Westinghouse Electric Supply Co.

WESTINGHOUSE ELECTRIC SUPPLY COMPANY 407 W. Nelson C. Stanford P. Watkins P. Newsom E. Stephenson R. Washington L. Norwood E. Stewart A. White 0. Patterson J. Strickland DeWitt Williams W. Randolph Ill. Strickland H. W. Williams E. Redmon W. Strickland B. Wilson A. Reed S. Taylor L. Wilson V. Reed E. Thomas B. Woods W. Richmond 1. Vaught B. Wooten A. Saulsberry R. Venson J. Wooten C. C. Sharp L. Walker H. Wynn C. D. Smith 0. Walker S. Smith W. J. Ward Appendix C Employees to be offered reinstatement and to be made whole for any loss of pay ih the manner set forth in the Intermediate Report : Al. Anderson C. Barron S. Bowling I Boyd J. Bryant L. Byrd W. Clayton Eva Clayton J. E. Couch 0. Dodson J. Dorn R Hardwick 1. Harris A. Hester A F. Howard Jerry Jackson E Jett A. L. Jones Ben Jones E. Joy A. Kizer G. W. Lee L. C. Marr R. Marr B. L. Matthews R E Micken It Osby W. Payne W Porter T. Powell S. Pryor K. Roberson T. J. Robertson J Robison R. Sherrod G. Smith 11. Smith J. Sturgiss C. Walls C. L. Watson W. Williamson Leland Wilson W. B. Wren WESTINGHOUSE ELECTRIC SUPPLY COMPANY and FEDERATION OF WESTINGHOUSE INDEPENDENT SALARIED UNIONS. Case No. 6-CA- 234. September 26, 1951 Decision and Order On December 11, 1950, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act, and recommending that it cease and desist there- found and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the General Counsel, the charging Union, and 96 NLRB No. 58. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent filed exceptions to the Intermediate Report and sup- porting briefs. The Respondent also requested oral argument before the Board. This request is denied as the record and the briefs, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations except as modified herein.- 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) and (5) of the Act. However, unlike the Trial Examiner, we do not find that the Respondent refused to bargain with the Union in good faith by its delay of negotiations from August 16 to September 21, 1949, or by its earlier delay between February 14 and April 25, 1949. Our finding of a violation is predicated upon the fact that the Respondent refused to disclose to the Union the information con- tained in its survey chart. Thus, at the September 21 negotiation meeting, which the Respondent had asked the Union to defer pending completion of its survey of rates paid by other area employers, the paramount issue still in dispute was salary rate ranges. The Respond- ent urged the Union to accept its existing rates, arguing that its survey confirmed that it was paying equal or better salaries. The Union asked the Respondent to substantiate this argument. At that time, the Respondent had completed its survey and had prepared mimeographed copies of a chart tabulating the results of the survey without identifying any of the employers involved. Such a chart could have been shown to the Union without disclosing confidential data, as the Respondent in effect admits. The Trial Examiner credited the testimony of the Union's representatives, who denied that the Respondent showed them the chart. The Trial Examiner refused to credit contrary testimony of the Respondent's witnesses. Absent persuasive reasons on the record as a whole for disturbing this credi- bility resolution, we adopt it .2 As the information disclosed in the survey was clearly relevant to the salary rate range issue and the 1 The Intermediate Report contains some minor inaccuracies , none of which affects our ultimate conclusions. For example, it was Harold J. Peterson and not Wilbur C. Maglierl who testified that Williams stated that in the past "we did not have to bother with wage scales and wage structure , and wage structure sheets." Similar insubstantial inaccuracies in the Intermediate Report require no further comment herein. 2 See Wood Manufacturing Company, 95 NLRB 633. We note that the Respondent's witnesses did not contradict further testimony that the Union, again asked for substantia- tion of Respondent's argument at a meeting on September 27. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 409 Respondent plainly knew it,3 the withholding of such information after the Union's demand deprived the Union of any possibility of •considering the Respondent's argument and bargaining intelligently on the matter. Such conduct on the part of the Respondent does not meet the test of good faith bargaining.' Accordingly, we adopt the Trial Examiner's conclusion, and find that the Respondent refused to bargain in good faith with the Union in violation of Section 8 (a), (1) and (5) of the Act when it failed to disclose to the Union the rate range survey chart.* The position of our dissenting colleague appears to be that the Trial Examiner was clearly erroneous in crediting testimony that the Re- spondent, upon demand, refused to disclose the information in its rate range survey to the Union. We cannot agree. This credibility find- ing was made by the Trial Examiner after a full consideration of the conflicting testimony, and, as indicated in footnote 13 of the Inter- mediate Report, was based on a "combination of factors," including the 4"comparative demeanor of the witnesses when testifying on particular points, consistency or inconsistency with other facts in the case which are undisputed or otherwise clear, and general plausibility." Such credibility resolutions, in accordance with well-established Board policy, as our dissenting colleague readily acknowledges, are entitled to great weight and will not be disturbed except where the preponder- ance of all the relevant evidence convinces us that they are incorrect. No such exception is warranted here. Our dissenting colleague ap- parently believes that, despite the rationale in footnote 13 of the Inter- mediate Report, the Trial Examiner's resolution of this conflicting testimony was based upon his interpretation of the survey, which our colleague considers erroneous, as being more consistent with the testi- mony of the General Counsel's witnesses. We find no support in the record for this belief. Further, we agree with the Trial Examiner's interpretation that the survey chart was generally inconsistent with the Respondent's position on the question of salary rate ranges. That the chart also contained statistics on weighted average salaries, which the Respondent believes supported its position, does not detract from the fact that the parties were negotiating on rate ranges and not aver- ages. The Respondent's knowledge of this vital distinction is force- fully indicated by its proposal of September 22-the day after it claims to have first shown the survey chart to the Union. This pro- a In N. L. R. B. v. Yawman & Erbe Mfg. Co., 187 F. 2d 947 (C. A 2), the Court stated : "Since the Employer has an affirmative duty to supply relevant wage data, the refusal to do so is not justified by the Union's failure initially to show the relevance of the requested information . . . The information must be disclosed unless it plainly appears irrelevant." (Empasis supplied.) 4 Sherwin-Williams Company, 34 NLRB 651, enforced 130 F. 2d 555 (C. A. 3). Sherwin-Williams Company, supra; Jacobs Manufacturing Company , 94 NLRB 1214; southern Saddlery Company, 90 NLRB 1205 ; N. L. it. B. v. Yawman if Erbe Mfg. Co., supra, 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posal refers to rate ranges and-not to average wages. Finally, al- though it is true that the record fails to disclose any repetition of the Union's request for the survey information after September 29 or 30- the date when the Respondent claims again to have disclosed the chart to the Union-it is significant that at the bargaining conference on September 27, after the Respondent had allegedly shown the Union the chart for the first time, the Union's witnesses testified without con- tradiction that their request for proof substantiating the Respondent's position again was not met. In these circumstances, we do not believe it incumbent upon the Union to continue to make futile requests in the face of two past refusals. As to the argument that the Respondent would not have had the chart mimeographed if it had not intended to show it to the Union, it is only necessary to point out that the parties contemplated making individual rate reviews after agreeing on rate ranges, and the Respondent may well have intended to give the chart to the Union at that time to show its average salaries to be higher than the average salaries of the competitors surveyed. Accordingly, we find, upon the entire record, as did the Trial Examiner, that the Re- spondent refused to disclose the survey information to the Union. In view of our determination above, we find it unnecessary to pass upon the Trial Examiner's finding that the Respondent did not refuse to bargain in good faith with the Union by hiring replacements on November 7 at higher salaries than the strikers they replaced. We expressly reserve our decision thereon.6 2. The Trial Examiner concluded that the strike of September 29 was, from its inception, an unfair labor practice strike. We agree. The Respondent contends that the strike was economic in nature, as there was no causal connection between the unfair labor practice found and the strike. In support of its position, the Respondent relies upon the Board's decision in Anchor Rome Mills, Inc.,' in which the Board found, in part, that an economic strike had not been converted into an unfair labor practice strike. We believe that the Anchor Rome case is not apposite, because it presented a wholly different factual situa- tion. In the instant case, the salary rate range issue was the para- mount, if not the sole, issue in dispute when the Union struck because negotiations had broken down on this issue. To the extent that the Respondent's illegal conduct in withholding the survey chart made it difficult, if not impossible, to rely on the bargaining process rather than industrial strife for settling this issue, such conduct, unlike that 6 The Trial Examiner properly found that the Respondent did not refuse to bargain in good faith with the Union in violation of the Act by its refusal to sign an incomplete contract with the Union . The General Counsel and the Union excepted to this finding. We agree with the Trial Examiner that, as this contract was not a final complete agree- ment, the Respondent was not required to execute it under the Act The agreement in the present case is clearly distinguishable from the contracts, involved in Salant & Salant, Inc, 66 NLRB 24, and Mason & Hughes; 86 NLRB 848. 186 NLRB 1120. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 411 in the Anchor Rome case, was directly related to and became a con- tributing factor in the inception of the strike. Accordingly, we find the strike to be an unfair labor practice strike. 3. As the strike of September 29 was an unfair labor practice strike, and as the Respondent's right to replace the strikers was therefore vul- nerable,8 the Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) and (3) of the Act by refusing to reinstate all 50 complainant strikers, named in Appendix A of the Intermediate Report, when unconditionally requested to do so by the Union on November 21, 1949. The Trial Examiner's reinstatement and back-pay recommendations are substantially in accord with our remedial policy and we shall adopt them, with the minor modifications hereinafter set forth. The Trial Examiner recommended, and we agree, that the Respond- ent should offer reinstatement to 44 of the 50 complainants, on the ground that their jobs had not been discontinued. However, the Trial Examiner excluded, among others, Arthur E. Grieger and Shirley B. McKee, on the ground that their jobs were discontinued after the beginning of the strike.9 As such jobs may have been recreated, or as there may be other positions to which the Respondent should reinstate them, we are of the opinion, and find, that the Respondent should also offer Grieger and McKee reinstatement to their former or substantially equivalent positions,10 reducing its force, if necessary, in an nondis- criminatory manner." If, after such reduction in force, no positions are available for them, the Respondent should place them on a prefer- ential employment list 12 The Trial Examiner recommended that the Respondent make whole the 44 complainants to whom he awarded reinstatement, and 3 others who had been belatedly offered reinstatement (Marrison, Koehler, and Boyd), by payment of sums equal to what their normal net wages would be to the dates of the offers of reinstatement. We shall adopt this recommendation, and, in addition, shall order back pay for-the 3 remaining complainants as follows : Burkett to November 30, 1949, when he notified the Respondent that he was no longer interested in 8 Seven Up Bottling Company o f Miami, Inc., 92 NLRB 1622 ; Black Diamond Steam- ship Corporation v N L. R. B , 94 F 2d 875 ( C A 2) ; certiorari denied 304 U S. 579. 9The remaining four complainants ( Alice II Marrison , Margaret M Koehler, Nerine L. Boyd, and Joseph S. Burkett ) have either been offered adequate reinstatement or renounced interest therein. 10 See Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827, 829 11 See Carolina Mills, Inc., 92 NLRB 1141 , enforced 190 F. 2d 675 ( C. A. 4). 12 See Carolina Mills, Inc , supra. To the extent that the facts with respect to some of the other complainants ( specifically, Milton L Dierker, Elaine C. Fleming, Louis G. Schmidt, and Francis It . Stewart) are similar to those of Grieger and McKee, the same remedy shall be applicable. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returning to his job; 13 and Grieger and McKee to the date of the Respondent's compliance with the reinstatement provisions hereof . 14 However, in the computation of Grieger's and McKee's back pay, there shall be excluded the period between the date of the Intermediate, Report and the date of this Decision and Order, in accordance with our customary practice.15 We expressly reserve the right to modify the reinstatement and back- pay provisions of our Order, if made necessary by a change of condi- tions since the hearing or in order to define or clarify their application to a specific set of circumstances not now apparent. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor'Relations Act, the National Labor Relations Board hereby orders that the Respondent, Westinghouse Electric Supply Company, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Federation of Westinghouse In- dependent Salaried Unions, or in any other labor organization of its employees, by refusing to reinstate any of its employees because of their participation in a strike, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain collectively with Federation of Westing- house Independent Salaried Unions as the exclusive representative of all its salaried, office, and clerical employees at its Pittsburgh, Penn- sylvania, warehouse and office, excluding salesmen, sales specialists and demonstrators, confidential secretaries, payroll supervisors, ware- housemen, servicemen, truck drivers, maintenance employees; watch- men, guards, professional employees, and supervisors as defined in the Act. (c) Interrogating its employees concerning their strike or union activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Federation of Westing- house Independent Salaried Unions or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all 13 In this respect, the computation of Burkett's back pay is similar to that of Nerine L. Boyd, who, on June 30, 1950, refused equivalent employment that the Respondent offered her. 1a See footnote 12. 1a Hamilton-Scheu & Walsh Shoe Co., 80 NLRB 1496. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 413 such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Federation of Westing- house Independent Salaried Unions as the exclusive representative of all the aforesaid employees and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to all employees named in Appendix A attached to the Intermediate Report, except Joseph S. Burkett, Alice F. Marrison, Margaret M. Koehler, and Nerine L. Boyd, reinstatement in the man- ner provided above in paragraph numbered 3 herein. (c) Make whole all employees named in Appendix A attached to the Intermediate Report for any loss of pay suffered by reason of the Respondent's discrimination against them, in the manner set forth in paragraph numbered 3 herein. (d) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay and the rights of re- instatement under the terms of this Decision and Order. (e) Post at its office in Pittsburgh, Pennsylvania, copies of the notice attached hereto.16 Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being duly signed by Respondent or its representative, be posted by Respondent imme- diately upon receipt thereof and maintained by it for sixty (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 insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Sixth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER REYNOLDS, dissenting : I disagree with my colleagues' affirmation of the Trial Examiner's finding that the Respondent failed to disclose to the Union the rate range survey which is the factual basis utilized by the majority in finding violations of Section 8 (a) (1), (3), and (5) of the Act. At the outset, I wish to state that I recognize the Board's well- settled policy that a Trial Examiner's credibility resolutions will not 11 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice , before the words "A Decision and Order ," the words "A Decree of the United States Court of Appeals Enforcing." 