Westinghouse Electric & Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 29, 1940

22 N.L.R.B. 147 (N.L.R.B. 1940)

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COM-
PANY AND ITS SUBSIDIARIES, WESTINGHOUSE X-RAY COMPANY, INC.
AND THE BRYANT ELECTRIC COMPANY and UNITED ELECTRICAL,
RADIO AND MACHINE WORKERS OF,AMERICA,AND ITS LOCALS Nos. 601,
202, 1207, 107, 111, 130, 1105, 1412, AND 209
Case No. C-1 24J.Decided March 29, 1940
Electrical Machinery and Equipment Manufacturing Industry-Interference,
Restraint , and Coercion-Units Appropriate for Collective Bargainting: nine
units, each limited to employees in certain classifications at one or more of
respondents ' plants in one community ; no dispute as to-Representatives:
proof of choice : allegations of complaint as to union's majority in each unit
admitted in respondents' answer ; no dispute as to-Collective Bargainiing:
refusal to enter into oral or written agreements with union, although respond-
ents and union reached 'accord on certain subjects ; employer's duty : Act com-
pels respondents to embody in binding agreements with union understandings
reached; respondents may not bargain with union concerning whether or not
understandings reached shall be embodied in contracts ; grounds for refusal of :
alleged economic detriment to respondents and their employees is irrelevant
in so far as respondents assert it warrants refusal to make binding agreements
with union ; circumstances of case, such as economic detriment from alleged
boycott of respondents by another labor organization, are not such as to excuse
respondents from normal requirement of Act that understandings reached
must be incorporated in written agreements with union ; statement of policy
under circumstances of case fail to satisfy requirement of Act for : are not
contracts between respondents and union ; are at most individual contracts
with individual employees, not collective agreement with union as Act re-
quires; recognizes union only for purposes of negotiation and not for purposes
of contnccting ; contractual nature doubtful and ambiguous ; terminable at
pleasure of employer alone ; preclude union assuming responsibilities ; deny
union equal status with employer as contracting and contractually bound
party ; ordered to bargain with union and, if requested, to embody in written
agreement with union any understandings reached-Procedure: petitions by
rival labor organization requesting leave to intervene because employees in
one unit allegedly changed affiliation and joined it, denied where Board had
previously certified other union and where alleged shift occurred after respond-
ents' refusal to bargain and after hearing in instant case.
Mr. Drexel A. Sprecher, for the Board.
Mr. Harold Smith and Mr. Donald C. Swatland, of New York City,
for the respondents.
Mr. James J. Matles and Mr. Julius Emspak, of New York City,
for the United and the Locals.
22 N. L. R B,No.13.
147
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Daniel Car ,ell, of Chicago, Ill., for the Brotherhood, peti-
tioner for leave to intervene.
Mr. Robert Kramer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Elec-
trical, Radio and Machine Workers of America, herein called the
United, and its Locals Nos. 601, 202, 1207, 107, 111, 130, 1105, 1412,
and 209, herein collectively called the Locals, with the National
Labor Relations Board, herein called the Board, pursuant to per-
mission duly granted by an Order of the Board, dated March 31,
1939, in accordance with Article II, Section 37, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, the
Board issued its complaint, dated August 29, 1939, against Westing-
house Electric & Manufacturing Company, Pittsburgh, Pennsyl-
vania, and its subsidiaries, Westinghouse X-Ray Company, Inc.,
Long Island City, New York, and The Bryant Electric Company,
Bridgeport, Connecticut, herein collectively called the respondents,
alleging that the respondents at their plants located in Bridgeport,
Connecticut; Long Island City, New York; Chicago, Illinois; Emery-
ville, California; Baltimore, Maryland; East Springfield, Massa-
chusetts; Philadelphia, Pennsylvania; South Philadelphia, Penn-
sylvania; and East Pittsburgh and Trafford, Pennsylvania, had
engaged in and were engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (5) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by
notices of hearing, were duly served upon the respondents, the
United, and the Locals.
In respect to the unfair labor practices the complaint alleged in
substance that although a majority of the respondents' employees
in each of nine appropriate units had designated some one of the
nine Locals as their representative for the purposes of collective
bargaining, the respondents, upon request, refused to bargain col-
lectively with any of the Locals so designated as the exclusive
representative of such employees, in that the respondents refused to
enter into any written contract or any binding agreement with any
of the Locals; and that by such refusals the respondents interfered
with, restrained, and coerced their employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 149
The respondents filed an answer, dated September 6, 1939, denying
that they had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held at New York City on
September 9, 1939, before James C. Paradise, the Trial Examiner
duly designated by the Board. The Board, the respondents, and
the United and the Locals were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all parties.
