the steward of the section involved should know the
facts well enough to represent the aggrieved employe. Occasionally during the dis-
WESTINGHOUSE ELECTRIC CORPORATION 743
it only informed the employees that the complaint had been filed, and tried to make
clear that they certainly had not been denied a union representative at any time in
the past and there was no intention to do so in the future. This statement read as
follows:
We have received a complaint from the National Labor Relations Board
stating that U.E. Local 1105 is charging local management with changing the
grievance procedure. The charge apparently grows out of the workplace meet-
ings which were held to explain how in local management's opinion the grievance
procedure, as spelled out in the National Agreement, had been intend to work.
Although we have some doubts in our mind as to how many employes may
have gotten an erroneous impression of what management was trying to say
through the workplace meetings regarding the presence of your stewards, we will
attempt to clarify that point.
Management still feels it is good common sense for employees to discuss their
possible complaints or problems with their foremen before an actual grievance
affecting the employes arises. Management feels that this is a privilege and right
of every employe and, therefore, management would never agree to forfeiting
that employe right. Currently many employes discuss problems, whether actual
or potential, with their foreman on a variety of subjects such as pay shortages,
safety hazards, classifications of work or other conditions. Although local
management feels that it is a logical, common sense approach to see the foremen
first in matters of this sort, employes have never been denied the presence of a
cussion, a grievance may take on some new aspect of such nature that the local
steward wishes to have the Chief Steward present. The presence of the Chief
Steward at the first level of a grievance procedure should be an exception rather
than the rule. If the steward requests presence of the Chief Steward then the
supervisor in charge of the meeting will contact the Chief Steward 's supervisor. The
Chief Steward will be allowed to come over unless his departure would cause a serious
interference with operations in his area If the Chief Steward cannot come over
immediately, the meeting will be postponed but will be re-convened as promptly as
possible at a time mutually convenient to everyone concerned . When called Into a
meeting, the Chief Steward shall go directly to the office Involved and report to the
supervisor in charge of the meeting. There is no reason why any meeting should
become boisterous and loud. We can discuss sincere differences of opinion in normal
tones and rationally In an effort to settle the grievance. If a meeting gets loud, the
meeting will be adjourned and reconvened at a time when both sides can control their
emotions.
Meetings at the second and third levels should also be conducted promptly at a
mutually convenient time to Management and the Union Due to customer com-
mitments and other administrative problems, it may sometime appear that Manage-
ment has not met promptly. We want to assure you that we do attempt to meet as
quickly as feasible although we certainly are not going to drop everything else to
meet on a grievance immediately.
The union committee has also constantly accused Management of not answering
grievances promptly. We certainly are not going to try and make excuses- for all
overdue answers. Without a doubt there have been cases where the answers could
have been given quicker by letting some other Management administrative problem
slide for a few extra hours.
In many cases, however, the grievance has been so general and the union com-
mittee's comments so vague that considerable investigation has been necessary to try
and decipher what the problem actually entailed. A great percentage of the union's
testimony has been centered around verbal commitments by some member of Manage-
ment several years ago. It takes considerable time to try and determine If a verbal
statement had been made, and secondly, whether the same conditions exist today as
were in existence when the alleged statement was made. Your local Management
attempts to study all factors before answering a grievance.
One other point should be emphasized. The settlement of a grievance, most of the
time, is not a subject of compromise The Corporation has a National Agreement
with the U.E. that applies to all U.E. represented locations. The Corporation also
has some universal Company policies. Both the National Agreement and the Company
policies have been written In order to treat each employe alike. Every employe under
exactly the same conditions should be treated the same way. This is just common
sense. Consistent rules create order rather than chaos.
In order to maintain order and consistency, grievances cannot be settled on the
basis of the Company giving a little and the union giving a little and thereby in an
individual case deviating from the National Agreement or Company policy.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative if they so desire, nor has there been any intention
to deny the employe union representation in the future.
Local management certainly does not intend through this meeting to repeat
everything that was said in the previous workplace meetings. However, we
did want to correct any impression you may have received or been given that
management has changed the grievance procedure through making observations
on how the present procedure should work in order to be more effective.
There was an exchange of letters between Charles Anderson, district representative
of the Union, and Kivela in which Anderson "without a waiver of any rights"
asked for copies of the management letters "already read and any that may be read in
the future." Kivela's reply simply said it was not felt appropriate "to furnish you
with the notes used by supervisory personnel in their talks with employees . "
and that he was sure the stewards who attended those meetings could furnish a first-
hand account of what had occurred.
