Westinghouse Electric Corp.

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Westinghouse Electric Corporation and Salaried Employees Association of the Baltimore Division, affiliated with the Federation of Westinghouse Independent Salaried Unions . Case 5-CA-3723 February 19, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On April 29, 1968, Trial Examiner Abraham H. Mailer issued his -Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and, finding merit in certain of Respondent's exceptions, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found, and, for the reasons set forth in his Decision, we agree that Respondent's Bay Bridge facility is a relocation of OR&E work previously performed at its Parker Road plant and not an accretion to that plant. We do not agree, however, that Respondent is obligated to bargain with the Union with respect to the transfer of employees from the Parker Road plant to Respondent's Bay Bridge facility, or to recognize and bargain with the Union for exclusive representative of the employees at the Bay Bridge facility. In pertinent part, the record shows that the Union represents certain salaried employe, --s in ten separate bargaining units in Respondent's Baltimore, Maryland, area operations, four of which were established by agreement of the parties and six, including its Lansdowne and Parker Road plants, through Board-conducted elections. Most of the certified units have been established in substantially the same manner, namely, whenever Respondent either began a new operation or because of expansion moved part or substantially all of an operation (and, employees) to a new plant in the Baltimore metropolitan area, the Union requested, and, was refused, recognition, the parties then agreed upon an appropriate unit, and election was held and, if successful therein, the'Union was certified. Once certified as representative at-a-particular location, the Union continued to receive recognition from the Respondent regardless of any product or operational changes at that location. Each of the bargaining units, or at least the certified units, is subject to the provisions of a National Agreement to which the parties have been continuously bound since 1950. Early in 1964, Respondent began searching for a deep-water location in which to house its expanding ocean research and engineering (OR&E) work which was then the primary operation being performed at its Lansdowne plant. Lansdowne was then also engaged in a small amount of weapons work. In July of this same year, a decrease in the electronics and communications work being performed at Respondent's Parker Road plant,- located some 2 miles from Lansdowne, threatened the jobs of Parker Road employees. In order to save those jobs, Respondent transferred the electronics and communications work out of, and the OR&E work into, Parker Road, and thereby made room at Lansdowne for more weapons work. To overcome the provisions of their National Agreement, which provided for bumping rights only within, and not between, units, the Union and Respondent agreed to transfer employees from the Lansdowne unit to the Parker Road unit. Respondent apparently transferred only those employees who requested transfer since, at this time, Respondent was planning to move the Parker Road OR&E operation and emp','yees to wherever it would establish its new OR&E Facility, and the employees were informed of this possibility by both the Union and Respondent's supervisors. In accordance with past bargaining history, the Union continued as bargaining representative at each of these plants despite the operational changes and the transfer of employees. In August 1964, Respondent decided to erect its new OR&E facility near the Bay Bridge at Chesapeake Bay in the Annapolis, Maryland, area, 26 miles from Parker Road; it announced this decision in March 1966, and, the following November, began construction which was completed in January 1967. Meanwhile, from May 1965 through August 1967, business at various of Respondent's Baltimore operations had increased to such an extent that despite the hiring of approximately 3,000 new employees in 1965, hundreds of jobs still remained unfilled during 1966 and part of 1967, including positions requiring skilled and technical knowledge. During this period, beginning specifically in January 1966 and continuing for 'approximately a year thereafter, the Union, based on an alleged 174 NLRB No. 95 WEST][NGHOUSE ELECTRIC CORPORATION 637 "understanding"' that Respondent would recognize it at Bay Bridge, sought information regarding the staffing of that facility, the relocation of employees and bargaining unit work from Parker Road to Bay Bridge, and the wages and working conditions to be established there. Faced with the employment situation at its Baltimore operations and seeking not to deplete those operations of essential employee skills in order to satisfy future employment needs at Bay Bridge, Respondent, either through inability or design, did not then furnish the Union with the requested information. In October 1966, Respondent began investigating the labor market in the Annapolis area and ascertained from the Maryland State Employment Office and Annapolis-based Company personnel managers that skilled people from that area were available. During the course of several meetings held thereafter, Respondent informed the Union that Respondent planned 'to employ Bay Bridge personnel from the Annapolis area and would not recognize it at Bay Bridge or transfer any Parker Road employee to Bay Bridge without his consent buts instead, would consider requests for transfer from employees at Parker Road and other of Respondent's plants on a quit-rehire basis.2 Respondent also refused the Union's request to have Respondent apply to Bay Bridge those provisions of the National Agreement pertaining to the upgrading of employees transferred within a bargaining unit when the work force is increased on the ground that Parker Road and Bay Bridge are separate, and not together one bargaining unit. In an effort to establish its majority status at Bay Bridge and thereby compel Respondent to recognize and bargain with it in that unit, the Union presented to Respondent 47 statements signed by employees from Parker Road and another of Respondent's Baltimore plants represented by the Union which stated in substance that the signers thereof desired to be represented by the Union at Bay Bridge. In selecting the employees to be transferred to Bay Bridge, Respondent individually interviewed only those employees it intended to transfer, rejected the Union's request that a Union representative be present during such interviews, stated that a representative would be allowed to be present only if the employees to whom Respondent intended to 'This "understanding" is predicated on a 1964 conversation between the Union's president and Respondent's Industrial Relations supervisor during which the former questioned the latter with regard to Respondent's plans for staffing Bay Bridge and also sought Union recognition at that contemplated facility. In reply thereto, Respondent's supervisor stated in pertinent part that . . you have never had problems with us in representation and you know it. This will be worked out and you know dam well it will be so why get into it now _ We have never had a problem with bargaining .. . you know that you will have no problems " 'rhe quit-rehire procedure, whereby an employee quits at midnight and is rehired at 12:01 a.m., ostensibly to protect employee rights at plants to which transfers are made, came into existence m 1963 as the result of negotiations between the Union and Respondent. The record shows that this procedure does not affect in any respect an employee' s terms and conditions of employment. offer transfers wished him to be, and gave the Union a list of employees who had requested transfer. On January 15, 1967, the approximate date on which the Bay Bridge facility opened, there were 130 employees in the certified unit at Parker Road, 74 of whom were Union members and on checkoff.3 Respondent received a total of 86 transfer requests from the Parker Road unit, and transferred 47 employees therefrom, 25 of whom were Union members. Respondent also honored some transfer requests from employees in plants other than Parker Road. However, Respondent's main source of employment was personnel from the Annapolis area, and as of the time of the hearing, Bay Bridge was fully staffed with a complement of approximately 500 employees. Although no OR&E work is now being performed_ at Parker'Road, no employee at this plant has been laid off or downgraded because of the transfer of OR&E work, and the plant is still in operation performing weapons work. The Trial Examiner, relying on the Cooper Thermometer Company and Fiberboard Paper Products Corp.4 lines of cases, found that the transfer of employees from Parker Road to Bay Bridge affected the Parker Road employees, and, therefore, that Respondent was obligated to bargain with the Union regarding those transfers. We do not agree that the principles set forth in those cases govern the instant situation. The Cooper Thermometer type of case is concerned with a loss of jobs caused by the partial or complete termination of an operation at one location and its relocation at another. In such situations, the employees at the old plant are directly affected by the relocation, and an employer is required to negotiate not only respecting the shutdown, but also the bases and conditions on which employees affected by the termination may transfer to the' new location and thus continue to be employed. In the Fiberboard line of cases, where unit work also is affected by a change in, or the termination of, operations, an employer is also required to bargain with respect to the effect on the employees occasioned by the altered operation, and further, must inform the bargaining representative before effectuating the operational change that such was contemplated in order that that representative might have the opportunity to negotiate with respect to the contemplated change concerning the tenure of the employees and their conditions of employment. Here, however, none of these factors is present. The record clearly shows that although the nature of the Parker Road plant work has changed, that change has not affected either the continuity of its 'The Union represents virtually all nonexempt salaried employees employed in the 10 certified or agreed-upon units in the Baltimore area Slightly more than half of these employees are Union members , however, and the fact of membership is known to Respondent only if an employee is on checkoff 4Cooper Thermometer Company, 160 NLRB 1902, 1912, enfd. in pertinent part 376 F.2d 684 (C A. 2), Fiberboard Paper Products Corp, 130 NLRB 1558, enfd. 379 U.S. 203. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations or the employment of its employees, and the Union is still the bargaining representative at that plant. In addition, the employees who transferred did so voluntarily and with the full knowledge and consent of the Union. Moreover, there is no contention that Respondent has breached any obligation to bargain concerning either the establishment of the Bay Bridge facility or the transfer of OR&E work from Parker Road to that facility. Accordingly, we find that the transfer of employees from Parker Road to Bay Bridge did not affect the Parker Road plant and that Respondent is not required to bargain with the Union in this regard. Nor do we find, as did the Trial Examiner, that Respondent unlawfully refused to recognize and bargain with the Union at Bay Bridge. Respondent's obligation to bargain must be established by affirmative evidence showing either the presence of the Union's majority status at Bay Bridge or that the absence thereof has been caused by Respondent's unfair labor practices. The evidence to establish this former requirement is patently insufficient since it consists basically of the transfer requests submitted by 86 of the 130 Parker Road plant employees, 74 of whom were Union members as were 25 of the 47 transferred, the statements signed by 47 of those plant employees requesting that the Union represent those 47 at Bay Bridge, and the statistics relating to employment at Bay Bridge which show conclusively that the transfer of all Parker Road Union members to that plant still would not have given the Union a majority there. As to the alleged unlawful preclusion of that majority, the record shows, as set forth above, that prior, during, and subsequent to the staffing of Bay Bridge, Respondent was faced with a critical manpower shortage at its Baltimore operations and that in order to both retain its needed skills at those operations and also properly staff Bay Bridge, it selected and transferred 25 Union and 22 non-Union members from the Parker Road plant, and also tapped the well of an abundant labor market in the Annapolis area from which it obtained most of its personnel for Bay Bridge which, as of the time of the hearing, was fully staffed with a complement of 500 employees. The record also shows that a few Union members were dissuaded from submitting transfer requests because of some supervisory statements to the effect that there would be no union at Bay Bridge. It also shows that employee Lozar was told by her supervisor that she would not be transferred to Bay Bridge if she signed the authorization requesting representation there by the Union. The Trial Examiner also found that Lozar's request to transfer to that plant was unlawfully denied because she was a Union member. Based upon his primary premise that Respondent discriminatorily refused to honor more, or most, or all of the transfer requests submitted by Parker Road Union members, and his findings that the supervisory statements, together with Respondent's conduct toward Lozar, illustrated Respondent's policy determination to staff Bay Bridge with a disproportionate number of non-union transferees and new hires in order to prevent the Union from obtaining majority status at that plant, the Trial Examiner concluded that although the Union lacked a majority at Bay Bridge, this was not material because that lack of majority was caused by Respondent's unfair labor practices and, therefore, Respondent was obligated to recognize and bargain with the Union concerning terms and conditions at Bay Bridge which it unlawfully refused to do.' The record does not sustain those conclusions. As indicated above, the transfer of employees from Parker Road to Bay Bridge was predicated on economic necessity which is both undisputed and substantiated by the record. In addition, and as we previously noted, aside from economic justification, the figures relied upon by the Trial Examiner conclusively show that had Respondent transferred all Parker Road plant Union members desiring transfer, the Union still would not have achieved majority status at Bay Bridge when that plant was staffed, regardless of the commission of any purported unfair labor practices by Respondent. Moreover, Respondent's actions with regard to Lozar, while perhaps technical violations, fail to establish a pattern of discrimination as to the selection or nonselection of employees for transfer when considered either separately or in conjunction with the refusal of a few employees to submit the transfer requests because of supervisory statements that there would be no union at Bay Bridge. In view of Respondent's economic situation, there is no assurance that, had those transfer requests been submitted, those particular employees would have been selected for transfer. Moreover, since the statements which precluded their submission were made after Respondent had informed the Union that it would not be recognized at Bay Bridge, they appear to have been made in context with the parties' bargaining history whereby Respondent did not and would not recognize the Union at a newly-established location without an election. Accordingly, and for the reasons set forth herein, we find, 'contrary to the Trial Examiner, that Respondent is not obligated to recognize or bargain with the Union at Bay Bridge, and we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. In arriving at these conclusions, the Trial Examiner properly afforded no weight to the alleged "understanding" that Respondent would recognize the Union at Bay Bridge. WESTINGHOUSE ELECTRIC CORPORATION 639 TRIAL EXAMINER'S DECISION ABRAHAM H. MALLER, Trial Examiner: On February 28, 1967, Salaried Employees Association of the Baltimore Division, affiliated with the Federation of Westinghouse Independent Salaried Unions, herein referred to variously as SEA or the Union, filed a charge against Westinghouse Electric Corporation, herein referred to variously as the Respondent or Westinghouse. Upon said charge, the Regional Director for Region 5 of the National Labor 'Relations Board, herein called the Board, on June 30, 1967, issued on behalf of the General Counsel a complaint against the Respondent, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq ) herein called the Act In its duly filed answer, Respondent denied the commission of any unfair labor practices. Thereafter, Respondent filed a motion for a Bill of Particulars, which was granted by Trial Examiner Charles W. Schneider. Complying with the Trial Examiner's Order, counsel for the General Counsel filed a Bill of Particulars. Pursuant to notice, a hearing was held before me at Baltimore, Maryland, on the following dates: September 27, 28, and 29, October 10, 11, 12, and 31, November 1, 2, and 3, 1967. The General Counsel and the Respondent were represented and were afforded full opportunity to be heard and to introduce relevant evidence. At the outset of the hearing, counsel for the General Counsel moved to amend the complaint to allege, in the alternative, a different appropriate unit. Over the objection of the Respondent, I granted the motion.' At the conclusion of the hearing, both parties were given the opportunity to present oral argument and to file briefs with me. Comprehensive briefs were filed by both parties. Upon consideration of the entire record,2 including the briefs of the parties, and upon my observation of each of the witnesses, I make,the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW L THE BUSINESS OF THE RESPONDENT The Respondent, a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Pennsylvania, has various locations throughout the United States including Baltimore, Maryland, where it is engaged in the research, manufacture, and distribution of electrical products and in oceanographic research. During the year preceding the filing of the complaint, which is a representative period, Respondent, in the course and conduct of its business operations, received goods, materials, and products valued in excess of $50,000 at its places of business located in Baltimore, Maryland, directly from points outside the State of Maryland. During the same period Respondent shipped goods, materials, and products valued in excess of $50,000 directly from its places of business in Baltimore, Maryland, to points located outside the State of Maryland. The electronic equipment produced at Respondent's Baltimore, Maryland, places of business is manufactured for the U.S. Navy, U.S. Air Force, and other agencies of the United States Government and vitally affects the defense of the United States. Accordingly, I find and conclude that Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. IL THE LABOR ORGANIZATION INVOLVED Salaried Employees Association of the Baltimore Division, affiliated with the Federation of Westinghouse Independent Salaried Unions is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether the salaried, clerical, technical, and maintenance employees at Parker Road and at Bay Bridge constitute separate units appropriate for bargaining, or whether they, together, constitute one unit. 2. Whether Respondent threatened two employees with retaliation because of their union membership and activities. 3. Whether the Respondent failed to bargain in good faith with SEA with respect to the staffing of, and transfer of work to, the Bay Bridge plant, in violation of Section 8(a)(5) of the Act. 4. Whether Respondent, in order to avoid recognition of SEA at the new facility, discriminated against employees by failing to transfer them to the Bay Bridge plant and/or promote them to better jobs at the Bay Bridge plant, to which they would have been entitled, in violation of Section 8(a)(3) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The Baltimore Operations of Westinghouse The complaint alleged that the appropriate unit consisted of the salaried, nonexempt employees at both the Bay Bridge and Parker Road plants. By the amendment, the General Counsel alleged in the alternative, that the salaried, nonexempt employees at the Bay Bridge plant constituted an appropriate unit In legal effect, the original allegation was premised on the theory that the Bay Bridge plant was an accietion to the Parker Road plant, whereas under the amendment the Bay Bridge plant would be considered to be a relocation of the Parker Road plant. In its brief, Respondent renewed its motion to deny the amendment of the complaint, contending that it was thereby placed in an untenable and unfair position. The motion is denied. The amendment did not call for the presentation of any new or different testimony. It went only to the legal effect of the facts in the record, and the Respondent had the opportunity to argue, and did in fact argue fully, as to the legal effect of she facts The Respondent, therefore, has not been prejudiced by the amendment. 'Included in the briefs filed by both parties were motions to correct the record in certain particulars . No opposition to such motions have been filed. Upon consideration of said motions, it is hereby ordered that said motions be and they are hereby granted. All of the issues in the instant case arise out of the establishment by Respondent of a new plant called Bay Bridge located near Annapolis, Maryland, and the transfer thereto of the work previously performed at the Parker Road plant. To fully understand the problem, a review of the background is necessary. The Westinghouse operations in the Baltimore area are administratively known as the Defense Space Center, commonly referred to as D.S.C., and includes many facilities engaged in diverse activities. These activities are organized for administrative purposes into several different divisions, one of which is the Underseas Division. The work of the Underseas Division is of two distinct types: (1) The manufacture of underseas weapons, principally torpedeos (excluding the explosives), and (2) the development of various types of underseas devices, for 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD example, deep submergence vehicles for exploring and exploiting ocean depths, on research and development contracts which, if the project culminates in any manufacturing at all, results in a one-of-a-kind item. The latter activity is known as ocean research and engineering, herein referred to as OR&E. Prior to January 1967, when the new Bay Bridge facility was opened , Underseas Division weapons work was done principally at the Lansdowne plant on Washington Boulevard, while OR&E work was done principally at the Parker Road plant. No production work was done at the Parker Road plant; all Underseas Division production work was done at Lansdowne Westinghouse employees , insofar as their pay status is concerned, are divided into three categories : ( 1) hourly paid, (2) salaried but not exempt from the provisions of Federal wage and hours regulations, and (3) salaried and exempt employees . The last category embraces managerial and professional employees and is, with some minor exceptions not relevant here, generally unrepresented by any labor organization . Hourly employees do production type work and are, generally , represented in various units embracing production workers (and maintenance workers whose jobs are related to the production operation) by either the International Union of Electrical , Radio and Machine Workers, AFL-CIO, herein referred to as IUE, or by the International Brotherhood of Electrical Workers, AFL-CIO, commonly referred to as IBEW. In the Baltimore area, hourly paid employees are represented by either Local 130 of the IUE, or 1805 of IBEW. Salaried , nonexempt employees consist of clericals, draftsmen, and laboratory technicians. They are represented, generally, by the Federation of Westinghouse Salaried Unions. The Baltimore affiliate of the Federation is the SEA, which represents 3,300 salaried, nonexempt Westinghouse employees in 10 units in the Baltimore area. Production type employees such as machinists whose work is related to the work performed in these units are included therein and are distinguished by Respondent from hourly paid production type employees normally represented by IUE or IBEW by the fact that they are compensated on a salaried, nonexempt basis. Maintenance type employees such as janitors whose work is related to the work performed in these units are also included therein and are distinguished from hourly paid maintenance workers on the same basis. 