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be overruled, except where the clear preponderance of all the evidence convinces the Board that the Trial Examiner's resolution is incorrect 14 The rationale for the establishment of this policy is that the Trial Examiner and not the Board has had the advantage of observing the witnesses while they testified. However, I do not believe that the circumstances in the instant case warrant strict adherence to the policy. It is apparent to me that the Trial Examiner's resolution of the conflict as to whether the Respondent disclosed the survey chart was not based primarily upon 'the general demeanor or credibility of the witnesses. Thus, the same witnesses which he credited and dis- credited on this issue were found untrustworthy and trustworthy, respectively, in testifying as to other matters. Indeed, I am satisfied that the Trial Examiner's resolution of the conflict was based upon the belief that the testimony of the General Counsel's witnesses was more consistent with the Trial Examiner's interpretation of the survey itself. In other words, having construed the survey as not supporting the position taken by the Respondent at the bargaining conference that it was paying equal or better salaries than those of its competitors, the Trial Examiner reasonably believed that the Respondent would not have revealed such information to the union negotiators. In a situa- tion such as the present one, where the Trial Examiner's resolution of a credibility issue is premised principally upon his interpretation of extrinsic evidence, the Board should not accord such a finding con- trolling weight. Unlike the Trial Examiner, I do not believe that the survey was conclusively detrimental to the Respondent's general bargaining posi- tion as to wages. At the least, it was an equivocal document con- taining statistics which could be utilized to sustain divergent points of view. For example, the Trial Examiner makes comparisons with respect to the minima and maxima rate ranges, but the Respondent strongly urges among other, things that the- weighted wage averages, not considered by the Trial Examiner, were favorable to its position. That the Respondent reasonably believed-as I think it did-that the survey could be used to support its position,18 is sufficient to destroy the primary basis of the Trial Examiner's credibility finding. In any event, the following objective circumstances strongly corroborate Respondent's witnesses that copies of the survey were in fact.shown to the Union. After analyzing the wage information, the Respond- ent prepared mimeographed copies of the survey, deleting the identi- fying names in the copies so that the survey could be publicly used without violating the confidence of those who supplied the informa- tion. Further, the record fails to disclose that a request for the survey 17 Standard Dry Wald Products , Inc., 91 NLRB 544. 18 Among other things, it is significant that the Respondent on its own motion offered the survey in evidence. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 415 was made by the Union at any time after the date on which the Re- spondent claims to have shown it. Finally, except for this one dis- puted matter, the record establishes, as my colleagues apparently con- cede, that the Respondent bargained in good faith with a sincere desire to conclude an agreement with the Union. In view of the foregoing, I am not satisfied that the General Counsel has established by a preponderance of the evidence that the Respond- ent did not reveal to the Union the rate range survey and therefore I cannot join in the majority's unfair labor practice findings. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their par- ticipation in strike or union activity or in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist FEDERATION OF WESTINGHOUSE INDEPENDENT SALARIED UNIONS or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively, upon request, with FEDERATION OF WESTINGHOUSE INDEPENDENT SALARIED UNIONS as the exclusive representative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All salaried, office, and clerical employees at our Pittsburgh, Pennsylvania, warehouse and office, excluding salesmen, sales specialists and demonstrators, confidential secretaries, pay- roll supervisors, warehousemen, servicemen, truck drivers, maintenance employees, watchmen, guards, professional em- ployees, and supervisors as defined in the Act. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer the following employees immediate and full re- instatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, in the manner set forth in the Board's De- cision and Order : " Mary Alice Allen James G. Lyons Helen R. Bailey Ronald J. McCafferty Gladys G. Baker Bessie A. McCallister Sally L. Black Shirley B. McKee Pauline R. Bozic M. Joan McQuiston William G. Bricker William C. Maglieri Rhea H. Busht . Anne O. Minzenberg Martha H. Danner Helen Nebel Lois L. Dearth James P. O'Connor Milton L. Dierker Harold J. Peterson - Margaret E. Evans Helen E. Pribila Elaine C. Fleming John L. Pritchard Majorie A. Fleming Evelyn K. Reising Harold E. Fox Thomas A. Rodgers George E. Gibson John W. Rush, Jr. Arthur E. Grieger Corinne E. Scheloski Florence V. Heasley Joanna D. Scheloski Hilda R. Heil Louis G. Schmidt Ester B. Hoffman Helen M. Stader Lydia Z. Johnson Francis R. Stewart Ruth D. Kapphan - Donald R. Tebbs Dorothy A. (Kohler) Marjorie L. Waddell Kucia Samuel A. Weller June A. Landfried WE WILL make whole the foregoing 46 employees, and also Alice H. Marrison, Margaret M. Koehler, Joseph L. Burkett, and Nerine L. Boyd, for any loss of pay suffered by them as a result of the discrimination against them, to the extent and in the manner set forth in the Board's Decision and Order. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in, or activity on behalf of, any such labor organization. WESTINGHOUSE ELECTRIC SUPPLY COMPANY, Employer. Dated-------------------- By----------------------------- (Representative ) ( Title) WESTINGHOUSE ELECTRIC SUPPLY COMPANY 417 This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order Upon a first amended charge filed July 24, 1950; by Federation of Westing- house Independent Salaried Unions, herein called the Union, the General Counset for the National Labor Relations Board,' by the Regional Director for the Sixths Region (Pittsburgh, Pennsylvania), issued a complaint dated August 4, 1950; alleging that Westinghouse Electric Supply Company, herein called the Re- spondent, has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein referred to as the Act. Copies of the complaint, the amended charge, and a notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint as amended at the hearing alleges in substance: (1) That on and since November 29, 1948, when the Union was certified by the Board in accordance with the majority vote in an employee election, the Union has been, and continues to be, the exclusive bargaining representative of an appropriate bargaining unit consisting of all salaried office and clerical em- ployees of the Respondent at its Pittsburgh, Pennsylvania, warehouse and office, exclusive of salesmen, sales specialists and demonstrators, confidential secre- taries, payroll supervisors, warehousemen, servicemen, truck drivers, main- tenance employees, watchmen, guards, professional employees, and supervisors as defined in the Act. (2) That since on or about May 10, 1949, the Respondent, in violation of Section 8 (a) (1) and (5) of the Act, has refused to bargain collectively in good faith with the Union as the exclusive bargaining representative of the employees in the appropriate bargaining unit, although in meetings with the Union it has pretended to do so. (3) That from approximately September 30, 1949, to January 10, 1950, em- ployees of the Respondent engaged in a strike which was caused, prolonged, and continued by the Respondent's refusal to bargain with the Union in good faith- (4) That, in violation of Section 8 (a) (1) and (3) of the Act and in further prolongation of the strike of its employees, the Respondent discharged 41 of its striking employees on November 7, 1949, and has also, since November 21, 1949, failed and refused to reinstate these 41 striking employees and 9 other striking employees on their application.' (5) That on or about December 1, 1949, while the Union's request for a gen- eral wage increase was pending, the Respondent, in violation of the Act and in further prolongation of the strike of its employees, unilaterally and without prior consultation or collective bargaining with the Union, announced and put into effect a wage increase for approximately 17 of its nonstriking employees in the appropriate unit. (6) That in September 1949, the Respondent, through its agent, Gerald Sea- lone, questioned Shirley McKee, an employee, concerning her Union and con- certed activities, thereby violating Section 8 (a) (1) of the Act. ' The original charge was ffied and duly served on November 8, 1949. a The General Counsel and the staff attorney appearing for him at the hearing are herein referred to as the General Counsel.; the National Labor Relations. Board. is referred to as the Board. ' For the names of these employees see Appendix A. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent, in its answer to the complaint, admits (1) -the appropriateness of the unit alleged in the complaint; (2) the selection and, designation of the Union as collective bargaining representative by a majority of the employees in this unit, in a Board-conducted election of November 15, 1948; and (3) the Board's certification on November 29, 1948, of the Union as. the exclusive bar- gaining representative of all the employees in the unit. The Respondent's an- swer, however, denies that the Union has continued to be the exclusive bar- gaining representative of these employees, that the Respondent committed any of the unfair labor practices alleged in the complaint, or that the strike begin- ning on or about September 30, 1949, was caused or prolonged by any unfair labor practices of the Respondent. The Respondent's answer further denies that on November 7, 1949, the Respondent discharged the 41 employees named in the complaint, but admits that it replaced these employees on or about that date. Pursuant to notice, a hearing was held in Pittsburgh, Pennsylvania, on Sep- tember 12, 13, 14, 15, 26, 27, and 28, 1950, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the ' Re- spondent, and the Union appeared by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Before the end of the hearing, the General Counsel submitted his oral argument upon the issues in the case ; counsel for the Re- spondent and the Union waived oral argument. Since the hearing, the Re- spondent has forwarded to the undersigned its brief and requests for findings of fact and conclusions of law.' Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Westinghouse Electric Supply Company, a- Delaware corporation with its principal office located in New York, New York, is engaged in the sale and dis- tribution of electrical apparatus and appliances. Although it maintains offi- ces and places of business at various points throughout the United States, only its Pittsburgh, -Pennsylvania, branch is involved in these proceedings. During the 12 months preceding the hearing, the Respondent purchased for sale at its Pittsburgh branch, products of a value in excess of $4,000,000, of which more than 70 percent was shipped from points outside the Commonwealth of Pennsylvania to the Respondent's- branch in Pittsburgh, Pennsylvania. During the same 12- month period, it sold at its Pittsburgh branch products of a value in excess of $4,000,000, of which approximately 7 percent was shipped to points outside the Commonwealth of Pennsylvania. The Respondent admits, and the undersigned finds, that it is engaged in com- merce within the meaning of the Act. 4 The undersigned grants the Respondent's request for findings of fact numbered 1 to 7, inclusive ; 9; 10; 12; 13 ; 15; 16; 18 to 22, inclusive ; 23 26; 28; 30 to 33, inclusive ; 35; 36; 37; 38 ; 40; 41; 42; 45 ; 46; 48; 49; 53 ; 57 to 62, inclusive ; 64; 65; and 67. Each of the other requests made by the Respondent for specific findings of fact is at least partially rejected as will appear from a comparison of them with the findings of fact made in this Report. Several findings of fact requested by the Respondent are stated in general , conclusional form ; in those cases, the requests are rejected but findings as to the facts are hereinafter made upon the basis of the evidence. The undersigned grants the Respondent's request for conclusion of law numbered 4 and rejects the Respondent 's other requests for conclusions of law. WESTINGHOUSE ELECTRIC SUPPLY COMPANY II. THE LABOR ORGANIZATION INVOLVED 419 Federation of Westinghouse Independent Salaried Unions is a labor organiza- tion within the meaning of Section 2 (5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Background and interference, restraint, and coercion The principal questions presented for decision in the present case are (1) whether the Respondent on and after May 10, 1949, refused to bargain in good faith with the Union which had been certified by the Board as the exclusive bargaining representative of the Respondent's clerical and office employees as the result of an employee election held with the Respondent's consent on November 15, 1948; and (2) whether, in the course and at the termination of a strike which began on September 29, 1949, the Respondent discriminatorily discharged some of the strikers and refused all of them reinstatement to their jobs. The General Counsel produced a number of witnesses to testify about state- ments made by the Respondent's representatives to various employees both be- fore the election and before the strike. Most of these statements were allegedly made more than 6 months prior to the filing of the original charge in the present case and are presented by the General Counsel merely as background to the Re- spondent's later refusal to bargain with the Union in good faith, i. e., to demon- strate the Respondent's reluctance, if not its unwillingness, to bargain with the Union from the beginning. However, by an amendment to the complaint made without opposition at the hearing, the General Counsel asserts that one of these incidents which occurred within the 6 months preceding the filing and service of the charge, constituted an interference with the employees' rights in violation of Section 8 (a) (1) of the Act. We shall give preliminary con- sideration to the testimony concerning these incidents before turning to the principal questions. Upon the uncontrolled testimony of employee J. P. O'Connor, the under- inds that a week or so before the election on November 15, 1948, District signed f Sales Manager R. L. Whitney told O'Connor that if the Union won the election the employees could no longer come in to ask for a raise, but would have to do so through the Union. Upon the uncontradicted testimony of employee William C. Maglieri, the undersigned finds that 7 or 10 days before the November 1948 election, Branch Sales Manager Elmer J. Handlon called Maglieri into his office and told him that the Respondent, with its merit wage increases and vacations, "was a good outfit to work for" ; that without a union an employee could advance on his own merit without a union representative's speaking for him ; but that with a union, advancement would depend on seniority. In spite of the broad denial by District Storekeeper Gerald M. Scalone` that he had "any conversations with any employees concerning or pertaining to relations between Management and the Union," e the undersigned finds, upon the testimony of employees Helen Nebel, Dorothy Kucia, and Anne Minzenberg, that during the week preceding the November 1948 election Scalone called them and the other clerks in the Order Service and Purchasing Departments sepa- It was stipulated that Scalone was a supervisor within the meaning of the Act. ° The quotation is taken from the question of the Respondent's counsel, which Scalone answered in the negative Aside from, this general denial, none of Scalone's testimony could possibly refer to the statements which employees Nebel, Kucia, and Minzenberg attributed to him. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rately into his office and told them in substance that the Respondent had provided a fine, new building for them to work in, with a nice office, washroom, and cafe- teria ; that it could not afford salary raises ; and that, if the Union got in, they would forfeit their rights as individuals to deal with the Respondent' and that "everything would have to go through the Union."' In July 1949, during the period in which District Manager Williams was engaging in conferences with the Union's representatives looking towards a contract, Williams presented 10-year service pins to a number of employees at a meeting attended by all the clerical, sales, and warehouse employees. Em- ployees John W. Rush, Jr., and Harold J. Peterson, testifying as witnesses for the General Counsel, said that in the course of his remarks Williams made a statement to the effect that there had been friendly relations between the em- ployees and the Respondent "before the Union,'! and that it was too bad that the employees had to bring in the Union. However, William C. Maglieri, testi- fying as a witness for the Union, stated that on this occasion Williams merely said that when one of the older employees was first employed, "we did not have to bother with wage scales and wage structures, wage structure sheets." Williams, Supervisor Charles Barrett, salesman Jack Britton, and Branch Sales Manager Handlon, who attended the meeting, denied that Williams made the remarks attributed to him by Rush and Peterson or any remarks about the Union. The undersigned credits their denials. Employee Louis G. Schmidt testified that in July 1949 he went of his own accord first to Sales Manager Whitney, then to District Manager Williams, and finally to District Storekeeper Scalone, and told each of them that he wanted them to know that he. had not taken part in instigating the union movement, whereupon each of them said that he was glad Schmidt had told him. This much of Schmidt's testimony is not contradicted ; indeed, Scalone confirmed the story up to this point so far as it involved him. Were this all of Schmidt's stuiy, the undersigned would see no relevancy in it to the issues in the present case. But Schmidt testified that Scalone not only said he was glad Schmidt had come to him, but also asked Schmidt who the instigators of the union move- ment were. Scalone denied having asked this question of Schmidt and the undersigned credits his denial. We come now to the testimony concerning the one conversation between a supervisor and an employee which the General Counsel alleges in his amendment to the complaint, to have been a'violation of Section 8 (a) (1) of the Act. Employee Shirley McKee testified that a week before the strike in September 1949 Supervisor Scalone' called her into his office, told her that he thought her wages were fair, and then asked her whether she was going on strike. Scalone, in his testimony, did not specifically deny having this conversation with Miss McKee, although he did deny having "any conversations with any f Employee Lois L Dearth also testified that Respondent's auditor, John J. Josack, "told me if the Union got in I'd never be able to come to him with any problems ; it would always be through the Union, and that my seniority would nrean nothing to me, I would never be able to get any merit raises, and I didn't say anything " She testified on direct examf- nation that Josack made this statement "week or so before we went out on strike, in September of 1949 " On cross-examination, she testified first that this conversation occurred before the election, then, that it occurred in 1949, "before we went out on sriike," and, finally, that "I don't know whether it was before or after the election, but I know it was before we went out on strike " Although Josack did not appear to testify, and Miss Dearth's testimony is therefore uncontradicted, the undersigned bases no finding upon it. Miss McKee testified that it was "Mr Scalone," a supervisor, who called her in and questioned her on this occasion . The General Counsel thereupon asked her , "Is that Air. Charles Scalone?" And Miss McKee answered , "Yes " However , Scalone's first name was "Gerald" and not "Charles" and the General Counsel apparently misspoke himself, thereby misleading the witness. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 42E employees in the bargaining unit concerning the strike ." 9 The undersigned credits Miss McKee's testimony and finds that by Scalone's questioning Miss- McKee concerning her possible participation in a strike, the Respondent, in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain and discrimination 1 The certification of the Union, its bargaining request, and preparations for negotiation On November 29, 1948, pursuant to the results of an employee election conducted in accordance with a "Stipulation for Certification upon Consent Election," 10 the Board certified the Union to be the exclusive bargaining representative of all the Respondent's employees at its Pittsburgh, Pennsylvania, warehouse and office in an appropriate bargaining unit consisting of all salaried office and clerical employees, excluding salesmen, sales specialists and demonstrators, confidential secretaries, payroll supervisors, warehousemen, servicemen, truck drivers, maintenance employees, watchmen, guards, professional employees, and supervisors as defined in Section 2 (11) of the Act. In a letter dated January 20, 1949, President Leo F. Bollens of the Union asked D. B. Williams, manager of the Respondent's East Central District, which includes the Pittsburgh branch, for a meeting "just as soon as is possible," "for the purpose of negotiating a key sheet . . . [and] position descriptions for each of the different categories of employees covered within our certification." The letter added that "Following the completion of these negotiations, we request 'a Rate Review " During a telephone call made by Bollens to Williams on or about January 27,11 they agreed to meet on February 14, and Bollens promised to furnish Williams with the Union's forms for rate reviews in advance of the meeting. Accordingly, in a letter dated February 4, Bollens sent Williams these forms together with completed specimens of a hypothetical rate review and position descriptions, confirmed February 14 as the meeting date, and advised Williams that the members of the Union had elected employees J. P. O'Connor and W. A. Horner as federal representatives, and certain other employees from various departments as local group representatives. As a result of the Union's bargaining request, there were approximately 15 meetings from February 14 to November 21, 1949,12 inclusive, which were attended by either or both Williams and District Sales Manager R. L. Whitney for the Respondent , and by either or both Bollens and Secretary Harry C. Jones for the Union. Each of these meetings was also attended by the Union's two federal 9 As in an instance already noted and commented upon in a preceding footnote, the quotation is from a question put to Scalone by Respondent' s counsel, which Scalone answered in the negative. 10 In the election on November 15, 1948 , 80 of the 88 employees in the stipulated appro- priate unit cast valid ballots. Fifty-six of these votes were for, and 24 were against, the Union as the exclusive bargaining representative of the employees in .the unit. 11 Bollens testified that not having received a reply to his letter of January 20, he tele- phoned Wililams on January 27 Union Secretary Jones testified that he was present when Bollens made the call Williams testified that he telephoned Bollens on or about January 25. Whitney testified that he was present when Williams made the call. The undersigned credits Bollens ' testimony on this point 12 Unless otherwise indicated, all events which are hereinafter discussed, took place in. 1949 974176-52-vol. 96-28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives, with employee T. A. Rodgers replacing W. A. Horner as federal representative in May. or June 1949. In addition to these meetings with either or both Bollens and Jones, Williams and Whitney conferred at times with the federal representatives alone. These meetings and their related events may roughly be divided into several periods. In the first period to and including a meeting on August 16, the parties at first concerned themselves almost exclusively with the development of position descriptions and then, later, with all the terms of an agreement except salary rates. In the second period, through September 1949, salary rates were the subject of consideration and, as a result of a failure to reach an agreement with respect thereto, a strike started on September 29. In the third period, the Re- spondent replaced a number of the strikers in November and two meetings were held with a United States conciliator." 2. Meetings from February 14 to and including August 16,1949 At the first meeting held on February 14, Union President Bollens asked Man- ager Williams for the Respondent's position descriptions which Bollens declared should be settled first, since they were essential to a discussion of salary rates. Although Williams said that he did not have these position descriptions, he promised to prepare them and stated that as soon as he had done so, he would meet again with the Union's representatives. On February 23, Jones telephoned Williams and asked him when the position descriptions might be expected.14 Williams replied that they would be sent over to, the Union immediately and accordingly sent Jones by messenger, a draft of position descriptions covering the Respondent's existing 17 employee-classifica- tions, and a list of the monthly salary rates of each of the employees working in the bargaining unit. Jones testified without contradiction, and the undersigned finds, that in their telephone conversation on February 23 Williams answered Jones' question as to when another meeting could be held, by saying that he was busy and that Jones should call him in a few weeks. Accordingly, the second meeting was held on March 17, as the result of a telephoned request made by Jones to Williams a few days before that date. At "The testimony of the General Counsel's and the Respondent's witnesses particularly -with respect to the meetings from February 14 to August 16, 1949, inclusive , presents numerous conflicts on details and is also broad and sketchy on a number of matters More- over, each of the witnesses , both for the General Counsel and the Respondent , was obvi- ously uncertain on points of varying importance, and, at times , his testimony was incon- sistent not only with the testimony of other witnesses produced by the same Counsel, but also with his own testimony at other points . This is not too surprising in view of the number of conversations, the lack of any substantial thread of written communications -between the parties, and the apparent absence of any reliable, refreshing memoranda that might have assisted the witnesses as they were testifying As a result , however, the testimony of all the witnesses illustrates at least the fallibility of memory and, for that reason if for no other, the testimony of no one witness appears to the undersigned to be .entitled to credence on all points. Resolutions of conflicts and uncertainties in the testi- mony of the witnesses have therefore been nrade upon a combination of factors ; i. e , the -comparative demeanor of the witnesses when testifying on particular points , consistency or inconsistency with other facts in the case which are undisputed or otherwise clear, and general plausibility. 14 Jones testified that he telephoned Williams on February 18 and again on February 23, ,and asked each time when the position descriptions might be expected and when the next meeting could be held. Williams denied that he received any call from the Union between Februaiy 14 and February 23, but admitted receiving the call from Jones on February 23. -The undersigned believrs it to be immaterial whether Jones telephoned Williams on Febru- ary 18 as well as on February 23, and therefore does not resolve the conflict in the testi- mony on this point. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 423 this meeting, Bollens rejected the Respondent's draft of position descriptions because, he said, they did not include many of the duties which were actually being performed by employees within each of the classifications." Bollens and O'Connor testified that Williams replied that "they needed no union, and that the procedure was too cumbersome." Williams and Whitney denied that Williams made this statement and Union Secretary Jones, although present at the meeting, gave no testimony on this point. Whitney, however, testified that Williams, in disputing Bollens' argument that each position description should be detailed, specific, and cover only the exact duties actually performed by the particular employees in the classification, said that if this were attempted, "the organiza- tion would become quite cumbersome and difficult to operate." Although the matter is not free from doubt the undersigned credits Williams' and Whitney's denials that Williams told the Union's representatives on March 17 that no union was needed. He finds, however, in accordance with Whitney's testimony, that Williams did tell Bollens that the detailed, exact position descriptions sought by Bollens would render the Respondent's office operations too cumbersome and difficult. In the meeting of March 17, after rejecting the Respondent's draft of position descriptions, Bollens submitted a typed proposal of a system of "progressive rate ranges," providing minimum and maximum monthly salaries for each job with an automatic progression at 6-month intervals through various intermediate rates." Bollens told Williams that if the Respondent accepted this salary progression system with the specific minimum, intermediate, and maximum rates, the Union would accept the Respondent's position descriptions as they stood, but that otherwise the position descriptions would have to be completely rewritten. Wil- liams said that the Union's proposal was "not satisfactory" ; that the proposed rates were too high ; that they were more than the Respondent could afford ; and that he would attempt to rewrite the position descriptions and then meet again with the Union's representatives. It is thus undisputed, and the undersigned accordingly finds, that at the meetings of February 14 and March 17 the Union insisted that since the Respond- ent would not accept the Union's proposed rate ranges and automatic rate pro- gression, the parties should first negotiate position descriptions. Williams and Whitney testified, but Bollens and Jones denied, that upon Williams' suggestion at the meeting of March 17 the parties also agreed that after negotiating and reaching agreement on position descriptions and classifications, they would negotiate a "working agreement" or general contract and then salary rates. According to Whitney's testimony, the accepted bargaining schedule contemplated the ultimate negotiation of a "contract or agreement, to which a wage structure would be attached." However, the implication in this testimony of Whitney that the parties agreed that no contract was to be executed until wage rates were agreed upon does not appear in Williams' testimony. For Williams testified merely that on March 17 "we agreed that we would first write job descriptions. Second, job classifications-the two go hand in hand ; and, three, we would negotiate an agreement, a working agreement ; and, four, we would discuss wages." The undersigned credits Bollens' and Jones' denials that the Union and the Respondent agreed upon a negotiating schedule postponing the execution of any contract until salary rates were determined. "This was the substance of the testimony of all witnesses except Jones, who testified that Bollens' objection to the Respondent's position descriptions was that they were "too broad ; they contained more duties than some of the people were doing, and they NN ere too all-inclusive and that we couldn't accept them in that present form." 16 The salary ranges proposed by the Union are set forth in Appendix B. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After March 17, either or both Williams and Whitney met with either or both Bollens and Jones and the Union's two federal representatives on April 12, June 15, June 23, July 18. July 29, August 4, and August 16.11 In addition to the meetings on the dates just given, there was one other meeting between April 12 and June 15, which Bollens, Jones, and O'Connor testified was held on April 25, but which Williams and Whitney testified took place on May 12. Dissatisfied with the lack of progress on the position description issue, Bol- lens suggested to Williams at the meeting of April 12 that perhaps the Union should write these descriptions, but Williams said, "he didn't think that was right." At the same meeting, Bollens also told the Respondent's representatives that the Union intended to file a notice of dispute with the Federal Mediation Service, and, on the following day, April 13, Jones advised the Respondent that the Union had done so. At the meetings on April 12 and June 15. Bollens re- peated his offer to accept the Respondent's position descriptions if the Re- spondent would accept the "progressive rate ranges" proposed by the Union on March 17, but on both occasions, the Respondent refused. Either at the April 12 meeting (according to Williams' and Whitney's testi- mony) or at the disputed April 25 meeting (according to Jones' and O'Connor's testimony),18 it was agreed upon Bollens' suggestion that the Respondent should submit job-content questionnaires to the employees with the request that they be answered and returned to the Respondent before May 10. The question- naire, accompanied by this request, was accordingly circulated among the em- ployees on April 26 but they were slow in returning the questionnaires and it was not until sometime late in May that the Respondent received all the answers. On or about May 26, Union Secretary Jones asked Williams what progress had been made on the questionnaire and Williams told him that he had not completed the revised position descriptions. Thereafter, as the employees continued to submit their answers, Williams and Whitney, sometimes together and sometimes separately, called meetings with O'Connor and the Union's other federal repre- sentative, and discussed and made tentative changes in the Respondent's draft of position descriptions on May 31, June 2, June 3, June 14, July 11, July 12, and July 14." At the meeting on June 15, the Respondent submitted to the Union a complete, revised draft of position descriptions. Thereafter, in the continuing conferences with the Union's federal representatives and also with the full union com- mittee, including Bollens and Jones, further changes were made and by August 16 the parties had agreed upon 16 job descriptions and classifications to super- sede the Respondent's original 17, and also upon the classification of all but 4 of the employees in the unit 20 By September 21 the classifications of these 4 employees were also settled. 17 Williams on direct examination testified as to the substance of an additional meeting which he said was held on July 25. On cross-examination, however, he admitted, ae Bollens and Jones also testified, that there was no such additional meeting on July 25. 18 Bollens was obviously in error in testifying, as he did, that the job-questionnaire was first suggested by him, and agreed to by Williams, at the meeting of June 23 19 The findings as to the specific dates of these conferences with the federal represen- tatives are based upon the testimony of Williams and Whitney O'Connor testified that he had four or five such conferences on job descriptions in June and July but that he could not give their dates nor their exact number 20 This final revision continued only the original position classifications or job titles for stenographers, classes A and B, and_also -for typists, classes A and B. See Appendix B. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 425 Although the witnesses were in agreement that the Respondent submitted a complete, revised draft of position descriptions on June 15, which became the basis of the settlement of that issue, there is a conflict in their testimony as to whether the Respondent, before June 15, had submitted an earlier, complete draft. Williams testified that, in addition to the revised draft admittedly given to the Union on June 15, he submitted successive complete, revised drafts of the position descriptions at the meeting of April 12, the disputed meeting of May 12, and the meetings of June 23, July 18, July 29, August 4, and August 16. Whitney corroborated Williams' testimony as to the submission of these revisions, except those allegedly presented at the meetings of August 4 and August 16, which Whitney testified he did not attend. Williams and Whitney further testified, however, that although they had copies of a number of these revisions in their files, they were able to identify them with reference to the meetings at which they were submitted only in the cases of the June 15, June 23, and August 16 revisions. Accordingly, only the proposed revisions of position descriptions allegedly presented to the Union at the meeting on these three dates were offered in evidence by the Respondent and received by the undersigned. On the other hand, Bollens, Jones, and O'Connor testified that when Bollens asked Williams at the meeting on April 12 and the disputed meeting of April 25 for the revision of position descriptions which Williams had promised to prepare, Williams replied that he did not have it ; and that the first complete, proposed revision of these descriptions submitted or shown to them by the Respondent was the proposed revision presented to them by Whitney at the meeting of June 15, which Williams did not attend. In the important, material conflicts in the testimony which have been set forth but unresolved up to this point of this Report, the undersigned credits the testi- mony of Bollens, Jones, and O'Connor, rather than that of Williams and Whitney, and accordingly finds: (1) That, in addition to the undisputed meetings between the parties in the period up to and including August 16, there was another meet- ing on April 25 at which the parties agreed to submit job-content questionnaires to the employees; (2) that there was no meeting on May 12; (3) that the Re- spondent, in spite of its promises on March 17, failed to submit a revision of the position descriptions to the Union, at the meetings on April 12 and April 25; and (4) that the Respondent's first revision of the position descriptions was in fact submitted to the Union's representatives at the meeting on June 15. The general course and results of the meetings up to and including August 16, so far as they involved the negotiation of general contract terms, are undisputed. With the prospect of shortly reaching complete agreement on position descrip- tions becoming apparent at the meeting of June 23, the Union, at Williams' sug- gestion, submitted a proposed form of contract to the Respondent either at that meeting or at the meeting of July 18," and Williams then said he would have to refer the proposal to the Respondent's home office in New York. Williams there- 21 The undersigned believes It to be immaterial whether the Union's contract proposal was submitted on June 23, as Williams testified, or on July 18, as Jones and O'Connor testified Whitney %N as not present at the June 23 meeting and gave no testimony as to when the Union submitted its contract proposal. Bollens testified that the Union and the Respondent exchanged contract proposals on July 29. But the undersigned finds, in accordance with the testimony of Williams and O'Connor, that, -,xhatever the exact dates were, the Union submitted its contract proposal at the meeting preceding the meeting at which the Respondent submitted its proposed draft. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after submitted a proposed form of contract to the Union's representatives at the next meeting on either July 18 or July 29.22 Upon Bollens' pointing out to Williams that the Respondent's draft contained no provision for dues deductions and that the seniority, "cooperation," and griev- ance clauses were- incomplete, Williams agreed to submit another contract pro- posal including acceptable provisions on these matters. Accordingly, on August 16, Williams submitted the Respondent's last form of proposed contract!' This draft, like the Union's original contract proposal and the Respondent's previous proposal, purported to be the complete contract of the parties, but left a blank space for the insertion of salary rates. Unlike the Respondent's previous pro- posal, however, it contained provisions for dues deductions and holidays, and fuller provisions concerning "cooperation," grievances, and seniority. Bollens suggested that the parties sign this agreement and continue negotiations on position descriptions and salary rates. Williams refused to sign the contract, however, unless the Respondent's existing salary rates were incorporated in the agreement, and further informed the Union's representative that he would have to submit the contract to his home office in New York City.24 In the ensuing discussion on August 16, Bollens contended that the Respond- ent's existing minimum rates were too low and below the minimum about to be fixed by Congress in pending amendments to the Fair Labor Standards Act. Williams replied that if and when the amendments were passed the Respondent would comply. Williams also argued that the Respondent's existing rates should be continued because they were in accordance with the area pattern. The meet- ing of August 16 ended with Bollens promising to submit salary proposals. in writing and with Williams also promising to submit a written list of the Re- spondent's wage rates. While it thus appears clear that as a result of the meetings up to and including August 16 the parties had reached agreement on position descriptions and the general terms of a contract, the General Counsel and the Union contend that the Respondent's failure to bargain in good faith was demonstrated during that period not only by its refusal to sign the contract before negotiating wage rates but also by its prolonging of the negotiations up to that point. In this connec- tion they argue that the evidence shows that the Respondent, after undertaking to revise the position descriptions and to advise the Union when each succeeding meeting could be held to consider them, delayed calling the meeting until the "Here again the undersigned believes it to be immaterial whether the Respondent's initial contract proposal was made on July 18, as Williams and Whitney testified, or on July 29, as Bollens and O'Connor testified. The material fact, on which these witnesses are in agreement, is that the Respondent submitted a form of contract at the meeting fol- lowing the Union's submission of its proposed contract. The testimony of Williams and Whitney concerning the meeting of July 18, however, furnishes an example of the inconsistency of witnesses produced by the same counsel, to which reference has been made earlier in this Report. For Williams testified that he submitted the Respondent's contract proposal at this meeting and that Whitney was not present. But Whitney testified that he submitted the proposal at this meeting and that Williams was not present The undersigned believes Jones to have been clearly in error in testifying, as he did, that the Respondent's first contract proposal was submitted on August 4. 21 Williams testified that this was the third contract proposal submitted to the Respond- ent, the second proposal having been made on August 4 Bollens and Whitney testified that the August 16 proposal was only the second final contract proposal of the Respond- ent The undersigned believes it unnecessary to decide whether or not a second contract proposal had been made by the Respondent on August 4. 24 These findings are based upon the testimony of Bollens, Jones, and O'Connor Williams, without specific reference to the August 16 meeting, testified that "on several occasions" lie refused to sign the contract because it did not contain wage rates. In addition, he admitted that on July 29 he told the Union's representatives he would have to submit the contract to the Respondent's attorney at its headquarters. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 427 Union finally requested them, and submitted no revision of the position descrip- tions until June 15. That the Respondent undertook to revise its position descriptions and to call meetings for their consideration is clear from the evidence. It is also clear from the evidence, and the undersigned accordingly finds, that in the successive inter- vals between each of the first four meetings on February 14, March 17, April 12, and the disputed meeting on either April 25 or May 12, the Respondent failed to. notify the Union when the next meeting could be held, and that the dates for the last three of these meetings were arranged as the result of requests made by either Jones, Bollens, or O'Connor to Williams only a few days in advance of each of these meetings 25 It has also been found that , when Respondent apparently made no attempt to communicate with the Union after the disputed meeting of May 12, Jones asked Williams on May 26 about the Respondent's progress with the em- ployee questionnaire. From May 26 to August 16, however, there appears to be no basis in the evidence for finding that the Respondent was dilatory in setting the times for meetings with the Union's negotiators. Each of the meetings with. the Union's federal representatives from May 31 to July 15, inclusive, was arranged by either Whitney or Williams. The meeting of June 15 with Bollens and Jones immediately followed the meeting of June 14 with the federal repre- sentatives. Finally, according to a composite of the consistent, uncontradicted' testimony of Williams, Whitney, and Bollens, which the undersigned credits, (1) the meeting of June 23 was called pursuant to an arrangement with the Union's representatives at the June 15 meeting , for another meeting "sometime in the next 10 days or 2 weeks" ; (2) by agreement of the parties at the June 23 meeting, a meeting was scheduled for the week ending July 5 but was, for some reason undisclosed by the evidence, postponed and later, upon Williams' request to O'Connor, was rescheduled for July 18; (3) the meeting of August 4 was arranged by the parties at the meeting of July 29; and (4) the meeting on August 16 was arranged by Williams during a telephone call to Bollens on August 11, when he read to Bollens several of the contract changes which he proposed to submit at the meeting on August 16. There was no evidence by whom or when the meeting of July 29 was called. 3. Meetings in September 1949, and the beginning of the strike On August 16, in compliance with his promise at the meeting that day, Presi- (lent Bollens mailed to the Respondent the Union's new proposal for salary rate ranges 28 Thereafter, Union Secretary Jones telephoned to Williams and asked when the parties could meet again. According to Jones he made "numer- ous" calls beginning a week or so after the August 16 meeting, and was told by Williams that the Respondent was making a survey of the salary rates paid by other companies in the area. According to Williams, there were two, telephone calls from Jones: the first on September 7, when Williams told Jones that the survey would be completed in 2 or 3 weeks, and the second on September 25 These findings are made upon the testimony of Jones and Williams Jones testified' without contradiction concerning his telephoned requests to Williams before the March 17 and,April 25 meetings, and also a similar telephoned request to Williams preceding a meeting on April 8. It is apparent that Jones was in error in his reference to a meeting on April 8, and actually meant the meeting on April 12, since all the other witnesses agreed in their testimony that there was a meeting on April 12 but not on April 8. In any event. Williams testified that the meeting on April 12 was arranged at the telephoned request of either Jones or Bollens , and that the disputed meeting of May 12 was set as the result of a request from Jones or O'Connor. 26 For the rate ranges proposed by the Union on August 16 and a comparison with the existing rate ranges and other rate-range proposals of the parties during the history of the case, see Appendix B. 428 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD 19, when a meeting on September 21 was arranged. The undersigned credits Williams on this point. Williams and Whitney credibly testified that on or about August 20 they separately began visiting 10 of their competitors. According to Williams' testi- mony, at least one of these visits was made as late as the middle of September. In each case, Williams or Whitney asked the competitor for its salary rate -ranges and average salaries for those of its employees who performed services 'equivalent to the services described in each of the 16 position descriptions agreed upon by the Union and the Respondent. According to a stipulation ,entered into by counsel at the hearing, this information was supplied by one of these competitors for all but 1 of the 16 classifications in a letter dated August 23, 1949; by another competitor for all but 2 of the 16 position classifications -in a letter dated August 24, 1949; by a third competitor for all 16 position 'classifications in an undated letter ; and by the 7 other competitors in undated letters for from 1 to 9 comparable position classifications. It was further stipulated that the Respondent prepared a number of mimeographed copies of .a chart showing the monthly salary rate ranges and averages salaries of the competitors and of the Respondent for the 16 position classifications, but that this chart omitted not only the names of the competitors (whom the Respond- ent had promised not to disclose and therefore indicated on the chart only by :alphabetical letters), but also (1) information supplied by Company A that, nn, addition to regular salaries shown on the chart for employees in 14 compa- -Table position classifications, it had paid them a 25 percent salary bonus in 1945 and a 30 percent salary bonus in 1946, 1947, and 1948; and (2) the information supplied by Company B that, in addition to the regular salaries for employees in ,position classifications comparable to all 16 of the Respondent's classifications, it provided a noncontributory pension of 5 percent. Even aside from this extra-salary compensation which was not reflected on the Respondent's chart, the rate-range figures submitted by the competitors and set forth in the chart 4 id not, in the opinion of the undersigned, uniformly or even generally support the Respondent's argument to the Union's representatives that it was paying rates equal to, or better than, those of its local competitors ; on the contrary, revelation to the Union of these figures and their comparisons might well have served the Union's bargaining purposes on the salary rate issue rather than the Respondent's purposes." ' 27 For example, six of the seven competitors who reported their rate ranges for the posi- tion of salesclerk. A (i. e, Companies A, B, C, D, E, and F), gave ranges substantially exceeding both the minimum and the maximum of the Respondent's range of $165-$250., The lowest ranges of these seven other companies was $175-$275 and $195-$260, while their highest was $215-$350. The seventh competitor, Company Y, gave a range of $200- $250, thus substantially exceeding the Respondent's minimum for the classification. Of the five competitors who reported ranges for the position of salesclerk B, three of them (Companies C, G, and Y) all reported ranges substantially exceeding, both the Respondents minimum and maximum of $150 and $200, the lowest range being $176 to 1207, and the others being $190 to $225 and $250 to $260. On a company-by-company basis, the information given by Company B (aside from the noncontributory pension) was most favorable for the Respondent's purposes Of the 16 position rate ranges given by this company, 11 were equal to or less than the Respondent's ranges for comparable positions ; only 2 were higher in both their minima and maxima, and the 3 others were higher in their maxima. Next most favorable for the Respondent were the seven rate ranges given by Company D, five of which were equal to or less than the Respondent's minima and maxima, while only one exceeded the Respondent's minimum and maximum and the others exceeded only the Respondent's maximum. Companies N and H furnished information of no value for comparisons since Company N presented only its average salaries and not its ranges, and Company H presented only WESTINGHOUSE ELECTRIC SUPPLY COMPANY 429 As the result of the. telephone call from Union Secretary Jones to Williams on, September 19, Williams and Whitney met with Bollens, Jones, and the Union's two federal representatives on September 2128 Bollens said that since the Union had just made a wage proposal, he thought that the Respondent should also submit one. Bollens also argued again that the minimum rate should be no less than $130 per month, the minimum to be expected under the pending amendments of the Fair Labor Standards Act. Williams replied that if, and when, that statute were amended, the Respondent would comply. Williams then told Bollens that the minima and maxima of the wage rates proposed by the Union in its letter of August 16 were too high, that the Respondent could not meet them and maintain its competitive standing in the industry, and that.the Respondent's existing rates should be continued. Turning to the