Thus there is no probative force so far to show that there was an intention on the
part of the Respondent to change the grievance procedure through the June 26
workplace meeting; there is a showing that there had been some careless handling
of grievances which Kivela and others of management had attempted to correct,
and that there is some question as to whether the approach was a correct one.
To return to the testimony herein : Shubin , chief steward for the Union , testified
that on June 21 , a meeting of employees was called by his foreman , George Tanquay,
through instructing group leaders to tell their men to meet in the pumproom . Shubin
stated that there had been "no prior notice" that a meeting was to be held or what
the meeting would concern . He said that when everyone , had assembled in the
pumproom on orders of Tanquay , the latter read the first letter about grievances,
this apparently being the letter dated June 21. Shubin said that he had asked ques-
tions at that meeting about the letter and answers were refused . Shubin testified
further that on June 26, another meeting , was held of employees in which all were
required to attend on orders of Tanquay ; that this meeting was during normal work
time and again held in the pumproom. At this meeting Tanquay read the letter set
forth in the footnote above. Shubin said that he again attempted to ask questions
and Tanquay would give no answers . General Counsel says that the Union requested
copies of these letters from the Respondent who declined the request . In view
of Kivelas ' letter, mentioned above, I do not take this to be an "absolute refusal,"
because apparently the Respondent had not been yet wise enough to recognize that a
case of "refusal to bargain" was lying latent against it. Then , as noted above , another
workplace meeting was held, and finally, according to the testimony of Dorothy
Brunet, Robert Trumpy took charge of the wiring department , at which time all of
the employees in his department were called into "the office " and Plant Superintendent
Biershank introduced Trumpy as their new foreman , and Trumpy told the employees
what would be expected from him in the way of performance in the way of work
and production and the use of tools. Miss Brunet went on to say that Trumpy told
them that they could not under any circumstance go to their steward concerning
any grievance but were to come to him first , that if he could not resolve the problem,
they could then ask to see the steward; that Trumpy said that this was new company
policy "and we must abide by it or words to that effect." I think that Miss Brunet
was a well-intentioned witness but I do believe that her wishes were better than
her memory with regard to what happened in that meeting. I base my belief
on the whole context of this case , including the testimony of Shubin.
It seems to be the contention of the General Counsel that the employees, Brunet,
Trumpy, and others could interpret the meaning of the provisions of the grievance
procedure under the contract between the Respondent and the Union, and that their
interpretations are subject to be submitted to approval to the National Labor Rela-
tions Board to see which side was right. That is not the way grievances ultimately
are settled under a collective agreement such as is involved here. The National
Labor Relations Board as such was not set up to decide the proper handling or the
merits of grievances.
The agreement had not expired at the time this dispute arose, and still is in
existence. The agreement provides the employees and the employer with an orderly
method for adjusting their grievances. I cannot see in this case, where the Company
(the Respondent) terminated the existence grievance procedure and established a new
and different grievance procedure such as described in Motoresearch Company and
Kems Corporation, 138 NLRB 1490. In the instant case, the grievance procedure
was in effect and, on the evidence shown herein, the Company was attempting merely
to simplify by explication the procedures as established by the contract, as the Com-
pany saw what those provisions meant In Motoresearch the Board expressly found
that the employer there violated Section 8(a) (5) by unilaterally altering an existence
WESTINGHOUSE ELECTRIC CORPORATION 745
grievance procedure. The parties were then in the course of negotiating a new
agreement. Here, the General Counsel says, and I agree, that the Respondent did
not negotiate or bargain with the Union as to "this new company policy." The
General Counsel, in so arguing, deserts the plain allegations of his complaint which
asserts only an attempt to change the procedure but does not allege or show by
proof that any change was effectuated and fails to prove that the procedures which
he thinks were intended to be effectuated were, in effect, different from existing
procedure.
Analysis of the Proof
There is quite a difference between what the General Counsel says was effectuated
or what he thought the Respondent intended to effectuate, insofar as proof is con-
cerned.
If the evidence herein disclosed a design to change grievance procedure and
eliminate the bargaining representative from the first stage of grievance procedure
without first negotiating and bargaining with the Union, I could agree with counsel
for the General Counsel that such would constitute a violation of Seciton 8(a)(1)
and (5) of the Act. The General Counsel relies on Bilton Insulation, Inc., 129
NLRB 1296. However, the circumstances in that case differ from those found here.