2. The Bargaining History of the Baltimore Operations SEA is the certified or recognized bargaining representative for the employees in 10 separate units in the Respondent' s Baltimore operations.' Originally, SEA represented a unit of all salaried employees located at the Wilkens Avenue and Lansdowne plants.' In 1952, upon the establishment of the Aerospace Division (then known as Air Arm) at Friendship Airport, SEA requested recognition . Although this activity had formerly been conducted at the Wilkens Avenue plant, Respondent rejected the request, and SEA filed a petition 'The relationship between SEA and the Respondent is set forth in an Agreement between the Respondent and the Federation of Westinghouse Independent Salaried Unions (national contract). In that agreement the units are described as having been "certified " The term "certified" as used in the agreement is not synonymous with the Board certification, but, in effect, means recognized by the Respondent and bargained for in the agreement. Some of the units have Board certification ; others do not. `The two plants are approximately 2 1/2 miles from each other. Later by agreement, the parties established separate units at each location. for representation with the Board. The parties agreed to a separate bargaining unit limited to this division, and after an election, SEA was certified. Subsequently, the Surface Division (then known as the Electronics Division) moved from the Lansdowne plant to another building at Friendship, immediately adjacent to the Aerospace Division. SEA again requested recognition on the theory that this operation was an accretion to the then existing Wilkens-Lansdowne unit. Respondent contended that the unit should be part of the already certified Aerospace unit. In Case 5-RC-2173, the Board issued a decision and direction of election in which it set up a separate bargaining unit for the Surface Division. After an election, SEA was certified as the representative of a unit limited to nonprofessional salaried employees. Some time later, an upswing in activity created an overload in this particular operation, causing Respondent to lease facilities of a plant on Parker Road, approximately 8 1/2 miles from Friendship Airport and 2 miles from Lansdowne. The expanded Surface Division moved to that location. SEA then requested recognition at the Parker Road plant as an accretion to the Surface Division certification. Respondent rejected the request, and SEA filed a petition in Case 5-RC-3375. An election was agreed to by the parties, and a majority of the employees voted in favor of SEA which was certified as the representative of these employees as part of the Electronics [Surface] Division. Subsequently, the Surface Division expanded further into the Morrell Park plant.' SEA again requested recognition on the theory that the Morrell Park plant was an accretion to the then existing Surface Division at both Friendship and Parker Road. Respondent rejected the claim, and SEA filed a petition. The parties agreed to an election among the employees at Morrell Park, and the agreement provided for inclusion of these employees in the existing Surface bargaining unit, if a majority voted for representation. Following the election, SEA was certified as the representative of the employees of Morrell Park as part of the Surface Division. In 1962, Respondent established a central records, maintenance, and government storeroom at a location a mile from Friendship, called Magothy Manor. This function had previously been performed at the Friendship site, and the employees performing that function were transferred to Magothy Manor. In 1963, SEA filed a representation petition seeking representation of these employees as an accretion to the Aerospace Division at Friendship. Subsequently, SEA and the Respondent agreed to a consent election for a separate unit at Magothy Manor. SEA won the election and was certified as the representative of the employees of this unit. A further expansion of Respondent's Baltimore operations occurred in January 1964, when the Product Support Equipment Department (PSED) was established at Cockeysville, Maryland, approximately 25 to 30 miles from the Friendhsip site. The function of this division has been to build test equipment for the various products built by other Baltimore divisions. The employees were relocated from other plants. The parties agreed to an election for the employees at PSED. In the ensuing election, representation was rejected by the employees. In the early 1960's, Respondent built a Management Services Building interconnecting the Aerospace and Surface Divisions at Friendship, from which, service 'This location is approximately 9 miles from Friendship , and 2 to 3 miles from the Parker Road plant. WESTINGHOUSE ELECTRIC CORPORATION functions for the various divisions were performed. Also located in the same building was the Systems Department which assumes responsibility for the development of large complex electronic systems. By agreement of the parties, a separate bargaining unit was created for that building, and SEA was recognized as the representative of the employees. B. The Establishment of the Bay Bridge Facility By early 1964, Respondent conceived the idea of building a new facility to house its increasing OR&E activities at a deep water location. The task of finding a suitable spot on the shores of the Chesapeake Bay was assigned to a 3-man committee which inspected as many as 20 different potential sites. In August 1964, Respondent's attention focused on a tract of ground at the western end of the Chesapeake Bay Bridge not far from Annapolis, Maryland, where the Bay Bridge facility was ultimately built. In September 1964, negotiations were begun to acquire that tract, and in March 1965, Westinghouse announced publicly that it would build the Bay Bridge facility. Meanwhile, in 1964, a downturn in business of the Surface Division posed a threat to the jobs of the Surface Division employees then housed at the Parker Road plant. Respondent decided to terminate the Surface Division activities at the Parker Road plant and to transfer OR&E from Lansdowne to Parker Road, thereby making room at the Lansdowne plant for more weapons work. Since SEA's national contract provides for bumping rights in the event of a reduction in force only within, and not between, bargaining units, Surface Division employees at Parker Road had no right to the OR&E jobs which were coming into existence. Rather than see Respondent lose experienced employees, SEA and Respondent cooperated in a program in offering Surface Division employees at Parker Road an opportunity to transfer from Surface to Underseas Division. Although Surface Division employees thereby lost their bumping rights in their division, the less senior employees were relieved of going through a disposition proceeding in the Surface Division.6 In the ensuing interviews for staffing the OR&E operations at Parker Road, the prospective transferees were informed by SEA representatives in the presence of Westinghouse officials that Westinghouse contemplated moving the OR&E operations to a new site to be selected in the vicinity of Chesapeake Bay and were 'advised not to transfer to OR&E unless they were prepared to move with the job. Subsequent hirings and transfers into the unit were also predicated on the applicant's willingness to move with the job. In connection with the staffing of the OR&E operation at Parker Road, James Hare president of SEA asked Lovett Henderson, Supervisor of Industrial Relations, what would happen when the OR&E operation was moved to a new plant. Henderson replied: Sir, you have never had problems with us in representation and you know it. This will be worked out and you know darn well it will be so why go into it now. We have never had a problem with the bargaining . You know that you will have no problem. You know darn well that we went through these same things "Disposition" is a term used in the national contract to describe a procedure by which an employee who is bumped may replace the least senior employee in the same or next lower level in his position progression within the seniority unit 641 just a couple of weeks ago with the I. U. E. when we transferred part of their work out on Wilkens Avenue over to the Longwood Street locations and he kicked the stuffings out of us and we are not going to go down that road again. You know that you will have no problems.' Henderson flatly denied making any such statement at anytime. I do not credit his denial. Thus, Henderson denied that he knew of the Longwood case. Yet, the Longwood case had occurred only 2 months before Henderson's conversation with Hare.' Despite the fact, as he claimed, that the Longwood plant was not his responsibility, I find it difficult to believe that, as an industrial relations executive in the Baltimore complex, Henderson would know nothing of so important a labor relations case which was involved in the complex. On the other hand, Hare's testimony is corroborated by that of James Wallace, then Assistant Manager of Industrial Relations of the Baltimore complex and Henderson's superior, who testified that at a meeting between SEA and the Respondent on December 22, 1966. Mr. Hare asked me in that meeting if I was aware that he and Mr. Henderson had an understanding about the Parker Road, Lansdowne, Bay site operations. I told him that I was aware from conversations that I had had with Mr. Henderson and Mr. Hare, that there were understandings concerning those three locations. Wallace also conceded that the Union's minutes of that meeting contained "essentially what was said" at that time on the subject The particular portion of the minutes referred to by Wallace reads as follows: Hare . . Mr. Wallace, in all honesty, are you aware of the good faith understanding between Lovett Henderson your Industrial Relations Supervisor and myself concerning the transferring of these employees and the recognition of the S. E. A. at the Bay Bridge site? Wallace - Yes, I know an understanding exists; but there is no agreement and our position has changed. It is true that, later, Wallace testified that Henderson "never told me that he had reached an understanding or agreement with the Union on recognition ..." However, this statement is completely inconsistent with Wallace's statement at the meeting of December 22, 1966, as reflected in the Union' s minutes of the meeting: "Yes I know an understanding exists; but there is no agreement and our position has changed." Indeed, the statement attributed to Wallace in the Union's minutes are in accord with the facts, viz, that despite the understanding, Westinghouse had changed its position. Thus, Wallace admitted that in March 1966, D. C. Lee, Manager of Industrial Relations for the Baltimore complex and Wallace's superior, had indicated to him "the probability that we were not going to recognize the SEA" at Bay Bridge. 