Respondent's salary rate survey, Williams said that it had taken longer to complete than had been antici- pated, and that it confirmed the Respondent's position that it was paying salaries equal to or better than those paid by its local competitors. Williams and Whit- ney testified that Williams showed, but did not deliver, a copy of the survey chart to the union representatives without disclosing the names of the companies whose rate ranges appeared thereon. The undersigned, however, credits Bollens', Jones', and O'Connor's denials that Williams had ever shown them a copy of the survey chart, and also their testimony that, on the contrary, Bollens demanded proof at the meeting on September 21 of the alleged equivalence or superiority of the Respondent's wage rates in the locality and that Williams gave none. The meeting of September 21 closed with a promise by Williams that he would make a wage proposal to the Union within 48 hours. Accordingly Williams made an offer to the Union in a letter mailed on September 22. The proposal would have continued the existing rate ranges for 14 of the 16 position classifications, but offered an increase of $10 in the minima and maxima for the position of sales clerk B and sales clerk A, i. e., to increase the existing $150-$200 range for the first position to $160 to $210, and the existing $165 to $250 range for the second position to $175 to $26028 Bollens, Jones, and the Union's two federal representatives met again with Williams and Whitney on September 27. Bollens rejected the Respondent's sal- ary proposal of September 22 as being too low, arguing that it contained the its rate for stenographers A, which was $130-$165 and thus identical with the Respond- ent's rate range for that position. Generally unfavorable to the Respondent, in the opinion of the undersigned, were the comparisons between the Respondent's rate ranges and those of the six other companies which were identified on the chart as Companies A, C, E, F, G, and Y, for (a) The 14 rate ranges given by Company A exceeded both limits of the Respondent's comparable ranges in 4 positions ; and the minima only in 5 other positions. (b) The 15 rate ranges given by Company C exceeded both limits of the Respondent's comparable ranges in 3 positions ; the minima only in 4 positions ; and the maxima only in 3 other positions. (c) The eight rate ranges given by Company E exceeded both limits of the Respond- ent's comparable ranges in three positions ; the minimum only in one other position ; and, the maximum only in one other position. (d) The five rate ranges given by Company F exceeded both limits of the Respondent's comparable ranges in three positions. (e) The six rate ranges given by Company G exceeded both limits of the Respondent's comparable rates in four positions. (f) The nine rate ranges given by Company Y exceeded both limits of the Respondent's comparable ranges in five positions ; the minimum only in one other position ; and the maxima only in two other positions. 28 Except for the conflicts in the testimony actually noted and resolved, the findings as to the meeting of September 21 are based upon a composite of the consistent testimony of Bollens, Jones, O'Connor, Williams, and Whitney. 2e See Appendix B. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same rates the Respondent had been paying for years, that the pending amend- ments to the Fair Labor Standards Act should persuade the Respondent to in- crease their minimum rates, and that the maximum rates should also be raised since the old employees of the Respondent had already reached these limits and should be given the incentive of possible raises. Williams again stated that if the amendments to the Fair Labor Standards Act should pass, "the Respondent would conform, that then the whole industry would comply," and supported the Respondent's existing rate ranges as being "the area rate in our industry." Ac- ,cording to Bollens' and Jones' testimony, which the undersigned credits, Bollens asked Williams for proof of this last statement, but Williams did not reply. According to Whitney's testimony there was "a very considerable discussion . . . as to possible combinations of wage adjustments upward from our own proposal. . . . a result of a comparison of the [Respondent's and Union's sal- ary] proposals " 30 Although Whitney gave no details of this discussion, Bollens testified, and the undersigned credits his testimony, that he (Bollens) suggested that the Respondent's minima and the Union's maxima be adopted by the parties, but that Williams rejected this suggestion. Before the meeting of September 27 ended, Bollens told Williams that he in- tended to submit the Respondent's salary offer of September 22 to the Union's members at a meeting at a local hotel that night. He asked Williams to con- sider raising the offer and to telephone him at the hotel before the meeting. According to Williams' testimony, which the undersigned credits, he telephoned Bollens at about 6: 30 p. in. and told him that "we had reviewed [the wage offer] but I had not been able to talk to my headquarters in New York and we would have to stand on the wages we had submitted " At the meeting of the Union's members that night, Bollens read and explained the contract that Williams had submitted on August 16, and also the salary pro- posals made by the Union on August 16 and by the Respondent on September 22. Bollens told the members that Williams had thus refused to make any offer on salaries except to continue the existing rates. By a majority vote, the members thereupon decided to strike on September 29, unless Williams made a further offer before midnight of September 28. On the morning of September 28, Bollens telephoned Williams that the Union's members had voted to accept the contract provisions and instructed Bollens to sign them, but that they had rejected the Respondent's wage proposals and had decided to strike on September 29 if the Respondent (lid not make a wage offer by midnight, September 28. No such offer being made by the Respondent, 53 of the 70 employees in the bargaining unit, including the 50 persons named in Ap- pendix A, went on strike. On September 29 or 30," after the strike had started and a picket line had been .set up, a meeting between Bollens, Jones, the Union's two federal representatives, Williams, and Whitney was arranged and attended by Herman Kagel, repre- sentative of Joint Council 40 of the AFL Warehousemen and Teamsters Unions. Elmer Cole, business agent of the Warehousemen, and two business agents of the Teamsters, who represented the Respondent's warehousemen and drivers, came to the meeting with Kagel. At the meeting, Kagel said that his unions wanted to know the nature of the dispute between the Union and the Respondent since they normally respected the picket lines of other unions. Bollens replied, in substance, that the Respondent had refused to raise its existing salary rates 30 Whitney thus differed with Williams' testimony that Bollens told him at this meeting that the Union's last salary proposal of August 16 was the Union's "final figure." n The undersigned believes it to be immaterial whether this meeting was held on Sep- tember 29 , as Bollens , Jones, and O'Connor testified , or on September 30, as Williams and Whitney testified. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 431 in response to the Union's request for higher rates, that the Respondent's mini- mum rates were those "that had been paid for sometime," and that an increase in the Respondent's maximum rates was necessary in order to provide incentive for the employees 32 Williams said that the Respondent was paying the salary -rates which prevailed in the locality. Although Whitney testified that Williams showed the Union's representatives the Respondent's salary survey chart, the undersigned again credits Bollens','Jones', and O'Connor's denials that they saw ^ -or were shown this chart at any time before the hearing in the present case. Kagel suggested that the salary issue be arbitrated and Bollens agreed. Wil- liams said that he did not feel, that such an economic issue was the "proper .subject of arbitration" but would give the matter consideration 33 According to Bollens' and Jones' uncontradicted testimony, which the undersigned credits, Bollens said that the Union was willing to sign the contract to which the parties had previously agreed and to negotiate immediately on the salary issue, but that Williams again refused to sign a contract unless the existing salary rates were incorporated Later that afternoon, Williams informed Bollens and the AFL representatives that the Respondent felt that wages were not a matter which it could submit .to arbitration. 4 The replacements and the November 1949 conciliation meetings According to Bollens' testimony which the undersigned credits, United States ,Conciliator Charles Ward telephoned Bollens "quite a few times" between Oc- iober 1 and November 8, and said that he was trying to get representatives of the Respondent and the Union to hold a meeting for the settlement of the strike. Williams testified, however, and the undersigned also credits his testimony, that he could not recall Ward's telephoning him a few days after September 30 for the purpose of arranging such a meeting, but that Ward did telephone him on or .about November 1, and that a meeting was then arranged for November 8. During this period, the strike continued with only 3 strikers returning to work. 'The 50 employees named in the complaint and in Appendix A remained on strike. On or about November 1, Williams decided to hire replacements, and on No- vember 7, without notice to the Union, he hired 39 new employees to replace 39 ,of the 50 strikers.34 Seven of the employees thus hired on November 7 were hired at the same salaries as the strikers whose jobs they filled, 20 at salaries from $5 to $85 per month less than the particular strikers' salaries, and 12 at salaries from $5 to $25 per month higher than the particular strikers' salaries. Bessie NcCallister, one of the strikers classified as a "Junior Clerk A" at a prestrike salary of $130 per month and a possible maximum of $140 per mouth under the existing salary range for her job, was replaced by a new employee at the rate of $145 per month. With this minor exception, none of the new em- ployees was hired at a rate exceeding the existing maximum rate for the classifi- cation of the striker whom he or she replaced. On November 8, 1949, the Union filed with the Regional Director for the Sixth Region at Pittsburgh, Pennsylvania, the original charge in the present case, al- leging that the Respondent had refused to bargain collectively in good faith with 32 Except when otherwise noted, the findings concerning this meeting are made upon a 'composite of consistent testimony by Bollens, Jones, Williams, and, Whitney. 33 The undersigned credits Whitney's, Williams', and Cole's testimony to this effect. Bollens, Jones, and O'Connor testified that during the meeting Williams bluntly refused to arbitrate the salary issue 34 The names of the strikers whose jobs were thus taken by the new employees are indi- cated on Appendix A. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union in violation of Section 8 (a) (1) and (5) of the Act. On the same day, one of the employees filed a petition with the Regional Director for the decertifi- cation of the Union as the exclusive bargaining representative of the employees in the bargaining unit. Before Williams entered the conciliation meeting on November 8, he received a letter from this employee advising him of the fact that the decertification petition had been filed. As scheduled, Conciliator Ward met with Bollens, Jones, the Union's two fed- eral representatives, Cole of the Warehousemen, Williams, and Whitney on November 8. Bollens said that he had filed an unfair labor practice charge, that the Union had tried to "bring about a settlement in regard to the wage dispute," that the Respondent had made no salary proposals since September 21, and "had failed to change their offer at any time since the beginning of the ne- gotiations." According to Bollens' and Jones' testimony, which the undersigned credits, Williams said that the Respondent had given the Union its proposal as to wage rates, that these rates were all the Respondent could afford to pay, that they were what the Respondent was paying, and that they were what the Respondent intended to pay. Ward then asked Bollens and Williams if they would submit further salary proposals to each other. Bollens said he would do so in writing the following day. According to Bollens', Jones', and O'Connor's testimony, Williams refused to make a "counter proposal." Williams and Whit- ney testified, however, and the undersigned credits their testimony, that Williams said that he would make a further proposal after he had examined the Re- spondent's outstanding offer.85 So far as the record discloses, there was no reference at this meeting either to the filing of the decertification petition or the Respondent's hire of new employees the preceding day to take the place of many of the strikers.88 On the following day, November 9, Bollens submitted a new salary proposal to the Respondent in a letter addressed and mailed to Williams. This proposal was generally in accord with Bollens' statement to Williams at the meeting on September 27, in that, although it proposed a minimum rate for one position classification (general clerk "B") which was $5 more than the minimum offered by the Respondent on September 22, it proposed minima for 2 other positions which were less than those proposed by the Respondent on September 22, and minima for the remaining 13 classifications which coincided with the Respondent's proposal of September 22.34 As maximum rates, the Union proposed figures which were roughly midway between the Union's offer of August 16 and the Respondent's offer of September 22, except in the case of the position of telephone operator, in which the Union proposed a maximum which was less than that offered by the Respondent on September 22, and in the case of the position of cashier, in which the Union proposed the same maximum offered by the Re- spondent on September 22. Williams testified without contradiction, and the undersigned credits his testimony, that on or about November 9 Conciliator Ward telephoned him and suggested another meeting on November 16; that Williams agreed, but, after, speaking with Ward, remembered that he had another commitment for that day; that he telephoned Ward and told him so; that Ward said he would set 35 Although Cole testified as to what happened at this meeting , he made no mention of Ward's request for a further exchange in salary proposals by the parties , nor of Bollens' or Williams ' statements with respect to such a possibility. 86 On direct examination , Cole did testify that at this meeting on November 8 he sug- gested the reinstatement of the strikers and the displacement of the employees hired during the strike. On cross-examination , however, he testified, as did the other witnesses, that this occurred at the meeting on November 21. 31 For the details of the Union's salary proposal of November 9, see Appendix B. WESTINGHOUSE ELECTRIC SUPPLY COMPANY ° 433 another date ; and that Ward later called him and told him that Bollens was going to be out of town and that the meeting was set for November 21. The Respondent submitted its promised new salary proposal in writing at this last meeting of the parties at Conciliator Ward's office on November 21, which was attended by Bollens, the Union's federal representatives, Cole of the Warehousemen, Williams, Whitney, and Job Taylor, the Respondent's attorney. In its proposal, the Respondent offered to increase all minimum rates over those proposed in its prior proposal of September 22 and the Union's offer of Novem- ber 9.38 The minima thus proposed by the Respondent were also equal in 2 positions to those proposed by the Union on August 16, but for the other 14 positions they were from $5 to $60 per month less than the minima proposed by the Union on August 16. The maxima proposed by the Respondent on November 21, however, were the same as it had proposed on September 22, except in the case of sales clerk "B" which it proposed to increase from $210 to $250 per month. When this salary proposal was submitted by the Respondent at the November 21 meeting, the union representatives rejected it. During the meeting, Cole of the Warehousemen and the Union's representatives left the meeting room and held a short consultation. When they returned and met again with the Respondent's representatives, first Cole and then Bollens proposed to the Re- spondent's representatives that the picket line be removed and that all the strikers be reinstated by the Respondent pending future settlement of the salary dispute by negotiation or arbitration as Cole suggested,30 or by negotiation, as Bollens suggested in his wording of the proposal 40 It is thus clear, and the undersigned accordingly finds, that the Union thereby proposed the termination of the strike and the strikers' return to work upon the condition that they all be reinstated: There is conflict in the testimony, however, as to whether Cole and Bollens, in making this proposal, conditioned the return of the strikers upon the layoff or discharge of the new employees who had been hired to replace them. Williams and Whitney testified that this condition was expressly made a part of the proposal by both Cole and Bollens. Cole testified that this was so in the proposal as he stated it, and the under- signed so finds. Bollens, however, denied that he knew of there having been replacements of the strikers at the time of the November 21 meeting ; that Cole, in first stating the reinstatement proposal, spoke of the necessary layoffs or dis- charge of "strikebreakers" to make way for the return of the strikers ; or, more emphatically, that he himself expressed this as a condition of the strikers' return to work. But Bollens admitted that one of the strikers had previously told him there were new employees going to work during the strike ; and he also testified that, at the beginning of the November 21 meeting, Williams told him that the Union's acceptance of the Respondent's salary proposal would not result in the reinstatement of all the strikers, but that Williams refused to tell 38 See Appendix B. 39 This finding that Cole suggested negotiation or arbitration Is based not only upon Cole's and Bollens' testimony but also upon Williams' statements at several points in his testimony, although at several other points Williams testified that Cole suggested only arbitration as the method for solving the salary dispute. Whitney gave still another version of Cole's reference to "arbitration," which finds no support in the testimony of any of the other witnesses. According to Whitney, Cole suggested that the parties "negotiate the wage scale after the Union returned to work," and that, apparently on the question of who should be reinstated, the parties should "substitute arbitration for the grievance procedure in the contract." 