Westinghouse Learning Corp.

National Labor Relations Board - Board Decisions

May 31, 1974

211 N.L.R.B. 19 (N.L.R.B. 1974)

WESTINGHOUSE LEARNING CORP. 19
Westinghouse Learning Corporation and Westing-
house Learning Corporation (Indiana) and Claudies
Banks and Local No. 4, United Plant Guard
Workers of America and Edmund D. Hicks and
Charles S. Grimes and Richard C. Steppling and
Atterbury Federation of Teachers and Counselors
(also known as Atterbury Federation of Counsel-
ors),i Local 1693 affiliated with American- Federa-
tion of Teachers, AFL-CIO and Glen D. Holmes
and Diane P. Moore. Cases 25-CA-4346,
25-CA-4356, 25-CA-4356-2, 25-CA-4356-3,
25-CA-4371-2, 25-CA-4371-3, 25-CA-4420,
25-CA-4420-2 25-CA-4480, and 25-CA-4548
May 31, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 28, 1972, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
exceptions and supplementary exceptions to certain
portions of that Decision and a brief in support
thereof. The General Counsel also filed a brief in
support of the attached Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions ' of the Administrative Law Judge
and to adopt his recommended Order, with the
following modification.
We agree with the Administrative Law Judge that
Glen D. Holmes was suspended for 30 days and
subsequently discharged in violation of Section
8(a)(3) and (1) of the Act. However, we do not agree
that Holmes ought to be reinstated and awarded
backpay.
Holmes was born on December 6, 1905. He was
hired by the Respondent in 1966 when he was in fact
60 years old. On his application for employment he
stated that he was born in 1911 and supported that
assertion with compatable dates concerning his
schooling. Holmes signed the application under a
paragraph which included a statement that he
understood that any false statements thereon would
be sufficient grounds for his discharge.
Holmes was suspended and discharged in 1971 at -a
time when Respondent believed he was 60 years old,
but when in fact he had passed his 65th birthday. It is
undisputed that Respondent has a rule requiring
retirement at age 65. The only record evidence of
exceptions to that rule is contained in an extract
from the Respondent's Industrial Relations Policies
and Accounting Procedures Manual. It is clear from
a reading of that manual that the exceptions do not
apply to Holmes.
The Respondent learned of Holmes' true age after
his discharge, and urges his age as a defense against a
requirement of backpay and reinstatement. We find
merit in this position. Since it appears clear that the
Respondent would not have retained Holmes in its
employ past his 65th birthday but for its reliance on
the untruthful information contained in his applica-
tion form, and since the violation against him
occurred after that date, we shall not order that
Holmes be reinstated or awarded backpay.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below, and hereby orders that the Respon-
dent, Westinghouse Learning Corporation and West-
inghouse Learning Corporation (Indiana), its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order, as modified herein.
1. Delete the name "Glen D. Holmes" from
paragraphs 2(a) and 2(b) of the recommended Order.
2. Delete paragraph 2(d) from the recommended
Order and renumber the remaining paragraphs
accordingly.
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER PENELLO, concurring in part and dissenting
in part:
I agree with the findings and conclusions of my
colleagues in all respects except as follows. Like the
Administrative Law Judge, the majority would not
defer the cases of Banks, Hicks, Richards, and Smith
i The Respondent contends that certain allegations in the complaint
should be dismissed , and that the Board should defer to the contractually
provided arbitration procedures available to the parties with regard to those
allegations . The Administrative Law Judge denied the Respondent's motion
to defer those matters to arbitration . We affirm his ruling on the motion and
agree that the cases of Banks , Hicks, Richards , and Smith should not be
deferred to arbitration.
Member Jenkins would not defer to arbitration for the reasons set forth
in his dissent in Collyer Insulated Wire, 192 NLRB 837
Member Kennedy is persuaded that deferral is not warranted in the
absence of an established stable bargaining relationship and because of the
nature and scope of the violations found herein . See National Radio
Company, Inc, 198 NLRB No. 1.
2 See Southern Airways Company, 124 NLRB 749, 752; National Packing
Company, Inc., 147 NLRB 446, 458. Cf. Bird Trucking and Cartage Co., Inc,
167 NLRB 626, 630.
211 NLRB No. 4
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the contractually provided arbitration procedures
available to them. I disagree.
Local 512, Retail, Wholesale and Department
Store Union, AFL-CIO (RWDSU), is the certified
and contractual bargaining representative of a unit
of Respondent's employees, including Banks. Like-
wise , Local No. 4, International Union, United Plant
Guard Workers of America (Plant Guard), repre-
sents a unit of Respondent's guards which includes
Hicks, Richards, and Smith, by virtue of its certifica-
tion and its contract with Respondent. Both
RWDSU's and Plant Guard's contracts are first
contracts and provide for a four-step procedure for
the resolution of disputes culminating in final and
binding arbitration, as a matter of right, of all
grievances involving discipline or discharge of
bargaining unit members, as well as alleged acts of
discrimination against them.
Banks filed a total of six grievances under the
RWDSU's contract involving all of the matters
which are here alleged as unfair labor practices
committed against him by Respondent. All of these
grievances were processed through the first three
steps of the contractually established grievance
procedure. The parties agreed to arbitrate the
grievances, an arbitrator was selected, and a date for
hearing designated. Banks sought a postponement
and eventually withdrew from the arbitration pro-
ceedings. But, both RWDSU and the Respondent
indicated willingness to submit to arbitration
throughout.
Hicks, Richards, and Smith also filed grievances (a
total of nine) paralleling all the allegations as to them
which appear in the complaint. Again, the grievances
were all processed through the first three steps of the
grievance machinery, but none of the parties has
sought to take any of them to arbitration.
Thus, it appears that we have before us almost a
classic case warranting deferral to arbitration under
the principles enunciated by the majority of the
Board in Collyer3 and National Radio.4 Yet, the
Administrative Law Judge and one member of the
majority herein reject the applicability of the Collyer
doctrine because of: (1) The absence of a long-
established bargaining relationship, and (2) the
presence of union animus and a pattern of action
subversive of Section 7 rights. As for me, those
factors are not indispensable requisites or conditions
for deferral.
Requirement of a long stable bargaining relation-
ship as a prerequisite for Board deferral to arbitra-
tion in a case such as this seems to me to be
inconsistent with the principles of Collyer and cases
following. The lesson of these cases is that the
decision to defer should not be predicated on a case-
along ; rather, it rests on the existence of contractual-
ly enforceable considerations-rights and obligations
-mutually agreed upon to provide a method for
resolving contract disputes. As was recognized in
Collyer: "When the parties have contractually com-
mitted themselves to mutually agreeable procedures
for resolving their disputes during the period of the
contract . . . those procedures should be afforded
full opportunity to function." Thus, if, as here, the
contracts in existence satisfy the requirements for
deferral, the legal basis for protection of employee
rights has been established and the predicate for
Collyer deferral has been laid. It is axiomatic that an
obligation incurred by contract is equally enforce-
able in an initial contract as it is in the last of a long
series. That truth should be given the same weight
here as in any other regard.
Turning then to the union animus in this case as
found by my colleagues and me, several factors
warrant consideration. In the main, the animus
found involves other employees than those represent-
ed by RWDSU and Plant Guards; it concerns
another labor organization; and it involves widely
different fact situations. Of particular pertinence, the
animus shown concerns segments of Respondent's
work force seeking representation by a labor organi-
zation not enjoying a contractual relationship with
the Respondent. Our conclusion that the Respondent
has violated the Act with respect to such organiza-
tional activities does not warrant a conclusion that it
would not honor its contractual obligation to
arbitrate the disputes here and abide by the results of
that arbitration. To the contrary, Respondent has
indicated no aversion to its obligation with respect to
Hicks, Richards, and Smith, and in Banks' case it
affirmatively showed its willingness to arbitrate.
Also, as noted in Collyer, "After Boys Market [Boys
Markets, Inc. v. Retail Clerks, 398 U.S. 235] it may
truly be said that where a contract provides for
arbitration, either party has at hand legal and
effective means to ensure that arbitration will occur."
And if the parties' own processes fail to function in a
manner consistent with the dictates of our law, we
guarantee, by our reservation of jurisdiction, that
there will be no sacrifice of statutory rights.
Given the clear language of the contracts warrant-
ing deferral, and the Respondent's equally clear
indication by both word and deed that it intends to
abide by its contractual obligation in this respect, I
would defer the cases of Banks, Hicks, Richards, and
Smith to arbitration as provided in Collyer and the
cases following.
3 Collyer Insulated Wire, supra
by-case historical analysis of the parties' ability to get 4 National Radio Company, Inc., 198 NLRB No. 1.
WESTINGHOUSE LEARNING CORP.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in any
labor organization by discharging or otherwise
discriminating against our employees because of
their union or concerted activities.
WE WILL NOT coercively, or otherwise unlaw-
fully, interrogate our employees as to their union
activities.
WE WILL NOT unilaterally change working
conditions of employees : in the , unit described
below without notifying,'consulting, or bargaining
with the aforesaid Union prior to so doing.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid, or to refrain from any or all
such activities.
WE WILL, upon request, bargain with Atterbury
Federation of Teachers and Counselors, Local
1693, affiliated with American Federation of
Teachers, AFL-CIO, as the exclusive representa-
tive of all the employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other conditions of employ-
ment, and , if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All counselors employed by us at the
Atterbury Job Corps Center, exclusive of
office clericals, professional employees,
guards, supervisors and all other employees.
WE WILL offer Claudies Banks, Robert Arms,
Robert Brown , Carolyn Clark, Sergei Daviden-
koff, Loren Hall, Willard Kennedy, Gerald B.
Morris, Stewart Northrup, Harish Pandya, Pence
Pruit, E. Paul Sechrist, and Philip Waggoner
immediate and full reinstatement to their former
jobs or, if any of those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges.
WE WILL make whole all of the employees
named in the preceding paragraph, and also
Edmund D. Hicks, for any loss of pay suffered as
a result of the discrimination against them.
21
WESTINGHOUSE
LEARNING CORPORATION
AND WESTINGHOUSE
LEARNING CORPORATION
(INDIANA)
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This
case was heard in Columbus, Indiana, on January 3, 4, 5, 6,
7, 12, 13, 14, 18, 19, and 20, 1972, and on June 5, 6, 7, 8, 9,
and 13, 1972, pursuant to charges duly filed and served.'
The complaint in Cases 25-CA-4346, 4356, 4356-2,
4356-3, 4371-2, 4371-3, 4420, and 4420-2, was issued on
September 20, 1971. The complaint in Case 25-CA-4480
was issued on September 30, 1971. A supplemental and
amended complaint in Cases 25-CA- 4371-2 and 4371-3,
and a complaint in Case 25-CA-4548, as well as a notice of
hearing and an order consolidating all of the above-
numbered cases, was issued on November 30, 1971.
Further amendments to the consolidated complaint were
issued December 2, 1971. On June 5, 1972, and at the
outset of the reopened hearing, a motion by the General
Counsel to amend further the complaint in Cases
X25-CA-4420 and 4420-2 was granted. In its answers, duly
filed, the Respondent conceded certain facts as to its
business operations, but denied all allegations that it had
committed any unfair labor practices.
On January 3, 1972, and at the outset of the trial, the
Respondent moved to dismiss the complamts in Cases
.25-CA-4346,4356,4356-2, and 4356-3, on the ground that
the allegations therein were similar or identical to griev-
lances which had been filed under applicable collective-
All charges were filed in 1971 . The original charge in Case 25-CA-4346
was filed on June 3, and an amended charge on July 12. The original charge
hn Case 25 -CA-4356 was filed on June 7, and in Cases 25-CA-4356-2 and
14356-3 on August 30. The original charges in Cases 25-CA-4371-2 and
4371-3 were filed on June 14. The original charge in Case 25 -CA-4420 was
,Bled on July 9 and a supplemental charge on September 13. The original
charge in Case 25-CA-4420-2 was filed on July 27 and an amended charge
on August 24 . A supplemental charge in Case 25-CA-4371-2 was filed on
September 22, and a supplemental charge in Case 25 -CA-4371-3 on
September 24. The original charge in Case 25-CA-4548 was filed on
September 27 and an amended charge on November 30. The original charge
in Case 25-CA-4480 was filed on August 16.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreements and which were arbitrable under
binding arbitration provisions of those agreements. I
granted this motion, but retained jurisdiction for the
limited purpose of entertaining an appropriate motion for
further consideration for the purposes set out by the Board
in Collyer Insulated Wire, 192 NLRB 837. Thereafter, the
General Counsel appealed this ruling to the Board.
Meanwhile, the parties proceeded to trial as to the merits
of the balance of the consolidated complaint and the
hearing thereon was concluded on January 20, 1972.
On March 20, 1972, the Board reversed the above-
described ruling and remanded the aforenumbered cases
for further hearing on those allegations which had been
dismissed in the ruling of January 3. Pursuant to this
remand, the record was reopened and the trial was
resumed on June 5. It was concluded on June 13, 1972.2
All parties appeared at the trial and were given full
opportunity to examine and cross -examine witnesses, to
introduce relevant evidence, to argue orally at the close of
the trial, and to file briefs. Oral argument was waived by
the parties . On March 24, 1972, the Respondent, and on
March 30 the General Counsel, submitted able and
comprehensive briefs as to so much of the case as was
heard in January. On August 21, 1972, the General
Counsel and the Respondent filed supplemental briefs on
the evidence presented at the reopened hearing.
Upon the entire record in the case, including the briefs of
counsel , and from his observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent , a Delaware corporation , maintains its
principal office in Wilmington, Delaware, with an office
and place of business at Edinburg, Indiana. At the latter
place it has been engaged, at all times material herein, in
operating and managing the Atterbury Job Corps Center
(herein called Center). In the year prior to the issuance of
the first of the above-described complaints, a representa-
tive period , the Respondent , in the course and conduct of
its business operations, purchased and delivered, to the
foregoing Center , supplies and materials valued in excess
of $50,000, which were transported to Edinburg directly
from States other than the State of Indiana. Upon the
foregoing facts , the Respondent concedes , and I find, that
Westinghouse Learning Corporation and Westinghouse
Learning Corporation (Indiana) is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent concedes , and I find , that Retail,
Wholesale and Department Store Union, AFL-CIO, and
its Local 512 (herein called RWDSU); American Federa-
tion of Teachers and its Local Union 1693, also known as
Local 1693, Atterbury Federation of Teachers and Counsel-
ors and/or Atterbury Federation of Counselors (herein
called Counselors Union); United Plant Guard Workers of
America and its Local 4 (herein called Guards Union); and
United Brotherhood of Carpenters and Joiners of America
and its Local 3080 (herein called Carpenters Union), and
each of them , are and have been, at all times material
herein, labor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Atterbury Job Corps Center, a facility of the United
States Department of labor, is located in Southern
Indiana on a portion of the former military reservation
known as Camp Atterbury. The Center is one of several
established by the Department of Labor (herein DOL) to
provide vocational training for disadvantaged male youths.
Since 1966, the Westinghouse Learning Corporation has
manned and operated the Center under a contract with the
DOL.
The young men (known as corpsmen) undergoing
training at the Center are from 16 through 21 years of age.
Approximately 2,000 corpsmen are in training at the
Center at all times, and their average length of stay for
such training is 11 months.
In the vocational sector of the Center 's program, courses
are offered in automotive service , electronics , food service,
and the building and metal trades. A general education
program from the elementary grades through high school is
also provided. This last is designed to supplement whatever
prior education the corpsmen have when they arrive. After
being tested as to the level of his educational achievement,
a corpsman is assigned to the respective grade level he had
reached previously. Thereafter, the corpsman attends
general education classes for several hours each day and
the balance of his worktime is spent at vocational training.
In the maintenance of this program the Respondent has on
its staff, inter alia, vocational teachers , general education
teachers, and counselors. Early in 1971, the Respondent
had about 14 counselors who advised the corpsmen on the
educational and vocational program available, and
through an orientation and residential living program
helped the corpsmen to adjust to the Center.
William C. Hearnton, director of the center from March
1, 1971,3 to the present, testified that the corpsmen are
recruited mainly from the inner city areas of Chicago,
Cleveland, Detroit, New York, and Pittsburgh, and that
about 80 percent of them are black, about 10 percent
Spanish-American, and about 10 percent white. He
further testified that of the approximately 600 employees at
the Center about 40 percent are black and 60 percent are
white.
Five unions have been certified by the Board to
represent various units of Respondent's employees at the
Center. Thus, the Hotel, Motel, and Restaurant Workers
Union, Local 58, represents the cafeteria workers. The
Carpenters Union represents the facilities employees. The
RWDSU represents the resident advisory staff and the
2 The reopening of the case was scheduled onginally for May 3, 1972. 3 All dates herein are for the year 1971 unless otherwise specifically
Shortly before that date counsel for the Respondent became ill and at his noted.
request the resumption was set over until June 5
WESTINGHOUSE LEARNING CORP. 23
Guards Union represents the security employees. These
four unions have existing collective-bargaining agreements.
In.a4dition .to.the,fore ging,in 1971, the Counselors Union
was certified, following a Board-conducted election, to
represent a unit of counselors .4 The bargaining of the
Respondent with the last-named union is an issue herein.
In addition to the foregoing labor organizations, the
Atterbury Federation of Vocational Teachers (herein
called , Federation) also figures in this case . The latter
conducted an organizational campaign during 1970 and
1971 among the Respondent's vocational teachers. In
November 1970, it filed a representation petition (Case
25-RC-4509) which led to an election in January 1971.
Objections to conduct affecting the results of that election
caused the Regional Director to set it aside and order a
new election which was held on June 22, 1971. The
Federation lost both elections.
It is evident from the record that early in 1971 the
Department of Labor had become extremely critical of the
Respondent's operation of the Center. In March of that
year, a review team of the DOL completed a study of the
Atterbury Center which severely criticized almost every
phase of the Respondent 's performance under its contract.
Upon concluding this inspection , the DOL review team
described the Center as being in "chaotic condition" 5 and
then, in a 44-page report, enumerated a multitude of
deficiencies.
These adverse findings came as no surprise to the
Respondent . A few weeks before the arrival of the DOL
team , and in anticipation of the need for a drastic revision
of the Center's management , the Respondent appointed
William C. Hearnton as the director. He arrived at the
Center on March 1, 1971.
Shortly before officially assuming the role of. director,
Hearnton visited the Center to conduct his own inspection
of the site . At the trial he testified, credibly and at length,
as to what he described as the appalling conditions that he
observed. According to Hearnton, most of the buildings in
which the corpsmen lived and those where they worked
were in a state of disrepair, with broken windows,
unhinged doors, and other evidence of vandalism. A
theater for the corpsmen, built only 6 months before, was
already a shambles , with the seats broken, the stage torn
up, and stagnant water on the floor. The mess hall was
dirty and lacking elementary sanitation . According to
Hearnton , on visiting the dormitories where the corpsmen
lived, at an hour when all of them should have been in
class , he discovered many still in the buildings and some of
them engaged in gambling . On that occasion also, he
witnessed a payday scene in the dormitories6 which
convinced him that the younger corpsmen were being
subjected to outright extortion by some of the older
members of the corps. Equally disturbing to the new
director was what he considered to be a total lack of
discipline among the corpsmen. No effort was being made
to require the young men to wear the green uniform
4 The unit found appropriate in that representation proceeding, and
which I now find appropriate , is described as follows: All counselors
employed by the Respondent at the Center located in Edinburg, Indiana,
exclusive of office clericals , professional employees, guards, and supervisors.
5 The quotation is from the DOL report.
6 Initially, the corpsmen are paid an allowance of $30 a month. After
identified with the Job Corps, many of the corpsmen were
shabbily dressed and many had beards and long hair.
Hearnton found it equally disconcerting to find some of
the staff, including the counselors, in particular, to be,
from his point of view, similarly unkempt.