On September 9, 1939, counsel for the Board introduced in
evidence a stipulation entered into and signed by the respondents,
the United, the Locals, and counsel for the Board. This stipulation
provided as follows :
In order to expedite the preparation and trial of this case,
it is hereby stipulated and agreed, for the purpose of this case
only, by and between Westinghouse Electric & Manufacturing
Company (hereinafter referred to as Westinghouse), Westing-
house X-Ray Company, Inc. (hereinafter referred to as West-
inghouse X-Ray), the Bryant Electric Company (hereinafter
referred to as Bryant Electric), United Electrical, Radio and
Machine Workers of America (hereinafter referred to as the
United), United's Locals Nos. 601, 202, 1207, 107, 111, 130, 1105,
1412, and 209 (said Locals hereinafter being referred to collec-
tively as the Locals), and Drexel A. Sprecher, Attorney for the
National Labor Relations Board, as follows:
I
This stipulation is to be made a part of the record in the
above-entitled case and is to be received in evidence with the
same force and effect as if the facts herein had been established
in open hearing through the sworn testimony of competent wit-
nesses, each party reserving the right to object to the admission
in evidence of any of the following items, or any part thereof,
on the grounds of immateriality or irrelevancy, but not other-
wise. The entire agreement among the parties to this stipula-
tion is contained within the terms of this stipulation, and there
is no verbal agreement of any kind which varies, alters, or adds
to this stipulation.
II
Upon charges filed by the United and amended charges filed
by the United and the Locals against Westinghouse, Westing-
house X-Ray and Bryant Electric, the National Labor Relations
Board, hereinafter referred to as the Board, on August 29, 1939,
2 S 4 033-41-vo1 22--11
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued its complaint , pursuant to Section 10 (b) of the National
Labor Relations Act, hereinafter referred to as the Act, which
complaint gave notice of hearing for September 9, 1939.
III
Westinghouse , Westinghouse X-Ray, Bryant Electric, the
United and the Locals waive any right or privilege which they
may have to ten (10) days' notice of hearing and to the holding
of a hearing , and also waive any right or privilege to the issu-
ance of an Intermediate Report, provided that (a) the respond-
ents and the United and the Locals , respectively , are afforded
an opportunity to file briefs with the Board within thirty (30)
days after the effective date of this stipulation , ( b) the Board
issues proposed findings of fact, proposed conclusions of law,
and a proposed order, and (c) said respondents and the United
and the Locals, respectively , are afforded an opportunity to file
exceptions to said findings, conclusions and order , and to file
briefs and to participate in oral argument before the Board
prior to the entry of the final decision and order of the Board.
IV
Westinghouse , Westinghouse X-Ray, and Bryant Electric are
engaged in commerce , within the meaning of Section 2 (6) of
the Act.
V
Negotiations with respect to rates of pay, wages, hours of
employment and other conditions of employment , between Local
1207 of the United and the management of Westinghouse X-Ray
were initiated in May, 1937 , and have continued from time to
time since that date . During such period, as the result of such
negotiations , various changes have been made by the management
of Westinghouse X-Ray in such conditions of employment as
indicated in general in the minutes of the June 29, 1939 , confer-
ence hereinafter referred to. On February 17, 1939, a confer-
ence was held between Local 1207 of the United and Westing-
house X-Ray, and a copy of the minutes thereof is attached
hereto and incorporated herein, labelled Exhibit A. On Febru-
ary 21, 1939 , a conference was held between Local 1207 of the
United and Westinghouse X-Ray, and a copy of the minutes
thereof is attached hereto and incorporated herein, labelled Ex-
hibit B. A copy of the proposed contract submitted by Local
1207 of the United for discussion at these conferences is attached
hereto and incorporated herein, labelled Exhibit C.
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 151
On June 29, 1939, a conference was held between Local 1207
of the United and Westinghouse X-Ray, and a copy of the min-
utes thereof is attached hereto and incorporated herein, labelled
Exhibit D. A copy of the memorandum presented in this con-
ference by the representatives of Local 1207 of the United, as
mentioned in that conference, is attached hereto and incorporated
herein labelled Exhibit E. On June 30, 1939, a conference was
held between Local 1207 of the United and Westinghouse X-Ray,
and a copy of the minutes thereof is attached hereto and incor-
porated herein, labelled Exhibit F. A copy of the notice men-
tioned in the conferences of June 29 and 30, 1939, between Local
1207 of the United and Westinghouse X-Ray, which notice was
given by the representatives of Westinghouse X-Ray to the
representatives of Local 1207 at the conference of June 30, 1939,
is attached hereto and incorporated herein, labelled Exhibit G.