90 This hnding is based upon the testimony of Bollens and O'Connor, and also-upon Williams' statements at several points in his testimony, although at another point Williams testified that Bollens suggested negotiation or arbitration. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him who would not be reinstated or why they would not be reinstated." Upon: consideration of all the testimony relating to the point, the undersigned credits Williams' and Whitney's testimony that, in requesting the reinstatement of all the strikers at the meeting on November 21, Bollens expressly conditioned their return to work upon the necessary layoff or discharge of replacements hired during the strike. It is clear from the testimony, and the undersigned accordingly finds, that at this meeting the Respondent, speaking through Attorney Taylor, rejected this request of the Union for the reinstatement of all the strikers which would have terminated the strike. While the reinstatement request was coupled with the Union's proposal that negotiations be continued after the reinstatements were effected and the strike thus terminated, the Respondent's rejection of the pro- posal in its entirety certainly cannot be regarded as a refusal on its part to, negotiate with the Union from that point on or during the remainder of the strike. Indeed, Whitney testified, and the undersigned credits his testimony, that before the meeting ended, Attorney Taylor told the Union's representatives that the Respondent "would be glad to continue negotiations on the wages." But this was the last meeting between the parties in an attempt to bargain-. There have been no further communications between them concerning the un- solved bargaining issues or the possibility of further meetings. 5. Further events until'the end of the strike On November 28, Williams wrote and mailed a letter to the Union, advising it that 41 specifically named strikers "were permanently replaced" on November 7; that some of these people had payments due from the Respondent for accrued and unused vacations ; and that if any of them wished to convert their group life insurance to individual policies, they should do so within 31 days. . All 41 of the strikers whom this letter named as having been permanently replaced are also named in the complaint as having been discriminatorily discharged and refused reinstatement by the Respondent 42 On December 2, however, Wil- liams mailed notices of separation and insurance conversion rights'to only 36 of these 41 strikers. The letters thus written by Williams first to the Union and then to the in- dividual strikers are confusing . As has already been found on the basis of a stipulation entered into by counsel at the hearing , only 39 of the strikers had in fact been replaced by new employees . Yet, according to the Respondent's letter to the Union on November 28, 41 had been replaced . Then, on December 2, the Respondent sent separation notices to only 36 strikers. Even aside from the differences in numbers , a comparison of the stipulation at the hearing, the Respondent's letter to the Union , and its letters to the individual strikers , reveals substantial discrepancies in the names of the strikers which each asserts were re- placed Thus , the stipulation provides and the undersigned finds, that strikers Hilda R. Heil and Harold J. Peterson were among the 39 replaced on November 7, but that strikers Elaine C. Fleming , Shirley B McKee, Louis G. Schmidt, and F. R. Stewart were not among those replaced In its November 28 letter to the Union, however, the Respondent omitted the names of Heil and Peterson from the list of strikers whom it said it had replaced , and included instead, the names of the 4 strikers , Elaine C. Fleming, McKee, Schmidt, and Stewart . Further- more, on December 2, it mailed individual notices of separation to each of these 41 O'Connor, on the other hand. testi yed that- Williams did explain his statement" that all the strikers would not be reinstated , by saying that the stock in the Respondent's warehouse was low. 42 See Appendix A. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 435 last 4 strikers. Upon these facts, the undersigned finds that the Respondent sent individual notices of separation to strikers Elaine C. Fleming , Shirley B . McKee, Louis G Schmidt, and F R. Stewart on December 2, and a previous notice to. the Union covering them, when in fact none of them had been replaced during the strike. On December 1, the Respondent , without prior notice to or consultation with the Union , gave merit salary increases of from $10 to $25 per month to 14 of the 18 employees in the bargaining unit who had not participated in the strike and to the 3 employees who had originally struck but who had thereafter returned to work. So far as the undersigned can determine from the record , it appears, as both Williams and Whitney testified, that none of these increases raised any of the employees to a salary exceeding the maximum proposed for his or her classification by the Respondent in its last salary offer to the Union on November 21 Furthermore , according to Williams ' and Whitney 's testimony, which the undersigned credits, it was the practice of the Respondent to make these merit increases periodically. While there may be some suspicion that these particular salary increases were given to reward the recipients for their abstention from the strike since all but 4 of the nonstrikers received them, the undersigned never- theless finds , as Williams and Whitney testified , that they were in fact given in accordance with the Respondent's general practice of granting periodic in- creases for merit. On or about Jaunary 5, 1950, Business Agent Cole of the Warehousemen ar- ranged a meeting with Bollens and Jones and discussed with them the possibility of ending the strike and removing the Union 's picket line so that the members of the Warehousemen and Teamsters could go back to work. Bollens and Jones asked whether "they could make some sort of a deal with [ the Respondent] in reinstating some of their people." Cole thereupon telephoned Williams whom he asked whether the Respondent "was in a position to reinstate any of the strikers at the time." Williams replied that he could not reinstate any at the time, but that, if the strike were called off and operations became normal, he might gradually take back 10 or 11 strikers , but that he could not say when this would be . When Cole told this to Bollens, Bollens said that his people were will- ing to terminate the strike . Cole testified that, although he could not say whether Bollens asked him to communicate -this to Williams , it was understood that he would do so. Cole then telephoned Williams that the strike was over, The picket line was accordingly withdrawn by the Union on January 10, 1950. 6. The situation of the strikers since November 21, 1949 Joseph S. Burkett, 1 of the 50 strikers named in the complaint as having been discriminatorily discharged or refused reinstatement by the Respondent, in- formed Whitney by letter dated November 30, 1949, that he had secured a new job and would not be back to work for the Respondent Alice H. Marrison and Margaret M. Koehler , who are also among the 50 strikers named in the complaint, were reinstated to their former positions , which had not been filled since the beginning of the strike , on December 21, 1949, and February 13, 1950, respectively. The remaining 47 strikers named in the complaint have not been reemployed by the Respondent. In March 1950 , Williams met Bollens in the office of the Board's Regional Director at Pittsburgh , and asked Bollens whether offers of reemployment of any of the strikers should be addressed to him. Bollens replied that Williams should write to the strikers directly. Accordingly, on June 30, 1950, Williams wrote letters to Nerine L. Boyd, Milton L. Dierker , Arthur E. Grieger , Helen H. Nebel , and Harold J. Peterson, informing them that there were openings for five. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people in the general class "B" position classification with a salary range from $140 to $155 per month. The question posed by these letters, of course, is whether the offers contained therein were offers of reinstatement to the strikers' former or substantially equivalent positions. Mrs. Boyd, who had been a general clerk at a salary of $150 per month, wrote Williams on July 5, 1950, that she had been dissatisfied with her job and her salary and "would not be interested in returning to the same situation, or per- haps worse." The undersigned finds that the Respondent on June 30, 1950, offered Nerine L. Boyd reinstatement to her former or a substantially equivalent position and that she rejected the offer. However, Dierker had been a senior clerk "B" at $175 per month ; Grieger, a sales clerk Junior at $20t1 per month ; and Peterson, a senior clerk "B" at $200 per month. The undersigned finds that, by offering each of them a position on June 30, 1950, as general clerk "B" at a -salary range of $140 to $155 a month, the Respondent did not offer them reinstatement to their former or substantially equivalent positions.43 Mrs. Nebel had been classified as a general clerk at $150 per month. Her work, however, had been specialized and the experience she had acquired was valuable to her and to the Respondent, since it consisted of expediting orders made by several of the electrical manufacturing companies, the principal one of these customers being the Respondent's parent company, The Westinghouse Electric Corporation, which will be referred to as the Corporation in the brief appearances it makes in this Report. According to Mrs. Nebel's uncontradicted testimony, which the undersigned credits, she visited Williams on July 5, 1950, and rejected the job offered in his letter because Williams told her that one of the jobs was that of a Kardex clerk in the stock department and the other a secretarial job, neither of which would have enabled her or the Respondent to take advantage of her specialized experience. The undersigned finds that by offering Mrs. Nebel these jobs, the Respondent did not offer her reinstatement to her former or a substantially equivalent position. The Respondent contends, however, that the prestrike jobs of Mrs. Nebel and Arthur E. Grieger, and of their costriker, Shirley McKee, had been discontinued since the beginning of the strike. Upon the uncontradicted testimony of Whit- ley, the undersigned finds that this was so in the case of Miss McKee who had been a messenger, and also in the case of Arthur E. Grieger, whose job of drafting lighting layouts and lettering signs had been experimentally established. Before Grieger performed this work, it had been dons partly by the salesmen and partly on contract outside the plant. This practice was resumed after the strike, ac- cording to Whitney's uncontradicted testimony. However, the evidence relied upon by the Respondent to show that Mrs. Nebel's prestrike job was also eliminated is not persuasive, Mrs. Nebel testified without .contradiction, and the undersigned credits her testimony, that from 85 to 90 percent of her time was spent in expediting orders of the Corporation and that, in doing this work, she received and processed telephoned inquiries several times a day from the Corporation's expediter, Arthur Torek. Torek confirmed Mrs. Nebel's testimony, and added that, when he could no longer reach Mrs. Nebel during and after the strike, he was told by the Respondent's sales repre- sentative, George Kielty, to contact Nancy Dannels, another one of the Re- spondent's clerks, in the work that he had been handling with Mrs. Nebel ; that thereafter he made the same contacts with Miss Dannels that he had previously -with Mrs. Nebel; and that in January 1950 Whitney asked him whether Miss "Peterson visited Williams and rejected the offer because the salary was too low. -Dierker never replied to the offer. The record does not disclose whether Grieger replied .or not. WESTINGHOUSE ELECTRIC SUPPLY' COMPANY 437 Dannels "was doing a job we could 'get by with."* Kielty did not testify and Whitney did not deny any of the substance of Torek's testimony. Whitney did testify that'since the strike, Mrs. Nebel's' former work-has been handled "in the Sales Department by the Sales Clerks," and that, although Miss Dannels is one of the Respondent's two "Order Service Clerks," she does not make calls to the Corporation "or contact persons outside the organization." But neither Whitney nor-any other witness produced by the 'Respondent testified as to what, work Miss Dannels did, and does, perform. Morever, on cross-examination, Whitney said that he was not Miss Dannels' immediate supervisor, that he did not know in fact ' whether she ever called the Corporation, and that she might, without his knowing about it. Upon this evidence, the undersigned is convinced, and .therefore finds, that the Respondent still employs a clerk, and whatever his or her classification title may be, to perform the work done by Mrs. Nebel, and that her prestrike job has thus remained intact and has not been eliminated by the Respondent. There is no other evidence dealing with the possible, continuing reinstatement rights of the strikers named in the complaint. In summary, therefore, the under- signed finds upon the foregoing evidence and considerations that of the 50 strikers named in the complaint : (1) Joseph S. Burkett voluntarily informed the Respondent on November 30, 1949, that he would not return to his job with the Respondent. (2) Alice H. Marrison and Margaret M. Koehler were reinstated to their former positions on December 21, 1949, and February 13, 1950, respectively. (3) Nerine L Boyd was offered reinstatement to her former position by the Respondent on June 30, 1950. (4) Neither Milton L. Dierker, Arthur E. Grieger, Helen H. Nebel, nor Harold J. Peterson was offered reinstatement to his or her former position or a sub- stantially equivalent position. (5) The prestrike jobs of Arthur E. Grieger and Shirley McKee were dis- continued since the beginning of the strike. (6) The prestrike job of Helen H. Nebel has not been discontinued by the Respondent. (7) None of the 50 strikers named in the complaint, except Alice H. Marrison, Margaret M. Koehler, and Nerine L. Boyd, has been offered reinstatement either to their former positions or to substantially equivalent positions. 7. Conclusions a. The status of the Union as exclusive bargaining representative The Respondent in its answer denied the allegation of the complaint that, at all times since November 29, 1948 (the date of the Board's certification), the Union has continued to be the exclusive bargaining representative of the Respond- ent's Pittsburgh office and clerical employees. Although the point is not argued in its brief, the Respondent apparently relied upon the filing of the decertification petition by one of the employees on November 8, 1949, and the fact that since November 21, 1949, the Union has made no new attempt to induce the Respondent to bargain. There is no merit in this position taken by the Respondent. As the Board stated in its recent decision in the United States Gypsum Company case (90 NLRB 946) : "It is well established that a Union's representative status estab- lished by Board certification is conclusively presumed for a reasonable period of time, customarily one year after certification, and indefinitely thereafter until •such status is shown to have ceased." And the Board also specifically held in the 97417632-vo1.96-29 438 DECISIONS OF^NATIONAL LABOR RELATIONS BOARD Belden Brick Company case ( 83 NLRB 465 ) that the mere filing of a-decertifica- tion petition within a year after certification, as was done by the employee in the present case, does not affect this presumption of continuance nor justify an employer's refusal to bargain until the petition has been processed . Finally, the undersigned hereinafter finds that the Respondent has refused to bargain with the Union in good faith on and since August 16 , 1949. Thus, the Respond- ent's refusal to bargain took place well within the year following certification when the Union was clearly the exclusive bargaining representative of the Respondent's employees . Under well-settled precedent," the Union's status as exclusive bargaining representative and the Respondent's obligation to bargain with it as such have clearly continued, and will continue, at least until the Respondent, by ultimately bargaining with the Union, has remedied the effects, of the unfair labor practice. The undersigned finds in accordance with the Board's certification of Novem- ber 29, 1948, and the evidence in the present proceeding ( 1) that all salaried, office, and clerical employees of the Respondent at its Pittsburgh , Pennsylvania, warehouse and office , excluding salesmen , sales specialists and demonstrators, confidential secretaries, payroll supervisors, warehousemen , servicemen, truck drivers, maintenance employees, watchmen, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act; and (2) that at all times since November 29, 1948, the Union has been, and continues to be, the exclusive bargaining representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. b. The refusal to bargain ,The obligation of employers and the statutory representatives of their em- ployees to bargain collectively in good faith concerning wages, hours, and other conditions of employment , is imposed by the Act for the purpose of encouraging agreement between them on these matters , and a reliance by the employees upon their representatives ' persuasiveness and the employers ' Good faith at the bar- gaining table, rather than upon strikes interrupting their work and affecting commerce.46 The process of collective bargaining thus contemplated by the Act consists of the presentation , consideration, and discussion by the parties of their proposals, positions, and arguments in an honest, persistent, and continued at- tempt to reach a binding agreement and to put it into effect as soon as possible.' When either party fails to make this attempt, or refuses, upon the request of the other, to execute a contract embracing any final agreements which may have been reached, it has refused to bargain collectively in violation of the Act.47 At the hearing , the General Counsel advanced a number of arguments for hold- ing that the Respondent iii the present case failed to bargain with the Union in the good faith thus required by the Act. Some of these arguments, however, do not warrant the conclusion urged by the General Counsel. 