Mr. Hearnton came to his new post with considerable
background in Job Corps management , having had several
years experience at other centers. As an able, articulate
leader he also had a sense of mission and a philosophy that
did not tolerate disorder, lack of discipline, or careless
dress. Immediately after assuming his duties as Center
Director, he set about rehabilitating the buildings, reorgan-
izing the staff, and establishing higher standards of
discipline among the corpsmen. In a directive to all
supervisory personnel, dated March 3, he stated that Job
Corps policy required that staff members and corpsmen be
well groomed at all times, and that henceforth all would be
clean shaven and have neatly trimmed hair while at
Atterbury.7 These requirements as to dress were promptly
incorporated in a revised edition of the Center's rules of
conduct.
The new director's dress code met with considerable
resistance from many of the counselors. In April, when all
of them were asked to submit statements to the effect that
they had read the revised "Rules of Conduct," several did
so under protest and asserted that their acknowledgments
had been secured by duress and threat of severance. In
March and April, several of the counselors,8 when ordered
by their supervisors to cut their hair or shave off beards to
comply with the new code, filed charges of discrimination
with the Equal Employment Opportunity Commission,
alleging that their civil rights had been violated.
Hearnton's administration won praise from the DOL
review team which conducted a followup review of the
Center on June 21-25. In the report, issued upon
concluding the review, the team stated:
The overall finding of the review team was that the
Atterbury Job Corps Center had made remarkable
progress in correcting the deficiencies noted during the
first review.
The appearance of the physical plant , the motivation
and morale of the corpsmen and staff , the training, and
the support activities are now all at a high level. Team
members were amazed that such change could have
taken place in 90 days . The current status of Atterbury
clearly reflects the excellent management abilities of
the Center Director. Both he and his staff are to be
congratulated.
B. The Disposition of Cases 25-CA-4371-2,
25-CA-4371-3, and 25-CA-4548
The above-numbered cases involved the alleged discrimi-
natory discharges of Diane P. Moore, Neva Carter, Charles
S. Grimes, and Richard C. Steppling, and various alleged
various conditions and achievements are met, this amount may be increased
to $50 a month.
7 The directive stated, however, that mustaches would be permitted if
neatly trimmed or well groomed.
8 E.g, Robert W. Arms, Sergei N. Davidenkoff, Willard G. Kennedy,
and Hansh Pandya.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violations of Section 8(a)(l) of the Act. Of the four named,
all except Steppling testified early in the hearing . Midway
in the presentation of his case, and before calling Steppling
to the stand , the General Counsel stated , on the record,
that information had been brought to his attention which
convinced him that these witnesses had tampered with a
key document about which they had testified . As a result,
the General Counsel stated that he could no longer vouch
for the credibility of these witnesses . He thereupon moved
to strike their testimony from the record and to dismiss all
allegations in the complaint based upon their testimony.
There being no opposition to this motion , it was granted by
me.9
C. The Organizational Campaign of the Counselors
Union,' the Election
During the winter of 1970-71, all of the counselors
joined the Counselors Union, and Pence Pruitt, one of
their group, was designated as the president. On March 1,
the very day that Mr. Hearnton assumed his duties as
Center Director , the counselors sent a letter to him,
requesting that the Atterbury Federation of Teachers and
Counselors , Local 1693, be recognized as their exclusive
bargaining agent . The letter was signed by all 14 counselors
then on the staff . The Company's response to this request
was made by Robert A. Dyer, director of personnel and
manager of industrial relations . In a letter dated March 12,
Dyer told the counselors that the Respondent doubted the
Union's majority and suggested that they proceed to a
secret ballot election conducted by the Labor Board.
Early in March, L. C. Crispel, then deputy director of the
Center, 10 attended a luncheon at which several of the
counselors were present. Some of the latter raised with
Crispel the prospects for their organization . Carolyn Clark,
among those present , testified that Crispel warned them
"... watch your step because they [the Respondent] will
do everything they can to bust your Union." Pence Pruitt,
another counselor who was at the luncheon, testified that
Crispel predicted the management would "do everything
they could to pick us off." Both Clark and Pruitt were
credible and their testimony was neither contradicted nor
denied.
Late in February or early in March, William L. Gregory
was appointed counseling coordinator, a supervisory
position." At some point before the election in May,
Gregory left the Respondent's employ. The ensuing lack of
a supervisor , or coordinator, and the unfilled vacancies on
the staff were a matter of serious concern to the counselors.
In a letter dated April 23, and addressed to Center Director
Hearnton , Pence Pruitt protested the absence of a
counseling supervisor and the lack of any action by the
6 Subsequent to this ruling, an opportunity was given the four above-
named alleged discriminatees to appear at the hearing and protest this
disposition of their cases . However, none of them elected to do so.
10 Crispel left the Respondent 's employ shortly afterwards.
11 The Respondent denied that Gregory had supervisory status, but
offered no testimony to support that position . There was substantial
evidence that Gregory had, and exercised , supervisory authority . Carolyn
Clark , a counselor , credibly testified that in late February, or early March,
Eugene Kinlow, director of behavioral development and services, held a
meeting at which he told all the counselors that henceforth Gregory would
be their manager , that they would report to him, and that Gregory would
Respondent to fill the current vacancies. Pruitt asked that
the Center promptly fill these posts.
The Board-conducted election for the counselors was
held on May 19. In the weeks prior thereto , the Respon-
dent sent them a series of bulletins setting forth its
opposition to the Union and urging them to vote against it.
On May 18, Mr. Hearnton had a meeting with the
counselors at which he spoke to them at length about the
problems of the Center, asked that they vote against the
Union and urged that they give him a year without a labor
organization. Hearnton read his speech from a prepared
text . After completing its presentation he remained for a
question and answer period . During that period , Hearnton
was asked as to his plans for the counseling department.
Pence Pruitt testified that Hearnton stated that he planned
to appoint a coordinator from the ranks of those present
and that he would do this within 3 to 4 days. Pruitt's
testimony in this regard was corroborated by Carolyn
Clark and Norman Merkler , both of whom were present.
Hearnton acknowledged having been asked this question
during the meeting, but testified that in his answer he
merely stated, "I might or might not [appoint a coordina-
tor] . . . I have not finalized my plans."
This testimony on his part, however, is contradicted by
the prepared speech which he read to the counselors at the
outset of the meeting , a copy of which appears in the
present record . According to a passage in this manuscript,
Heamton stated that he was speaking on this matter, in
order that
there would be no doubt of the role and objectives of
counseling in the total Center program ... I intend to
fill the post vacated by Bill Gregory within the next few
days. [Emphasis supplied.]
In succeeding paragraphs, he described the importance of
this job, which he described as that of "Counseling
Supervisor," and stated that
The person named to fill this post will be familiar with
your problems . . . will recognize the job that has to be
done ... and will need your full support and
cooperation....
Having made the above remarks in his prepared text, it
would not seem unlikely that during the question and
answer period Hearnton would go further and assure those
present that the one selected to fill Gregory's post "within
the next few days," and who "will be familiar with [the
counselors'] problems" would be one of them. In view of
the tenor of the prepared speech in this regard and the
credibility of Pruitt, Clark, and Merkler in this connection,
it is my conclusion that at this meeting, as the counselors
make assignments and be responsible for their accomplishing such
assignments. There was other testimony by Clark to the effect that soon
thereafter Gregory hired a new counselor and a short while later discharged
this person . The General Counsel also offered in evidence a letter dated
April I which Gregory sent to Norman Merkler, a counselor , wherein he
granted Merkler several days off to move his family to a new house.
Gregory stated that the time off was being given because of Merkler's
"excellent attendance record for the year and in appreciation for the extra
hours . . . given to the performance of [his ] duties." On the foregoing
credible and uncontradicted evidence, it is my conclusion that, in his role as
counseling coordinator, Gregory exercised supervisory authority.
WESTINGHOUSE LEARNING CORP. 25
testified, Hearnton promised that within 3 to 4 days he
would appoint a counseling supervisor from within their
ranks.
At the election, held the next day, the vote was 13-0 in
favor of the Union. After the election, the counselors heard
nothing further about securing a "Counseling Supervisor"
and Hearnton chose no one from among their number to
fill such a job. It is my conclusion, based on the foregoing
sequence of events, that the director's promise to appoint a
supervisor from the ranks of the counselors, made on the
eve of the election , was a promise of benefit that the
Respondent proffered to influence the outcome of the
election and for no other purpose. As such, this action
constituted a violation of Section 8(a)(1) by the Respon-
dent.
D. The Bargaining Sessions Before and After the
Carpenters Strike
Immediately after the election , Merkler was designated
by Local 1693 as chairman of its negotiating committee.
On May 21, he went to the office of Robert A. Dyer,
director of personnel and manager of industrial relations,
to ask that the Respondent begin collective bargaining with
the Counselors Union. Dyer and Ronald Ingham, an
attorney for Westinghouse, were in the office . Both told
Merkler that the Respondent had not yet received the
formal notice of certification from the Board and that until
it arrived the Company would not meet with the Union.12
In a letter dated May 28, Merkler proposed a meeting of
the parties on June 2. Dyer ignored the request on the
ground that the Respondent still had not received a copy
of the Union's certification. In a letter dated June 4, Dyer
wrote Merkler that the Company had received a copy of
the certification and that he was prepared to meet the
union committee on June 9 , at his office.
Meeting of June 9: This meeting, held in Dyer's office,
was attended by Merkler, Pruitt, Clark, and Robert
Thornberry , representing the Union, and Dyer, Robert
Pattison , and Ira Pack , representing the Company . It lasted
approximately an hour. Merkler proposed that the parties
meet twice a week, but Dyer refused to commit himself to
that schedule . Merkler than requested that the meetings be
held in some neutral place, rather than Dyer's office, but
the latter refused.13 However, the parties thereafter agreed
that during their meetings each side would have only one
spokesman that the bargaining team for each side could
have four members, that either side could request a recess
to caucus among themselves , and that none of the day-to-
day agreements as to specific items would be binding until
an entire contract had been negotiated by the parties.
Before the conclusion of the meeting , Dyer requested that
the Union present its entire contract proposal. Merkler told
him that his committee had not finalized their proposal but
that it would be ready within a week. The meeting then
adjourned.
Prior to the election, the counselors held conferences
with corpsmen anywhere from noon until 9 p.m. Shortly
after the election, Ira Pack, manager of residential living,
told the counselors that no more appointments with
corpsmen could be scheduled during the daytime. Early in
June, Herbert Patton,14 manager of Campus East,15
announced that the counselors assigned to his jurisdiction
could schedule no more appointments with corpsmen in
the afternoon. Both Pack and Patton acted unilaterally and
without consulting the bargaining agent for the counselors
as to this change in working conditions. A union
committee, consisting of President Pence Pruitt, Sergei
Davidenkoff, Willard Kennedy, and Stewart Northrup,
later had separate meetings with Patton and Pack at which
they protested this change, but their protests were
unavailing.
About the middle of June, Ernest Burton, manager of
Campus West, announced that the counselors who report-
ed to him would have to punch a timeclock. This action
was taken without consulting the employees' bargaining
agent. On or about June 15, Burton told Merkler to punch
a timecard. Merkler testified that he thereupon protested
that counselors, as salaried employees, had never been
required to punch timecards and that he did not think such
a requirement could be enforced unless it was a matter of
union contract. Merkler testified, credibly and without
contradiction, that Burton then told him, "Your damn
union won't help you .... You'd better punch that time
card now, or you're going to be fired." 16 Merkler persisted
in his refusal and then went to Dyer's office to protest
Burton's action. There, Dyer assured him that the
counselors would not have to punch timecards and that
settled the matter. Notwithstanding the corrective action
taken by Dyer, the declaration that Burton made to
Merkler when endeavoring to enforce a unilateral change
in the working rules was threatening and coercive. As
uttered by Burton, Merkler could assume that the
timeclock requirement imposed on him was punitive action
that Burton was taking because of the Union. Burton's
conduct in this regard constituted, and is found to be, a
violation of Section 8(a)(1) by the Respondent.
On June 14, Merkler, Pruitt, and Clark went to Dyer's
office and there presented to him a copy of the Union's
proposed contract. Merkler testified, credibly, that at this
time he told Dyer that the Union's economic proposal was
ready if the Company wanted it at that time, but that Dyer
declined to take it then on the ground that it would be
better to wait until agreement had been reached as to the
language in the rest of the contract.
After the meeting held on June 9, the parties agreed to
meet again on June 16. At the appointed hour on that date,
Merkler, Clark, Pruitt, and Brown appeared at Dyer's
office. Dyer was engaged in a conference with other
management personnel at the time and did not receive the
union delegation until it had waited for a half hour. When
at last Dyer appeared, he spent about 30 minutes going
over certain corrections which Merkler wanted to make on
the copies of the Union's contract proposal. Dyer than told
12 The findings in this paragraph are based on the mutually corrobora- 15 There were two major divisions of quarters for the corpsmen at the
tive testimony of Dyer and Merkler. Center, one designated Campus East and the other Campus West.
13 Dyer denied that he had insisted that all meetings be in his office , but 16 Burton was never called as a witness Merkler's testimony was
in this instance Merkler 's testimony was the more credible. undented.
14 In the transcript, this name is incorrectly spelled as Patent.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union representatives that he would have to send a
copy of the proposed agreement to Pittsburgh for study by
the labor relations section in the corporate headquarters.
He told Merkler that it would require about a month to get
an analysis of their proposal from Pittsburgh. When
Merkler pressed him as to when the Respondent would be
ready for another collective-bargaining session, Dyer
replied that his response would be "timely," 17 and refused
to be any more explicit.18
After an exchange of letters during the next 2 weeks in
which the Union initially sought a meeting on June 28 or
29, the parties finally agreed on a company proposal that
they meet at 1 :30 p.m. on July 7.
On July 7, and as the result of a dispute unrelated to any
issue in this case, the Carpenters Union called a strike of
the facilities ' employees and established a picket line at the
entrance to the Center. In sympathy with the striking
members of the Carpenters, all the counselors elected to
honor the picket line and remain away from work.
At 1:30 p.m. on July 7, Merkler and his union committee
arrived at Dyer's office. Dyer's secretary at first told the
counselors that Dyer had canceled the meeting, but, after
they remained at his office for about half an hour, Dyer
appeared and met with them for a few minutes. Mrs. Clark,
present as a member of the Union's bargaining committee,
testified that Dyer told them that he could not negotiate
with them that day because of the Carpenters strike.
Merkler corroborated Mrs. Clark as to Dyer's explanation
for his unavailability. Dyer testified that he could not recall
what his conversation was as to that issue, other than that
he told the committee he could meet only briefly. Merkler
also testified that Dyer told the union committee that he
"would not negotiate with us . . . as long as any counselor
remained out on the picket line or refused to cross the
picket line" 19 Dyer denied that he made these remarks.
This conflict will be resolved later herein. Clark testified
that before the brief meeting ended, Dyer agreed to meet
with the union negotiating committee on July 14. During
the course of his testimony, Dyer conceded that he orally
agreed to the latter date for a meeting.20
At about 1:15 p.m. on July 14, the four regular members
of the union negotiating team, viz, Merkler, Clark, Pruitt,
and Brown , attempted to enter the Center to keep their
appointment with Dyer. Harish Pandya, another counselor
and union member, accompanied them. Merkler testified,
credibly and without contradiction, that they were told at
the gate by the security guard on duty, one Pat Beavin, that
all 13 counselors were on a list of people who had been
barred from the Center. Thereafter, when the members of
the union committee sought out the officer on duty at the
security office, one Corporal Gill, and protested that they
had a meeting scheduled with Dyer, Gill told them that he
was forbidden to admit them without permission from
it The quotation is from Merkler 's testimony.
is The foregoing findings in this paragraph are based in part on the
testimony of both Merkler and Dyer. In only one significant aspect did their
testimony differ as to this meeting. Dyer stated that Merkler came to his
office alone , whereas the latter testified that he was accompanied by Clark,
Pruitt , and Brown . In this latter regard, Merkler 's testimony was the more
credible.
is Merkler further testified that , when Dyer attributed his unavailability
for negotiations to the Carpenters strike, he asked Dyer how long it would
what he described as "someone in authority." While the
other members of the committee remained at the security
building, Merkler attempted to leave and walk to Dyer's
office. He was immediately surrounded by a cordon of
guards who escorted him back to the security office. When
Merkler returned, he and the other members of the union
committee , along with Pandya, were told that they could
go to their offices to pick up their personal possessions.
When they did so, they were accompanied by guards from
the security office. At about 3 p.m. the latter informed the
members of the union committee that they would be driven
to Dyer's office.
When Merkler and his group arrived there, Dyer told
them that they had been replaced and that he did not
consider them as the representative of the counselors who
then worked at the Center. Merkler testified that Dyer told
them that he was not going to waste time negotiating a
contract with their Union because later he would have to
negotiate another with their replacements. According to
Merkler, the union committee protested that the Respon-
dent was under an obligation to negotiate with it as the
certified representative of the counselors and that his
committee had standing to represent all of the counselors.
Merkler further testified that after Dyer told the
counselors that their positions had been filled, he (Merkler)
asked how many had been replaced, and Dyer declined to
supply this information. According to Merkler, Dyer also
stated at this time that he did not intend to negotiate with
them as long as any counselors honored the picket line.
Merkler then questioned Dyer as to whether he and the
other counselors had been fired. Dyer denied that they had
been terminated and said they had been replaced. When
Merkler then asked whether replaced and fired meant the
same thing, Dyer described the difference in meaning as "a
matter of semantics ." Merkler's testimony in this connec-
tion was credible and Dyer's testimony was substantially to
the same effect. Merkler also testified that at this meeting
he asked Dyer whether any of the counselors who wanted
to cross the picket line would have access to the Center and
be allowed to return to work. According to Merkler, Dyer
replied in the negative and told him and the union
committee that none of them would be allowed to set foot
on the Center, that they had been replaced, and that their
duties were being handled by other people.
Before the meeting ended, Merkler suggested that they
meet again the day that the strike was settled. Dyer
suggested that it would be better to have a definite date
and the parties then agreed on August 16 as the date for
their next meeting.
At the trial, Dyer testified that he told the union
committee at the meeting on July 14 that they and all the
old counselors had been replaced. He conceded that he
also told them that since they had been replaced he
take to settle that dispute . According to Merkler, Dyer replied that "We
could settle this thing in five minutes if we wanted to.... We don't intend
to, we're going to let them die on the vine. We 're gonna teach them a lesson.
We'll let them stay out until they ... beg to come back ." At the trial, Dyer
denied that he made any such comments.
20 Dyer also testified that he never confirmed this commitment as to July
14 in writing. However, there was no evidence that the parties agreed that
they would meet only when arrangements were confirmed in writing.
WESTINGHOUSE LEARNING CORP. 27
questioned whether they - were the legitimate group with
which to, negotiate a contract for the counselors who had
taken -their jobs . Dyer4estified that he told them "as soon
as I could find out if this group was the appropriate group
to bargain with I would meet with them." Dyer likewise
testified that Merkler asked how many counselors had
been replaced, Dyer did not contradict Merkler's testimo-
ny to the effect that he refused to supply this information.
Nor did Dyer deny having told Merkler that he saw no
reason for negotiating two contracts by meeting first with
the union committee and then with the counselors who had
replaced them . According to Dyer, it was not until after
this meeting of July 14, and after he contacted the
Respondent's labor relations counsel , that he learned that
he was still obligated to meet with the union negotiating
committee . In view of the foregoing testimony in which
Dyer conceded that it was not until sometime after July 14
that he learned of this obligation on the Respondent 's part,
it is my conclusion that , as Merkler testified , both on July 7
and again on July 14, Dyer told the union representatives
that he would not talk with them as long as the strike
continued and the counselors honored the picket line.