Attached hereto and incorporated herein, labelled Exhibit H, is
a copy of excerpts from a complaint filed by the United against
the International Brotherhood of Electrical Workers and others
on June 15, 1939, in the United States District Court for the
Southern District of New York which outline the various causes
of such complaint relating to certain boycotts against the prod-
ucts of employers in the Electrical Manufacturing Industry.
Attached hereto and incorporated herein, labelled Exhibit I, is
a statement of further facts concerning boycotts instituted by the
International Brotherhood of Electrical Workers or its Locals.
VI
The paragraph next preceding and the exhibits incorporated
therein constitute a full and complete statement of all of the
facts on the basis of which the Board, or any court reviewing
the decision and order of the Board, is to determine whether
or not Westinghouse X-Ray has refused to bargain collectively
with Local 1207 of the United, as alleged in paragraph 16 of
the said complaint.
VII
The facts with respect to the alleged refusal of Westinghouse
and Bryant Electric to bargain collectively, as set forth in para-
graph 16 of the complaint, with the respective Locals of the
United, as described in paragraph 5 of the complaint, are sub-
stantially similar to the facts with respect to the alleged re-
fusal of Westinghouse X-Ray to bargain collectively, as set
forth in paragraph 16 of the complaint, with Local 1207 of the
United, and the issue (as to the alleged refusal to bargain col-
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lectively, but not as to the conditions of employment involved)
between the management of each of such plants of Westinghouse
and Bryant Electric and the respective Locals of the United
at such plant .is identical with such issue between the manage-
ment of Westinghouse X-Ray plant and Local No. 1207.
If the Board or any court reviewing the decision and order
of the Board shall find that Westinghouse X-Ray has refused to
bargain collectively, as set forth in paragraph 16 of the coin-
plaint, with Local 1207 of the United, the Board or such court
may enter all order applicable not only to the plant of West-
inghouse X-Ray but also to the plants of Westinghouse and
Bryant Electric concerned in this proceeding and binding not
only upon Westinghouse X-Ray, in so far as the alleged refusal
to bargain with Local 1207 of the United at the plant of West-
inghouse X-Ray is concerned, but also upon Westinghouse and
Bryant Electric, in so far as the alleged refusal to bargain with
the respective Locals of the United at their said respective plants
is concerned.
If the Board or any such reviewing court finds that West-
inghouse X-Ray has not refused to bargain collectively, as set
forth in paragraph 16 of the complaint, with Local 1207 of the
United, the Board or such reviewing court may enter an order
dismissing the complaint as to all of the respondents.
If the Board finds that Westinghouse, Westinghouse X-Ray and
Bryant Electric have refused to bargain collectively, as set forth
in paragraph 16 of the complaint, with the respective Locals of
the United at their respective plants, as described in paragraph
5 of the complaint, and enters an order thereon, Westinghouse,
Westinghouse X-Ray, Bryant Electric, the United and the
Locals, or any of them, may apply to an appropriate Circuit
Court of Appeals to obtain a review of such order, and the Board
may petition an appropriate Circuit, Court of Appeals for an
enforcement of such order. Westinghouse, Westinghouse X-Ray,
Bryant Electric, the United and the Locals, and each of them,
reserves all right to contest, before any such Circuit Court of
Appeals, the propriety of the decision and the order of the Board.
Any party to any such proceeding before a Circuit Court of
Appeals may apply to the Supreme Court of the United States
for a review of the decision of such Circuit Court of Appeals.
Westinghouse, Westinghouse X-Ray, Bryant Electric, the
United and the Locals waive all right or privilege to contest,
before the Board or any reviewing court, the propriety of ex-
tending any order properly entered in this case as to Westing-
house X-Ray and Local 1207 of the United to the other plants
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 153
concerned in this proceeding and the respective Locals of the
United at such plants, as described in paragraph 5 of the
complaint.
VIII
This proceeding shall be heard upon a record consisting only
of the complaint filed in this proceeding on August 29, 1939,
the respondents' answers thereto, and this stipulation. This stip-
ulation has been entered into in connection with the complaint
filed in this proceeding on August 29, 1939, and this stipulation
shall become null and void in the event that such complaint
is amended or modified in any way or is withdrawn.
IX
This stipulation shall be of no force and effect until it, or a
counterpart thereof, shall have been signed by each of the parties
hereto listed below and interchanged between the parties hereto,
and until approved by the Board, provided that if the Board
shall not approve this stipulation, then the parties hereto will
join in a request to the Board to continue the hearing in this
cause to a date not less than thirty (30) days after notice to
the respondents of the refusal of the Board to approve the
same.