'The Longwood Street case was recent history Westinghouse had transferred some IUE work from Wilkens Avenue , which was a separate bargaining unit to Longwood Street . IUE Local 130 claimed that Longwood was an accretion to its existing unit at Wilkens Avenue, while Westinghouse claimed that Longwood was a separate bargaining unit. To resolve the dispute, Westinghouse filed Case 5-RM-503. On April 14, following a hearing, the Regional Director issued a letter decision holding that Longwood Street was an accretion to the unit at Wilkens Avenue. Westinghouse thereupon recognized IUE Local 130 at Longwood Street, and the latter withdrew a charge it had filed against Westinghouse. The "he" who kicked the "stuffings" out of Respondent in that situation was Eugene Watts, president of IUE Local 130 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Bargaining Between SEA and Westinghouse Regarding the Move to Bay Bridge Westinghouse announced the beginning of construction of its OR&E facility at the Bay Bridge site in November (1965. The Bay Bridge facility is approximately 26 miles from the Parker Road plant. Completion was scheduled for October 1966. A number of employees at Parker Road became concerned as to what would happen when OR&E work was transferred from Parker Road to Bay Bridge. Lewis Haase, SEA plant representative at Parker Road, asked Henderson for a meeting A meeting was held on January 13, 1966, between Henderson and representatives of SEA. At this meeting, SEA posed 12 specific questions relating to the transfer of OR&E to Bay Bridge. Question 10 was: "Will we [i.e., salaried, nonexempt employees in the Parker Road unit] be under the same certification [i e., in the same bargaining unit]?" To each of these questions, Henderson replied that he did not know and that he would inform SEA as soon as he found out. SEA continued to seek answers to these questions through 1966, but was unable to get any answers. During the same period, Respondent was surveying the labor market in the Annapolis area. Finally, on November 29, 1966, SEA filed a charge in Case 5-CA-3361, charging Westinghouse with refusing to bargain in good faith about the move to Bay Bridge . The following day, Westinghouse met with SEA concerning the move.' A series of four meetings beginning with November 30 were held: December 22, 1966, February 10, and 16, 1967. At the November 30 meeting, Respondent announced that staffing of the Bay Bridge plant would begin on a limited basis between December 15 and 19, and would be complete by March 1967, that the Company would not ask any of the employees at the Parker Road plant to transfer to the Bay Bridge plant, but instead planned to employ personnel from the Annapolis and Eastern Shore area. However, Wallace stated that Westinghouse would consider any employee's request to transfer from Parker Road or other locations on a quit-rehire basis.' Wallace also stated that Parker Road would continue in operation at some level - to what extent he did not know. With regard to recognition of SEA, Wallace stated that Westinghouse would not recognize any Union at Bay Bridge, inasmuch as the IUE had requested recognition there. However, Wallace admitted that no work or activity represented by another union was being sent to Bay Bridge.10 Although Westinghouse planned to begin staffing the Bay Bridge plant in less than 3 weeks, Wallace stated that he was unable to inform SEA which functions or activities would go to the Bay Bridge plant, stating only that it would be oceanographic research work, but that he could not be more specific. R Terwilliger, assistant to the manager, Underseas Division, also stated that he did not know "exactly." At one point, SEA President Hare asked: "Are you aware that the supervisors of the Deep Submergence project here at Engineering Systems has notified 9 employees that they would be transferred to the B/B site but the supervisors stated they did not know when?" Wallace replied that he 'It is noted that the meeting was held before the charge in Case 5-CA-3661 was served on the Respondent. However, it is apparent that Respondent was aware of the filing of the charge , since Wallace referred to the case in his opening remarks and, as previously noted, Wallace testified that the Union's summary of the meeting was substantially correct. did not know that. J. Boak, administrative to the industrial relations, replied that he thought they would sometime in the future. Terwilliger said that they had long been part of the oceanographic operation, but he did not know whether they would stay there or go to Parker Road or Bay Bridge." Finally, Hare recited the history of SEA's cooperation with Westinghouse in staffing Parker Road, with the understanding that the function would be moved to Bay Bridge, and accused Westinghouse of pulling the rug out from under SEA. Wallace replied that he knew that the Union would take legal action and pointed out that the Union had had the advantage of representing the people at Parker Road for the past 2 1/2 years. Following a further written demand from SEA, a second meeting was held on December 22, 1966. Wallace opened the meeting by stating that the Company's position on the moving of employees to the Bay Bridge plant was unchanged; that if an employee signed a request for a transfer, Westinghouse would consider him for open jobs at the Bay Bridge site, with the understanding that the procedure would be a quit and rehire. Hare then asked Wallace for a letter to the effect that a quit-rehire would have no effect upon an employee's record. Wallace replied that he would let him know. No such letter was ever written. In answer to a question from Hare, Wallace and Terwilliger reiterated that the Company was not then or in the future planning to send work represented by the IUE to Bay Bridge, and that SEA was the only union involved in the matter. It was at this meeting that Wallace admitted that he knew of an understanding between SEA and Henderson, "but there is no agreement and our position has changed." Hare also tendered to Wallace 47 statements signed by Parker Road employees indicating their desire to be represented by SEA when transferred to Bay Bridge. Wallace declined to see them. The third meeting was held February 10, 1967. At the opening of the meeting the Union announced that it had withdrawn its charge in Case 5-CA-3661 "on the basis that discussion would resolve problem of representation." At this meeting, Respondent, for the first time, gave SEA concrete information on the numbers and types of jobs it planned to have at the Bay Bridge plant and what work would be transferred there. Westinghouse conceded that the Bay Bridge plant was built to house oceanographic projects. SEA contended that the Bay Bridge plant was an accretion to the Parker Road plant. The contention was rejected by Westinghouse. SEA then stated that it wanted the plant representative notified of all moves of the employees at Parker Road, as well as a list of employees requesting jobs at the Bay Bridge plant. In addition, SEA requested that its representative be present when job offers were made to Parker Road employees. Westinghouse 'The General Counsel concedes that at the present time , relocation of an employee on a quit-rehire basis apparently does not affect any of the employees' terms and conditions of employment, with the possible exception' of Westinghouse's salary extension plan Henderson denied that the procedure had any effect on the salary extension plan. The quit-rehire procedure did not come into existence until 1963 when it was the result of union negotiations with the Company. Prior thereto a quit-rehire transaction in an employee's service record reduced the benefits he would have received if there had been no such entry. "In fact, no production work represented by IUE has been transferred to the Bay Bridge facility, and Eugene Watts, president of IUE Local 130, was informed by Westinghouse officials that no such work would be transferred to Bay Bridge. "The Engineering Systems OR&E units at Friendship moved to Bay Bridge in May 1967. WESTINGHOUSE ELECTRIC CORPORATION promised to keep the plant representative advised of any personnel changes, and that it would give a list of people who had requested transfers from Parker Road to Bay Bridge. Westinghouse rejected the request that an SEA representative be present when job offers were made to Parker Road employees. Instead, it stated that it would ask the employees to whom it intended to offer jobs at Bay Bridge whether they would like to have an SEA representative when the job is offered. The meeting ended with an agreement to convene again the following week. The final meeting was held on February 16, 1967. Westinghouse stated that their Parker Road employees would be given no preference for OR&E jobs at Bay Bridge. In response to SEA's suggestion that its members were looking for upgrade possibilities at OR&E, Westinghouse replied that all moves had been lateral thus far. SEA then pointed out new hires were getting high code jobs; and that Parker Road employees should get a chance for upgrade to the high code jobs. Westinghouse replied that it considers upgrades when moving employees. In response to SEA's request for a list of plant transfers to Bay Bridge, Westinghouse replied that it could give this list only on a weekly basis. SEA then countered with a request for a planned list of all moves, and Westinghouse replied that this depended on building occupancy space. No agreement of any kind was reached at this meeting. On March 10, 1967, SEA refiled its unfair labor practice charge in this case. D. The Staffing of the Bay Bridge Plant Transfer of OR&E work and staffing of the Bay Bridge plant with salaried, nonexempt employees began in early January 1967. As reflected by Respondent's position during the bargaining meetings detailed above, it was Respondent's policy to invite the Parker Road employees to file a request for a transfer to Bay Bridge on a quit-rehire basis. Employees requesting a transfer were then interviewed by supervisors of the Respondent. Respondent's supervisors made it clear to the employees at Parker Road both before and during the interviews that there would be no union at Bay Bridge. Several employees who were on checkoff did not submit a request because of their concern over Respondent's decision not to recognize the SEA at Bay Bridge and the consequent effect on their right to be represented by the Union. By early April, at which time the Regional Director for Region 5 evaluated the staffing at Bay Bridge in reaching his decision to issue a complaint in the instant case, Westinghouse employed at Bay Bridge 110 employees of the class that would have been included in an SEA-type unit if the unit had been recognized at Bay Bridge for the sort of unit it represented at Parker Road