On or about July 23, Merkler telephoned Dyer to ask
whether the counselors could cross the picket line and
return to work. According to Merkler, Dyer stated that he
would advise against doing that . Merkler testified that he
then asked whether or not he could come to work when the
picket line was removed, but Dyer declined to answer and
simply said, "We'll cross that bridge when we get to it."
Dyer denied that he advised Merkler that the counselors
should not attempt to cross the picket line. He did state
that during this conversation he told Merkler that the
counselors had been replaced and that there was no work
for them . It is my conclusion that in this conversation, as
Merkler testified , Dyer also stated that the counselors
should not attempt - to cross the picket line.
In a letter dated July 20, Dyer wrote to Merkler to
suggest that the parties meet on August 6, rather than on
August 16. In a letter dated July 26, Merkler accepted this
offer . Rather than mail this written response , Merkler
endeavored to deliver it to Dyer's office. On arriving at the
gate to the Center, he was met by Captain Billy Davis of
the security force. Davis cursed him and ordered him off
the premises on the ground that Merkler had no business at
the Center. Finally, after insistence by Merkler that he had
to meet Dyer, Davis telephoned the latter and Dyer came
to the security office where he accepted Merkler's letter.
Merkler's testimony as to his encounter with Davis on this
occasion was credible and it was not denied or contradict-
ed.
In a letter dated July 27, Dyer wrote as follows to
Merkler (and all other counselors who remained away
from work during the Carpenters strike):
Because of your status, request you return your I.D.
card, Office Keys, and Government Drivers' License, if
issued one, to this office. [Emphasis supplied.]
On about August 2, the Carpenters strike was settled and
the picket line was removed from the entrance to the
Center. Dyer testified that, on August 3, 12 of the 13
counselors who had stayed away from work in sympathy
with the Carpenters strike called or came to his office to
request their jobs back.21 Dyer further testified that
thereafter all 13 of the counselors wrote individual letters
advising him that they were ready and willing to return to
work and requesting reinstatement. To all of these
requests, Dyer's uniform response was that the counselors
had been replaced and that there was no work for them.
In a letter dated August 5, Dyer notified the former
striking counselors that their vacation checks would be
available at the security office on August 10, at which time
each would have to turn in keys, identification badge, and
auto sticker. When the counselors reported to the security
office on the latter date, Captain Billy Davis required that
each sign an acknowledgement that the vacation check he
received was a final payment from the Company.
In addition to the individual letters requesting reinstate-
ment, which all of the counselors wrote to Dyer early in
August, Pence Pruitt, as president of the Union, wrote
Dyer, in a letter dated September 10, that all of the
counselors who had been on strike were ready and willing
to return to work and desired reemployment. Dyer
acknowledged having received this letter.
Meeting of August 6: Merkler, Pruitt, Paul Sechrist, and
Robert Brown represented the Union and Dyer and
Pattison represented the Respondent. Dyer testified that he
gave the Union a page of the Company's proposals at this
meeting. This listed four proposed paragraphs for inclusion
in a collective-bargaining agreement, namely, clauses on
(1) recognition, (2) number of members on the bargaining
committee, (3) nondiscrimination, and (4) a statement on
the desire of the parties for a harmonious relationship. The
Union agreed with the proposed language as to all of the
foregoing except the one limiting the number of members
for the bargaining committee, and the parties agreed to
hold that paragraph for later discussion . At the outset of
the meeting, Dyer stated that he had 1 hour to spend. At
the end of 50 minutes, he announced that the time was up
and he thereupon closed the meeting over union protests.22
At the conclusion of the meeting on August 6, Dyer
stated that he could not meet with the Union for another
month. The Union protested, but the next meeting was not
held until September 7.
On the latter date, the parties met at the Imperial House
Motel in nearby Columbus, Indiana. Merkler, and the
same group he had at the earlier meetings, appeared for the
Union. Dyer, Pattison, and Pack represented the Compa-
ny. At the outset, Dyer presented, for the first time, the
Company's counterproposal for a collective-bargaining
agreement,23 and the parties discussed the opening
21 Dyer testified that the one exception was Mrs. Clark, and that the
preceding Monday she had called her supervisor to say that she would not
be able to report on August 3 because she was on a vacation.
22 This finding is based on the credible testimony of Merkler. Dyer
conceded that he terminated the meeting early.
23 As found earlier, at the meeting on August 6, Dyer made a proposal as
to only the four preliminary paragraphs of a contract At one point dung
the hearing, Dyer testified that he gave the Union the Respondent's
complete counterproposal at the August meeting, but this testimony was
(Continued)
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraphs which reiterated the language upon which
accord had been reached on August 6.
On September 9, the parties met again at the Imperial
House Motel . At the request of the Union, the meeting was
held in the morning. Little was accomplished at this
session . Merkler renewed an earlier demand that the
Company supply the Union with the names of the
replacement counselors and Dyer told him that he would
study the request. At this time also, at Dyer's request, the
Union provided the company representatives with a copy
of "The Ethical Standards of the American Personnel and
Guidance Association."
Dyer testified that there was a meeting of the parties on
the evening of September 21. Merkler, however, denied
that there was any meeting on that date. On October 4,
Dyer wrote Merkler to propose a meeting on October 21.
In a response , dated October 8, Merkler wrote Dyer to
accept the proposed date. In doing so, Merkler protested
the failure on the part of the Company to have any meeting
with the Union after September 9 and, particularly, the
failure of Dyer to meet with the Union during the period
from September 9 and 23. In view of these letters, which
appear as exhibits in the record, it is my conclusion that
Merkler's recollection was the more accurate and that
there was, in fact, no meeting of the parties on September
21.
On October 21, the parties met again at the Imperial
House Motel. At this time, the Union submitted its salary
proposal and some time was spent discussing it. This was
the first time that the Union made a salary proposal.
Merkler testified, credibly, that the Union's economic
proposal actually had been ready since the preceding June
14, but, at Dyer's suggestion on that date, it had been
withheld until agreement could be reached on the language
of the rest of the contract. Dyer credibly testified that at
this time he proposed that the Federal Mediation and
Conciliation Service be called in to their meetings, but that
the Union objected.
On October 26, the parties met again, on this occasion at
a motel in Franklin, Indiana. Dyer testified that the time
was spent discussing the Union's salary proposal. He also
testified that he proposed that thereafter the parties meet
twice a week , but that the members of the union committee
objected that they would be unable to meet that frequently.
Another meeting, scheduled for November 29, was
canceled by the Union on the ground that it would conflict
with the unfair labor practice hearing which originally was
scheduled to begin that week. In a letter dated December
2, Dyer mailed the Union a counterproposal on salaries
and suggested that bargaining not be deferred while the
Board hearing was in progress because that might last a
long time.
obviously in error, and I conclude that it was not until the meeting a month
later that Dyer took this step.
24 The quotation is from Dyer 's letter
25 In its brief, the Respondent refers to the fact that during this
conversation with Logan Pruitt admittedly did not discuss a resumption of
negotiations . This, however, was not surprising, since Pruitt was unaware
that Logan had already taken over Dyer 's position , and Logan did' not
volunteer any information as to his own promotion.
In mid-December, the parties engaged in an exchange of
correspondence on wage proposals and counterproposals.
On December 30, the parties met in a motel room in
Franklin, Indiana. Dyer gave the only testimony as to this
meeting . According to him , Pruitt and Kennedy represent-
ed the Union. Dyer testified that Kennedy arrived tardily
and, once having arrived, laid down on the bed in the
motel room for an hour while he and Pruitt continued their
negotiations.
By mutual agreement of the parties , no bargaining
sessions were held during the month of January 1972 when
the initial trial of the instant case was held . Thereafter, the
Respondent and the Union did not have another meeting
until the latter part of April.
In a letter dated February 9, Pruitt wrote to Dyer
requesting a resumption of negotiations and proposing that
a meeting be held the following week . In the same letter,
Pruitt renewed the Union's request for the names of the
replacement counselors whom the Respondent had hired.
Pruitt stated that he needed this information in order that
he could contact each of the incumbents relative to his
union interests . On February 11, Dyer replied that he was
unable to do anything about the Union's requests since he
was leaving his job at the Center and that his replacement
had not yet been named. Dyer closed this letter, however,
with the promise that the Company would be in contact
with Pruitt "in the very near future to propose a date" for
the resumption of negotiations.24
At the hearing I. David Logan testified that he was
named as Dyer's successor in the post of director of
personnel and manager of industrial relations on February
15. Pruitt, however, did not learn this information until
about April 4, when he had a telephone conversation with
Mrs. Betty Robinson who had been Dyer's assistant.
During the interim, Pruitt had a conversation with Mrs.
Robinson and even with Logan, but in none of these was
he told that Logan had succeeded Dyer. Thus, on February
22, Pruitt telephoned the personnel office and had a
conversation with Mrs. Robinson during which she told
him that Dyer's position as manager of industrial relations
had not been filled. On hearing this, Pruitt asked whether
he could be considered for the vacancy and she referred
him to Logan. Later that day Pruitt telephoned Logan, told
him of his interest in Dyer's job and questioned Logan as
to his (Pruitt's) prospects of being appointed to Dyer's
position . Logan's response was to tell him that he would
review Pruitt's application when it was submitted in
writing. At no time during this conversation, however, did
Logan disclose that he himself had been appointed to
succeed Dyer.25
Early in March , Pruitt telephoned the personnel office
and sought to speak to Logan, but was told that he was
unavailable 26
26 In a letter to Logan dated March 3 , Pruitt referred , inter alia, to Dyer's
letter of February 11, wherein the then manager of industrial relations
promised that the Union would be contacted in the near future as to a
resumption of negotiations. Pruitt testified that he not only sent the original
of this letter to Logan, but that he sent copies to both Center Director
Hearnton at Atterbury, and Mr. Harvey Brudner, president of Westing-
house in New York City. The Respondent denied that it had ever received
any copy of this letter , and Logan denied ever having seen the original
WESTINGHOUSE LEARNING CORP. 29
On April 4, in a telephone call, Pruitt talked with Mrs.
Robinson and then - learned for the first time that Logan
had -succeeded Dyer as manager of industrial relations for
the Respondent . Pruitt thereupon asked to speak to Logan,
but she told him that he was not available that day; Pruitt
then requested that Logan be asked to telephone him and
Mrs. Robinson promised to convey this message. Logan
never returned the call.
In a letter dated April 7, Pruitt wrote Logan to protest
the failure of the Respondent to answer prior communica-
tions requesting a resumption of negotiations and to
propose that meetings be scheduled for the following week
and each week thereafter until a contract was finalized.
Pruitt also renewed the longstanding request for a list of
the incumbent counselors at the Center.
In a letter dated April 13, Logan acknowledged Pruitt's
letter of April 7, and proposed a meeting on April 20.
Logan further stated that the Union's request for names of
the current counselors had been referred to Respondent's
attorney for a legal opinion. In a letter dated April 17,
Pruitt acknowledged receipt of the foregoing communica-
tion, and stressed the necessity of the information as to the
counselors then in the Respondent's employ so that the
Union could get a representative from that group involved
in the negotiations.
Thereafter, the Union and the Respondent had five
meetings from April 20 to May 18. Davidenkoff represent-
ed the Union at all five meetings. Pruitt was with him at
the meetings on April 20 and 27 and May 4; Merkler was
with him at the meetings on May 11 and 18. Logan and
Pattison attended all of the meetings on behalf of the
Respondent . Pack was also with the company representa-
tives at the first four meetings.
Throughout the April and May meetings between the
Union and the Company, the parties discussed many
articles in the various proposals that were advanced during
the sessions held the preceding fall. In addition, on May
11, the Respondent made counterproposals on job security,
layoff, maternity leave, contract modification, hours of
work, seniority, and payment for negotiating time.
In a supplement to its original contract proposal, the
Union had proposed that: (1) the Company abide by the
code of ethics of the American Personnel and Guidance
Association as to the obligations of counselors to the
corpsmen ; (2) counselors be subject to discharge only for
morals violations , criminal violence, or violations of the
ethical standards of the American Personnel and Guidance
Association; (3) a supervisor over the counselors, to be
known as a manager, would be appointed from their ranks
and would report directly to the Center director; (4) a
human rights commission would be established at the
Center; and (5) the dress code established early in Mr.
Heamton's regime for corpsmen and staff would be
rescinded .27 There was a conflict in the testimony as to the
extent to which the Union, during the April and May
meetings, urged the adoption of the foregoing. Thus,
Merkler testified that at the meeting on May 11 he told the
which was addressed to him . Pruitt testified that he mailed the three
different letters from a rural route mailbox near his home. However, none of
these letters was certified or registered . Consequently, I conclude that even
though Pruitt apparently mailed this correspondence, on or about March 3,
as he testified, there is no persuasive evidence in the record that any of these
company representatives that the supplemental section of
the Union's proposed contract was not intended for
negotiations, but rather was included in order to make the
Respondent aware of certain philosophies which the union
members had. Logan, on the other hand, testified that at
no time did the union representatives state that they were
dropping any section of their proposed contract. It is my
conclusion that, in fact, the Union did not withdraw or
delete any of the aforesaid provisions in their contract
proposal.
Davidenkoff testified, credibly and without contradic-
tion, that at every meeting the union representatives
questioned the Respondent's delegation as to when they
would supply the Union with the names and addresses of
the counselors working at the Center. Finally, in a letter
dated May 24, 1972, Logan sent to Pruitt the names and
addresses of nine counselors then in the Respondent's
employ.
E. The Status of the Sympathy Strikers
1. The Respondent's action as to the counselors
As found earlier herein , when the Carpenters Union
began its strike on July 7, the 13 counselors then in the
Respondent's employ joined the work stoppage. In a letter
dated July 7, and sent via registered mail to each of the
counselors, the Respondent notified them as follows:
In violation of Westinghouse Company policy and in
the absence of any negotiated contract with an
organized counselor body, you were absent from your
work station on Wednesday, July 7, 1971. Therefore, in
accordance with company policy, you will not receive
payment for this day since you chose not to come to
work.
Let this letter serve as a warning that should you, as a
Westinghouse Learning Corporation (Indiana) employ-
ee, fail to show up for work as scheduled tomorrow,
July 8, 1971, and check in with your immediate
supervisor at your normal work station, you will be
replaced effective July 8, 1971.
None of the 13 counselors returned to work on July 8 and
since that time none has been reemployed by the
Respondent.
At the trial, the personnel folder of each counselor was
the subject of an extensive cross-examination of Dyer
while he was on the stand. On each of the 13 envelopes the
personnel office had written the penciled notation,
"Termination," followed by the date "July 8, 1971," the
day that the counselors were ordered to report for work or
be replaced.
As found earlier, in a letter dated July 27, the
Respondent notified all counselors that "because of [their]
status," they were requested to return their identification
cards, office keys, and government drivers' licenses to the
letters was ever received by the addressees.
27 The Respondent describes the foregoing as nonbargainable issues
More properly , they were nonmandatory items for bargaining, that is,
matters as to which the parties could bargain should they desire, but as to
which the proponent could not insist to the point of impasse.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel office. In another letter, dated August 5, Dyer
notified the counselors that their vacation paychecks were
ready at the security office. When each counselor appeared
to claim such pay , he was given his check only after signing
a written acknowledgment that it was a final payment from
the Company.
Early in August several of the counselors applied to the
Indiana Employment Security Division for unemployment
benefits. This necessitated a response from the Company
as to their status . In an "Eligibility Information Report,"
dated August 3, and filed with that state agency,28 the
Respondent declared that counselor Robert Arms was
separated on July 8, "because of failure to report to work
... as directed." In a response to the Employment
Security Division, dated August 12, as to claims filed by
Carolyn Clark, Norman Merkler, Harish Pandya, Pence
Pruitt, and Philip Waggoner,29 the Respondent requested a
hearing before a referee on the ground that the aforesaid
counselors had been "terminated for failure to report to
work on July 8, 1971 as directed...." 30
At the trial, the Respondent offered in evidence a
summary sheet listing the replacement counselors hired
and their hire dates during the period in question. Copies
of the supporting documents from which this summary was
prepared were also received in evidence. With one
correction as to hire dates ,31 this exhibit sets forth the
following sequence as to the hiring of replacement
counselors:
Date
Date of Replacemt.
Source of Hire or Rept. work
Counselor Replacement32/ Replacemt . Trans.
1. Paul Sechrist Robert Fersch Transfer 7/8 7/8
2. Carolyn Clark Floyd Bridges Transfer 7/8 7/8
3. Loren Hall Alfred Davis Transfer 7/9 7/9
4. Philip Waggoner Willie Maxwell Rehire 7/9 7/9
5. Sergei Davidenkoff Edward Vance 33/ Promotion from
Res. Adv. 7/12 7/12
6. Gerald Morris Gerald Sears New Hire 7/16 7/16
7. Harish Pandya Robert Stewart New Hire 7/19 7/19
8. Pence Pruitt Claude Burch Transfer 7/19 7/19
9. Stewart Northrup James Montgomery New Hire 7/23 8/6
10. Norman Merkler James Reese New Hire 7/26 7/26
11. Robert Brown Johnny Dixon New Hire 7/28 8/9
12. Robert Arms George Weathers New Hire 7/29 7/29
13. Willard Kennedy Daniel Krivoshia Rehire 8/3 8/3
28 The report was signed by Betty Robinson , personnel administrator
under Dyer.
29 In the record , Waggoner is also referred to as "P Waggoner" and
sometimes as "Mike Waggoner."
30 The reply to the Employment Security Division was signed by James
Worthall , the Respondent's supervisor of accident and fire prevention.
31 On the original exhibit , Johnny Dixon is listed as having been hired in
a replacement for Robert Brown on July 20. The other exhibits received
along with the summary sheet , however, disclose that the foregoing date
referred only to the time that Dixon was offered employment . A letter to
Dixon , bearing that date and sent from Dyer's office, asked that Dixon let
the Company know by July 30 as to whether he would accept this offer.
Another exhibit on Dixon 's employment , entitled "Employment Requisition
Form" is dated July 28, and indicates that Dixon had accepted the
foregoing offer and would start to work on August 9. At the bottom of this
card there appears the notation "O.K. Robert A. Dyer 7-28-71." From this
latter document it is apparent , and I find , that Dixon made no commitment
to accept the Respondent 's offer until about July 28. Consequently, Dixon
cannot be considered as a permanent replacement until this latter date. H &
F. Bench Co., 188 NLRB 720, enfd. as to this point 456 F.2d 357, 361-362
(C.A. 2, 1972).
James Montgomery , fisted as a replacement for Stewart Northrup, was
offered a job on July 23 and did not report for work until August 6.
However, from the evidence in the record , it appears that Montgomery
Iaccepted the job offer from the Respondent on the same date it was made.
Hence , he should be considered as having committed himself on July 23 to
report for work early in August.
32 A comparison of the replacements named on the summary sheet and
the personnel data that was offered by the Respondent to support that
summary discloses other changes which should be made in the interests of
;accuracy . Thus, whereas the summary sheet describes Montgomery as the
replacement for Northrup , other personnel data attached to the exhibit
refers to the former as a replacement for Davidenkoff . Similarly, this same
data names Knvoshia as the replacement for Northrup, rather than
Montgomery , Reese as the replacement for Pandya rather than for Merkler,
and Vance as the replacement for Kennedy rather than Davidenkoff.
However , in view of the conclusions set forth later in this decision , it is not
necessary to reconcile these differences between Resp . Exh. 27 and the data
from which that exhibit was compiled . Consequently , except for the one
change as to hire dates referred to in the preceding footnote , I accept the
names of the replacements that appear on this exhibit as the names of those
who replaced the specific counselors listed on that document.
33 On the "Authorization for Change in Payroll" form for Vance, there
appears the notation "Promotion from Resident Advisor to position of
Counselor. Will be brought to minimum of code after 30 day evaluation
!period" (Emphasis supplied.) From this latter phrase, it would appear that,
initially, Vance was not a permanent replacement , and that, in fact, he was
given the transfer to Davidenkofrsjob on a probationary basis.