On October 18, 1939, the Board issued an order approving the
above stipulation. Thereafter, pursuant to paragraph III of the
stipulation, the respondents and the United and the Locals filed
briefs which the Board has considered.
International Brotherhood of Electrical ,Workers, Local B-713
(A. F. of L.), hereinafter referred to as the Brotherhood, filed a
petition to intervene, dated December 4, 1939, and a supplemental
petition to intervene, dated December 19, 1939. For reasons here-
inafter set forth,' these petitions are hereby denied.
The Board issued and duly served on all parties and the Brother-
hood Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order, dated February 7, 1940. The respondents and
the Brotherhood filed exceptions to the Proposed Findings, Conclu-
sions of Law, and Order, and briefs in support of their exceptions.
On March 14, 1940, pursuant to notice duly served on all parties and
the Brotherhood, oral argument, in which counsel for the respond-
ents and the United and the Locals participated, was had before
the, Board in Washington, D. C.
' See Section V, infra
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their exceptions the respondents included a motion to dismiss
the complaint . The motion is hereby denied.
The Board has considered the briefs of all the parties and of
the Brotherhood and has reviewed all the exceptions filed and finds
the exceptions to be without merit, except as they are consistent
with the findings of fact, conclusions of law, and order set forth
below.
Upon the above stipulation and the entire record in the case, the
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Westinghouse Electric & Manufacturing Company, herein called
Westinghouse when referred to separately, is a Pennsylvania cor-
poration with its principal office and place of business at Pittsburgh,
Pennsylvania . It is engaged in the manufacture , sale, and distribu-
tion of a wide variety of electrical machinery and equipment and
has numerous plants in various parts of the United States. The
plants involved in this proceeding are located at Chicago, Illinois;
Emeryville , California ; Philadelphia , Pennsylvania ; Baltimore,
Maryland; East Springfield , Massachusetts ; South Philadelphia,
Pennsylvania ; and East Pittsburgh and Trafford , Pennsylvania.
The Bryant Electric Company, herein called Bryant when re-
ferred to separately , is a Connecticut corporation with its principal
office and place of business at Bridgeport , Connecticut . It is engaged
in the manufacture and sale of wiring devices for buildings , appli-
ances, and industry ; and plastic molded articles and novelties. It
operates two plants located in Bridgeport , Connecticut , which are
involved in this proceeding.
Westinghouse X-Ray Company , Inc., herein called X-Ray when
referred to separately , is a Delaware corporation , with its principal
office and place of business at Long Island City , New York. It is
engaged in the manufacture and sale of x-ray and allied apparatus
for physicians , hospitals , and industrial applications . It operates a
plant at Long Island City , New York, which is involved in this pro-
ceeding.
Both Bryant and X-Ray are wholly owned and controlled subsid-
iaries of Westinghouse.
Westinghouse, Bryant, and X-Ray each purchase and transport
across State lines from the State of purchase into the State of man-
ufacture for use in each of their plants involved , in this proceeding
large quantities of raw materials and supplies , constituting a sub-
stantial percentage of the total purchases of raw materials and sup-
plies for use in each of these plants. Westinghouse , Bryant, and
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 155
X-Ray each sell and transport across State lines from each of their
plants involved in this proceeding and from the State of manufac-
ture wherein each of these plants is located into and through other
States than the State of manufacture and into foreign countries
large quantities of electrical machinery and equipment. constituting
a substantial percentage of the total quantity of such electrical ma-
chinery and equipment manufactured at each of these plants.z
Westinghouse, Bryant, and X-Ray admit that they are engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The United is a labor organization affiliated with the Congress of
Industrial Organizations. The Locals are labor organizations affil-
iated, through the United, with the Congress of Industrial Organi-
zations. The Locals admit to membership employees of the respond-
ents at each of the plants involved in this proceeding, as follows :
Local No. 202 admits to membership employees at the East Spring-
field, Massachusetts, plant; Local No. 209 admits to membership
employees at the two Bridgeport, Connecticut, plants; Local No. 1207
admits to membership employees at the Long Island City, New
York, plant, Local No. 111 admits to membership employees at the
Philadelphia, Pennsylvania, plant, known as the Philadelphia service
shop ; Local No. 107 admits to membership employees at the South
Philadelphia, Pennsylvania, plant; Local No. 601 admits to member-
ship employees at the East Pittsburgh and Trafford, Pennsylvania,
plants; Local No. 130 admits to membership employees at the Balti-
more, Maryland, plant; Local No. 1105 admits to membership em-
ployees at the Chicago, Illinois, plant, known as the Chicago service
shop; and Local No. 1412 admits to membership employees at the
Emeryville, California, plant.