As pointed out by Respondent, the General Counsel has failed to demonstrate that
the procedures which he concluded were intended to be effectuated were, in fact,
different from the then existing procedures.
c. The law applicable to the facts
Counsel for the Respondent, in his brief, has made a thorough and painstaking
analysis of applicable cases which appear to me to be good precedent to apply here,
and has referred to the legislative history of the Act. I have reviewed the cases
relied upon by him with care. I am inclined to believe that, without more, the
decision of the Board in United Telephone Company of the West, etc., 112 NLRB
779, supports the Respondent's contention in opposition to the theory of the General
Counsel that the Respondent has violated the settlement of disputes part of the
collective agreement between the parties, now in effect. I think, too, that the reliance
of Respondent upon Cranston Print Works Company, 115 NLRB 537, is well placed.
In United Telephone Company of the West, supra, (p. 781) the Board said:
As the Board has held for many years, with the approval of the courts:
it will not effectuate the statutory policy . for the Board to assume the
role of policing collective contracts between employers and labor organizations
by attempting to decide whether disputes as to the meaning in administration
of such contracts constitute unfair labor practices under the Act."
In the instant case the settlement of disputes provisions of the collective-bargaining
agreement between the parties is so comprehensive that, to find that the Board should
enter into the interpretation of these provisions of the agreement, would be to find
that the Board necessarily must interpret an agreement between an employer and a
bargaining representative even though such agreement provided for the parties a
method and procedure to settle the same question between themselves.
I agree with the Respondent that the evidence herein does not prove a situation
nearly so far as the General Counsel would have intended it proved. I agree with
Respondent that it, through its workplace meetings, was not advocating contractural
changes. As I consider the testimony and read the record herein, it seems to me that
the Respondent was, at these workplace meetings , attempting to transmit to its em-
ployees its views concerning the way in which the grievance procedure under the
collective-bargaining agreement between the Company and the Union was intended
to operate, and that the Respondent was not trying to "put over" a contractural provi-
sion which would have removed the Union from the first step of the grievance
procedure, nor do I believe it was seeking or attempting to impose a change in any
provision of that agreement. This is especially true since there is no proof in the
record that anything stated at the June 26 workplace meeting would exclude the
Union from the grievance procedure.
CONCLUDING FINDINGS
As I read the National Agreement between the Respondent and the Union, cover-
ing a number of bargaining units, grievances as such are not defined and on the
basis of the testimony herein, determination of what is a "grievance" as distinguished
from an informal complaint on behalf of an individual, is a matter of interpretation
between the parties at the time the grievance or "gripe" arises. I have concluded
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and find that the Respondent , in its communications to its employees on June 21
and June 26 , engaged in an expression of its views as to how grievances properly
should be handled under the terms and conditions of the existing agreement.
Upon the basis of the foregoing findings of fact, I am constrained to find that the
Respondent has not violated and is not now violating Section 8 ( a) (5) and (1) of the
Act, as alleged.
Upon the basis of the foregoing findings of fact, and on the record as a whole,
I make the following:
CONCLUSIONS of LAW
1. Westinghouse Electric Corporation , the Respondent herein , is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Local 1105, United Electrical, Radio and Machine Workers of America is,
and at all times material herein has been a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
4. The General Counsel has failed by the preponderance of evidence to support
the allegations of the complaint as to asserted unfair labor practices.
5. The complaint herein should be dismissed.
RECOMMENDED ORDER
I recommend that an order be entered herein dismissing the complaint in its
entirety.
Jerry Schlossberg and Morton Bassoff d/b/a Admiral Welding
& Boiler Maintenance and Levy Blount. Case No. 22-CA-119.
March 25, 196.
DECISION AND ORDER
On December 28, 1962, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices and rec-
ommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondents filed exceptions to the Intermediate Re-
port and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three- member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications.
The Trial Examiner found on the basis of facts stipulated to by the
parties herein that the Respondents, a copartnership in Jersey City,
New Jersey, who are engaged in providing boiler repair, installation,
and maintenance service within the State, are engaged in commerce
within the meaning of the Act. Respondents, who move the dismissal
of the complaint, contend that their operations do not meet the non-
141 NLRB No. 68.