WESTINGHOUSE LEARNING CORP. 31
The General Counsel contends that the Respondent
terminated all of the counselors on about July 8 when they
remained away from work along with the carpenters and
that such terminations constituted an unlawful discharge
of the counselors for having engaged in protected concert-
ed activity. The Respondent denies this allegation and
,avers that the counselors were treated as economic strikers
who were replaced before they sought reemployment.34
To a recapitulation of the- relevant evidence we will now
turn.
As found earlier, on July 7 when the counselors first met
with Dyer after the strike began, he told them he would not
.meet with the union representatives while any of them
remained on the picket line.
On July 14, the Respondent's security office refused to
permit the counselors to enter the premises of the Center
,for a bargaining session with Dyer. While they awaited
word from Dyer as to whether he would see them, they
were given permission to pick up any personal possessions
still in their offices, but they were accompanied by guards
from the security office while they did so. When, at last,
Dyer agreed to meet them, he told them they had been
replaced and that he could not consider them as the
bargaining agent for their replacements. He further told
the union committee that the duties of the striking
counselors were being handled by replacements and that
'thereafter none of the strikers would be allowed to set foot
on the Center. At the same time, Dyer refused then, as well
,as later, to disclose how many had been replaced. From the
data supplied by the Respondent at the trial and set forth
above, it is manifest that, even from its own records, on
July 14 no more than 5 of the 13 counselors had been
replaced, and that 1 of these 5 had been transferred to a
(counselor position on probation.35
On July 23, Merkler telephoned Dyer to ask whether the
counselors could cross the Carpenters picket line and
return to work. Dyer advised against such action and told
,Merkler that since the counselors had been replaced there
was no work for them. At that time, from records the
Respondent introduced at the trial, it appears that by July
23 replacements had been secured for only 9 of the 13
counselors.
On August 3, when the Carpenters strike was settled and
the picket line removed, the counselors returned to the
Center and asked Dyer for reemployment. Dyer testified
that he told them all that they had been replaced and that
there was no work for them. Yet, from the chart submitted
by the Respondent and set forth above, it is manifest that
even then replacements for Northrup and Brown had not
reported for work and would not until Augu- 6 and 9,
respectively.
It is apparent from the Respondent's course of conduct
,toward the striking counselors that after July 8 it treated
them as former employees who were off the payroll and
who had no prospects of reemployment. There is no other
explanation for their being barred from the Center by
security personnel when they arrived for a scheduled
34 In an economic strike, the employer has a "right to protect and
continue his business by supplying places left vacant by strikers And he is
not bound to discharge those hired to fill the places of strikers, upon the
election of the latter to resume their employment, in order to create places
'bargaining session with Dyer on July 14, or for their being
told by Dyer on that date that all had been replaced when,
in fact, at that point replacements had been secured for
only 5 out of 13. Thereafter, on July 23, when Merkler
inquired as to whether any counselors could cross the
picket line and return to work, Dyer discouraged any such
action and reiterated the claim that all their jobs had been
filled, notwithstanding the fact that, from its own records,
at that time replacements had not yet been secured for four
of the counselors. In a letter to all the strikers, dated July
27, and mailed by the Respondent at a time when two
counselors still had not been replaced, all the striking
counselors were notified that "because of [their] status"
they should immediately return all identification cards,
office keys, and related items. Later, in the month of
August, in its report to the Indiana Employment Security
Division as to the claims for unemployment benefits made
by several of the striking counselors, the Respondent, in
effect, described them as dischargees when it stated that all
had been terminated on July 8, for having failed to report
for work as directed. On the basis of the findings set forth
above, I conclude that this, in fact, was what the
Respondent did; namely, discharge all the counselors on
July 8 when they did not return to work as directed in the
Respondent's letter of the preceding day. Since, at that
time, the counselors were away from work out of sympathy
for the Carpenters and in response to the picket line
activity of that union, they were engaged in protected
concerted activity. This action of the Respondent consti-
tuted a discharge of the counselors for striking and was a
violation of Section 8(a)(3) and (1).
2. Eligibility of the strikers for reinstatement
The loyalty issue
As economic strikers who were discharged for striking,
all of the 13 counselors are entitled to their formerjobs, or
substantially equivalent positions, unless by misconduct
during their concerted activity they forfeited that right.
The Respondent contends that some, at least , engaged in
such prohibited conduct. These cases will now be consid-
ered.
(1) Merkler and Pandya
In letters dated August 9, 1971, and sent to Norman
Merkler and Harish Pandya, Center Director Hearnton
notified both of them that they had been discharged "as a
result of disloyalty and inciting remarks made to certain
Corpsmen urging them to rebel." 36
The incident out of which this action arose occurred on
July 14, when Merkler, the union bargaining committee,
and Pandya, were at the lobby, or entrance room, of the
security office, awaiting an opportunity to meet with Dyer.
As found earlier, the union members were at this site for an
hour, or more, while they awaited release from the guards
for them " N L R B v Mackay Radio & Telegraph Co, 304 U S 333,
345-346(1938)
35 Viz, Vance, see fn 33, supra
36 The quotation is from the Respondent's letter
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so that they could proceed to their meeting with Dyer.
During this period, a number of corpsmen passed through
the lobby. The Respondent alleges that Merkler and
Pandya talked with two of these corpsmen and while doing
so urged them to foment a riot and burn the buildings at
the Center. In consequence, the Respondent contends that
both have disqualified themselves for reinstatement under
any circumstances.
Gregory Hill and Armand Curtis, two 18-year-old
corpsmen, testified that on the day in question they were in
the lobby at the security office and that, while there,
Merkler engaged them in conversation. According to Hill,
after introducing himself, Merkler inquired as to how they
were being treated and then suggested that if they were
dissatisfied they should "have meetings . . . in order to be
noticed" and that they could boycott their classes by
refusing to leave the dormitories. Hill testified that when he
asked if this conduct would cause some problems for him
and the other corpsmen, Merkler assured him "not too
much" and then went on to say that the only way "to get a
lot of people to notice you is to cause some kind of
corruption . . . these old buildings aren't worth nothing
... you can burn these buildings up and stuff like
this. . . ." According to Hill, at this point "I looked at
Curtis and Curtis looked back at me and when he
[Merkler] walked off, Curtis say, man, let's get the hell out
of here." 37
Hill also testified that during the course of their
conversation Merkler suggested that he could arrange for
them to appear on a television newscast and that they
would be paid for such an appearance 38 According to Hill,
on the following day, he saw Merkler outside the fence
near his dormitory and, while there, the latter called out to
remind him of the earlier conversation about appearing on
television . Hill testified that he made no effort to respond
and hurried away from the scene.
Hill's testimony as to the foregoing events was corrobo-
rated in substantial part by Armand Curtis, when the latter
was on the stand.
Whereas both Hill and Curtis were positive in their
identification of Merkler, and as to the conversation had
with him, that was not the case as to Pandya. Hill recalled
that while he was in the security office there was another
man with Merkler. At the trial, and after being shown a
picture of Pandya, Hill identified the latter as that
individual. On the other hand, Hill also testified that,
immediately after Merkler began to converse with him,
Pandya walked away. When Curtis was on the stand he
could not recall that the other person with Merkler said
anything, nor could he identify Pandya as being that
person even after he had been shown a photograph of the
latter.
Pandya testified that on July 14, and while at the security
office with Merkler and the other union members, he
greeted several of the corpsmen who were in the lobby, but
that he had no conversations with any of them. He further
testified that at one point he was standing with Merkler
when the latter began a conversation with one or more of
37 The quotations are from Hill's testimony.
38 During this period , Merkler and other sinkers had been successful in
securing extensive television and newspaper coverage of the counselors'
the corpsmen, but that he left that group almost immedi-
ately thereafter and went to a water fountain some distance
away. He denied having had any conversation with
corpsmen at the security office that day and he denied
having heard any conversation which Merkler might have
had with them. He specifically denied having had any
discussion with the corpsmen as to the strike or conditions
at the Center. In this connection, Pandya was a credible
witness . In view of this finding and the testimony of Hill to
the effect that Pandya did not participate in the conversa-
tion with Merkler, as well as the testimony of Cdrtis that he
could not recall the person with Merkler as having said
anything, it is my conclusion that, beyond a perfunctory
greeting, as Pandya testified, the latter did not participate
in any conversation with corpsmen on the day in question.
Merkler conceded that he talked with two corpsmen,
while in the security office on July 14, but he could not
recall whether these individuals were Hill and Curtis. He
conceded that at least one might have been Hill. Merkler
acknowledged that in this conversation he suggested to the
corpsmen that if they were dissatisfied they could boycott
the cafeteria and engage in peaceful demonstrations or
meetings . He also conceded that he might have told these
corpsmen that they would have an opportunity to talk with
representatives of the news media. Merkler denied that he
suggested to the corpsmen that they bum buildings or
anything else at the Center, and he denied that on a later
occasion he had a conversation with Hill and discussed
bringing television reporters to the Center.
Whereas Merkler was a credible witness throughout
much of his extended examination and cross-examination,
his denial of Hill's testimony was not convincing. Neither
was Hill as to some aspects of his testimony, most
particularly that phase of it which related to his having
seen Merkler outside the fence near his dormitory on or
about July 15. On the other hand, as to the substance of the
conversation which Hill had with Merkler on July 14, it is
my conclusion that the corpsmen was credible in large
measure and that, as he testified, during this discussion
Merkler mentioned burning buildings at the Center.
Merkler, of course, was entitled to exercise his right to
free speech at any and all times. In talking with
impressionable young corpsmen,39 however, the effect of
comments and suggestions made by an experienced
counselor may be far more telling than even direct orders.
Manifestly, as a counselor, Merkler was not free to suggest
that dissident corpsmen could burn down buildings at the
Center. In so doing, Merkler went beyond the bounds of
protected concerted activity and committed a serious act of
disloyalty to his employer. N.L.R.B. v. Local 1229,
I.B.E. W., 346 U.S. 464, 472 (1953); Boeing Airplane
Company v. N.L.R.B., 238 F.2d 188, 189-195 (C.A. 9,
1956); N.L.R.B. v. Red Top, Inc., 455 F.2d 721, 727-728
(C.A. 8, 1972). Accordingly , it is my conclusion that the
Respondent is under no obligation to reinstate Merkler. On
the other hand, and on the basis of the testimony offered to
support the Respondent's contention that Pandya was,
equally disloyal, it is my conclusion, on the findings set,
position in the stoke and of their views as to the management of the Center.
39 Hill testified that at the time of the incident he and Curtis had been at
the Center about 6 weeks.
WESTINGHOUSE LEARNING CORP. 33
forth earlier, that the Respondent completely failed to
establish any such case against Pandya and that no
credible evidence was offered to establish that he did
anything that would cause a forfeiture of his right to
reinstatement.
(2) Willard Kennedy
The Respondent contends that Kennedy disqualified
himself for any reinstatement rights by his conduct with
respect to a corpsman during the latter part of October.
Thus, Dyer testified that on October 26, a corpsman who
was absent without leave from the Center was found to be
at Kennedy's home in nearby Whiteland, Indiana, and that
Kennedy refused to order the corpsman to return to the
Center.
According to Dyer, on the morning in question, he and
Zion McGlocklin, an employee of the Center, along with a
third individual who was the town marshal for Whiteland,
went to the Kennedy home. There they found one Clayton
Jenkins, a corpsman who, while on leave, had gone to
Kennedy's house instead of returning to his own home in
Detroit . According to Dyer, when he and the others
arrived, they found that Jenkins was there, and when he
asked that Kennedy order Jenkins to return to the Center
with them, Kennedy refused to do so. McGlocklin testified
to the same effect. Both Dyer and McGlocklin testified,
however, that on the following day Kennedy brought
Jenkins back to the Center.
Kennedy had been a counselor for the Center from June
1966. He testified that while so employed he was
encouraged to take corpsmen to his home and that he and
his wife often did so. According to Kennedy, Jenkins was a
corpsman whom he and his wife had known for some time
and over the weekend of October 22 to 24, Jenkins and
Dennis Waterman, another corpsman, were guests in the
Kennedy home. Before bringing them to their house, the
Kennedys secured clearance from the security office on
Friday, October 22, and on October 24, the following
Sunday, they brought the young men back to the Center.
According to Kennedy, on the evening of October 25, he
received a telephone call from Jenkins at which time the
corpsman told him that he was in Indianapolis, that he had
been expelled from the Job Corps, that he was being sent
back to his home in Detroit, Michigan, that he did not
want to return, and that he would like to stay with the
Kennedys for a few days. Kennedy testified that he and his
family thereupon drove to Indianapolis where they found
Jenkins at the bus station, and that they brought him back
to their home. According to Kennedy, when Dyer and
McGlocklin arrived the next day, he told them that it was
for Jenkins to decide whether to leave and that he would
not order him out of the house. Kennedy testified that the
next day, Jenkins decided, of his own volition, to return to
the Center, get his bus ticket and thereafter proceed to his
home in Detroit. Kennedy further testified that the
following weekend, Jenkins, as an ex-corpsman, came back
to stay with the Kennedy family for approximately 2 weeks
and that, during this period, he completed the tests for a
high school equivalency diploma and then returned to
Detroit. According to Kennedy, the corpsman was free at
all times to leave if he cared, and at no time was Jenkins
told that he had to remain at the Kennedy household.
From McGlocklin's testimony, it is evident that the town
marshal who accompanied him and Dyer on the morning
of October 26 made no effort to place anyone under arrest.
The Respondent made no attempt to establish that Jenkins
had been charged with any crime. Apart from relying on
their own persuasiveness, the representatives of the Center
apparently had no authority to go any further on the day in
question than to urge that Jenkins return with them. When
he chose not to go, they withdrew. Kennedy credibly
testified that he made no attempt to keep the corpsman at
his home and that, under the circumstances, he felt no
obligation to order Jenkins to leave. Whereas the Respon-
dent has pictured this incident as a situation where
Kennedy in effect was harboring a fugitive from justice,
the testimony did not support any such contention. It is my
conclusion that Kennedy's course of conduct at this time
was blameless and that it should not adversely affect any
reinstatement right he might otherwise have.
(3) Pence Pruitt
Pruitt was a counselor with the Respondent for several
years and was president of Local 1693 of the Counselors
Union from the time of its organization. The Respondent
called a witness to establish that early in December 1971
and during a telephone conversation with Robert D.
Grinker, then an employee of the Respondent, Pruitt stated
that all the problems of the Center could be solved by
"getting rid of Mr. Hearnton." Pruitt acknowledged having
had a telephone conversation with Grinker at the time in
question. According to Pruitt, in his discussion with the
latter he said only that a "change of administration" would
improve the Center.
In considering the Respondent's contention, it will be
assumed that Grinker's version of this conversation was a
more accurate recollection of what Pruitt said. In this
connection it is relevant that, at that point in time, Pruitt,
as found earlier herein, had been discriminatorily dis-
charged by the Respondent. Under these circumstances, it
should not be considered surprising if the employee had
strong views as to the Respondent's officials. It is my
conclusion that the expression of such an opinion about
the Center's management as was attributed to Pruitt was
protected by the employee's right of free speech and that it
was not conduct that would merit the denial of reinstate-
ment rights to Pruitt.
(4) Concluding findings on the loyalty issue
In addition to the foregoing incidents involving Merkler,
Pandya, Kennedy, and Pruitt, the Respondent, in its brief,
extends the argument as to disloyalty to encompass a wide
range of activities on the part of the dissident counselors.
Thus, Merkler had frequent contacts with the news media
and during the strike carried on a running battle with the
Center in press reports and on television news programs. It
was undisputed that during the strike he made various
statements to the effect that Westinghouse was wasting the
taxpayers' money as well as other comments in which he
characterized the Center as a concentration camp. Certain-
ly some of these remarks were on the borderline, if they did
not pass beyond the limits, of protected concerted activity.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, it is not necessary to decide this issue as to
Merkler in view of the earlier finding that he disqualified
himself for reinstatement by his conversation with corps-
men Hill and Curtis on July 14.
The Respondent would find further evidence to disquali-
fy the entire unit of counselors for disloyalty under the Act
because of their opposition to the dress code which
Hearnton promulgated, and their having filed complaints
with the Equal Employment Opportunity Commission as
to alleged discrimination in the enforcement of the dress
code. There is no merit to this phase of the Respondent's
argument. Presumptively, any employee has a right to file
charges with the Equal Employment Opportunity Commis-
sion . If they are baseless the charges will be dismissed and
if they are meritorious that agency will prosecute. Finally,
insofar as the counselors failed to cooperate with the
Center in accepting the dress code which Hearnton
published in the spring of 1971, the Respondent could have
taken whatever disciplinary action that was necessary to
insure their compliance with this condition of employment.
In fact, however, the Respondent made no effort at that
time to discipline any of the 13 counselors who are
involved in this proceeding. Consequently, it is not now in
a position to urge that their conduct prior to the strike
somehow disqualified them from reinstatement subsequent
to the strike.
F. The Alleged Violations of Section 8(a)(5);
Findings and Conclusions in Connection Therewith
On May 19, the Counselors Union established its
majority in a Board-conducted election. Two days later,
when Merkler, on behalf of the newly elected bargaining
agent, sought a meeting with Dyer, he was rebuffed on the
ground that the Respondent had not been officially
notified of the election results. The Employer's obligation
to bargain, however, was established as of the date of the
election and could not be deferred pending receipt by the
Respondent of a certification. While it would appear in
most cases to be a small matter, an employer acting in
good faith may not refuse to discuss a prospective date for
the first negotiating session until being served with a
certification of the election results. In the light of
subsequent events, this initial action by the Respondent
demonstrated an unwillingness to accept its obligation to
meet in good faith with the bargaining agent for the
counselors.40
At their first meeting, and after acknowledging receipt of
the certification, Dyer insisted that he had only an hour to
spend on the session and that ensuing meetings would have
to be held in his office. At the meeting on June 1 Dyer
told the union representatives that he would have to send
their proposed contract to the corporate headquarters for
an analysis by the labor relations section. Almost a month
elapsed before this study of the Union's proposal was
completed. Parties to negotiations are, it goes without
saying, entitled to rely on all the legal, economic, and other
expertise available, but the need for such assistance cannot
`se utilized to delay and to thwart the bargaining process. It
is my conclusion that this was Dyer's objective when he
told the union committee that he would be unable to
negotiate further until he heard from Pittsburgh and that
when he did he would accord the Union a "timely"
opportunity to meet with him again.
Although Dyer committed himself to meet with the
Counselors Union on July 7, when that day arrived the
counselors had joined in the Carpenters strike. After the
members of the Counselors bargaining committee arrived
at Dyer's office on that date, they were told by his
secretary that the meeting was canceled and, thereafter
when Dyer himself arrived, the latter told the union
representatives that he would not meet with them as long
as they were on the picket line. The Respondent's
obligation to bargain was not suspended by the strike or by
the picketing in which the counselors were then engaged?[
On July 14, when the bargaining representatives of the
Counselors Union arrived at the Center for their meeting
with Dyer, they were escorted to the security office by
guards and detained there for an extended period until
Dyer finally contacted the guard personnel and had the
union delegation brought to his office. When they arrived
at the latter point, Dyer told them that they had been
replaced by new employees, that the Respondent was no
longer obligated to meet with them as the majority
representative of the counselors, and that in any event he
would not meet with them while they remained on the
picket line. Efforts by the union committee to secure
information as to the number of persons hired as their
replacements, information to which the bargaining com-
mittee was entitled, were rebuffed by Dyer. The latter also
told the members of the bargaining committee that, since
their work was then being performed by others, they were
forbidden to set foot on the Center. Thereafter, Dyer
rejected all suggestions by union representatives that they
cross the picket line and return to work on the alleged
ground, unsupported by the facts, that their jobs had been
filled and that their duties were then being performed by
replacements.