III. THE UNFAIR LABOR PRACTICES
A. The refusals to bargain collectively
1. The appropriate units
The answer of the respondents admits the appropriateness for
the purposes of collective bargaining of each of the nine units de-
scribed in the complaint. These units are normal industrial units.
2 For a detailed description of the business of Westinghouse at its East Pittsburgh,
Pennsylvania, and Chicago, Illinois , plants , see, respectively , Matter of Westinghouse
Electric & Manufacturing Co and United Electrical & Radio Workers of Amer., Local No.
601, 3 N. L R B. 1 ; Matter of Westinghouse Electric & Manufacturing Co. and United
Electrical, Radio & Machine Workers of Amer, 10 N. L. R. B. 794.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We see no reason for departing from the units agreed to by the
parties.s
We find that each of the following nine groups of employees of
the respondents constituted and constitutes a unit appropriate for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of work, and
that such units, set forth below, insure to employees of the respond-
ents the full benefit of their rights to self-organization and to collec-
tive bargaining and otherwise effectuate the policies of the Act :
(1) All hourly paid employees of X-Ray at its Long Island
City, New York, plant;
(2) All hourly paid employees, except supervisory employees,
of Bryant in the production department of its two Bridgeport, Con-
necticut, plants ;
(3) All hourly paid employees and the shop clerk of Westing-
house at its Philadelphia, Pennsylvania, plant, known as the Phil-
adelphia service shop ;
(4) The production and maintenance employees of Westinghouse
at its East Springfield, Massachusetts, plant, including shop clerical
workers, shipping and receiving employees, tool and die makers, tool
designers, test and inspection employees, repairmen, firemen and
operating engineers, and truck drivers, but excluding executives,
general foremen, foremen, superintendents, technical engineers,
police, and main-office draftsmen and clerical workers;
(5) All production and maintenance employees of Westinghouse
at its Baltimore, Maryland, plant, except clerical help, and foremen
and other employees in a supervisory capacity;
(6) All production, maintenance, and service employees of West-
inghouse at its Chicago, Illinois, plant, known as the Chicago service
shop, except foremen, clerical employees, watchmen, engineers, ware-
house employees, and salaried employees;
(7) All employees of Westinghouse in the Insulator Department
of its Emeryville, California, plant, except the office force and
supervisory employees ;
(8) All hourly paid employees of Westinghouse at its East Pitts-
burgh, Pennsylvania, plants, including the East Pittsburgh Works,
the Trafford Works, and the Homewood Service Works (including
Linhart and Copper Mill), except clerical employees and supervisory
employees;
(9) All hourly paid employees (except the police and employees
with power to discharge) of Westinghouse in the Manufacturing
Department of the South Philadelphia, Pennsylvania, plant, and
3 The Board in prior decisions has found appropriate two of these units ; the one for
employees at the East Pittsburgh, Pennsylvania, plants ; and the one for employees at the
Chicago, Illinois , plant. See the cases cited in footnote 2, supra.
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 157
certain salaried employees of Westinghouse (eligible to vote as
agreed to by two labor organizations in connection with an election
held by the Board's Fourth Regional Office on June 29, 1937) in
the Works, Metallurgical, Patent, and Accounting Departments of
the South Philadelphia, Pennsylvania, plant.