Of these, 63 were newly hired' employees and not relocated there from another Westinghouse plant, while 47 had been relocated from other Westinghouse facilities. In tabular form, this appears as follows- Total 110 New hires 63 (57%) Relocates 47 (43%) From Parker Road plant 38 On 'checkoff 't 18 (16 %) Not on checkoff 20 (17%) From other locations 8 SEA units 5 On checkoff 12 1 (1 %) Not on checkoff 4 IBEW units Unrepresented units 2 643 By the time the complaint had issued in this case in June 1967, the salaried, nonexempt complement at Bay Bridge had risen to 142, of whom 81 were new hires and 61 were relocated employees. Total 142 New hires Relocates 81 61 (57%) (43 %a) From Parker Road 44 On checkoff 23 (15 Not on checkoff 21 From other locations 17 SEA units 14 On checkoff 3 (2%) Not on checkoff 11 IBEW units 2 Unrepresented units 1 An analysis of the OR&E employees who were represented by SEA at Parker Road in January 1967, when staffing of Bay Bridge began, shows that of 123 whose fate is relevant to the issues here," 71 had authorized Respondent to checkoff their union dues, while 52 had not. Of the 71 on checkoff, 24 were relocated at Bay Bridge by mid-June 1967, while 47 were not." Since, "The distinction between employees on checkoff and those not on checkoff is for the obvious reason that checkoff was a means by which Westinghouse was aware of the employees' affiliation with the Union. Of course, some employees not on checkoff may have been members of SEA, but that tact may not have been known to Westinghouse. "The record shows that there were 130 SEA-represented employees at the Parker Road on January 15, 1967 Of these, 6, viz, Andrews, Fant, Jiles, Glover, Herbert, and Shisler, are excluded from the computation because they left the Parker Road unit on or before February 1, 1967 for (various reasons having no bearing on the staffing of Bay Bridge. A seventh employee, Thurfield, who was not on checkoff, is also excluded . Thurfield was offered relocation at Bay Bridge, but later rejected it "Of these 47, 3, viz, Brookhart, Seiber, Slaughter, left before June 15. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under Respondent's policy, submission of a request for transfer was a prerequisite for relocation at Bay Bridge, selection of Parker Road employees for the Bay Bridge facility was limited to the 83 of the 123 employees who had submitted such request. Of the 40 who did not submit requests, 23 were on checkoff, while 17 were not.1-5 Of the 83 employees who did submit a request for transfer, 47 went to Bay Bridge, while 36 did not. Of the former, 24 were on checkoff, while 23 were not. Of the 36 who had requested transfers but who were not selected to go to Bay Bridge, 24 were on checkoff while 21 were not. Analyzing the foregoing in tabular form, we find the following Parker Road Unit Requested Transfers Transferred to Bay Bridge, Portion of Class Portion of Requests On checkoff 71 48 24 33.8 % 50 % Not on checkoff 52 35 23 692% 65.7 Total 123 83 47 38.2% 56.6 % In January 1967, ten employees in the Parker Road unit, held official positions in the Union." Of these ten, five filed requests for transfer to Bay Bridge; and of the five only one, Delaney, has been relocated at Bay Bridge. In contrast to the 47 (38 percent of unit) of salaried, nonexempt employees who were relocated from Parker Road to Bay Bridge on a quit-rehire basis, 90 to 95 percent of the salaried, exempt employees, i.e., professional and managerial employees not represented by SEA or any other labor organization, who were located at Parker Road on January 15, 1967, were transferred to Bay Bridge. Such employees were not required to go through a quit-rehire procedure. Following the transfer of OR&E work to Bay Bridge, Westinghouse transferred weapons work to Parker Road. The amount of work being performed at Parker Road at the time of the hearing appeared to be in a state of flux. On the one hand, employees have worked overtime; on the other, some employees occupy their time by reading lay periodicals Employees have been put up for disposition because of lack of work, but the disposition procedure was halted after intervention by SEA. To provide work for employees at Parker Road, Westinghouse has "contracted out" work, i.e., transferred work from other plants to Parker Road "As previously noted, several employees who were on checkoff did not submit a request because of their concern over Respondent's decision not to recognize SEA at Bay Bridge. "Schneider, Haase, Uhlig, Kuhn, Bezelik, Kerchner, Apple, Scallio, Delaney, and Lehnert E. Alleged Independent Violations of Section 8(a)(1) 1. Moore's statement to Lozar Roselyn Lozar, a stenographer, testified that in December 1966, she received from SEA two documents, one an authorization for dues checkoff and ' the other a statement that the signer desired to be represented by SEA when transferred to Bay Bridge. She took them to her supervisor, Benjamin Moore, and asked whether she was going to Bay Bridge and solicited his advice as to whether she should sign the documents. He told her that he could not tell her that she was going. As to the card about being represented at Bay Bridge, He told me, "I would say if you sign this card, then your request for transfer would not be considered." Then I asked him what I should do about the dues card, and he said, "Well, if they are not going to have the Union then there wouldn't be any need for you signing the dues card," or some words to that effect. Moore admitted that he had a conversation with Lozar, but denied making any statement to the effect that Lozar's request for transfer to Bay Bridge would not be considered if she signed a statement indicating her desire for representation by SEA. According to Moore, there was no conversation concerning her,signing the request for continued representation by SEA, because "I would be very sensitive about that, I would tend to indicate an interest 180 degrees away than what she was trying to apparently get me to say to her " Yet, on cross-examination, Moore was unable to state what Lozar was trying to get him to say. I credit the testimony of Lozar who testified in a straightforward manner. Lozar is no longer employed by Westinghouse and indicated some concern lest the fact WESTINGHOUSE ELECTRIC CORPORATION 645 that she testified against Westinghouse be used by Westinghouse as a reason for refusing to give her a good reference to future employers. Furthermore, Lozar's testimony that Moore told her that there would be no union at Bay Bridge is entirely consistent with the testimony of a number of other, witnesses who were so told by their supervisors. On the other hand, Moore's testimony that he did not answer Lozar's question about signing the representation form because of what Lozar was trying to get him to say does not ring true. 2. Jaffe's Statment to Schneider David Schneider, Parker Road plant representative for SEA, testified that on January 11 or 12, 1967, Albert Jaffe, Manager of the Ocean Resources Program, spoke to him at the Morrell Park plant, at which Schneider was temporarily working, about Schneider's future and the decision not to move him to Bay Bridge with the project, despite Jaffe's desire to have him. According to Schneider, Jaffe told him that "between friends, I would have to choose a road between either a professional career with the Company or a union activity career . between friends, you will have to choose your work between a professional career or a union activity career . . . I then pointed out to Mr. Jaffe how I felt ... that a man should be judged solely on his abilities, and not on his union activities, he agreed with me, but he said, however, there may or may not be members of higher management that agree or disagree with you." Jaffe, called by the Respondent, testified that he told Schneider that he was not going to Bay Bridge; "that the drafting department had to make the decision, . . . that I had specifically asked for him, as well as some of the other draftsmen to transfer down to Bay Bridge, because I was quite satisfied with their work," but that he "was not his supervisor, the drafting department was his line supervision, and they had to make the decision as to which employees would be assigned where." According to Jaffe, Schneider "voiced the opinion that he thought that perhaps the reason that he was not going down, was because he had union activity." Jaffe replied that he "did not feel that this was right, as far as I was personally concerned, that this was not the case, it was strictly a question that the drafting department had an assignment for him at Parker Road, they made that decision." Jaffe further testified that on several occasions, Schneider had come to him and asked him privately what advice he could give him in terms of his own personal career, and Jaffe advised him to take additional schooling, that "he was acquiring a lot of very valuable experience and we do have ground rules whereby a person can achieve a certain educational level and combine this with a certain level of experience, we might be able to promote him to engineering." On one of these occasions, Schneider raised a question whether there would be "any kind of stigma or problem with respect to his career, by the fact that he was active in the Union's work." Jaffe replied: I told him that as far as I was personally concerned, it certainly wouldn't be, but that 1[ considered him a capable individual and that eventually, either in the drafting line or the engineering line, if he decided to go that'way, but I felt that he was personally capable of moving up the line, eventually into supervision, and I did point out to Dave that if it ever came to the point where he was interested in getting into supervision, which is a phase of management, he would have to make a decision as to being with the Union or being with management, but until that time, it was strictly up to him, it made absolutely no difference to me, I didn't judge him on that basis. I didn't think that Westinghouse as a corporation would ever judge him on that basis. Both Jaffe and Schneider appeared to be credible witnesses. It is apparent to me that Schneider misinterpreted Jaffe's remarks. As indicated above, what Jaffe was telling Schneider was that if Schneider took additional schooling and improved himself to the point where he could be made a supervisor, he would have to choose between union activity and supervision. Jaffe's statement was not made in the context of why Schneider was not selected to go to Bay Bridge. In view of the foregoing, I find that Jaffe's statement was not violative of Section 8(a)(1) of the Act, and the complaint should be dismissed in this regard. CONCLUDING FINDINGS 1. Bay Bridge as an accretion to, or relocation of, Parker Road As noted above, the General Counsel tried the instant case on alternative theories, viz., that Bay Bridge is an accretion to the Parker Road plant, or that it is a relocation of the OR&E work previously performed at Parker Road. The General Counsel now takes the position that Bay Bridge "appears to be a complete relocation of all Respondent's OR&E work, since substantially all the OR&E work formerly done at Parker Road has been transferred there, along with OR&E projects formerly located at Morrell Park and the Administrative Service Building."" However, the general Counsel contends that the alternative accretion finding is not ruled out. Thus, the General Counsel points to the description of the unit set forth in the Agreement between Westinghouse and the Federation of Westinghouse Independent Salaried Unions (national contract): All clerical and technical employees of the Underseas Division of the employer at its Parker Road, Baltimore, Maryland, Plant, excluding .. [Emphasis supplied by the G. C.] Consequently, General Counsel argues: (1) if it is found that enough OR&E work will continue to be done at Parker Road despite the opening at Bay Bridge to justify a conclusion that Parker Road will continue as essentially an OR&E facility in addition to Bay Bridge, or (2) if it is concluded that the form in which the Parker Road certification was couched by the parties, i.e., an Underseas Division certification rather than an OR&E certification it would be appropriate to find that Bay Bridge is an accretion to Parker Road and the two plants together now constitute one appropriate unit for bargaining. In addition, the General Counsel points out that there is an additional indicium of accretion in the fact that some, but not all, Parker Road employees have been moved to Bay Bridge The alternative accretion theory must be ruled out. The use of the words "Underseas Division" in the certification in the Parker Road unit in the national contract is not controlling, because the same language appears in the certification of the Lansdowne and Morrell Park plants in 17 G.C. brief, p 32. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the national contract, each of which is recognized as a separate unit. Moreover, as the General Counsel concedes, the pattern of bargaining between Westinghouse and SEA in the Baltimore area `is on a one-plant one-unit basis, although there have been some minor exceptions. Nor can it be found on the basis of the record in the instant case that OR&E work will continue to be done at Parker Road. To the contrary, it appears that weapons work is now being done there. In sum, the very concept of Bay Bridge announced by Westinghouse, viz., a center to house its ocean research and engineering activities, would seem to preclude any finding other than that Parker Road, as an OR&E facility, has been relocated at Bay Bridge. Accordingly, I find and conclude that all salaried, technical, clerical, and maintenance employees of the Respondent located at , its Ocean Research and Engineering Center, Sandy Point, Maryland (Bay Bridge), excluding all employees of the Engineering and Service Department, all hourly paid employees, all confidential employees, all Industrial Relations assistants, interviewers, buyers, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b), of the Act. 2. The independent 8(a)(1) violation Mrs. Lozar wanted to go to Bay Bridge because she had bought a home in nearby Bowie. She had filed a request for transfer. When she asked her supervisor, Moore, whether she should sign the forms which she had received from the Union, he told her that if she signed the request for representation by SEA at Bay Bridge, she would not be transferred. This was a clear threat of reprisal for engaging in union activity. Accordingly, I find and conclude that Respondent thereby violated Section 8(a)(1) of the Act. 3. Violations of Section 8(a)(3) Respondent's failure to transfer Lozar to Bay Bridge was also violative of Section 8(a)(3) of the Act. When she was hired at Parker Road, she was expressly asked whether she would be able to move with the job when the time came, and she committed herself to do so. Yet when it came time to move, Moore, Lozar's supervisor, picked D. R. Buckler, the other stenographer under his supervision, to move to Bay Bridge. He explained his decision as follows: He would need only one stenographer at Bay Bridge, and in selecting Buckler, he exercised his management prerogative. Yet the facts indicate that it was Lozar's -ffiliation with the Union that was the determinative factor. Thus, by Moore's own admission, Buckler was not a better stenographer than Lozar. Second, Lozar had seniority, having been hired in July 1964, while Buckler was hired in October 1966. Third, Lozar was a member of the Union, a fact known to Westinghouse by virtue of her being on checkoff, while Buckler had never manifested any interest in the Union. The Lozar case is merely illustrative. The record is convincing that what was done in this specific instance was part and parcel of a policy determination on the part of Westinghouse to transfer as few union members from Parker Road as possible and to staff Bay Bridge with a majority of new hires, so that SEA would not have a majority at Bay Bridge. Thus, supervisors told a number of employees at Parker Road that there would be no union at Bay Bridge. This, in itself, deterred several employees from requesting a transfer, and as previously noted, the filing of a request for a transfer was made a prerequisite by Westinghouse for relocating employees at Bay Bridge. Second, the statistics analyzed above demonstrate that Westinghouse carried out this policy determination. Only 33.8 percent of employees on checkoff at Parker Road were transferred to Bay Bridge. This compares with 69.2 percent of the employees not on checkoff. Similarily, only 50 percent of checkoff employees requesting a transfer were relocated at Bay Bridge, while 65.7 percent of employees not on checkoff who had requested transfers were relocated. Although 90 to 95 percent of the professional and managerial employees at Parker Road were transferred to Bay Bridge, only 47 or 38.2 percent of the salaried, nonexempt employees were transferred. This is further illustrated by the fact that in early April 1967, new hires at Bay Bridge represented 57 percent of the total complement of salaried, nonexempt employees, and although staffing at Bay Bridge increased between April and June, it is significant that the proportion of new hires to relocated employees remained precisely the same, viz., 57 percent new hires against 43 percent relocated employees. Respondent explains the foregoing discrepancies on the ground that, with regard to the transfer of almost the entire staff of professional employees, such employees are essential to an OR&E project, while salaried, nonexempt employees can be trained to do the work. With regard to the overwhelming proportion of new hires, Respondent explains that it was seeking to tap a new labor market in the Annapolis area. In justification of its decision to hire in the Annapolis area, Respondent demonstrated, that starting in May 1965, employment picked up in the Baltimore area, and by the end of that year over 2,800 persons had been brought in. Nevertheless, at the beginning of 1966, it had openings available for some 570 more employees. In 1966, the need for people doubled, and at one time over a thousand openings existed. Union President Hare admitted that in the latter part of 1966 and through mid-1967, it was a "booming" employment market. In particular, a critical shortage of employees existed in the skilled areas, including draftsmen, electrical laboratory technicians, and mechanical laboratory technicians. Finally, in September 1967, the rapid hiring pace slackened, and in October 1967, some 100 employees were laid off at Aerospace, Surface and PSED However, no reduction or layoffs took place in the Underseas Division. In 1966, Gerald Moore, Employment Manager of the D.S.C., spoke to the manager of the Maryland State Employment Office in Annapolis and personnel managers of several Annapolis companies concerning the availability of labor in that area. All assured him that skilled people were available and ready to go to work. Moore then assigned one of his assistants, Harry S. Bullen, to the Annapolis area to see if people were really available. Respondent ran an advertisement for 4 days in an Annapolis newspaper and secured a large number of applications. Also, during 1967, Respondent ran a series of advertisements in newspapers in a large number of cities and towns in Pennsylvania and Maryland, including the Eastern Shore, for positions "in Baltimore and Cockeysville." On the basis of the foregoing, Respondent argues that valid economic considerations constituted the basis for hiring in the Annapolis area as much as possible. The contention has a surface plausibility which evaporates upon analysis. First, Annapolis was not a WESTINGHOUSE ELECTRIC CORPORATION 647 virgin labor market for Westinghouse, nor was it a distinctively separate market. Thus, the roster at Parker Road in January 1967, shows that there were 13 employees (10 percent of the unit) from the Annapolis area on the payroll.1e Secondly, Respondent's witnesses were unamimous in agreeing that the preferring of strangers over old employees was highly unusual and contrary to established company policy. Assistant Industrial Relations Manager Wallace testified that Westinghouse generally hired new employees only as a last resort; and Employment Manager Moore testified that the Company usually fills vacancies by upgrading within the unit first or by honoring a request for transfer from another unit before turning to new applicants for employment." Finally, Westinghouse' s decision to staff Bay Bridge with a majority of new hires cannot be considered as a management decision to remedy an unusual employment situation, because it is tainted by the fact that Westinghouse had determined as early as March 1966, that there would be no union at Bay Bridge, and various supervisors had so informed employees at Parker Road who might be interested in transferring to Bay Bridge. In sum, Respondent by staffing Bay Bridge with a majority of new hires pursuant to a policy not to recognize SEA at that facility, and by selecting for relocation a disproportionate number of employees not on checkoff violated Section 8(a)(3) of the Act. Differential Steel Car Company, 75 NLRB 714; Piasecki Aircraft Corporation, 123 NLRB 348, 349; Robertshaw Controls Company, 161 NLRB 103, enfd. in part denied in part, 386 F.2d 377 (C.A. 4).20 4. Violations of Section 8(a)(5) to the Parker Road plant; that the establishment of Bay Bridge was economically motivated; and that SEA did not have a majority at Bay Bridge. Respondent is correct in the contention that Bay Bridge was not an accretion to Parker Road. It is also correct in its contention that the establishment of Bay Bridge was economically motivated However, Respondent's determination not to recognize SEA at Bay Bridge, made even before the plant was completed, and its announcement of that policy to Parker Road employees, taint the economic motivation and give the move to Bay Bridge some aspects as a "runaway" shop. The fact that SEA did not have a majority at Bay Bridge after the plant was staffed is of no consequence, as this result was accomplished by Respondent's conduct of requiring requests for transfer, discouraging such requests by the announced policy that there would be no union at Bay Bridge, discriminating against union members in honoring requests for transfers, and staffing Bay Bridge with a majority of new hires. Pertinent in this connection is the Board's holding in California Footwear Company, 114 NLRB 765, enfd. in this regard, 246 F.2d 886 (C.A. 9), where the Board said at pp. 767, 768, and 769: We can see no real difference between the case of an employer who decides to move his plant to run away from his union rather than for economic reasons, and an employer, who, as here, moves his plant for economic reasons but decides to utilize the move as an opportunity to get rid of the union . That the Union cannot muster a majority at the new plant because the conduct has achieved its desired end is no more material in finding and remedying a violation of the existing obligation to recognize and bargain with the Union in the latter situation than in the former. a. Respondent's duty to bargain with SEA concerning the move Respondent contends that it had no obligation either to recognize or to bargain with SEA as the representative of the employees at Bay Bridge. In support of its contention, it argues that Bay Bridge did not constitute