When the strike ended and Dyer met with the bargaining
committee on August 6, he again stated, as he had at their
first meeting in June, that he could spend no more than an
hour with them. After 50 minutes had elapsed and
agreement had been reached on only a few preliminary
items such as the language in the recognition clause, and
statements on discrimination and on the desires of the
parties for a harmonious relationship, Dyer terminated the
meeting. In doing so, Dyer again told the union conferees
that he could not meet with them for another month.
From September through December, Dyer met with the
Union's bargaining committee approximately six more
times. At these meetings, held away from the Center and at
various motels, agreement was reached on several matters,
but no final contract was ever negotiated. The Respondent
contends that during this latter period it demonstrated a
40 See Reed & Prince Mfg Co, 96 NLRB 850, 852-853, enfd. 205 F 2d Respondent's calculated effort to avoid reaching an agreement with the
131 (C.A. I), cert denied 346 U.S. 887, where the Board stated "although the Union while preserving the appearance of bargaining."
Respondent's conduct [in declining to meet immediately after an election ] 41 "The duty to bargain collectively continues even though a strike is in
might be deemed equivocal, appraising it in the context of the Respondent's progress " N LR B v Deena Artware, Inc, 198 F 2d 645, 651 (C A. 6), citing
whole course of conduct, we conclude that it was another aspect of the N L R B v Mackay Radio & Telegraph Co., 304 U.S 333, 345
WESTINGHOUSE LEARNING CORP.
bona fide effort to reach an accord, in meeting with the
Union at places away from the Center and at the
convenience of the individual members of the bargaining
committee . While the Respondent displayed a greater
willingness to meet with the Union in the fall than it had
before that time , this attitude did little to remedy the
effects of its conduct during the summer, when, by resort
to a variety of unfair labor practices, including the
discharge of all the original members of the unit, the Union
was reduced to a state of almost total impotence.
On February 9, and after the conclusion of the original
hearing in this case , during which the parties voluntarily
suspended their negotiations, Union President Pruitt wrote
to Dyer and requested a resumption of the bargaining
conferences . The latter stated that he was unable to set a
date because he was leaving his employment at the Center,
but he assured Pruitt that "Management will be in contact
with you in the very near future to propose a date."
Although I. David Logan was named as Dyer's replace-
ment on February 15, the Respondent's management made
no effort to contact the Union as to the time when
negotiations could be resumed. Notwithstanding several
telephone calls to Dyer's former office, including one
conversation with Logan himself, Pruitt was not apprised
of Logan's appointment as Dyer's successor until April 4.
When Pruitt thereafter directed a written request to Logan
for further bargaining conferences, the latter responded in
the affirmative and meetings were resumed. Nevertheless,
the failure of Logan to take the initiative resulted in no
meetings during the 2-month period from the time when
Dyer promised Pruitt that the Respondent would propose a
meeting "in the very near future" and April 13 when Logan
accepted Pruitt's suggestion that a meeting be held on
April 20.
During the course of the five meetings held from April 20
to May 18, many issues were discussed by the parties and
some conflicts were resolved. In all correspondence prior
to the resumption of bargaining, the Union renewed and
restated the demand for the names of all the replacement
counselors who had been hired subsequent to the strike.
When the meetings reopened, the request was stated orally
on several occasions . The Respondent declined to furnish
this information until May 24, when it finally supplied the
Union with information which the latter initially had
requested the preceding July. During that entire period, the
Union, as the certified representative of all counselors in
the Respondent's employ, was responsible for bargaining
on behalf of not only those who had remained away from
work during the Carpenters strike, but also their replace-
ments. It was unable to contact the latter at work, however,
because all counselors who had joined in the Carpenters
strike were treated as ex-employees by the Respondent and
banned from the Center.42 Neverthek,ss, the Union had a
legitimate interest in being able to contact the replace-
ments , not only to solicit their support, but more
importantly, as their statutorily designated representative
for the period of the certification year, to secure their views
35
and assistance as to the pending negotiations. Notwith-
standing the legitimacy of the demand for the names and
addresses of the replacement counselors, the Respondent
ignored the Union's repeated requests until May 24, 1972,
when it finally supplied the information which the
counselors' bargaining agent had sought for over 10
months.
In view of the foregoing findings, it is my conclusion that
the Respondent violated Section 8(a)(5) of the Act by: (1)
refusing to meet with the Union's bargaining committee, or
even to discuss arrangements for such a meeting until it
had been served with the Board's certification of the
Counselors Union; (2) refusing to meet with the union
committee as long as its members were on strike; (3)
terminating all the striking counselors, including those on
the Union's bargaining committee on July 8; (4) refusing
on July 14 to bargain with the union committee on the
ground that the Union had lost its majority and that the
jobs of the strikers had been tilled by replacements; (5)
refusing throughout the period from July 14, 1971, to May
24, 1972, to supply the union committee with information
as to the names and addresses of replacements who had
been hired to take positions left vacant by the strikers; 43
and (6) pursuing a course of conduct from the time of the
representation election in May 1971, and continuously
thereafter, that was designed to undermine the Counselors
Union and destroy its representative status.
The General Counsel conceded that the work stoppage
of the counselors which began when that group joined with
the Carpenters Union in a walkout on July 7 was an
economic strike at its inception. In the light of the findings
set forth in the preceding paragraphs, however, it is my
conclusion that the Respondent converted this strike into
an unfair labor practice strike by its conduct on July 7, and
thereafter, most particularly when it refused to meet with
the union committee as long as the counselors were on the
picket line, when it refused on July 14 to meet with the
same committee on the ground that it no longer represent-
ed a majority in the unit, and when it terminated the
counselors for striking, and thereafter refused to reinstate
them. Tom Joyce Floors, Ihc., 149 NLRB 896, 906-907,
enfd. 353 F.2d 768 (C.A. 10, 1965).
G. Other Alleged Discriminatory Discharges;
Contentions of the Parties; Findings and Conclusions
in Connection Therewith
1. Glen D. Holmes
Holmes was hired in 1966 to teach in the vocational
training section . He remained there as an automotive
maintenance instructor until his discharge on July 29, 1971.
His work throughout the period from his hire until May
1971 appears to have been completely satisfactory.
Throughout his employment, Robert Roush was Holmes'
immediate superior. In an efficiency report on Holmes in
1966, Roush described Holmes as "a very effective
instructor. Plans well ahead and follows well. Maintains
42 In their correspondence with Logan , the one-time striking counselors
referred to themselves as the "Exiled 13 "
43 See Prudential Insurance Company of America v N L R B, 412 F 2d
77, 84 (C A. 2, 1969), cert . denied, 396 U S 928 (1969), United Aircraft Corp
v. N L R B, 434 F 2d 1198, 1206-07 (C.A. 2, 1970), cert denied, U S 993
(1971); Standard Oil of California, Western Operations, Inc v N L R B, 399
F.2d 639, 641-642 (C.A 9, 1968)
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline and has good order in his class . Recommended
for promotion." In a report for 1968 , a similar notation
appears. In an evaluation of his performance for that year,
Roush described Holmes as a promotional prospect and
rated him second out of nine instructors in his group. In an
evaluation report for 1969, Roush again described Holmes
as a promotional prospect and placed him first among the
nine instructors in his group , and second out of 16 teachers
on the staff.
Roush testified that these evaluation forms on each
employee in the section were prepared every 6 months.
However, no evaluations for any year after 1969 were
produced by the Respondent. Roush testified that he
thought that there were evaluations of Holmes prepared
subsequent to 1969, but that he was unaware of what was
done with them. Robert A. Dyer, director of personnel and
manager of industrial relations for the Respondent,
testified that all evaluation forms were kept under his
immediate supervision. He had no explanation, however,
for the absence of such forms from Holmes' file for the
post-1969 period.
Holmes' starting salary was $717 a month. At the time of
his discharge, he was being paid $959. In addition to
having been the recipient of various general increases
during the course of his employment, Holmes received a 4-
percent merit increase in October 1967, a 4-percent merit
increase in April 1968 , and a 5-percent merit increase in
September 1970.
At the trial, the Respondent attacked Holmes' employ-
ment record with testimony as to three different incidents
which occurred in his classroom during the period 1967 to
1970. In June 1967, Holmes received a 3-day disciplinary
layoff after a fight between two corpsmen occurred in his
class . According to Holmes, a dispute arose between two
corpsmen during the class and he had to intervene to keep
them from injuring one another and then to keep one of
them from injuring him. Roush conceded that this incident
involved an occasion when Holmes attempted to stop two
corpsmen who were fighting.
In April 1970, Holmes received another 3-day suspen-
sion . According to Holmes, one Gleason, a corpsman in his
class, was disrupting the other students and, when
admonished and told to leave, Gleason struck Holmes with
a chair and broke the instructor's arm. Holmes denied that
he himself hit Gleason at any time during the attempt to
bring the corpsman under control. According to Holmes,
Roush subsequently told him that the suspension was given
to prevent future legal action . Although at the trial in the
present case Roush testified that his investigation of the
incident showed that Holmes was in error, he did not deny
the foregoing comment which Holmes attributed to him.
Roush also conceded that Holmes suffered a broken arm
as a result of the encounter and that Gleason was
immediately transferred out of the automotive section to
the food service training area where, about 3 weeks later,
Gleason was terminated for drawing a knife.
It is significant that in October 1967, and after the
above-described incident which occurred in June of that
year , Holmes was given a 4-percent merit increase, and in
September 1970, notwithstanding the episode involving
Gleason the preceding April, Holmes was awarded a 5-
percent merit increase.
The third incident about which the Respondent offered
testimony occurred on or about September 25, 1970. At
that time, another corpsman, one Hoffman, became
involved in an argument with Holmes after the latter gave
him a failing mark for having cheated on an examination.
Holmes testified that after he refused to change the mark
Hoffman struck him and that, before he himself returned
the blow, other corpsmen surrounded Hoffman and
escorted him from the room. At the present trial, Roush
testified that he had no firsthand knowledge as to what
occurred on this occasion. He also acknowledged that at
the time of the altercation Holmes' arm was still in a cast
from the earlier episode which had occurred in his
classroom and that, although Holmes was suspended
pending an investigation, Holmes lost no pay because of
the suspension.
Insofar as the foregoing incidents present a picture of
violence far out of the ordinary in the normal classroom,
they should be viewed in the light of the total picture as to
conditions at the Center during the period in question.
Thus, in the Department of Labor report, issued in April
1971, a description of the social system at the Center is set
forth as follows:
a constant state of tension exists which could
erupt into overt group violence at any time (and
occasionally does). Individual acts of violence are
commonplace and stem from a variety of causes-gen-
eral frustration, racial tension, criminality, etc.
In light of the foregoing evidence and, in particular, the
merit raises which Holmes received shortly after the
incidents of June 1967 and April 1970, and the fact that
Holmes lost no pay during the investigation of the incident
in September 1970, I conclude and find that at the time
each occurred the Respondent did not attach any deroga-
tory or untoward significance to Holmes' conduct or
involvement in them.
In the fall of 1970, the Atterbury Federation of
Vocational Teachers (herein called Federation or Union)
began an organizational campaign among the vocational
teachers at the Center. A representation petition, seeking
recognition of that Union for a unit of vocational teachers
was filed on November 2, 1970. Pursuant to that petition,
an election was held on January 13, 1971, which the
Federation lost. Objections to conduct at that election
resulted in the election being set aside. Another election
was held on June 22, 1971.
Holmes was active throughout the organizational cam-
paign. He credibly testified that he was designated to act as
a trustee for the automotive section of the Union and that
he passed out authorization cards and collected dues.
According to Holmes, at that time there were 14 vocational
teachers in the automotive section and during the winter of
1970 and spring of 1971 he solicited 12 of that number to
sign authorization cards.
Holmes testified that on a number of occasions from
January through June 1971 Supervisor Roush questioned
him about the Union. According to Holmes, early in
January and while in the shop, Roush asked him, "How's
WESTINGHOUSE LEARNING CORP 37
the Union getting along?" and, after he gave a noncommit-
tal response, his supervisor stated ". . . well . . . I hope
you fellas [sic] know what you're doing . . . if Union is
voted in, I am sure that you will lose benefits that you now
have...
Holmes testified that early in June Roush questioned
him as to the forthcoming election and, after he again gave
a noncommittal answer, Roush made the statement
"there's not an instructor here that we don't have enough
on to remove. ..." According Holmes, he himself then
expanded on Roush's statement by saying that the same
comment could be applied to everybody in management.
Holmes testified that after he made this remark Roush
added ". . . be that as it may . . . I think all of the older
men here will be gone by October."44
Holmes testified that on or about June 3, and after he
returned from a 2-week vacation, Roush asked him
whether he had been out "canvassing the labor market
while . . . off on vacation?" According to Holmes, after
giving a negative answer, he asked Roush why he had
asked the question and his supervisor replied, "I just
wondered . . . how the job situation was...." Holmes
further testified that on numerous occasions during the
following weeks Roush asked him how he thought the
election would "turn out." 45
Roush categorically denied ever having questioned
Holmes as to the Union and denied ever having mentioned
the subject to this employee. Roush, however, in my
opinion, was a far from convincing witness. It is my
conclusion, based on the testimony of both these individu-
als and their comparative demeanor while on the stand,
that Holmes was the more credible of the two and that
these conversations with Roush occurred substantially as
Holmes testified.46
I conclude that it was intimidatory and a violation of
Section 8 (a)(1) on the part of the Respondent for
Supervisor Roush to question Holmes about the election in
June and, in that context, state that "there's not an
instructor here that we don't have enough on to remove,"
ask Holmes whether he had been "canvassing the labor
market while . . . off on vacation," and tell Holmes "I
think all of the older men here will be gone by October."
Holmes testified that the day before the second election
J. J. Burke, director of I training programs, gave a speech to
all the vocational instructors. According to Holmes, at that
time Burke enumerated the benefits they then enjoyed at
the Center and thereafter he proceeded to discuss the
forthcoming election. Holmes testified that Burke told
them that he did not like unions, that if the Union won the
employees would lose benefits they had at that time, and
concluded his speech with a request that his audience vote
"no" in the election. Roush testified that he could not
recall having heard Burke speak to .he employees before
the election. Burke himself, however, was never called to
the stand. Holmes' testimony as to this incident was
credible. Since it was credible as to the remarks attributed
44 At this point in his examination, Holmes was asked the following
question and gave the answer which appears below
Q What did you say, if anything?
A I didn't say anything I was one of the older men
45 The quotation is from Holmes' testimony
46 This is my conclusion as to Holmes' credibility on the foregoing issues,
to Burke, I find that Burke made such a speech to the
vocational instructors. However, Holmes conceded that the
speech might have been made before the first election in
January, rather than the second in June. If this was the
case, the supervisor's remarks were made beyond the 10(b)
period and no unfair labor practice findings can be made
thereon. Because of this ambiguity in Holmes' testimony as
to the date, I will recommend dismissal of the allegation
attributing an unfair labor practice to Burke and the
Respondent in this connection. Even assuming that Burke
made this speech before the January election, it is, of
course, still relevant background evidence as to the
antiumon attitude of a high-ranking official of the
Respondent with managerial responsibilities for the section
where Holmes was employed.
Early in June, the Respondent placed Holmes on
probation for 30 days and, on July 29, it discharged him.
The General Counsel contends that these acts were
discriminatonly motivated and in violation of Section
8(a)(3) and (1). These allegations are denied by the
Respondent in their entirety. To the facts in connection
therewith, we will now turn.
On Friday, May 14, Holmes went on a 2-week vacation.
The following Monday morning , Supervisor Roush, James
Worthall, the Respondent's supervisor of accident and fire
prevention, and Charles Williams, manager of vocational
education, inspected Holmes' shop and classroom. Prior to
departure for his vacation, Holmes and his class had begun
a painting and cleanup project in his shop. This was only
partially completed at the time he left, and when the three
management officials visited the premises on May 17 they
found a scene of considerable disarray. Pictures of the
shop were taken which were introduced at the trial.
Worthall testified that upon discovering the disorderly
condition of Holmes' shop he ordered Roush to have it
cleaned immediately. Notwithstanding the alarm which he
manifested at the trial as to the situation in Holmes'
classroom, he conceded that he did not thereafter check
back with Roush to ascertain whether Roush had cleaned
it. In fact, Roush did nothing about the matter at the time.
It was not until several weeks later, when Holmes returned
from his vacation, that Holmes himself and his students
completed their painting and cleaning project and restored
the shop to normal.47 Roush acknowledged that no
pictures were taken of any other instructor's area on May
17, or later.
Immediately after Holmes returned from vacation,
Roush gave him a letter, dated June 3, which enumerated
all the deficiencies which he, Worthall, and Williams had
noted on May 17 in Holmes' work area. The letter
concluded with the notice that Holmes was being placed
on probation for 30 days and with the threat that other
disciplinary action might be taken.
At the trial Roush testified that in April or May he had
given instructions that all classrooms would have to be
neat and orderly at all times and that about 2 weeks before
notwithstanding an adverse finding as to Holmes' testimony on the matter
of his age, infra
47 At the trial, Worthall conceded that he did not realize that, in fact,
subsequent to his inspection , Holmes ' shop had not been cleaned until the
latter returned from vacation
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holmes went on vacation he talked with Holmes about
painting his shop. The painting which Roush ordered was
dependent on Holmes being supplied with the paint.
Holmes credibly testified that , whereas on several occa-
sions in past years the unavailability of paint had caused
him to buy the necessary supplies out of his own funds, this
time he waited for the paint which Roush assured him had
been ordered. According to Holmes, it only arrived a few
days before his vacation and at a point when it was not
possible to complete the paint job before his departure. At
the time he left the shop to go on his vacation , he locked
the doors and the building remained unused until he
returned.
Holmes credibly testified that prior to this incident he
had never been reprimanded for not keeping his shop and
classroom in good condition , and that on numerous
occasions Roush had complimented him on the appear-
ance of the premises . Roush conceded that "a major part
of the time" 48 Holmes had kept his shop neat and clean
and that this had been true throughout the approximately 5
years that Holmes had been under his supervision . He also
corroborated Holmes' testimony that in past years Holmes
had used his own money to buy painting supplies to
maintain his shop and classroom in a clean and orderly
fashion.
On July 16, a Friday, Holmes had an accident while
conducting a class on the mechanics of ahgmng the rear
wheels of a Volkswagen automobile 49 At the outset of the
demonstration , Holmes told the class of approximately 20
corpsmen that the procedure he was about to demonstrate
was an inexpensive way to correct a defect and would not
normally be performed in a commercial shop because the
emphasis there is on selling parts and more money would
be made in replacing the used parts than in attempting to
repair those which had been worn or damaged.
In order to perform the alignment operation , Holmes
placed an hydraulic jack in a horizontal position under the
car and began to apply pressure on the rear wheels.
Holmes himself was under the car operating the jack, while
a corpsman named Earnest Hayes stood to one side of the
car and assisted him in holding the jack . While so engaged
the jack slipped and struck Holmes in the mouth, breaking
one of his teeth and loosening two others . Various
witnesses for the Respondent asserted that Hayes was also
injured , but no conclusive evidence was offered to establish
the truth of this assertion.
Immediately after the accident Holmes suspended his
class and called Roush. Upon arriving at the scene, Roush
took Holmes to the Center infirmary where, after prelimi-
nary treatment and first aid, he was sent to a clinic in
Indianapolis . Holmes , at that point , was well enough to
drive his own vehicle to Indianapolis that afternoon. He
returned to work the following Monday morning. On July
23, the following Friday, Roush told Holmes that Dyer, the
manager of industrial relations , had ordered that Holmes
be suspended without pay, pending an investigation of the
accident which had occurred on July 16. Thereafter, in a
letter dated July 29, Roush notified Holmes that, as the
result of an investigation of the aforesaid accident, he was
being terminated as of that date.