2. Representation by some one of the nine Locals of a majority in
each appropriate unit
The answer of the respondents admits the allegations of the com-
plaint that each of the nine Locals here involved represents a
majority of employees in one and only one of the nine units we have
found above to be appropriate for the purposes of collective bar-
gaining. Under the circumstances of this case, we are satisfied that
each of the Locals represents a majority of the employees in one,
and only one, of the appropriate bargaining units.,
We find that each of the Locals was at all times material for the
purposes of this proceeding, and is, the duly designated representa-
tive of a majority of the employees in the appropriate unit set forth
below after its name, and, pursuant to Section 9 (a) of the Act, was
and is the exclusive representative of all the employees in such unit
for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment :
(1) Local No. 202: The unit hereinbefore found appropriate for
employees at the East Springfield, Massachusetts, plant;
(2) Local No. 209: The unit hereinbefore found appropriate for
employees at the two Bridgeport, Connecticut, plants;
(3) Local No. 1207: The unit hereinbefore found appropriate for
employees at the Long Island City, New York, plant;
(4) Local No. 111: The unit hereinbefore found appropriate for
employees at the Philadelphia, Pennsylvania, plant, known as the
Philadelphia service shop;
(5) Local No. 107: The unit hereinbefore found appropriate for
employees at the South Philadelphia, Pennsylvania, plant;
(6) Local No. 601: The unit hereinbefore found appropriate for
employees at the East Pittsburgh, Pennsylvania, plants;
(7) Local No. 130: The unit hereinbefore found appropriate for
employees at the Baltimore, Maryland, plant;
(8) Local No. 1105: The unit hereinbefore found appropriate for
employees at the Chicago, Illinois, plant, known as the Chicago
service shop ;
4 On July 9 , 1937 , the Board certified Local No . 601 as the exclusive representative of
employees in the unit liereinbefore found appropriate for the East Pittsburgh , Pennsyl-
vania, plants ; and on December 23, 1938 , the Board certified Local No 1105 as the
exclusive representative of employees in the unit hereinbefore found appropriate for the
Chicago , Illinois, plant . See respectively the cases cited in footnote 2, supra.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(9) Local No. 1412: The unit hereinbefore found appropriate for
employees at the Emeryville, California, plant.
3. The refusals to bargain collectively
Negotiations with respect to conditions of employment were in-
itiated in May 1937 between Local No. 1207 and X-Ray. There-
after, conferences between Local No. 1207 and X-Ray were held
from time to time, including February 17 and 21 and June 29, 1939.
The last such conference was held on June 30, 1939. During sub-
stantially the same period, conferences were held between the re-
spondents and the other Locals with respect to conditions of em-
ployment.
The position of the respondents during these conferences in re-
spect to bargaining collectively with the Locals was as follows : 5
The respondents at all times, upon request, were willing to and
did confer with representatives of the Locals. During such con-
ferences the respondents stated that they recognized the Locals as
exclusive bargaining representatives ; discussed with them grievances,
proposed contracts, labor policies, and other subjects brought up by
them; stated to them the position of the respondents on any given
subject or grievance; and prepared written statements of policy,
signed by the respondents, summarizing the position of the respond-
ents on the matters discussed. These statements of policy were
posted by the respondents in their plants; stated that the respondents
recognized the Locals as exclusive bargaining representatives; and
stated that the position of the respondents therein set forth had been
reached after negotiations and discussions with the Locals' repre-
sentatives, and would be in effect until further notice. In fact, these
statements of policy did reflect changes in conditions of employment
made by the respondents as a result of their negotiations and con-
ferences with the Locals. The respondents would not bind them-
selves to keep the policies set forth in these statements in effect for
any definite period of time ; and, although the respondents asserted
that they would always attempt to give the Locals "reasonable no-
tice" before changing the policies contained in these statements, the
respondents reserved to themselves the right to decide what con-
stituted "reasonable notice" under the circumstances. The respond-
ents would not permit the Locals, the United, or representatives of
either the Locals or the United, to sign these statements of policy.
6 Our findings in regard to the respondents ' position are based upon the negotiations
between Local No. 1207 of the United and the respondents at the Long Island City plant
of X-Ray . However, in accordance with paragraph VII of the stipulation, we make our
findings applicable to all the plants of the respondents here involved , since the facts with
respect to tha negotiations at the Long Island City plant aie substantially similar to the
facts with respect to the negotiations between the Locals and the respondents at all the
other plants here involved.
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL. 159
In fact, the respondents would not enter into any sort of a binding
agreement or contract, written or oral, with the Locals or the United,
althought the respondents and the Locals reached an accord on the
terms to be embodied in such an agreement or contract. ° The re-
spondents, however, were willing to negotiate with the Locals con-
cerning the desirability of, and necessity for, a written or oral agree-
ment and asserted that subsequently, because of such negotiations,
they might alter their policy of -refusing to enter into any binding
agreement with the Locals. '
6 Subsequent to these negotiations and conferences , the respondents for the first time,
in briefs filed with the Board , asserted that their statements of policy are binding written
agreements with the Locals Whether such statements of policy constitute contracts with
the Locals , and, if not , whether they are enforceable against the respondents by the
individual employees and satisfy the requirements of Section 8 (5) of the Act , are herein-
after discussed.
The statement of policy for the Long Island City plant of X-ray read as follows
WESTINGHOUSE X-RAY COMPANY, INC
NOTICE
JUNE 30, 1939.
After negotiations and discussions with the Negotiating Committee of Local #1207
of the United Electrical Radio and Machine Workers of America , consisting of Messrs.