44 Franks Bros Co . v. N. L R. B., 321 U S 702 ; N L. R. B. Y. P Lorillard Company, 314 U. S. 512 ; Great Southern Trucking Co. v N. L. R. B, 139 F. 2d 984 ( C. A-4), certiorari denied 322 U S 729; N. L. R. B. v. Highland Park Mfg. Co ., 110 F. 2d 632, 640 (C. A. 4) ; N. L. R B. v. Swift and Company, 162 F. 2d 575 ( C. A. 3) ; Shawnee Milling Company, 82 NLRB 1266 , 1271; National' Plastic Products Company, 78 NLRB 699, 707. 95 See Sections 1, 8 (a) (5), and 8 (d) of the Act. Burgie Vinegar Company, 71 NLRB 829; Aldora Mills, 79 NLRB 1; Elwell-Parker Company, 75 NLRB 1046, 1057. 46 Ibid 4' See Section 8 (d) of the Act. Salant and Salant, 66 NLRB 24, 46-47; Mason and Hughes, 86 NLRB 848 , 850, 993; and cases cited above WESTINGHOUSE ELECTRIC SUPPLY COMPANY 439 In the first of these arguments which the undersigned rejects, the General Counsel contends that, on and after August 16, the Respondent refused to bar- gain collectively in the manner required by the Act, by refusing to comply with the Union's requests that, leaving the salary terms to further negotiation, they, immediately execute a contract embracing all the other terms of the contract upon which they had reached agreement. In making this argument, the General Counsel necessarily relies upon the provision of Section 8 (d) of the Act which defines the obligation to bargain collectively as including, among other things, "the execution of any agreement reached, if requested by either party." Apply- ing this to the present case, the General Counsel argues, in substance, that, since the nonsalary provisions were agreed to by the Respondent without express qualification, and were apparently unrelated to the unresolved salary issue, the parties' agreement upon these nonsalary provisions must be regarded as final and not subject to modification during the following salary negotiations. This, however, is not in accord with the usual understanding and practice of parties in the give and take of point-by-point bargaining toward what they in- tend to be an ultimately complete contract. Ordinarily, until agreement is reached on all points, an agreement on any one or more points is regarded as tentative in the sense that it is still subject to change by "trading off" benefits which would accrue thereunder, in order to reach agreement even on otherwise unrelated points which are later to be discussed. By thus keeping open the pos- sibilities of trading and compromise, this normal, though usually unexpressed, understanding of bargaining parties obviously facilitates the making of the com- plete agreements between employers and unions which the Act favors, and should therefore prevail except in the unusual case, wheie there clearly appears to be an understanding that intermediate, incomplete, or partial agreements on par- ticular provisions are to be final and binding.98 The instant case presents the usual situation, for there was no express understanding by the parties at any time either that no contract was to be executed until all issues had been bar- gained,99 or that agreements reached on all the nonsalary provisions were final and were not to be reviewed or modified in the course of the later negotiations on the salary question. The undersigned therefore refuses to hold in the present case, as the General Counsel urges, that the agreements on the general provisions of the contract were final agretuieats, which the Respondent was obligated to execute before negotiating on the salary range issue. In the second of the General Counsel's arguments, which the undersigned re- jects, the General Counsel asserted that the Respondent improperly refused "offer after offer presented by the Union [concerning wage rates] without at any time making any counter proposals beyond [existing] wage schedules." The facts, so far as they may have suggested this argument to the General Counsel, may briefly be summarized. At the meeting on March 17, the Union submitted its first wage proposal, requesting substantial increases in the Respondent's salary rate ranges, but, upon the Respondent's refusal to accept the proposal, the Union suggested, 48 As the Respondent points out in its brief, this was the unusual sort of situation dealt with by the Board in the two decisions cited by the General Counsel. In Salant and Salant, Inc. (66 NLRB 24), the parties had agreed upon all nonwage terms and to abide by the National War Labor Board's decision of the remaining wage issue. And in Mason and Hughes, Inc. (86 NLRB 848), the parties had finally agreed not only upon all nonwage terms, but also upon the continuance of the existing wage rates for at least 6 months, the dispute being only as to whether the parties should immediately execute a complete con- tract incorporating existing wage rates with a provision for reopening the wage question in 6 months, or whether no contract should be executed until, after 6 months, the parties had resumed and completed their negotiations on the wage issue. 4° It will be recalled that the undersigned has found, contrary to Whitney's testimony, that the Union did not agree on March 17 that no contract was to be executed until the salary issue was settled 440 DECISIONS :OF -NATIONAL LABOR RELATIONS BOARD and it was thereupon agreed,'that acceptable position descriptions, he, developed before negotiating a salary scale. After the new position descriptions were agreed upon, the Union submitted further salary proposals on August 16 and November 9,.in each instance requesting rates which were lower than, those for which it had previously asked. At the meetings on March 17, August 16, Sep- tember 21, September 27, September 29 or 30, November 8, and November 21, the Respondent repeatedly rejected the Union's current salary proposals as being too high and urged the continuance of the Respondent's existing rates as being equal to, or better than, those paid by the Respondent's local competitors. On September 22 and November 21, the Respondent made salary proposals offering some increases in its existing rates. In its September 22 offer, it suggested that the existing rates be continued except for increases of $10 per month in 2 of the 16 positions. In its November 21 proposal, it suggested that the maximum rates remain the same in all positions except one, in which it proposed a substantial increase, but that the minimum rates for, all positions be increased to figures exceeding those proposed by both the Respondent and the Union in their im- mediately preceding proposals. Thus it appears that the Respondent did not simply reject each salary proposal made by the Union, but discussed it, gave the reasons for its rejection, and for its desire to continue its existing rates instead, and finally made two offers of its own for increases in the rates of a number of the position classifications. In addition to ignoring these eventual offers of increase by the Respondent, the General Counsel, in his argument, incorrectly assumes that, upon the submission of a proposal by a union representing employees, good faith in collective bar- gaining requires the employer to make a counterproposal in which he modifies or changes his previously expressed position in some respect, so that it approaches the new proposal of the union. That this is not so is clearly indicated by the provision of Section 8 (d) of the Act that the obligation to bargain "does not compel either party to agree to a proposal or require the making of a con- cession." The third argument of the General Counsel which the undersigned rejects is that the Respondent's lack of good faith was demonstrated by its failure to pre- sent, a negotiator "with authority to bind the Company." The'General Counsel thus refers to Manager Williams' statements to the Union's representatives on three occasions that it was necessary for him to consult with the Respondent's New York office. The first two of these statements were made in connection with the acceptability to the Respondent of the Union's first contract draft and, then, of the final draft. The third of these statements was made by Williams on September 27, to explain to Bollens why he was not able, on a few hours' notice, to comply with the Union's request for a new, higher wage offer than the one the Respondent had made only 5 days previously. But Williams was the Re- spondent's District Manager with responsibility for its local operations and per- sonnel, and, according to his credible testimony, had general authority from the Respondent in the contract negotiations, including, for example, full authority to make wage proposals and to decide whether or not to commit the Respondent to sign a contract without wage scale provisions.60 His statements to the Union's 0 Early in the cross-examination of Williams, the undersigned sustained an objection to a question by the General Counsel as to whether Williams would have had to have approval to sign the Respondent's original contract proposal . The undersigned expressly based this ruling ( 1) upon the fact, apparent from the General Counsel's witnesses ' testimony, that Williams' statements concerning the necessity of his submission of certain points to his superiors had not impeded bargaining nor were they apparently designed to do so, and also (2) upon the undisputed fact that the Union, too, had stated to Williams that it required approval from its members of the draft of position descriptions and the Respondent's Sep- WESTINGHOUSE ELECTRIC SUPPLY COMPANY - 441 representatives indicated merely that on a few occasions he thought circum- stances required him to seek advice and approval from his home office. In and by themselves, they certainly did not indicate any intent to "stall," to avoid reaching agreement, or to discourage hope by the Union and its members that agreement might be reached. Furthermore, it should be remembered that the Union's representatives, with the same obligation to exercise substantial authority in the bargaining, also informed Williams that some of his proposals must be submitted to the Union's members for approval. As a matter of fact, the third of Williams' statements that he had to consult his home office was made in response to Bollens' urgent request on September 27 that Williams submit a new salary offer within a few hours, so that the new offer, rather than the Re- spondent's recent, previous offer, might be submitted to the Union's members that night. Upon these considerations, the undersigned, following-the prece- dents set by the Board in similar cases, rejects the General Counsel's argument that Williams was not possessed of the substantial authority, with which collec- tive bargaining representatives must be vested under the Act 01 Other arguments of the General Counsel which the undersigned rejects, are based upon the Respondent's hire of new employees to replace strikers on No- vember 7, and the Respondent's grant of wage increases to 17 of the 21 non- striking, old employees on December 1. The General Counsel points out, as the undersigned has found, that the Respondent hired some of the new employees "at higher rates than [those] paid the strikers" whom they replaced. Apparently, he contends that the questions of whether any of the replacements might be paid more than the strikers, and whether nonstriking employees should receive salary increases, were within the scope of the current bargaining on salary rate ranges, and, therefore, that unilateral action by the Respondent with respect to these matters was improper as a refusal to bargain per se, and also as evidence of its bad faith in insisting to the Union that the existing rate ranges be con- tinued. But the Union and the Respondent were negotiating concerning rate ranges, and not the salaries of individual, particular employees within these ranges. For his argument to be valid, therefore, it was necessary for the General Counsel to show that the higher rates paid to new employees and the increases to nonstriking, old employees, were unilateral acts affecting the ranges for their respective classifications. This he had not done. For only 12 of the 39 new employees were hired at salaries higher than those paid to the strikers whom they replaced, while 9 were hired at the same salaries, and 20 at lower salaries- some of them substantially less than those paid to the particular strikers whom they replaced. Furthermore, none of the 39 new employees (with one minor exception which has been noted) received salaries in excess of the Respondent's existing maximum rate for his job. As to the salary increases given on De- cember 1 to the 17 nonstriking, old employees, they were, as the undersigned has found, merit increases in accordance with the Respondent's existing prac- tice, and not changes in the general rate ranges about which the Union and tember 22 wage offer. (See W. W. Cross and Company, Inc., 77 NLRB 1162, 1166-1167 (footnote 11) ; Shell Oil Company, 77 NLRB 1306, 1307 (footnote 4) ; Amalgamated Meat Cutters, 81 NLRB 1052, 1062 (footnote 26). At later points in the record, however, Williams without objection gave the testimony concerning his bargaining authority, which is set forth in the text. 81 See the decisions of the Board cited in the preceding footnote In each of the decisions of the Board which the General Counsel has cited in urging an opposite conclusion, the Board found that, in contrast with the facts in the present case, the employer's representa- tive either had no authority or that the limitations upon his authority were calculated to impede, and did impede, the course of bargaining. Standard Generator Service Com- pany of Missouri, Inc., 90 NLRB 790; Republican Publishing Company, 731NLRB 1085, 1090 ; Ozark Dam Constructors, 86 NLRB 520, 521, 531. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent were bargaining. Nor did the increase on December 1 raise any employee to a salary in excess of the maximum proposed by the Respondent, for his position on November 21. It is thus apparent, and the undersigned finds, that the Respondent did not refuse to bargain, or evidence bad faith in bar- gaining, with the Union either by hiring some replacements at higher salaries than the strikers they replaced on November 7,J2 or by, granting the merit in- creases to the nonstriking employees on December 1 ' One further argument made by the General Counsel which the undersigned also rejects is that the Respondent showed bad faith in bargaining by failing to notify the Federal conciliator and the Union's representatives at their meeting on November 8 that it had permanently replaced "a great majority of all the striking employees" the day before. Contrary to the General Counsel's assump- tion, there is no duty upon the part of an employer to notify a striking union of the permanent replacement of strikers unless, and until, such disclosure be- comes necessary in answering unconditional requests for reinstatement from the union or individual strikers." We turn now to the General Counsel's argument that the Respondent failed to bargain in good faith because it unduly prolonged the negotiations on both the position descriptions and the salary range issue. With respect to the negotiations and meetings on the position descriptions, the facts previously found may well be briefly recalled. At the first meeting of the parties on February 14, Williams promised to prepare and submit to the Union a draft of the Respondent's position descriptions. On February 23, when he did send this draft to the Union and was therefore presumably prepared to meet again with, the Union's representatives, he nevertheless told Jones on the telephone that he was busy and that Jones should call him again in a few weeks to ariange for the next bargaining meeting. The second meet- ing on March 17 was therefore set only when Jones asked for it a few days before that date. Upon the Union's rejection of the Respondent's original draft of position descriptions at the March 17 meeting, Williams undertook to redraft them, and when ready, to call the next meeting. With only the posi- tion descriptions scheduled for immediate negotiation, Williams let time slip by without notifying the Union when another meeting could be held, and the next meetings on April 12 and 25 were again the result of telephoned requests by the Union to Williams, in each case a few days before these meetings. Moreover, Williams did not submit a revision of the position descriptions at either the April 12 or 25 meetings, and at the latter meeting, it was agreed that the job-content questionnaires be issued, to furnish a basis for the revision. The questionnaires were in fact issued to the employees by the Respondent on April 26, with the agreed request that the employees return them with their answers on May 10. For the period between April 25 and August 16, there is no basis for criticizing the Respondent's attention to bargaining. As the under- 62 See Pacific-Gamble Robinson Co., 88 NLRB 482, 25 LRRM 1350 5a The General Counsel has not argued that the salary increases of December 1 were in fact a reward to the old employees for not striking or for abandoning the strike. However, the undersigned has found upon the uncontradicted testimony of the Respondent's witnesses that these raises were in fact granted in accordance with the Respondent's practice of giving periodic merit increases. No relevant evidence was offered at the hearing to dis- pute the existence of this practice or the requisite merit of all but three of the nonstriking employees to receive these increases. 