an accretion "Six were from Annapolis, and seven from the area surrounding Annapolis, including one from Grasonville on the Eastern Shore "This is not negated by the testimony of George Nicholson, Westinghouse's Assistant Director of Labor Relations , who testified that generally the Company does not move salaried , nonexempt employees when a new plant is opened It is clear from the context of his testimony, that Nicholson was talking about moves of such a distance that professional or managerial employees who are transferred have their moving expenses paid by the Company. The move of OR&E from Parker Road to Bay Bridge - a distance of only 26 miles - was not of this type, as no transfer allowances were paid, and many salaried, nonexempt employees were in fact, relocated. "The rationale of the Court of Appeals for the Fourth Circuit in refusing to enforce the 8(a)(3) aspect of the case is inapplicable to the instant case The Court pointed out that the only possible evidence of antiunion animus was the statement of the employer ' s personnel manager to the effect that the company was not going to take the union to the new plant. This, the Court said , was de minimis when compared to the fact that there were 269 employees at the new plant, while only 31 employees of the old plant had evidenced any interest in transferring . In the instant case, however, not only did the Respondent have a fixed determination and policy not to recognize the Union at Bay Bridge, but supervisors so informed employees at Parker Road who might be interested in transferring, thereby discouraging transfers by employees who desired continued representation by SEA. In addition, the relocating of all employees on checkoff who had requested a transfer, viz , 48, would have given SEA a substantial nucleus at Bay Bridge, just short of a majority in April 1967 Moreover, viewing this case in the most favorable light possible to the Respondents, it is one where the Union's loss of majority is solely because of conduct which in part is lawful (an economic decision to move the plant) but in part is unlawful in the subterfuges adopted to utilize the move as an opportunity to rid the Employer of the Union. In such circumstances the well-established principle is that the burden is upon the respondents to disentangle the consequence of their lawful contract from the consequences of their unlawful conduct; and hence to establish that the union's loss of majority resulted from their lawful conduct; failing this, the union's loss of majority must be deemed to flow from their unlawful conduct. * * * * * We believe ... that effectuation of the policies of the Act requires of the Board, in this type of case as in any other, not permit an employer to profit by his own unlawful conduct .... The rule that an employer may not profit by its own wrongdoing, particularly when such wrongdoing results in a loss of majority, has been applied in many cases. Ilustrative is Great Southern Trucking Co. v. N.L.R.B., 139 F.2d 984 (C.A. 4), where the court said at 985: While it is true that the loss of majority in the instant case occurred, not among the employees composing the original working force of the Company, but rather among the changed personnel composed largely of new employees who replaced the discharged employees, the principle that the union is entitled to a reasonable 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presumption of the continuity of its majority status and an employer may not profit by its own wrong doing is nonetheless applicable. The court quoted from the decision of the First Circuit in N.L.R.B. v. Franks Bros. Co., 137 F.2d 989, 994 (subsequently affirmed by the Supreme Court, 321 U.S. 702), as follows (139 F.2d at 986): The Board might reasonably conclude that had the union been recognized and installed as bargaining representative of the employees, as the law required, it probably would have retained its majority status by accessions from these sources [new employees], despite its loss of members resulting from normal labor turnover. In other words, the Board has taken the position that in a proceeding in this nature involving a violation of Section 8(5), it is imperative in order to effectuate the purposes of the Act, that an employer gain no advantage from his dilatory tactics in refusing to bargain collectively with a majority union. The fact that it may be shown that by lapse of time the Union had been unable to retain its majority is not a sufficient basis for refusing to order affirmatively that the respondent bargain with the union. The Respondent relies on The Pierce Governor Company, Inc., 164 NLRB No. 2, affd. sub nom. Intl. Union United Auto Workers v. N.L.R.B., 394 F.2d 757 (C.A.D.C.). That case, however, is factually distinguishable from the instant case. In Pierce, the Board held that the company was under no obligation to bargain with the union concerning the terms and conditions of employment at the relocated plant, because "there can be no basis for attributing the failure of Anderson [old plant] employees to transfer to Upland [new plant] to any unfair labor practice on the part of Respondent. Moreover, it is clear from the record that at no time during the bargaining over the effects of the move did a majority of the production and maintenance employees represented by the Union at Anderson have an interest in transferring to Upland." These crucial and determining elements found wanting in the Pierce case are present in the instant case. Thus, here 83 employees of a total of 123 comprising the unit at Parker Road requested transfers to Bay Bridge. Furthermore, Westinghouse actively discouraged union employees from transferring to Bay Bridge by telling them that there would be no union there and discriminated against union employees in determining who would be relocated, all pursuant to the fixed and unwavering policy determination to staff Bay Bridge with a minority of union employees so that it would have a colorable basis for refusing to recognize SEA at Bay Bridge Respondent also relies on Brown Truck and Trailer Manufacturing Company, Inc., 106 NLRB 999, a case which the Board distinguished in California Footwear Company, supra, on the basis that the move in Brown did not involve a plan to eliminate the union as the representative of its employees. By the same token, Brown is inapplicable to the instant case. Apart from the foregoing, respondent's contention misses the point. Except for refusal to recognize SEA at Bay Bridge, Respondent is charged with a failure and refusal to bargain with regard to the transfer of employees to Bay Bridge, and such conduct is charged as having occurred before and concurrent with the transfer of employees to Bay Bridge. Since SEA was the bargaining representative of the employees at Parker Road, it is well settled that Respondent was required, upon request, to bargain with the Union with respect to the contemplated move as it affected the employees , such as the transfer of employees from Parker Road to Bay Bridge. Cooper Thermometer Company, 160 NLRB 1902, 1912; enfd. in this respect 376 F.2d 684 (C.A. 2); Brown Truck and Trailer Manufacturing Company, Inc., 106 NLRB 999, 1000; N.L.R.B. v. Royal Plating & Polishing Co., 350 F.2d 191 , 196 (C.A. 3); N.L.R B. v. Rapid Bindery, Inc., 293 F .2d 170, 172 (C.A. 2), enfg. as modified 127 NLRB 212; Fiberboard Paper Products Corp. v. N.L.R. B., 379 U.S. 203. As the Court of Appeals for the Second Circuit said in the Cooper case at 2116, an employer relocating in his plant is required "to discuss with it [the union] the basis on which employees may transfer and, in that connection , to give information as to jobs in the new plant essential to the intelligent formulation of the union's request." b. Respondent's refusal to furnish information as to the staffing of Bay Bridge The complaint alleges that the Respondent refused to furnish the Union, when requested, with complete and accurate ' information respecting the relocation of employees and bargaining unit work from the Parker Road facility to the Bay Bridge facility. Respondent contends that it was under no obligation to furnish SEA with information concerning the wages or working conditions at Bay Bridge, because SEA did not represent a majority of the employees at Bay Bridge. Respondent contends further that, whatever its duty was, it complied therewith. The first contention is without merit. To begin with, the fact that SEA did not represent a majority of the employees at Bay Bridge, after the plant was staffed, is of no consequence, inasmuch as it was Respondent's unfair labor practices which prevented the Union from representing a majority at Bay Bridge. Secondly, the information related not merely to the status and seniority of employees relocating at Bay Bridge, but also affected the status and seniority of employees remaining at Parker Road, including the possibility that they would be put up for disposition in the event of their lack of work at Parker Road. Respondent's second contention is not supported by the record. As a result of the mounting concern of Parker Road employees as to what would happen when OR&E work was transferred to Bay Bridge, SEA Plant Representative Haase asked Henderson for a meeting. At the meeting held on January 13, 1966, SEA posed 12 specific questions relating to the transfer of OR&E work to Bay Bridge. To each question, Henderson's reply was, "I don't know." Nor was SEA able to obtain any answers to these questions for the ensuing 10 months. In the meantime, Westinghouse had determined that it would not recognize SEA at Bay Bridge, and Employment Manager Moore was surveying the Annapolis employment market as early as May 1966. In September 1966, Boak, of the Industrial Relations Department, had been assigned to work on "planning tables" and began working on them with Terwilliger, Assistant to the Manager of the Underseas Division. Despite this and despite the further fact that, at that time, Westinghouse planned to begin staffing the Bay Bridge in less than 3 weeks, Assistant Industrial Relations Manager Wallace stated at the November 30 meeting that he was unable to inform SEA which functions or activities would go to Bay Bridge, stating only that it would be oceanographic research work, but that he could not be more specific. And, as previously WESTINGHOUSE ELECTRIC CORPORATION 649 noted, Terwilliger also stated that he did not know "exactly." I find it difficult to believe that a corporation of the size and management of Westinghouse did not have information by November 30 as to how it would staff the Bay Bridge plant, which was originally scheduled for completion on October 1, 1966. As previously noted, the second meeting between the Union and Westinghouse occurred on December 22, 1966. Although at the November 30 meeting, Wallace had informed the Union that Bay Bridge would begin limited operations on December 19, he announced at this second meeting that there would be a further delay to January 1967. At this meeting, the information furnished to the Union about the staffing of Bay Bridge was sketchy, consisting of broad generalizations as to which groups would be located where. As to codes and pay levels, Wallace stated that "codes have not been established yet." Again, I find it difficult to believe that although there had been a December 19 deadline for the move to Bay Bridge, yet three days later on December 22, Westinghouse was unable to inform SEA what code and pay levels would be involved in the staffing at Bay Bridge. The Bay Bridge plant finally opened in January 1967. Not until the third and fourth meetings on February 10 and February 16, approximately a month after Westinghouse's staffing at Bay Bridge principally with new hires