At the trial, Roush testified that in his opinion Holmes
had shown "very poor common sense" 50 in attempting to
straighten the Volkswagen wheels with an hydraulic jack,
and that, in any event, an hydraulic lift known as a
portopower jack, rather than the vertical jack which
Holmes had used, should have been employed. Worthall,
the director of safety and fire prevention, testified as to the
investigation which he made of the events on July 16, and
which included interviews with corpsman Hayes and
another corpsman present at the scene.
Both Worthall and Roush testified that corpsman Hayes
was injured in the accident and taken to the infirmary.
However, no credible testimony was offered which would
establish that Hayes had been injured in any way. Worthall
testified that he took Hayes to the infirmary, but stated
that he did not have any knowledge as to what was done
for the corpsman while there because the medical records
were confidential and he could not see them. Roush
testified that he spent 2 hours at the infirmary with Holmes
on the afternoon in question and during the same time that
Hayes was purportedly there, but he conceded that at no
time that afternoon had he seen Hayes at the infirmary.
Holmes likewise testified that he never saw Hayes at the
infirmary that afternoon. Roush testified that he assumed a
medical report had been made on Hayes, as to any injuries
incurred, but that he himself had never seen such a report.
Counsel for the Respondent conceded that Hayes was still
a corpsman at the Center. Hayes, however, was never
called as a witness for the Respondent and no explanation
was offered for not calling him. Nor did the Respondent
attempt to offer any medical report from the infirmary
records of the Center as to what injury, if any, Hayes had
sustained. In the light of the foregoing , it is my conclusion
that any injury which Hayes received was very superficial,
if, indeed, he incurred any at all.
Worthall testified that the hydraulic jack which Holmes
had used should never have been employed, but he
conceded that he himself had no experience in frame
alignment. Roush likewise testified that Holmes should not
have used the jack in question, and that he should have
used what was known as a portopower jack. Holmes,
however, credibly testified that the two portopower jacks in
the shop had been in need of repairs and unusable for
months, so that he had no other equipment to use for the
job in question. Roush conceded that very likely the
portopower jack he had in mind was not available for
Holmes when it was needed . Whereas the Respondent
endeavored to establish that Holmes should never have
used an hydraulic jack while working on the Volkswagen,
the job description for Holmes , a copy of which was
received in evidence, explicitly states that one of his duties
was to teach corpsmen how to align , or straighten, auto
frames using hydraulic jacks.51
The Respondent' s rules of conduct provide that a willful
48 The quotation is from Roush 's testimony . 50 The quotation is from Roush 's testimony.
19 Normally alignment involves work on the frame of an automobile , but 51 This document was known as the Respondent's "Vocational Training
a Volkswagen has a unitized body and no frame . Hence the alignment Instructors ' Procedures Manual "
adjustment had to be made on the rear wheels.
WESTINGHOUSE LEARNING CORP.
first violation of the safety rules may be punished with a 3-
day suspension without pay. No more drastic penalty is
provided. The procedure which Holmes followed on the
day in question may not have been, on the basis of
hindsight, the best he could have used. On the other hand,
it was not as self-evident a violation of the safety rules as
the testimony of Worthall and Roush would indicate.
Thus, Holmes credibly testified that he had used this
procedure successfully before, and Roush conceded that he
knew about the work which Holmes had done in this
connection.52 It is significant that in the extensive
investigation which Worthall and Roush conducted of this
incident neither one of them bothered to discuss the matter
with Holmes to secure his version of what occurred.
Holmes credibly testified that never before had he been
reprimanded for a violation of the safety regulations at the
Center, and Worthall conceded that he could recall no
other employee who had been discharged for a first
violation of the Center's safety rules.
As found earlier herein, Holmes had a good work record,
which over a 5-year period had resulted in a number of
very favorable yearly and semiannual evaluations and a
series of merit increases. When the Union began its drive
among the Respondent's vocational instructors Holmes
took an active role in the campaign to organize them.
There were only 36 vocational instructors in the Respon-
dent's employ and of this number 14 were in the
automotive section under Roush's supervision. From
Roush's interrogation of Holmes as to the Union's efforts
and his questions as to what Holmes anticipated the
election results would be, it is inferable, and I find, that
Roush and the Respondent were well aware of Holmes'
participation in the organizational campaign.
Roush's interrogation of Holmes in June and his
comments to the employee during this period that "there's
not an instructor here that we don't have enough on to
remove," that "all of the older men here will be gone by
October" and his questioning of Holmes after his return
from vacation as to whether he had been "canvassing the
labor market" have already been found violations of
Section 8(a)(1). These remarks by Supervisor Roush also
serve to shed light on the intensive and unusual investiga-
tion by Worthall, Roush, and Williams of Holmes' shop
area immediately after the employee left on his vacation,
an investigation that was not extended to any other
instructor's area at that time. These remarks are also
significant background to the subsequent investigation by
Worthall of Holmes' accident in July, when, although only
Holmes was injured, and no credible testimony was offered
that anyone else was hurt, Holmes was summarily
discharged for an alleged violation of safety precautions.
In view of the fact that, prior thereto, Holmes had never
been reprimanded for violating the Respondent's safety
rules , and the fact that the Respondent's own rules of
conduct provide only for a 3-day suspension for a first
violation, I conclude and find that the punishment meted
out to Holmes was motivated more by the Respondent's
antipathy to his efforts at assisting the Federation than by
concern about his alleged violation of its rules on safety. It
39
is my further conclusion that the 30-day probation
imposed upon Holmes in June was similarly motivated.
Consequently, by both actions the Respondent violated
Section 8(a)(3) and (1).
The Issue as to Holmes ' Correct Age
On about August 4, 1971, and after his discharge by the
Respondent, Holmes filed an application for unemploy-
ment insurance with the Indiana Employment Security
Division. On this form, Holmes gave his date of birth as
December 6, 1905. In 1966, when he had applied for a job
with the Respondent he had given his date of birth as
December 6, 1911. The latter application carried the
conventional language providing that any false answer on
the application would be ground for discharge.
In due course, Holmes' application for unemployment
insurance came to the Respondent's attention. As a result,
early in August, Worthall initiated an investigation as to
the true date of Holmes' birth. At the trial, evidence was
offered which would tend to establish that Holmes had, in
fact, been born in 1905, rather than 1911, and that various
other dates on the application as to when he attended
elementary school and high school some 40 years earlier
were incorrect.
On cross-examination, Holmes testified that he did not
know the correct date of his birth and that it was not until
some time in the 1960's and after he had made a check on
the correct date of his birth in connection with his
application for an insurance policy that he concluded that
he must have been born in 1905. He explained that it was
with this information at hand that he gave the latter date as
the year of his birth when applying for unemployment
insurance in August 1971.
Holmes was not a convincing witness in this connection.
For some while, Westinghouse has had a policy of
mandatory retirement at age 65. With that knowledge, it
appears to me that, when Holmes was applying for a job in
1966, as has many another older man when seeking
employment, he represented that he was younger than was
the fact, in the hopes that this would enhance the prospects
of his being hired.
The Respondent did not assert that misrepresentations
on the employment application which Holmes filed in 1966
had had any bearing on his termination in 1971. Indeed, it
could not have done so, for Holmes had been discharged
for almost a week before the Respondent had knowledge
as to any apparent misstatements on his original applica-
tion. The Respondent asserted that the testimony as to this
issue was offered for its bearing on Holmes' credibility and
his eligibility for reinstatement.
I have considered Holmes' testimony in this connection
and have concluded that, even though it appears that on
this issue Holmes was far from convincing, his earlier
testimony as to the unfair labor practices here involved was
more credible than that of either Worthall or Roush with
which it was in conflict.
Robert A. Dyer, as the Respondent's director of
personnel, testified that the Company's customary retire-
52 This was the repair of another Volkswagen on which Holmes had used
the same techniques as he had on July 16.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment age is 65, and that, in his experience at the Center, no
one has ever been permitted to work after reaching that
age. However, from a manual on company policy as to
retirement practices which was received in evidence, it is
apparent that exceptions can be made to the rule as to
retirement at age 65. In any event, as to the rectification of
an unfair labor practice, the Respondent cannot be
permitted to set up this barrier to reinstating an employee
such as Holmes whom it has unlawfully discharged.
Consequently, in a later section of this Decision, provision
is made for the usual remedy in a case of this character,
namely, reinstatement and backpay.
2. Claudies Banks
Banks was a resident advisor who was hired in April
1969 and terminated on July 9, 1971. In this position he
was assigned to a specific dormitory and was responsible
for the general welfare of the corpsmen in that residence
while they were not in their classroom.53 In 1971 there were
from 80 to 90 resident advisors in the dormitories for the
approximately 2,000 corpsmen on the Center.54
In 1970, Local 512, Retail, Wholesale and Department
Store Union (herein called RWDSU), conducted an
organizational campaign among the resident advisors 55 In
April 1970, that union was certified after having won a
Board-conducted election. Sometime later, the RWDSU
and the Respondent negotiated a 2-year contract which
was signed by the parties on March 20, 1971.
Banks was active in the organizational campaign from
the outset . After the RWDSU was certified, he was
chairman of the negotiating committee which met with the
Respondent and eventually concluded the agreement
referred to above. Thereafter he was the chairman, or vice
chairman, of the Westinghouse unit of Local 512, and, in
addition, at times an acting steward, chief steward, or the
acting chief steward. At the time of his dismissal, he was
the vice chairman of his unit.
Banks was an aggressive advocate of organization and in
his various capacities as a union representative he filed
many grievances for his coworkers. He also filed several on
his own behalf, as well as some unfair labor practice
charges . Thus, in February he charged that he had been
discriminatorily placed on a 30-day probationary period in
order to discourage membership in RWDSU. In April
1971, and as the result of an informal settlement of this
case , the Respondent agreed to transfer Banks from the
supervision of Manager Ernest Burton on Campus West, to
that of Manager Herb Patton, on Campus East. Pursuant
to this agreement , Banks was assigned to Dormitory 1011
where he remained until his termination in July58
Both Burton and Patton reported to Ira Pack, the
director of residential living, who had overall responsibility
for the entire dormitory operation at the Center. Charles E.
Acton, a resident advisor, testified that in February he
53 Ira Pack , director of residential living , testified that the resident
advisor is responsible for the personal hygiene of the corpsmen assigned to
him, the adequacy of their clothing , their punctuality in adhering to the
schedule for the day , the cleanliness of the dormitory, and in general, "the
overall welfare of the corpsmen "
54 This finding is based on the testimony of Center Director Hearnton.
55 Also known in the record as dormitory supervisors, the name by which
attended a meeting of the resident advisors at which Pack
was present along with several of the supervisory staff,
According to Acton, while there he heard Pack question
Supervisor Henry Ferguson, one of Banks' superiors, as to
"how he was doing with Mr. Banks...." Acton testified
that Ferguson replied, "Well, we got him on some trash
cans or garbage cans [but] he was supposed to be in a
negotiating meeting," at which point, Pack interjected
"No, we cancelled that meeting. He wasn't there so he has
no excuse. Write him up anyway.. . .1157
The duties of the resident advisor included supervision of
the corpsmen in their morning cleanup of the dormitory
and thereafter submitting an inspection report on the
physical appearance of the interior of the building, as well
as the grounds immediately adjacent to the dormitory.
During the course of the regular 5-day week, this cleanup
process was completed each day before 9 a.m. On
weekends and holidays, however, this was not required and
a substantially more relaxed schedule was followed.
Whereas the corpsmen were still required to maintain the
dormitory in good condition and to complete the custom-
ary cleaning tasks, they were permitted to do so substan-
tially later than on the normal weekday.
On the morning of May 31, a holiday,58 Pack and Patton
inspected Dormitory 1011, and thereafter, in a letter of
reprimand, Patton charged that they found the residence
hall had not been properly cleaned and that when they
arrived Banks was in his office reading a book. In a written
response, Banks denied that there was any basis for
criticizing the condition of the dormitory, asserting that
Pack and Patton had only inspected one of the four wings,
and that this particular wing was the one in which the
cleanup process had not been completed for the day. At
the hearing, Banks testified to the same effect and also that
the book which Patton accused him of reading was one
which had been left on his desk by someone else and which
he was only perusing when his superiors arrived. In the
reprimand letter, Patton described the dormitory as being
in an "unacceptable condition," but gave no explanation
or any details as to why he had so judged it. Richard C.
Watson was a resident advisor in a dormitory under Ernest
Burton, Banks' former superior. In contrast with the
criticism voiced by Peck and Patton when they found
Banks looking at a book on their visit to Dormitory 1011,
Watson testified that on that very same day Burton had
inspected the dormitory for which he was responsible at a
time when he (Watson) was playing cards with some of the
corpsmen, but that Burton had said nothing to him.
Immediately after getting Patton's letter of reprimand,
Banks filed a grievance in protest.
Each resident advisor was required to submit a daily
inspection report on the condition of his dormitory. The
report had several categories on which the advisor graded
the work of the corpsmen in their cleanup duties and the
they were known until sometime in 1971.
ss As with other sections of this Decision , all dates hereinafter are for the
year 1971, unless specifically noted otherwise.
57 The quotations in this testimony are from Acton's credible, undemed,
and uncontradicted testimony.
58 Memorial Day having fallen on a Sunday in 1971 the following day
was an official holiday.
WESTINGHOUSE LEARNING CORP. 41
bottom of the sheet had a block for listing the total
percentage scored for the- day.
On June $, Banks did=not submit an inspection report for
his dormitory. At the hearing he testified that at the time
he did not have the proper forms needed for the
preparation of the report. On June 9, however, he secured
the requisite forms and submitted inspection reports for
both that day and for June 8. His report for June 9 credited
the corpsmen in his dormitory with having done a perfect
job of cleaning up that day and he gave them a score of 100
percent. Banks credibly testified that this was not the first
time he had awarded such a score, but that that week was
the first occasion when he had failed to submit an
inspection report daily.
In a letter of reprimand dated June 10, Patton criticized
Banks for having failed to submit a report on June 8 and
for having listed a 100-percent score on his report for June
9. In his letter, Patton stated that he checked the condition
of the dormitory later that morning and concluded that the
corpsmen's efforts did not merit a perfect score. Patton
concluded his letter with the comment that because of
Banks' "continued laxiety [sic] in the performance of
assigned duties" he was being placed on probation for 30
days.
At the trial Banks credibly testified that he had never
known of any other resident advisor getting a written
reprimand for having failed to submit an inspection report.
Richard C. Watson, another resident advisor, testified,
credibly and without contradiction, that during over 2
years' experience as a dormitory manager he occasionally
failed to file an inspection report when due, but that it was
a lapse for which he had never been reprimanded.
Banks had no more than received the foregoing
reprimand when, on June 11, he was given another for
allegedly posting an unauthorized notice of a union
meeting on one of the Respondent's bulletin boards. The
facts with respect to this incident are set forth below.
In 1971, James Napier was the chairman of the
Westinghouse unit for Local 512 of the RWDSU, and
Banks was the vice chairman. At sometime during the
spring, Napier became ill and Virgil Terry, president of
Local 512, appointed Banks as the acting chairman. Later,
in a letter dated May 25, 1971, Terry wrote Banks that
Napier had recovered from his illness and that, effective
immediately, Napier would resume the chairmanship and
Banks would revert to vice chairmanship of the Westing-
house unit. It appears that this letter never reached Banks
and that the latter had no knowledge of this correspond-
ence until late on the afternoon of June 11 when Banks
visited the union office. In the meantime, on June 10,
Banks had posted on a company bulletin board a notice
announcing two union meetings to be held on June 18 and
21 in Building 1017 on the Respondent's premises. 'Be
existing collective-bargaining contract between the
RWDSU and the Respondent specifically permitted the
posting of such notices provided the prior approval of the
personnel manager had been secured.59
Banks testified that he secured the requisite approval
from Personnel Manager Dyer, but the latter denied that
this was correct. According to Banks, he and an associate,
Richard Watson, went to Dyer's office on June 10 and
there requested his approval to hold a union meeting at the
Center and to post a notice. Banks testified that Dyer
voiced his approval of this request and suggested that they
call Carl Merriss, another official at the Center, as to the
location of a suitable meeting place . According to Banks,
shortly thereafter that day he telephoned Merriss, told him
of his conversation with Dyer, and asked where the union
meeting could be held. Banks testified that Merriss
suggested that it be held in building 1017 and that with this
information he thereupon prepared the notice which he
posted on the Respondent's bulletin board later in the day.
Dyer acknowledged that on June 10 Banks and Watson
came to his office to inquire as to the availability of a room
in 1017 and that he suggested that they contact Merriss,
who was responsible for the scheduling of that facility. On
the other hand, Dyer testified that Banks and Watson
thereupon left his office without having mentioned the
subject of a union meeting . According to Dyer, earlier that
day, Claude Sullivan, chief steward for the RWDSU, had
come ]o him with a proposed notice of a union meeting
and at that time he approved Sullivan's notice for
posting.6o
Banks posted his notice on June 10. The following
morning Patton sent him a letter reprimanding Banks on
the ground that he had posted the notice without Dyer's
approval and at a time when Banks was no longer the
chairman of his union, but the vice chairman. Patton
concluded by informing Banks that he was being given a 3-
day furlough without pay.
Banks was credible in his testimony that Dyer appeared
to give his approval for a union meeting on the Respon-
dent's premises . As found earlier, the collective-bargaining
contract required only the oral approval of the personnel
manager and it did not require that this approval be
reduced to writing. On the other hand, Dyer was credible
in his testimony that prior to the time that Banks came to
his office Sullivan had secured the personnel manager's
approval of a notice for a union meeting . Since this was for
the same Union which Banks represented, and for which
Sullivan was then the chief steward,61 Dyer could have
assumed that one notice for the meeting was enough.
In any event, it is evident that there was a conflict within
the Union itself as to who was representing Local 512.
Whereas Banks credibly testified that it was not until June
11 that he received the official notice from Local 512 that
he had been relieved as acting chairman of the Westing-
house unit, he also conceded that some time earlier Chief
Steward Sullivan had told him that this had occurred. Why
he chose to ignore this report from Sullivan or make no
inquiries on his own is not clear from the record. At any
rate, such information from Sullivan should have been
enough to alert Banks on June 10 that his position as acting
chairman was then in question. From Patton's letter, it is
se Personnel Manager Dyer testified that the contract required that the 60 Patton testified that Sullivan 's union notice was posted on the same
requisite approval had to be in writing . Dyer, however, was in error in this day as Banks' and that the Respondent allowed it to remain posted. Patton's
regard , for art . XVIII, the contractual provision in question , requires only testimony was not contradicted
that any union notices must be approved by the personnel manager. It does 61 Sullivan had returned recently from a vacation and in his absence
not require that such approval be in writing . Banks had acted as the chief steward as well as the chairman for the unit.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obvious that the issue as to Banks' status was known to
officials of the Respondent. In any event, it was not a
situation for whic t the Respondent was responsible. Banks
may have assumed that Dyer gave him permission to post a
notice , but from the credible testimony in the record, it is
my conclusion that this did not occur. At the time that
Banks appeared at Dyer's office , Sullivan had secured the
personnel manager's approval for his notice of a meeting,
so that it would not seem likely that thereafter he would
give Banks permission to hold two more meetings without
some discussion of the matter.
The General Counsel alleges that the 3-day suspension
which Banks incurred as a result of this incident was
discriminatorily imposed . It is my conclusion, however,
that notwithstanding Banks' assumption that he had
secured Dyer's approval for the meetings in question, Dyer
had not, in fact, granted such approval. In view of the
tangled sequence of events connected with Banks ' attempt-
ing to secure permission for the meeting at a time when he
was no longer th' unit chairman , and the rival activity of
Chief Steward Sullivan in contacting Dyer at the same
time, it is my fur er conclusion that, in this instance, the
General Counsel has not proved that the discipline meted
out to Banks was discriminatory.