Matthews , Abbondi, Kaiser , and Subach, representing the employees , the Management of
the Westinghouse X-Ray Company , Inc., states that until further notice its position is
as follows on the following points
1. That in accordance with notification received from the National Labor Relations
Board of May 11, 1937, the United Electrical Radio & Machine Workers of
Ameiica includes in its membership more than a majority of our employees
and in compliance with the National Labor Relations Act, the Westinghouse
X-Ray Company recognizes Local No. 1207, United Electrical Radio & Machine
Workers of America as the sole agency for the purpose of collective bargaining
and establishment of the standards and hours of labor, rates of pay, and other
conditions under which the check employees shall work for the employer.
In order to amplify this , we quote Section 9, Paragraph ( a) of the National
Labor Relations Act :
"Representatives designated or selected for the purposes of collective bar-
gaining by the majority of the employees in a unit appropriate for such pur-
poses, shall be the exclusive representative of all the employees in such unit
for the purposes of collective bargaining in respect to rates of pay, wages, hours
of employment , or other conditions of employment : PROVIDED, that any
Individual employee or a group of employees shall have the right at any time
to present grievances to their employer."
2. Effective November 1, 1937, a bonus of 10 % above the regular day rate will be
paid to all regular nighttime employees
3. Employees who are requested to report for work shall be guaranteed at least four
hours pay
4. That, in general , wage rates [ sic] be paid equal to or higher than wages rates
paid in the industry for comparable work requiring the same skill and efficiency.
That rates in the Industry shall govern where community rates are lower and
community rates shall govern where industry rates are lower.
5. The Committee advises that the Shop Stewards are elected by the members of
Local No. 1207, United Electrical Radio & Machine Workers of America, to
represent the first and second floors , respectively
6 (a) That an employee who Is to be dismissed or laid off for lack of work or
inefficiency would be given twenty-four hours' notice
(b) That the Union shall reserve the right to question and investigate any
dismissal or layoff.
7. That when check employees are requested to work overtime , at least two hours'
advance notice will be given and the employees will be allowed the use of the
telephone to notify their homes. This does not , however , bar shorter notice if
the employee is willing to work.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondents argue that on the basis of the facts summarized
in the paragraph above they have bargained collectively with the
Locals, within the meaning of Section 8 (5) of the Act. In support
of this position, the respondents advance several contentions which
we now consider.
The respondents assert in their briefs that, assuming that the
Act requires that the terms and conditions of employment upon which
an employer and the exclusive representative of his employees have
reached an accord or understanding be embodied in binding written
contracts, their statements of policy, signed only by the respondents,
are binding written contracts between the respondents and the Locals,
enforceable against the respondents. It is plain from the statements
of policy themselves and from the negotiations that neither the
respondents nor the Locals regarded themselves as in contractual
relations with the other. In form these statements of policy are
merely announcements to the employees of the respondents' position
and do not purport to be contracts. Moreover, in delivering the
statements to the Locals, the respondents stated : "This [the state-
ment] we consider a statement of the Company's position and it is
not an agreement." 8 And in discussing previous oral and written
statements of policy, some of which were posted by the respondents
and signed by them, the respondents denied that these were agree-
ments with either the Locals or the employees, stating : "That [the
notice] is not an agreement I . . . this notice gave the position of the
8. All work performed on Saturday and holidays , or work done in excess of our
standard week, which is eight hours a day and five days a week , shall be
time and one-half, and the work performed on Sundays , double time will be
paid.
9. That semi-annual reviews of rates and occupations be conducted by a joint com-
mittee of the U. F R. & M . W A. and the Company, on March 1 and Septem-
ber 1. A progressive scheme of development to be observed . All check employees
10
to come under the review.
Seniority-In all cases of increase or decrease of forces , the following factors shall
be considered , and where factors A ., B, and C. are relatively equal, length of
time and service shall govern :
A
B.
C.
Length of time.
Knowledge , training , ability, skill , and efficiency.
Family status, number of dependents, etc.
11. A 63¢ minimum hourly rate shall be paid for mechanics-helpers, learners , appren-
12.
tices, store -room attendants , and potters to be paid according to classification.
Holidays and Vacations-
(a) Holidays will be New Year 's Day, Washington ' s Birthday, Decoration
Day, Independence Day, Labor Day, Armistice Day, Thanksgiving
Day, and Christmas
(b) The Company will grant one week's vacation with pay to employees
with five years ' service and two weeks ' vacation with pay to
employees with ten years ' service.
(c) Vacations will be paid on the average hourly earnings of the employee
during the preceding three ( 3) months, and will be based upon the
number of hours in the standard work week.