was a fait accompli, did Westinghouse furnish SEA with the detailed information on staffing that the Union had sought more than a year before and which it needed months before, if it were to carry out intelligently its duty of representing the Parker Road employees in the Bay Bridge,matter. In view of the foregoing, I find and conclude that Respondent's failure to furnish SEA promptly with information concerning the staffing and code levels at Bay Bridge was violative of Section 8(a)(5) of the Act. c. Westinghouse bypasses the Union Although the transfer of employees from Parker Road to Bay Bridge was a condition of employment and thus a bargaining matter, Westinghouse did not bargain with SEA concerning these transfers, but, instead, announced to the employees that if they desired to transfer they should file a request therefor and thereafter discussed these transfer requests with individual employees. At the third meeting held on February 9, 1967, the Union demanded information about jobs available at Bay Bridge and employees who were being selected to fill them, with the right to have a union representative present when relocations were discussed with individual employees. As previously indicated, Westinghouse agreed to give the Union only the names of the employees and to permit an SEA representative to be present if the employees so requested. By bypassing the Union to deal directly with employees in the bargaining units represented by SEA, Westinghouse violated Section 8(a)(5) of the Act. Roberishaw Controls Co., supra; Cooper Thermometer Co., supra, Die Supply Corp., 160 NLRB 1326, 1343. d. The alleged unilateral change in a condition of employment The General Counsel contends that Westinghouse committed an unfair labor practice by unilaterally imposing the quit-rehire requirement on Parker Road employees transferred to Bay- Bridge. Requiring an employee desiring to transfer from one plant to another to quit his employment and to be rehired at the new plant is quite obviously a condition of employment. However, the record does not substantiate the contention that it was unilaterally imposed by the Respondent. This method of transferring employees from one plant to another had been in effect since 1963, and the Union was well aware of it. It cannot, therefore, be said that it was unilaterally imposed by the Respondent at this time. As explained by the Respondent, the quit-rehire procedure is nothing more than a paper transaction which indicates the identity of the employees in any, particular bargaining unit As previously noted, the General Counsel concedes that quit-rehire as a condition of employment has very little significance at the present time, inasmuch as it does not affect the tenure of employment with Westinghouse. However, the General Counsel argues that this could change in the future as a result of negotiation between Westinghouse and the Union, and employees who have a quit-rehire on their records as a result of the move from Parker Road to Bay Bridge would find their seniority rights seriously curtailed. In this regard, at the December 22 meeting, Union President Hare, aware of Westinghouse's interpretation of the quit-rehire procedure, asked Wallace how quit-rehire would affect an employees' continuous service. Wallace replied that there would be no effect on the employees' continuous service. Whereupon, Hare asked Wallace for a letter to that effect. Wallace replied that he would let him know. However, no such letter was ever given to the Union. What Hare was asking Westinghouse for was an unequivocal statement in writing that, as claimed by Westinghouse, quit-rehire would have no effect on employees' tenure. Since Westinghouse had claimed that it would have no effect, the Union was entitled to such a statement from Westinghouse in writing. Respondent's refusal to put into writing its verbal assurances is an indicium of Respondent's subjective bad faith in bargaining. If there was no danger to employee status in quit-rehire, why was Westinghouse reluctant to put its assurances in writing for the guidance of future management? Accordingly, I find and conclude that Respondent did not bargain in good faith on this issue. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 152-153. e. Respondent's failure to apply the upgrading provisions of the national contract Article IX, Section 6, of the national contract provides for upgrading of employees within the bargaining units. Respondent admits21 that these provisions were not applied to employees relocating from Parker Road to Bay Bridge. Respondent contends, however, that this provision would be applicable only if Parker Road and Bay Bridge constituted a single bargaining unit, and that since Parker Road and Bay Bridge are separate units, it did not violate its obligation under Section 8(a)(5) by not applying this contractual provision. I have previously found that Bay Bridge is not an accretion to Parker Road. Hence, both plants are separate units. However, it does not follow that this provision of the national contract is inapplicable to Bay Bridge. From what has been said above, it is clear that but for Respondent's unfair labor practices , the unit at Bay Bridge would have been substantially the same unit as had existed at Parker Road before January 1967. And had this been so, Respondent would have had no basis whatsoever "Br., p 55 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for refusing to apply the upgrading provisions of the national contract. Accordingly, I find and conclude that Westinghouse violated Section 8(a)(5) of the Act by failing to apply article IX, section 6 of the national contract in staffing Bay Bridge. f. Respondent's reliance upon IUE's claim as an impediment to recognizing SEA Respondent contends that it was justified in rejecting SEA's request for recognition because the conflicting claim of Local 130 of the IUE was alive during the critical period between November 1966 and April 1967. The contention is patently without merit. The record discloses that IUE was interested in representing only production and maintenance employees, if any were transferred to Bay Bridge._ At no time did IUE seek to represent salaried, nonexempt employees, and Westinghouse was well aware of this. Thus, on January 6, 1966, Eugene E. Watts, President of Local 130 of the IUE, wrote to Industrial Relations Manager Lee, referring to the announcement by Westinghouse of the new facility at Bay Bridge, and said: IUE Local 130 who is the bargaining representative for all Production and Maintenance employees of the Underseas Division therefore request that IUE Local 130's collective bargaining agreement be extended to this new location. On January 24, 1966, Westinghouse replied in pertinent part as follows: Please be advised that, inasmuch as construction of this plant facility has already begun and because we have no employees in the unit you refer to at that location at this time, we necessarily reject your claim as being untimely, inappropriate, and without any supporting basis. Watts testified that because of rumors concerning the transfer of work to Bay Bridge, he held numerous conversations with Assistant Industrial Relations Manager Wallace and other officials of Westinghouse concerning the transfer of production and maintenance work to Bay Bridge. In these conversations, Watts was consistently told that there would be no production and maintenance work done at Bay Bridge. Thus, Watts testified as follows: Q. Your conversations with Westinghouse officials have always indicated your interest in representing production workers and your reply as always indicated that there wouldn't be any production workers at the Bay site. Is that correct, Mr. Watts? A. The replies have always been that this is work that we would not normally perform. Mr. Trezise - Let me get that last question. Am I to understand that you only asked to represent production workers. Witness: Production and Maintenance Q. (By Mr. Blackburn): You are only interested in Production and Maintenance workers? A. Yes. I said that earlier in my testimony, Mr. Trezise. The foregoing was corroborated by Wallace who testified that early in 1966, he spoke to Watts and told him that he doubted very much that there would be any production type employees at Bay Bridge. Despite the foregoing, at the November 30, 1966, meeting, Wallace stated the Respondent's position as follows: The Company takes the position that at the Bay Bridge Site Plant we will not recognize any Union in so much as the I.U.E. has requested recognition at the site when we first started construction on the building. And completely inconsistent with the Respondent's position as stated by Wallace is the following colloquy which took place later at the same meeting: Hare - Is any work or activity represented by another Union being sent to the B/B site other than that represented by the S.E.A. Wallace - No, I am sure there is not. Similarly, at the meeting of December 22, 1966, Hare again asked, "Are you now, or planning in the future to send work now represented by the IUE to the Bay Bridge or Parker Road?" To this, Terwilliger replied, "No, that will stay at Lansdowne." In these circumstances, Respondent's attempt to rely on the allegedly conflicting claim of IUE as a basis for not recognizing SEA is completely unjustified, and raises a serious question as to Respondent's good faith in bargaining with SEA. In view of all the foregoing, I find and conclude that the Respondent did not bargain in good faith with the Union, in violation of Section 8(a)(5) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the business 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 tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VL THE REMEDY Having found that Westinghouse Electric Corporation has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent engaged in unfair labor practices which contributed to SEA's loss of majority at Bay Bridge, I shall recommend that Respondent be required to recognize SEA and, upon request, bargain collectively with SEA as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. I shall further recommend that Respondent transfer to Bay Bridge all persons who were employed at the Parker Road plant prior to January 1, 1967, who, within 15 days from the date of the notice to be posted by the Respondent, file a request for such transfer with the Respondent, discharging, if necessary any employee hired at Bay Bridge who had not immediately prior to such hiring been employed by the Respondent at the Parker Road plant. I shall further recommend that Respondent apply the upgrading provisions of article XI, section 6, of the agreement between Westinghouse Electric Corporation and the Federation of Westinghouse Independent Salaried Unions, dated October 17, 1966, to all employees at Bay WESTINGHOUSE ELECTRIC CORPORATION Bridge who have transferred from the Parker Road plant or who may transfer to the Bay Bridge facility pursuant to the preceding paragraph, and in applying said provisions, the Respondent shall disregard the employment of persons who had not previously been employed at the Parker Road plant who may have been hired at code and pay levels to which the former Parker Road employees may be entitled under the provisions of that contract. Should any of the former Parker Road employees be upgraded as a 651 result of the foregoing, Westinghouse should be required to make them whole for any loss of earnings they may have sustained by reason of Westinghouse's failure to apply said upgrading provisions, said loss of earnings to be computed from the date of the original staffing of the Bay Bridge, with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716, [Recommended order omitted from publication.]