On July 5, a holiday ,62 Supervisor James Overfelt, the
daytime coordinator for Pack , admonished Banks that at
9:45 that morning the area outside his dormitory was not
clean . Banks protested to Overfelt that the area had been
clean at 9 a.m. when be ,had made his inspection , but the
adverse report of Overfelt was sent to Director Pack.
Banks was terminated on July 9, according to the
General Counsel for discriminatory reasons , but according
to the Respondent because Banks failed to call the Center
to state that he would be absent that day. The facts in
connection with this incident will now be considered.
On July 7 and 8 , Banks was ill and did not report for
work. On each day he, or his wife, telephoned the Center to
report the reason for his absence .83 On the morning of July
9, Banks , a disabled veteran, reported to the Veterans
Administration Hospital in Indianapolis for a medical
examination . He was not released until about noon.
Thereafter, Banks and his wife drove to the Center.
On arriving there, Banks- found the Carpenters picket
line at the gate. July 9 was a payday and his check awaited
him at the payroll office . However, Banks was unwilling to
cross the picket line to gain access to the Center.
Consequently, he gave his wife a note authorizing her to
secure his paycheck and also a slip signed by an official at
the Veterans Hospital which explained the reason for his
absence that morning . Mrs. Banks thereupon proceeded to
the payroll office where she turned in the slip from the
Veterans Administration, as well as the authorization from
62 July 4, 1971, having been a Sunday, the following day was an official
holiday at the Center.
63 This finding is based on Banks' credible testimony.
64 Banks testified that while he was on the picket line his location was
not visible from the security office . Patton testified that it was not until after
Banks was dismissed that he learned that on July 9 the latter had been on
the picket line. Similarly, Dyer testified that he did not know at the time of
Banks' termination that the employee had been on the picket Ime. In his
complaint the General Counsel alleged that Banks was discharged, inter
alla, for having honored the picket line established by the Carpenters. This
point , however, is not urged in the General Counsel's brief. Rather
her husband, and thereafter received her husband's
paycheck. In the meantime , Banks remained with the
pickets at the gate.64
In a letter dated July 9, Patton notified Banks that he
was being terminated, effective immediately. In the
termination letter, Patton referred to the 30-day probation
Banks received on June 10, the 3-day furlough for posting
the notice of the union meeting, and the adverse inspection
report of July 5. The letter concluded with the declaration
that on that day, July 9, Banks had failed to call in with
reasons for his absence and in violation of the provisions of
what was known as the "Standard Operating Procedure [or
SOP] manual." Both Pack and Patton testified that the
immediate cause for Banks' dismissal was his failure to call
in his absence on the morning of July 9.
Pack testified that on the morning of July 9 he saw a
report from the coordinator 's office that Banks was absent
and, when a check of the office personnel indicated that
Banks had not called in, he concurred in a recommenda-
tion from Patton that Banks be terminated immediately.
The provision of the SOP manual on which the
Respondent relied reads, in relevant part, as follows:
Any staff member who must absent himself from his
regular work shift must notify the Center OD one hour
prior to the beginning of his scheduled shift. Regardless
of the reason for the absence, this procedure must be
adhered to in order to assure your continued employ-
ment.
Any staff member who is unavoidably late on the job is
required to notify the Center OD that he will be late,
prior to the time his shift would normally begin. In the
absence of the OD, the employee will notify his Dorm.
Excessive absences and/or tardinesses will result in an
employee being subject to discharge as unable to meet
the requirements of the job.
The General Counsel contends that Banks complied with
the reporting requirement when his wife supplied the
payroll office with the slip from the Veterans Hospital that
set out the facts as to his medical examination there that
morning. This is contested by the Respondent, for,
according to Dyer, there was no way in which a
communication such as the Veterans Hospital report that
Mrs. Banks gave to the payroll office would be circulated
routinely to the other offices interested in Banks' appear-
ance that day.
It appears that Banks failed to comply with that
provision of the rules set out above which required that he
notify the Center OD65 1 hour prior to the beginning of his
shift on July 9. However, nothing in the foregoing rule
obviously, the reason for this change in theory arose from the fact that the
collective-bargaining contract between the Respondent and the RWDSU
had a no-strike clause . As a result, insofar as Banks engaged in any
picketing on July 9 his activity was unprotected . N.L.R.B. v. Kaiser
Aluminum, 217 F.2d 366, 369 (C.A. 9); Alton Box Board Co. Container
Division, 155 NLRB 1025, 1037. However, since the Respondent 's witnesses
conceded that at the time they discharged Banks they had no knowledge of
this activity, Banks' presence on the picket line could have had no bearing
on his dismissal.
65 This was also known as the office of the day coordinator.
WESTINGHOUSE LEARNING CORP. 43
would establish that failure to comply with this reporting
requirement on one occasion would result in immediate
termination . The rule itself states that "excessive absences
and/or tardiness- will result in an employee being subject to
discharge . . . . [Emphasis supplied]." Here, there was no
evidence that Banks had been quilty of either extensive
absences or tardiness .66 The imposition of the termination
penalty in this instance must be considered in the light of
the background provided by other phases of this case.
During the week that Banks was discharged , as has been
found earlier in this Decision, the Respondent discrimina-
torily dismissed all of the counselors who joined the
carpenters in the picketing which began on July 7. On that
day, it was Patton who wrote to these counselors notifying
them that if they did not return to work at once they would
be replaced immediately . Consequently, the termination of
Banks occurred against a background of extensive antiun-
ion activity during that week by the Respondent.
As an active union officer Banks aggressively represent-
ed his coworkers and clearly incurred the enmity of the
Respondent's officials. Iii February, Pack's comments to
Supervisor Ferguson established a desire on the Respon-
dent's part to "write . . . up" Banks for every infraction of
the rules. That same month Banks filed unfair labor
practice charges against the Respondent which were
eventually settled with the employee being transferred
from the supervision of Manager Ernest Burton to that of
Manager Herb Patton . On both the Memorial Day and
Fourth of July weekends, when dormitory inspection
standards were customarily more relaxed , Pack, Patton,
and Overfelt'saw to it that Banks' dormitory was checked
and an adverse report prepared. And on June 10 he was
reprimanded for having filed an inspection sheet crediting
his corpsmen with having done a perfect cleanup job that
day.
It is arguable that, in informing the payroll office rather
than the Center OD of the reason for Banks' absence on
the morning of July 9, Mrs . Banks partially, at least,
complied with the reporting requirement. On the other
hand, even assuming that what she did was inadequate, it
seems unlikely that without Banks' reputation as an
aggressive advocate of the RWDSU and the well-estab-
lished union animus of the Respondent , his noncompliance
with the rule on reporting absences would have precipitat-
ed such a swift application of the discharge penalty. Here,
the Respondent's "demand for strict compliance [with the
rule on reporting an absence to the Center OD] . . . is
more consistent with antipathy for union activity than
concern over the plant rules ." N.L.R.B . v. General
Industries Electronics Company, 401 F.2d 297, 301 (C.A. 8,
1968); Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 102
(C.A. 7, 1959). It is my conclusion, on the facts present
here, that the purported concern of the Respondent's
officials with Banks' having failed to comply with the rule
on reporting absences was a pretext and that the real
reason for the employee '&abrupt termination was his union
ee Whereas Banks had been absent on July 7 and 8 because of illness, as
has been found earlier, on each day either he or his wife telephoned the
Center that he would be unable to report for work.
67 The General Counsel also alleged that the Respondent's action
violated Sec. 8(ax4) in that it was taken because of Bank's having filed an
unfair labor practice charge with the Board in Case 25-CA-4179. However,
activities. In so doing the Respondent violated Section
8(a)(3) and (1).67
H. The Alleged Discriminatory Suspensions and
Harassment of the Guards; Findings and Conclusions
in Connection Therewith
1. Edmund D. Hicks
Hicks was a patrolman with the security department68
from the time the Respondent took over the operation of
the Atterbury Job Corps Center in 1966. Prior to that time
he had spent a year at the Center as a security guard with
the Respondent's predecessor. On a seniority list posted by
the Respondent in May 1971, Hicks had more seniority
than any other guard.
Hicks was an early supporter of the United Plant Guard
Workers of America and its Local 4 (herein called Guards
Union, or Local 4). On or about May 12, 1969, that Union
was certified. Thereafter Hicks served on the negotiating
committee until a collective-bargaining agreement was
concluded and signed by the parties in October 1970.
Subsequent to the execution of that contract and until his
suspension in June 1971, Hicks was the chairman of the
union grievance committee.
In his capacity as a spokesman for the Guards Union on
all grievance matters , Hicks represented his coworkers at
all of the first three levels provided in the contract. Thus,
the first level was with the captain of security, the second
level was with the manager of security, and the third level
was with the personnel director.69 During Hicks' tenure,
numerous grievances were filed and processed through
these various steps.
When Center Director Hearnton began his administra-
tion at the Center he was dissatisfied with many aspects of
the security department. Soon after his arrival, the
Department of Labor review team issued its report,
referred to earlier in this Decision, and in its canvass of the
security operations at the Center, the DOL was extremely
critical. Thereafter, Hearnton brought William Davis and
Hugh E. Cawthon to the Center, both of whom had had
experience at the Breckenridge Job Corps Center in
Kentucky. Late in April, Davis was promoted to captain of
security and Cawthon was named to head the office as
manager of security.
Davis testified that, in order to meet the DOL require-
ments, Hearnton ordered the new leadership to make
drastic changes in the security operations at the Center.
According to Davis, at the time he and Cawthon arrived,
security measures were flouted by everyone and the rules
were either ignored or not enforced. He testified that, in
many instances, the guards were wearing improvised
uniforms , with some in Air Force caps, cowboy boots, long
hair, unshined shoes, and unpressed clothing. According to
Davis, when he began his assignment as captain of
security, Hearnton ordered that security measures were to
in view of the fact that the remedy for a violation of that section is the same
as that for a violation of Sec 8(aX3), no finding of a violation of Sec. 8(a)(4)
is made here.
68 Also known in the record as the security division , or security office
69 The collective-bargaining agreement provided for arbitration at the
last level for the settlement of disputes
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be enforced rigidly and that the guards were to conform to
the dress code which had been established for all
employees at the Center. Davis and Cawthon testified that
they set out to put this new policy into effect with all
possible dispatch.
On about April 29, Davis and Cawthon met with several
of the guards, including Hicks, at which time Davis
stressed the need for more discipline on the force and
emphasized his intention of rigidly enforcing this require-
ment . According to Hicks, at that time Davis told the
assembled guards , "If I don 't have a reason to fire a guard
I'll make one Up." 70
Early in May, Davis promoted several of the guards who
were then classified as patrolmen. On about May 5, Davis
offered Hicks a promotion to lieutenant, but the employee
declined. Hicks testified that during the course of his
conversation with Davis on this occasion the latter told
him that "he knew [Hicks] was a leader of the Union and
without [Hicks] it would fall apart." Davis did not deny
that Hicks was offered a promotion and he conceded
having had a conversation with Hicks at the time and place
in question . He acknowledged that during the course of the
discussion he mentioned to Hicks that he knew that the
employee was a union committeeman, but he denied
having used the language (quoted above) which Hicks
attributed to him. Upon a consideration of this conflict in
the testimony , including the demeanor of the witnesses, it
is my conclusion that the testimony of Hicks is the more
credible.
On the night of May 6, Hicks was on duty at the
detention facility,71 where, at the time, two corpsmen
named Robertson and Jones were confined. During the
course of the night, both escaped from custody and
returned to their dormitory. Thereafter, this escape
apparently went undetected by Hicks until the dormitory
manager called the security office to inquire as to why they
had been permitted to return. Davis and Cawthon charged
Hicks with negligence and, initially , suspended him
indefinitely. However, after Union Representative Virgil
Bray intervened with Dyer, this penalty was reduced to a 3-
day loss of pay. The General Counsel alleges that this
suspension was discriminatorily motivated. However, the
evidence does not support such an allegation. It appears to
me that Hicks must have been negligent and that some
type of penalty was justified. Consequently, I conclude and
find that the General Counsel's allegation with respect to
this allegation should be dismissed.72
On about May 28, Captain Davis called several of the
guards together at the security building and lectured them
on the need for greater effectiveness in the performance of
their duties. The meeting occurred in the public lounge at
the building and several corpsmen as well as other
nonguards were in the area. According to Hicks, during the
70 The foregoing quotation is from the credible testimony of Hicks which
was not contradicted or denied.
71 The security office had no jail as such. Instead it had what was known
as an isolation , or detention, center where corpsmen guilty of various minor
offenses could be confined. It appears that as to matters involving criminal
conduct under state and Federal laws the Center relied upon the
intervention of the civil authorities
72 It was undenied that in October 1971, when one George Whitfield,
while on duty at the detention facility, allowed three corpsmen to escape
from their cells, he was given a similar 3-day suspension without pay.
course of his remarks, Davis told those present, "If you
can't do your job, I want you to resign. If you don't resign
I'll ask you to resign. If you are 45 years old 73 and can't do
your job I want you to quit and I don't give a damn about
any Union." Subsequent to this meeting , Hicks filed a
grievance in protest at what he testified was the embarrass-
ing character of the setting at the time, since corpsmen and
others were present when Captain Davis delivered his
strictures.
On about June 8, Hicks had a conversation with Davis in
the office of the latter. Hicks testified that the object of his
visit was to protest, in his capacity as grievance committee
chairman, being moved to a different work shift. According
to Hicks, Davis told him that he planned to move him to
another shift, that he had the right to manage the job
anyway he wanted and then concluded with the comment
to Hicks that the Guards Union "is busted and you don't
even know it."
On about June 14, Hicks was given an indefinite
suspension, later changed to 14 days, for allegedly having
failed to obey orders when on sentry duty at the main gate
to the Center. The facts in connection with this incident are
set forth below.
On the date in question, Hicks was on duty at the front
gate when James J. Denbow and Thomas J. Mulloy, two
inspectors for the Indiana Department of Labor, arrived to
investigate an accident involving mowers. The visitors
identified themselves and gave the name of the official at
the Center whom they wanted to see . Hicks thereupon
called the office of that individual and, after being told by
the secretary to send the state officials to that office, Hicks
did so, but not until after he had them sign the visitors'
register at the sentry post and had issued them a visitors'
pass.
Security Manager Cawthon testified that on that morn-
ing he received a telephone inquiry from the office of the
director for the Center as to whether there were two
inspectors from the Indiana Department of Labor on the
premises. According to Cawthon, at the time this call was
received, the security office had no record of any such
visitors. Cawthon testified that he did not learn of their
presence until after he checked with Hicks and found that
the visitors in question had been allowed to enter without
having been cleared through the security office. According
to Cawthon, he immediately recommended that Hicks be
terminated for having failed to follow the rule on visitors,
but that, after some discussion, Dyer would impose only a
14-day suspension.
At the hearing Dyer testified that the sole reason for
suspending Hicks was because he allowed the two visitors
to enter the Center without notifying the security office.74
Both Cawthon and Davis testified that, from the time that
Hearnton became the director, all visitors were required to
73 Hicks testified that he is 44 years old.
74 Prior to Dyer's testimony, there was some indication that the
Respondent would assert that , additionally, Hicks was terminated for
having failed to complete properly the pass issued to Denbow and Mulloy
The General Counsel requested that this pass be supplied , in response to his
subpena The pass, however , was never produced . Thereafter , when Dyer
was on the stand, he testified that the manner in which Hicks filled out the
pass for the two Indiana officials had no bearing on the employee's
suspension.
WESTINGHOUSE LEARNING' CORP. 45
report to the security office before they could secure a pass
and enter the Center. At sometime in May 1971, signs
posted above the security building read, in relevant part, as
follows:
VISITORS WELCOME
All Must Clear Thru This Office75
The Respondent did not, however, produce any written
orders to the effect that the guards should require all
visitors to check in at the security office before they could
obtain permission to visit the Center. Burdette Richards
and Clyde Smith credibly testified that prior to Hicks'
suspension they had been stationed at the gate on
numerous occasions and that they had followed the same
practice on admitting visitors as had Hicks on the morning
in question. Significantly, both further credibly testified
that the day after Hicks was suspended all blank visitor
passes were removed from the gatehouse and taken to the
security headquarters. According to both Richards and
Smith, thereafter, and for about 2 weeks, all visitors were
required to secure their passes from the shift commander at
the security headquarters rather than at the gatehouse.
Both of these guards credibly testified that after approxi-
mately 2 weeks had elapsed, the blank passes were
returned to the gatehouse and the practice of issuing
visitors' passes by the guard on duty at the gate was
resumed.
From the foregoing evidence, I conclude that whereas
the security division under Cawthon had had a sign posted
which appeared to require that all visitors clear through the
security headquarters, there were no written rules to that
effect and, in fact, the practice was quite different. It is
further apparent that the guards followed the custom of
checking with the office at which a visitor proposed to call
and when that office indicated the visitor was expected, or
otherwise cleared him, the guard issued a pass that
permitted the visitor to enter. Quite obviously, on June 14,
Cawthon and Davis were embarrassed when the director's
office inquired as to the whereabouts of the inspectors
from the Indiana Department of Labor and the security
office had no record of their arrival. Immediately after
Hicks' suspension there followed a period of about 2 weeks
when the rule was followed rigidly and then the guards
were permitted to resume the practice of issuing visitors'
passes at the gatehouse instead of sending the visitor to the
security office to secure the same documents. Consequent-
ly it is my conclusion that prior to Hicks' suspension, the
rule on visitors, as enunciated by Cawthon, was more
honored in the breach then in the observance and that
after the disciplining of Hicks enforcement of the i rile was
maintained for only a short while, after which time the
guards were allowed to revert to the former practice of
issuing passes at the gatehouse.
75 Hicks testified that the signs which carried this instruction were not
posted until later in the year However, Burdette Richards and Clyde Smith,
two other guards, testified that these signs were posted sometime prior to
June 1971 1 conclude that in this instance their recollection was more
accurate than that of Hicks.
76 The quotation is from Hicks' credible testimony
77 Davis credibly testified that in his prior employment history he had
been a union member for many years and had held various positions in a
Hacks testified that early in July and after he returned
from the 2-week suspension, Davis told him that the Union
had "busted"76 him and that thereafter Hicks was not to
have anything to do with the grievances which other
guards might file. According to Hicks, he told Davis that
the Union had not removed him from his post as chairman
of the grievance committee, but that he had voluntarily
resigned since he could not adequately represent the
employees while suspended from his job. Hicks testified
that in another conversation at about this same time, Davis
told him that at the Breckinridge Job Corps Center (where
Davis had served previously) there was "one stinking lousy
Union in the cafeteria and there would be even less when
they got through here." Hicks' testimony in this connection
was denied by Davis, but I conclude that Hicks was more
credible in this regard than Davis.77
For some time after the foregoing suspension Hicks
apparently worked for several weeks without incident.
Then, for a period of over a month, he was assigned to
patrol an isolated area on the base and to make a radio
report to the security headquarters every 10 minutes
throughout the course of each 8-hour shift. The General
Counsel alleges that this was part of a continuing program
to harass Hicks because of his union affiliation. This is
denied by the Respondent.
The Respondent did not deny that from August 10 to
September 8 Hicks was given the assignment of patrolling
a remote area of the Center and that throughout his entire
shift he was required to make radio reports at 10-minute
intervals to the security office. Davis and Cawthon testified
that there had been some suspected Klan activity78 near
the Center and that since Hicks was white, whereas they
and many of the others in security were black, Hicks was
selected for the assignment. At one time in July there had
been a cross burning, but, according to the credible
testimony of Burdette Richards, this had occurred over a
half mile away from the remote area that Hicks was
assigned to patrol. Hicks was kept continuously at his
lonely outpost for over a month. Not until Clyde Smith,
then acting as the union steward, made two protests to
Dyer about the treatment being accorded Hicks was the
employee allowed to resume his normal duties.