54 For purposes of considering this particular argument of the General Counsel, it must be assumed that the strike was then an economic strike, although , as will be seen, the undersigned hereinafter finds upon facts not basic to the General Counsel's instant argu- ment, that the strike was caused by the Respondent's unfair labor practices. With this necessary assumption In mind, see Oklahoma Rendering Co., 75 NLRB 1112, 21 LRRM 1115. WESTINGHOUSE ELECTRIC SUPPLY COMPANY - 443 signed has found, the employees were slow in returning their questionnaires and when they were turned in, the Respondent held frequent meetings with the Union's representatives, during which the position description problem was settled and agreement was reached on all contract terms except salary rate ranges.' However, the undersigned finds that during the earlier period between Febru- ary 14 and April 25, the Respondent not only unduly prolonged and delayed the negotiations on position descriptions, but brought them to a standstill after March 17, (1) by Williams' putting off conferences with the Union's representa- tives on the Respondent's February 23 draft of position descriptions until March 17, and (2) by' Williams' failure, despite his promises on March 17 and again on April 12, to revise these descriptions and to submit the revision to the Union at a meeting to be called by him when the revision was ready. Since this refusal by the Respondent to bargain with the Union in good faith upon the position descriptions from February 14 to April 25 occurred more than 6 months before November 8, the date upon which the original charge in this case was filed, it cannot itself be made the basis of a remedial order against the Respondent 68 As background, however, it does demonstrate, and therefore may properly be considered as demonstrating, the Respondent's atti- tude of indifference to its obligation under the Act to attempt to reach an agree- ment with the Union as soon as possible,67 which again came to the surface on and after August 16, and, in similar manner, resulted in the Respondent's delay of negotiations on the salary rate issue. Thus, between August 16 and September 21, Williams again postponed meet- ing with the Union ostensibly to prepare himself for further negotiations. Al- though he had known since February that salary rate ranges were to be nego- tiated and had already expressed the Respondent's argument that the existing ranges should be continued because they were equal to, or higher than, the Re- spondent's competitors' ranges, he told the Union's representatives in August and early September that he still had to make a salary range survey in support of his argument and therefore could not meet with the Union on the issue until the end of September-more than a month after the preceding meeting. Not only was this an unreasonable excuse for postponing bargaining on the rate-range question at this late date, but it also is apparent from the evidence that the Respondent failed to make and complete the survey within the time it reasonably should have taken. For, according to Williams' testimony, although, beginning on August 20, he and Whitney separately visited the 10 competitors for informa- tion on their rates, at least one of these visits was made as late as the middle of September, more than 4 weeks after the Respondent's last meeting with the Union. The undersigned finds that the Union's experience with the Respondent's earlier' delays in the negotiations on the position descriptions was repeated in the Re- es Whether the Respondent's progress with the drafting of acceptable position descrip- tions after May 31 was slower than it should have been, is a matter upon which the record sheds no light. The evidence, though clearly to the effect that the Union con- tinued its general objection to the narrowness of the descriptions proposed by the Respondent, gives no details as to specific differences between the parties -on such points. It therefore affords no basis for judging the difficulty of the Respondent' s task or estimating the time which it might reasonably have been expected to consume. 56 Section 10 (b) of the Act provides : ... That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . . 57 Amelson Mfg., Co , 88 NLRB 761, 25 LRRM 1388; Florida Telephone Corp., 88 NLRB 1429, 25 LRRM 1499; Sun Oil Co., 89 NLRB, 833, 26 LRRM 1057; Lucerne Hide and Tallow Co., 89 NLRB 989, 26 LRRM 1076; The Post Printing and Publishing Co., 90 NLRB 1820, 26 LRRM 1396 ; Pacific Mills, 91 NLRB 60, 26 LRRM 1453. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's delay of negotiations on the salary rate-range issue, and that by this latter delay from August 16 to September 21, the Respondent refused to bargain with the Union in good faith, thereby violating Section 8 (a) (1) and (5) of the Act G8 The undersigned also finds that at the meetings on September 21 and either September 29 or 30 the Respondent refused to bargain in good faith on the salary rate-range issue by refusing to disclose the information gathered by it in its wage rate survey. By Williams' statements to the Union's representatives, the Re- spondent had made the equivalence or superiority of its rate ranges over those of its competitors its primary argument for the continuation of the existing ranges. Indeed, it had held off any meeting between August 16 and September 21 in order to make the survey to support this argument. Yet, when the meeting on September 21 was held, and the Respondent was asked by the Union for the information which it had been given time to secure and which was the essential basis for its argument, it withheld it, thus depriving the Union of any possibility of considering the Respondent's argument and bargaining intelligently on the matter .0 In reaching these conclusions that the Respondent refused to bargain col- lectively with the Union in good faith, the undersigned has not given any weight to the preelection statements which were made in November 1948 by the Re- spondent's representatives and supervisors to various employees and which have been outlined in Section III A of this Report. Although these statements reflect a dislike on the part of these representatives of the Respondent to have the Union represent the employees, they were made 5 months before the negotiations began. The undersigned therefore has judged the Respondent's conduct solely by what transpired during the negotiations. On this basis alone, then, the undersigned has found that the Respondent on and after August 16 refused to bargain in good faith with the Union in violation of Section 8 (a) (1) and (5) of the Act by delaying negotiations on the salary rate-range issue and by refusing to dis- close to the Union the results of its salary rate-range survey which it contended supported its position that its existing-salary ranges should be continued. c. The discrimination Upon the facts found, it is clear that the Union called the strike which began on September 29, 1949, because of the breakdown of its attempt to negotiate with the Respondent on the salary rate-range issue. The undersigned has found that the Respondent in violation of Section.8 (a) (1) and (5) of the Act had refused to bargain with the Union on this issue in the good faith required by the Act. 'The undersigned therefore concludes that the strike was caused by the Respond- ent's unfair labor practices. It has been found that on November 21, 1949, the Union requested the Respond- ent to reinstate all the strikers but that the Respondent refused to do so. Since the strike was an unfair labor practice strike, the Union's request that all strikers be returned to work was justified in spite of the 39 replacements which the Respondent had hired on November 7. The undersigned therefore finds that 6s See Burgle Vinegar Company, 71 NLRB 829; Aldora Mills, 79 NLRB 1. 69 Aluminum Ore Company, 39 NLRB 1286, 1296-1298, enforced in Aluminum Ore Com- pany v. N. L. R. B., 131 F. 2d 485 (C. A. 7) ; N. L. R. B. V. J. H. Allison & Company, 165 F. 2d 766 (C. A. 6), certiorari denied 335 U. S. 814, rehearing denied 335 U. S. 905; The Electric Auto-Lite Company, 89 NLRB 1192; The B. F. Goodrich Company, 89 NLRB 1151; Yawman and Erbe Manufacturing Company, 89 NLRB 881 ; General Controls Co., 88 NLRB 1341; Southern Saddlery Co., 90 NLRB 1205; Montgomery Ward & Co., Inc., 00 NLRB 1244. 0 WESTINGHOUSE ELECTRIC SUPPLY COMPANY 445 the Respondent was not justified in refusing to reinstate the strikers on Novem- ber 21, 1949, and that, by refusing, it discriminated against the 50 strikers named in Appendix A, with respect to their hire and tenure of employment because of their participation in the strike, thereby interfering with, restraining, and coerc- ing its employees in the exercise of the rights guaranteed in Section 7 of the.Act, discouraging membership in the Union, and committing unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. The Respondent points out that the original charge which was filed by the Union on November 8, 1949, alleged only that the Respondent had violated Sec- tion 8 (a) (1) and (5) of the Act, and that.the charge was amended by the Union to include an additional allegation of discrimination in violation of Section 8 (a) (3) of the Act only on July 24, 1950, more than 6 months after November 21, 1949, the day upon which the undersigned has just found that the discrimination was committed. The Respondent therefore contends that under Section 10 (b) of the Act," the Board may not find that the Respondent discriminated against its employees at this early date in violation of Section 8 (a) (3). The Board, how- ever, has held that, under Section 10 (b), any unfair labor practice occurring within the 6-month period preceding the filing and service of an original charge, whether alleged in the charge or not, may be included in the complaint and; if proved, may become the basis of a finding of unfair labor practice and the issuance of a remedial order.81 The undersigned accordingly rejects the Respond- ent's contention that Section 10 (b) bars the finding in the present case that the Respondent discriminated against the striking employees on November 21, 1949, in violation of Section 8 (a) (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent set forth in .Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. The undersigned has found that the Respondent discriminated against the 50 strikers named in Appendix A by refusing to reinstate them on November 21, 1949, to their former or substantially equivalent positions. It has further been found that on November 30, 1949, Joseph S. Burkett voluntarily informed the Respondent that he would not return to his job with the Respondent; that Alice H. Marrison and Margaret M. Koehler were reinstated to their former posi- lions on December 21, 1949, and February 13, 1950, respectively; that Nerine L. Boyd was offered reinstatement to her former position by the Respondent on June 30, 1950; and that the prestrike jobs of Arthur E. Grieger and Shirley McKee were discontinued after the beginning of the strike. The undersigned will therefore recommend that the Respondent offer to each of the persons named ° Section 10 (b) provides: .. . That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board, and the service of a copy thereof upon the person against whom such charge is made, . .'. 41 Cathey Lumber Company, 86 NLRB 157; Tennessee Knitting Mills, Inc., 88 NLRB 1103. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Appendix A, except Joseph S. Burkett, Alice H. Marrison, Margaret M. Koeh- ler, Nerine L. Boyd, Arthur E. Grieger, and Shirley McKee, immediate and full reinstatement 'to his or her former or substantially equivalent position. The undersigned will also recommend that the Respondent make whole each of the persons named in Appendix A, except Joseph S. Burkett, Arthur E. Grieger, and Shirley McKee, for any loss of pay which each of them have suffered by reason of the Respondent's discrimination against him or her by payment to each of a sum of money equal to that which he or she normally would have earned as wages from November 21, 1949, to the date of the Respondent's offer of reinstate- ment, less his or her net earnings during said period." Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period between November 21, 1949, to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be deter- mined by deducting from a sum equal to that which each employee would--nor- mally have earned for each such quarter or portion thereof, his net earnings, if any, in any other employment during that period. Earnings in one particu- lar quarter shall have no effect upon the back-pay liability for any other quar- ter.°S It will also be recommended that Respondent, upon reasonable request, make available to the Board and its agents all payroll and other records perti- nent to an analysis of the amounts due as back pay. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Federation of Westinghouse Independent.Salaried Unions is a labor organi- zation admitting to membership employees of the Respondent. 2. All salaried, office, and clerical employees of the Respondent at its Pitts- burgh, Pennsylvania, warehouse and office, excluding salesmen, sales specialists and demonstrators, confidential secretaries, payroll supervisors, warehousemen, servicemen, truck drivers, -maintenance employees, watchmen, guards, profes- sional employees, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Federation of Westinghouse Independent Salaried Unions is now, and during all times material herein has been, the exclusive representative of all the em- ployees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on August 16, 1949, and at all times thereafter, to bargain col- lectively with Federation of Westinghouse Independent Salaried Unions as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the employees named in Appendix A, thereby discouraging membership in Federation of Westinghouse Independent Salaried Unions, the Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 6. By the above unfair labor practices and by otherwise interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Crossett Lumber Company, 8 NLRB 440. F. W. Woolworth Company, 90 NLRB 289. WESTINGHOUSE ELECTRIC SUPPLY COMPANY 447 Section 7 of the Act, the Respondent has engaged in and is engaging In unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] Appendix A STRIKERS NAMED IN THE COMPLAINT 1 *(x)Mary Alice Allen *(x)Helen R. Bailey *(x)Gladys G. Baker (x) Sally L. Black Nerine L. Boyd *(x) Pauline R. Bozic * (x) William G. Bricker Joseph S. Burkett. *(x)Rhea H. Bush •(x)Martha H. Danner *(x)Lois L. Dearth Milton L. Dierker *(x)Margaret E. Evans • Elaine C. Fleming * (x) Marjorie A. Fleming *(x)Harold E. Fox •(x)George E. Gibson Arthur E. Grieger *(x)Florence V. Heasley (x)Hilda R. Heil *(x)Esther B. Hoffman *(x)Lydia Z. Johnson •(x)Ruth D. Kapphan Margaret M. Koehler *(x)Dorothy A. (Kohler) Kucia *(x)June A. Landfried *(x)James G. Lyons •(x)Ronald J . McCafferty *(x)Bessie A. McCallister * Shirley B. McKee *(x)M. Joan McQuiston Alice If. Marrison * (x) William C. Maglieri *(x)Anne O. Minzenberg Helen H. Nebel (x) James P. L'Connor (x)Harold J. Peterson • (x) Helen E. Pribila (x) John L. Pritchard *(x)Evelyn K. Reising *(x)Thomas A. Rodgers •(x)John W. Rush, Jr. * (x) Corinne E. Scheloski *(x)Joanna D. Scheloski • Louis G. Schmidt *(x)Helen M . Stader * Francis R. Stewart *(x)Donald R. Tebbs *(x)Marjorie L. Waddell * (x) Samuel A. Weller 1 The 50 persons listed in this Appendix are the strikers named in the complaint as having been discriminatorily discharged or refused reinstatement by the Respondent. Spellings and full names are given in accordance with the eviden,. u- l:v marriage, the former Dorothy A. Kohler has become Dorothy A . Kucia. The 41 names preceded by asterisks (*) are the names of those of tie strikers whom the General Counsel in paragraph 10 of the complaint alleges to have been discriminatorily discharged on November 7, 1949 . According to the Respondent 's answer and its letter to the Union on November 28, 1949, however, they were replaced by the hire of new employees on November 7, 1949. The 39 names preceded by (x)'s are the names of those of he strikers who, according to the stipulation of counsel at the hearing and the Trial Ecaminer 's fin.ling in this Report, were in fact replaced by the hire of new employees on November 7, 1949. It should be noted, therefore, ( 1) that those persons whose names are preceded only by an asterisk are strikers who the Respondent notified the Union were repiaced , but who in fact were not replaced ; and (2 ) that those persons whose names are preceded only by an (x) are strikers who were in fact replaced . but concerning whose replacement no notice was given by the Respondent.