(Signed ) L. D. CANFIaLD,
Vice President and General Manager.
B Italics supplied
Italics supplied.
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY ET AL . 161
Management in connection with certain terms and conditions of em-
ployment . . . we . . . never regarded it as reaching an agreement
verbal or otherwise. It was a statement of our position." In fact,
when asked if they regarded a former notice as an agreement with
the employees, the respondents answered : "No we do not, but we
regard it as a notice stating our position on certain subjects." The
respondents also stated : "We never considered this as reaching an
agreement, verbal or otherwise . . . The Management does not re-
gard this notice as the equivalent of a formal written contract .. .
I do not consider it as an agreement . . . I have never considered
that we had an agreement. I have always considered that it was a,
statement of the position of the Management of the Company."
When the Locals' representatives pointed out that the points being
discussed had been "agreed upon" by inclusion in a statement of
policy, the respondents answered : "We had made no agreement,
but have endeavored at all times to state the Company's position
in connection with various subjects." That the respondents did not
consider their statements of policy as binding agreements is also
shown by the fact that the respondents included in these statements
several matters which the respondents during the conferences in-
sisted were not proper subjects for inclusion in any agreement,
although expressing a willingness at all times to include them in a
statement of policy. Indeed, the respondents' refusal to permit the
Locals to sign the statements of policy and the respondents' in-
sistence during the negotiations upon the statements of policy rather
than agreements with the Locals are proof that the respondents
recognized an important difference in the legal effect of the two
types of documents.
Finally, during the negotiations, the respondents summarized their
attitude as follows: "The policy of the Company is not to make or
sign an agreement l° but bargain. collectively and if, after such bar-
gaining, it is found within the Company's policy or within the
thought of the Company to change the policy, they will do so."
The respondents further stated : "We will not enter into any agree-
ment." 11 When asked if this prohibition applied to both oral and
written agreements, the respondents answered : "It specifies any
agreement with any organization." And when a United representa-
tive inquired, "Is it the Company's policy not to reach an agreement
on any subject which the Negotiating Committee [of the Local]
brings in for discussion?," the respondents replied : "Yes. But the
Company is always willing to state its position in writing with
reference to such subjects."
10 Italics supplied
11 Italics supplied.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the above facts we find that: (1) the respondents' state-
ments of policy are not binding contracts between the respondents
and the Locals; (2) the respondents, as they repeatedly and unqual-
ifiedly told the Locals, during the negotiations and at the time of
signing and delivering the statements of policy, did not consider the
statements of policy contracts of any kind or binding upon the re-
spondents; (3) as shown by the identity of many of the terms in
the statements of policy,'which were acceptable to the respondents,
with those in the contracts proposed by the Locals, the respondents
and the Locals reached an accord on many subjects of collective bar-
gaining; and (4) the respondents, professing a willingness possi-
bly to modify their attitude at some future date, have adopted a
policy of refusing to enter into binding agreements with the Locals,
and have at all times, in accordance with this fixed resolve, refused
to enter into such agreements.
The respondents further contend that by refusing to enter into
binding agreements with the Locals, as we have hereinbefore found,
they have not refused to bargain collectively, for the reason that the
Act does not compel an employer to enter into any binding" agree-
ment, written or oral, with the exclusive representatives of his em-
ployees, even though the employer has reached an accord or under-
standing with such representatives concerning terms and conditions
of employment and the representatives have requested him to em-
body the understanding in a mutually binding agreement of some
sort. This contention was raised in Matter of St. Joseph' Stockyards
Company 12 and we rejected it, finding that the employer in that
case had engaged in unfair labor practices within the meaning of
Section 8 (5) of the Act by refusing to embody understandings in
any kind of a binding agreement with the union.
In our decision in that case we said :
An assertion that collective bargaining connotes no more than
discussions designed to clarify employer policy and does not in-
clude negotiation looking toward the adoption of a binding
agreement between employer and employees is contrary to any
realistic view of labor relations. The development of those re-
lations had progressed too far when the Act was adopted to
permit the conclusion that the Congress intended to safeguard
only the barren right of discussion.13 The protection to organi-
u Matter of St Joseph Stockyards Co and Amat Meat Cutters and Butcher Workmen
of N Amer , Local Union No 159, 2 N L R B 39.
]J Elsewhere in our decision in the St Joseph case, we reviewed the relevant precedents
in the decisions of the old National Labor Relations Board , which administered Section
7 (a) of the National Industrial Recovery Act We cited the decisions of the old Board
in the I7oude Enptineerinq Corporation (1 N. L R B [old ] 35) and National Aniline