At the hearing, Security Manager Cawthon conceded
that, to his knowledge, Hicks was the only patrolman ever
required to call headquarters every 10 minutes when on
duty. Neither Cawthon nor Davis was credible in relating
the alleged reason for keeping Hicks on this bizarre
assignment for over a month without once during the
course of any 8-hour shift giving him any relief or sending
a substitute. It was, as Cawthon admitted, a unique
assignment, which no one else had ever had and which no
one else was asked to share throughout the period from
August 10 to September 8. It is my conclusion, on the basis
of the foregoing evidence and the record, that this action
local of the United Auto Workers of America, including that of steward
The Respondent stresses this aspect of Davis' background in urging his
credibility over that of the guards working for him The assessment of
Davis' testimony set forth above has been reached after giving full
consideration to the earlier association of this witness with the United Auto
Workers
78 1 e, Klu Klux Klan
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was discriminatory and that it was designed to discourage
Hicks and cause him to quit. Almost from the moment of
his arrival as the new captain of security, Davis had been
outspoken in his opposition to Hicks and the Guards
Union. Consequently, it is my conclusion that the
suspension of Hicks for 2 weeks in June was discriminato-
ry, as was the isolated patrol to which he was assigned in
August and September, and that the objective in each
instance was to rid the Respondent of a provocative
representative of the Guards Union. This course of
conduct by the Respondent was discriminatory and in
violation of Section 8(a)(3) and (1).
Early in May, when Davis offered Hicks a promotion
from patrolman to lieutenant, he told the employee that he
knew that Hicks was a "leader of the Union and without
[him] it would fall apart." Later that month, Davis told
Hicks, to whom he had tendered a supervisory promotion
only a few weeks earlier, that "If you are 45 years old
[,Hicks' approximate age] and can't do your job I want you
to quit and I don't give a damn about any Union." A short
time later, Davis told Hicks that the Guards Union was
"busted and you don't even know it." On the basis of the
foregoing evidence , as well as the findings that Hicks was
discriminatorily suspended in June and further discrimi-
nated against in August and September, it is my conclusion
that Davis' offer to promote Hicks was made primarily for
the purpose of removing a union adherent from leadership
in the Union and to abandon his union activities. By such
conduct the Respondent further violated Section 8(a)(1) of
the Act.79
2. Burdette Richards
Richards was first employed as a security guard in May
1969. Thereafter his employment was continuous except
for two brief intervals when he was attending school and
when he was examined for military service. Early in May
1971 he was appointed a union committeeman for the
afternoon shift so Thereafter he received various repri-
mands from his superiors, allegedly because of long hair
and unsatisfactory dress. The General Counsel contends
that these reprimands were discriminatory.
Richards testified that during a morning inspection on
about May 12 Captain Davis criticized the length of his
hair and ordered him to get it cut. According to Richards,
he promptly complied with this order, but when he
returned to duty both Davis and Cawthon again criticized
the length of his hair. Edmund Hicks, then the chief
steward , was present on this latter occasion and protested
that the length of Richards' hair was satisfactory. In
response , Davis told Hicks that he knew nothing about a
black man's hairs' and that Richards' hair length was still
objectionable. Later that day, Dyer, as the director of
personnel , was drawn into the controversy when the parties
met in his office. There Dyer suggested that Richards
79 The General Counsel also alleged that the Respondent discriminated
against Hicks in arbitrarily assigning lunchbreaks . The evidence did not
support this allegation , however, for it appeared from the testimony that the
guards had no regular luncheon breaks . The General Counsel also alleged
that Davis had discriminated against Hicks in forbidding him to carry a
monocular , or telescope , while on duty The latter order, however, appeared
to be within Davis ' clear authority to prescribe items of equipment which
the guards could carry, as well as the type of uniform they should wear.
comply with the order for another haircut before reporting
to work on the next shift.
According to Richards, he complied with Dyer's sugges-
tion and, after having done so, on the following day he and
Hicks went to Dyer's office where Dyer told him that his
hair was then satisfactory and that Richards could go to
work. Richards testified that when he reported for duty
later that day, Cawthon told him that his hair was still too
long, but that he told Cawthon that he could not afford to
get another haircut.
Thereafter, Richards ignored this last order from
Cawthon. Several days later and on about June 10,
Cawthon announced that Richards was being suspended
for 5 working days. In a letter dated June 14, and
addressed to Richards, Cawthon wrote the employee that
on June 10 he had appeared for duty with long and
uncombed hair, unshined shoes, and dirty trousers and
that, because of these deficiencies and earlier reprimands
about his personal appearance, Richards was being
suspended without pay until June 18.
Davis and Cawthon testified at length about their
problems with Richards and their demands that he appear
for duty well groomed and with a clean uniform. Davis
testified, and in this he was uncontradicted, that during the
time in question Richards' hair was of such length that it
was impossible to locate a patrolman's cap that would fit
over his hair. Dyer also contradicted Richards' testimony
to the effect that on the occasion in May when he and
Hicks had gone to Dyer's office the personnel manager
told him that his hair was then in satisfactory condition
and that he could return to work. According to Dyer, he
told Richards that whereas his hair appeared to meet the
requirements, a final decision on the matter rested with
Captain Davis. Dyer's testimony in this connection was
credible.
Davis and Cawthon were vested by the collective-
bargaining agreement with the authority to prescribe the
uniform and mode of dress for the security guards. At the
behest of the Center director they enforced these require-
ments rigidly . In so doing, others besides Richards were
reprimanded for various infractions of the dress code.
Consequently, in view of these factors, and the findings set
forth above, it is my conclusion that the General Counsel
has not proved by a preponderance of the evidence that the
Respondent discriminatorily enforced any such regulations
as to Richards. It will, therefore, be recommended that the
allegations of the General Counsel to that effect be
dismissed.
3. Clyde F. Smith
Smith was employed as a security guard in July 1970 and
served thereafter on the day shift until about June 15, 1971.
In May of the latter year he was designated as the union
Finally, the General Counsel alleged that the Respondent had discriminated
against Hicks , Burdette Richards , Clyde F. Smith , and other guards in not
assigning them to shifts on the basis of seniority. There appears to be no
basis for this allegation either , for the collective-bargaining agreement is
silent as to the application of seniority in the assignment of shifts.
Consequently, I conclude that this allegation must also be dismissed.
se The hours of the afternoon shift were from 4 to 12 p.m.
81 Both Richards and Davis are black and Hicks is white
WESTINGHOUSE LEARNING CORP. 47
committeeman for the day shift. On or about June 15, he
was transferred to the midnight shift82 and after 2 weeks
on that assignment he was transferred to the 4 p.m. to
midnight shift. The General Counsel alleged that these
shift changes were discriminatorily motivated.
Earlier herein, it was found that, contrary to the
contention of the General Counsel, the collective-bargain-
ing agreement did not require that shift assignments be
made on the basis of seniority. It was also found that that
same contract accorded to the Respondent the right to
make such shift assignments as were dictated by manage-
ment needs at any given time.
The General Counsel sought to establish that Smith's
transfer from the day to the midnight shift followed shortly
after that employee was made a union committeeman and
that the real reason for this transfer was a desire by the
Respondent to penalize Smith for his identification with
the Guards Union. In support of this position, Smith
testified about his participation in grievance procedures
both after he was made a union committeeman in May and
after his transfer in mid-June to the late shift.
Cawthon testified that Smith's transfer was unrelated to
the employee's union activities. According to Cawthon the
real reason was that Smith , as a man 60 years of age, was
not able to cope with the problems which arose during the
day shift among the young, able-bodied corpsmen at the
Center. By way of illustration, Cawthon testified to an
incident that occurred on about June 4, when he and Smith
went to the scene of a disturbance at the Center where
many corpsmen were milling about and where one
belligerent individual had to be restrained and taken to the
detention center. Cawthon testified that Smith was
reluctant to become involved and, as a result, he (Caw-
thon) had to take the corpsman into custody almost single
handedly. According to Cawthon, after this incident he
concluded that Smith could not be relied upon for the type
of action needed in dealing with aggressive young
corpsmen from 17 to 20 years of age who were involved in
the type of disturbances that frequently arose during the
daytime. He further testified that he concluded that, rather
than ask Smith to resign, it would be advisable to put him
on another shift where he would be less likely to encounter
the type of problems common to the day shift. Davis gave
similar testimony in support of the transfer in question.
Whereas the General Counsel contended that Smith's
transfer to the night shift on June 15 and his transfer to the
late afternoon shift on or about July 1 were discriminaton-
ly motivated, on cross-examination Smith conceded that
on about July 8 he had a cordial exchange with Captain
Davis about his work as a union committeeman and that at
that time he was assured by Davis that most of the
grievances which arose could be resolved in his office
without further recourse to the contract. Smith further
testified that, in this same conversation, Davis told him
that
... the Company, or Westinghouse Learning Corpo-
ration, and management would give what was common
courtesy to the committeeman; that if I was unhappy
on the shift that I was on at that particular time that he
would arrange, or do his best to arrange, to place me on
a shift of my choice.
On the foregoing findings, it is my conclusion that in
making the shift changes as to Smith the Respondent acted
within the scope of the authority accorded management by
the collective-bargaining agreement and that the General
Counsel failed to establish that these changes were for any
reasons other than those which were offered by Cawthon
and Davis during their appearance on the stand.
I. The Issue as to Arbitration
At the initial hearing in January 1972, I granted a motion
to dismiss all allegations in the complaint as to Banks,
Hicks, Richards, and Smith and defer to the contractually
provided arbitration procedures available to the parties.
Collyer Insulated Wire, 192 NLRB 837. As noted earlier, on
March 20, 1972, the Board reversed this ruling and ordered
that the case be reopened for the purpose of taking
evidence as to these allegations . At the reopened hearing
and in its brief, the Respondent renewed its motion to
dismiss on the basis of Collyer. To the issues thus raised, we
will now turn.
The RWDSU has a contract with the Respondent,
effective from March 20, 1971, through March 20, 1973,
that establishes a four-step procedure culminating in final
and binding arbitration of all grievances involving disci-
pline or discharge of bargaining unit members , as well as
alleged acts of discrimination against them. From June 8 to
July 20, 1971, Banks, as an employee under this contract,
filed six grievances as to the reprimands, suspension, and
discharge which have been discussed earlier in connection
with the General Counsel's allegations in the instant case.
Each of these grievances was processed through the first
three steps of the contractually established grievance
procedure. The parties subsequently agreed to arbitration
and an arbitrator was selected. An arbitration hearing
originally set for December 13, 1971, and then for January
14, 1972, was postponed because of the pending unfair
labor practice trial. Thereafter, the arbitration case was set
for hearing on March 6, 1972. Banks then requested a
further postponement. As a result, the matter was set over
until May 3, 1972. Prior to the latter date, Banks withdrew
from the arbitration proceedings. In a letter dated May 11,
1972, counsel for the RWDSU notified the Respondent
that, whereas Local 512 was ready to arbitrate all issues as
to Banks' suspension and discharge, the employee had
requested that his case be withdrawn.
The Guards Union has a 2-year contract with the
Respondent that became effective on October 1, 1970. This
agreement likewise establishes a four-step procedure,
culminating in final and binding arbitration of all
grievances involving any provision of the contract includ-
ing questions of discipline and discharge of unit members.
Pursuant to this contractual provision, between May 10
and December 6, 1971, employees Hicks, Richards, and
Smith filed a total of nine grievances that parallel the
allegations as to these individuals which appear in the
General Counsel's complaint. All of these grievances were
processed through the first three stages of the grievance
82 This was from midnight to 8 a.m.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure, but, insofar as the record reflects, none of the
parties has sought to take any of these grievances to
arbitration.
Collyer and related Board decisions represent a develop-
ing body of law on deferral to arbitration that initially did
not include cases involving issues other than alleged
violations of Section 8(a)(5) and (1) of the Act. Recently,
however, the Board has deferred to arbitration in cases
involving alleged violations of Section 8(a)(3). National
Radio Company, 198 NLRB No. 1; Appalachian Power
Company, 198 NLRB No. 7. In each of the foregoing cases,
the i basic i issue ' represented a I dispute's over, interpretation
of provisions in an existing collective-bargaining agree-
ment . Further, in deciding in favor of deferral in Collyer,
the Board relied, in part, on the fact that "the parties .. .
[had] for 35 years, mutually and voluntarily resolved the
conflicts which inhere in collective bargaining" and also
the fact that "no claim [was] made of enmity by
Respondent to employees' exercise of protected rights."
(Collyer, I supra.) In I National Radio, where the Board
reached a similar decision, it referred to an 18-year
bargaining history between the employer and the union as
having been "harmonious and productive." (National
Radio, 1supra.), In the latter case the Board also distin-
guished the alleged violation of Section 8(a)(3) there
involved as different from those in which there existed a
history of union animus or an alleged "pattern of action
subversive I of , Section, 71 rights." 1 (National , Radio,, supra.)
In the instant case, the two collective-bargaining agree-
ments involved are "first" contracts, secured in one
instance by the RWDSU and in the other by the Guards
Union. In neither instance has there been a "long
established . . . stable and productive bargaining relation-
ship." (National' Radio,, idem.) Moreover, the charges
involve allegations of union animus and of a "pattern of
action subversive of Section 7 rights." Consequently, it is
my conclusion that the Respondent's motion to defer the
cases of Banks, Hicks, Richards, and Smith to arbitration
should be, and it hereby is, denied. Cf. Kansas Meat
Packers, a Division of Aristo Foods, Inc., 198 NLRB No. 2.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
various unions here involved are labor organizations, all
within the meaning of the Act.
2. All counselors employed by the Respondent at the
Atterbury Job Corps Center, exclusive of office clericals,
professional employees, guards, supervisors, and all other
employees constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
3. At all times since May 19, 1971, the Counselors
Union has been the exclusive representative, for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act, of all the employees in the
aforesaid appropriate unit.
4. By failing and refusing to bargain in good faith with
the Counselors Union as the representative of the employ-
ees in the aforesaid appropriate unit, the Respondent has
engaged , and is engaging, in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
5. The work stoppage which began on July 7, 1971, as
an economic strike, was prolonged by the Respondent's
unlawful refusal to bargain in good faith on that date and
thereafter, and thereupon became an unfair labor practice
strike.
6. By discriminating in regard to the hire and tenure of
Claudies Banks, Glen D. Holmes, Edmund D. Hicks,
Robert Arms, Robert Brown, Carolyn Clark, Sergei
Davidenkoff, Loren Hall, Willard Kennedy, Norman
Merkler, Gerald B. Morris, Stewart Northrup, Hansh
Pandya, Pence Pruitt, E. Paul Sechrist, and Philip
Waggoner, thereby discouraging membership in a labor
organization, the Respondent has engaged, and is engag-
ing, in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
7. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
9. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent interfered
with, restrained, or coerced its employees in the exercise of
the rights safeguarded by the Act, except by the specific
acts and conduct found herein to have been violative.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , I will recommend that the
Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily
terminated Glen D . Holmes and Claudies Banks, I will
recommend that the Respondent be ordered to offer
Holmes and Banks immediate and full reinstatement
without prejudice to their seniority or other rights and
privileges , and to make them whole for any loss of earnings
they may have suffered from the time of their discharges to
the date of the Respondent 's offer of reinstatement.
Similarly, having found that the Respondent discriminato-
rily terminated Robert Arms, Robert Brown , Carolyn
Clark , Sergei Davidenkoff, Loren Hall, Willard Kennedy,
Gerald B . Morris, Stewart Northrup, Harish Pandya,
Pence Pruitt , E. Paul Sechrist , and Philip Waggoner, I will
recommend that the Respondent be ordered to offer them
immediate and full reinstatement without prejudice to their
seniority or other rights and privileges, and to make them
whole from August 3, 1971, when the strike ended, to the
date of the Respondent 's offer of reinstatement. Further, I
will recommend that the Respondent make whole Edmund
D. Hicks for the wages lost because of his discriminatory
suspension in June 1971 . The backpay for the foregoing
employees shall be computed in accordance with the
formula approved in F. W. Woolworth Co., 90 NLRB 289,
with interest thereon computed in the manner and amount
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716,
717-721 . It will also be recommended that the said
WESTINGHOUSE LEARNING CORP. 49
Respondent be required to preserve and make available to
the Board, or its agents, on request, payroll and other
records, ,,to .,facilitate-
d
computation of backpay due.
Finally, the Board
.
aii the courts have held that where
an employer engages in violations of the Act during the
certification year, and thus interrupts bargaining with the
ensuing litigation , the union is entitled to the benefits of its
certification once the litigation is terminated . N.L.R.B. v.
John S. Swift Company, Inc., 302 F.2d 342, 346 (C.A. 7,
1962). In Mar-Jac Poultry Company, Inc., 136 NLRB 785,
the Board held that where an employer's violations of
Section 8(a)(5) prevented meaningful collective bargaining,
the certification year must be extended.83 In this case, as
found earlier herein, the Respondent 's unlawful refusal to
bargain began on May 21, 1971, immediately after the
Counselors Union won the representation election. As a
result, that Union was deprived of the fruits of its entire
certification year. Consequently, to place both the Respon-
dent and the Counselors Union in the position they would
have been, but for the Respondent's unlawful conduct, the
bargaining provision in the recommended Order set forth
hereinafter may be considered as tantamount to an
extension of the certification year for a full 12 months after
the parties resume negotiations . Quintree Distributors, Inc.,
198 NLRB No. 69, fn. 2; Howmet Corporation, Austenal
Microcast Division, 197 NLRB 471; Family Heritage Home-
Beaver Dam Incorporated, 195 NLRB 1100.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4).
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER84
Respondent, Westinghouse Learning Corporation and
Westinghouse Learning Corporation (Indiana), its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging, suspending, or otherwise discriminating
against any employee because of membership in, or
activity on behalf of, any labor organization.
(b) Coercively, or otherwise unlawfully, interrogating its
employees as to their union activities.
(c) Refusing to bargain collectively in good faith
concerning wages , hours , and other terms and conditions
of employment with Atterbury Federation of Teachers and
Counselors, Local 1693, affiliated with American Federa-
tion of Teachers, AFL-CIO, as the exclusive representa-
tives of all employees in the following appropriate unit:
All counselors employed by the Respondent at the
Atterbury Job Corps Center, exclusive of office
clericals, professional employees, guards, supervisors,
and all other employees.
(d) Unilaterally changing working conditions without
notifying, consulting, or bargaining with the aforesaid
Union prior to so doing.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join , or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or engage in concerted activities for the
purpose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Claudies Banks , Glen D. Holmes, Robert
Arms, Robert Brown, Carolyn Clark, Sergei Davidenkoff,
Loren Hall, Willard Kennedy, Gerald B. Morris, Stewart
Northrup, Harish Pandya, Pence Pruitt, E. Paul Sechrist,
and Philip Waggoner, their formerjobs, or, if those jobs no
longer exist , substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
(b) Make whole Claudies Banks, Glen D. Holmes,
Edmund D. Hicks, Robert Arms, Robert Brown , Carolyn
Clark, Sergei Davidenkoff, Loren Hall, Willard Kennedy,
Gerald B. Morris, Stewart Northrup, Harish Pandya,
Pence Pruitt, E. Paul Sechrist, and Philip Waggoner, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board, or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or appropriate to analyze the amount of backpay
due.
(d) Post at the Atterbury Job Corps Center in Edinburg,
Indiana, copies of the attached notice marked "Appen-
dix."85 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being duly signed
by the Respondent's authorized representative, shall be
posted by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
83 See : N. L. R B. v. Commerce Company d/b/a Lamar Hotel 328 F.2d
600, 601 (C.A. 5), cert. denied 379 U.S. 817 (1964); Family Heritage
Home-Beaver Dam Incorporated 195 NLRB 1100; and Burnett Construc-
tion Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965).
84 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
85 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."