White-Westinghouse Corp.

WHITE-WESTINGHOUSE CORPORATION White-Westinghouse Corporation, a wholly-owned subsidiary of White Consolidated Industries, Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. Case 8-CA- 10009 May 13, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On January 27, 1977, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, the Respondent and the Union filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings and conclusionsI of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, White-Westing- house Corporation, a wholly-owned subsidiary of White Consolidated Industries, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. i Administrative Law Judge Giannasi, citing Libbey-Owens-Ford Glass Company. 169 NLRB 126 (1%8), noted that, if multiplant bargaining does become burdensome because of changes in plant operation, the parties have the option of petitioning the Board for unit clarinfication. Although Chairman Fanning agrees with that general statement, he continues to adhere to the position set out in his dissent in that case that the direction of a unit clarification election where no question concerning representation is raised is not properly within the scope of the Board's powers. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard before me in Cleveland, Ohio on August 2 and 3, 1976, upon a complaint which issued on July 15, 1976. The complaint alleges that Respondent violated International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC. 2 The five plants were part of a larger number of plants purchased by Respondent. The 6 units were part of 42 units represented by the Union in its National Agreement with Westinghouse. 229 NLRB No. 113 Section 8(aX5) and (1) of the Act by insisting that bargaining with the Union' concerning six units of employees at five plants-part of the appliance division of Westinghouse Electric Corp. purchased by Respondent's parent company, White Consolidated Industries, Inc. (hereafter White)-be separate and distinct in each of the six units. Each unit had been separately certified by the Board but all had been included in a single National Agreement with local supplements under Westinghouse. 2 The National Agreement had been applied by Respondent from about March 1975, when it took over Westinghouse's appliance division, until the expiration of that contract in July 1976. After Respondent's insistence upon separate bargaining at the expiration of the Westinghouse agree- ment, the employees struck at the six units involved herein and General Counsel also urges a finding that the strike is an unfair labor practice strike. Respondent denies that its insistence upon separate bargaining in the individual units is a violation of the Act. The Respondent, the Union, and the General Counsel have filed briefs. 3 Upon the entire record, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent White-Westinghouse Corporation, a wholly- owned subsidiary of White, at all times material herein was a corporation organized under the laws of the State of Delaware, with facilities located in Mansfield, Columbus, and Newark, Ohio; Edison, New Jersey; and Miami-Fort Lauderdale, Florida. Respondent is engaged in the manu- facture of major appliances and annually ships goods valued in excess of $50,000 from its Ohio facilities to points outside of Ohio. Respondent's parent, White, is a corpora- tion organized under the laws of Delaware with its principal office and place of business located in Cleveland, Ohio. Respondent is engaged in the manufacture of plastic products, and annually ships goods valued in excess of $50,000 from Ohio to points located outside of Ohio. Respondent White-Westinghouse Corporation and White are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union and its Locals, 746, 711, 401, 680, and 714, are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1950, the Union was certified as bargaining represen- tative for employees covering 22 units at various plants owned and operated by Westinghouse throughout the country. Westinghouse Electric Corporation, 89 NLRB 8 (1950). In July 1950, the Union and Westinghouse executed a partial agreement and, in October 1950, a 3 Upon an application by the General Counsel. the Federal District Court for the Northern District of Ohio issued a temporary injunction under Sec. IO(j) of the Act ordering Respondent to bargain in the multiplant unit pending resolution of the issue by the Board in this proceeding. 667 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complete agreement covering all employees in the then- existing 22 certified units. In the latter agreement, Westing- house agreed to recognize the Union as bargaining representative on behalf of and in conjunction with 13 Locals for those units in which the Union or its Locals were certified. The agreement, herein called the National Agreement, also provided that any units in which the Union or its Locals were subsequently certified would be included in and covered by the agreement upon the assent of such representative in writing. One of the units included in this agreement was the Mansfield, Ohio, facility involved herein. Between 1950 and 1971 the Union or one of its Locals was separately certified as bargaining representative for 20 additional units of Westinghouse employees. The units at the Newark, Ohio; Edison, New Jersey; Columbus, Ohio; and Miami-Fort Lauderdale, Florida, facilities, the other units involved herein, were certified in 1951, 1952, 1954, and 1971, respectively. Pursuant to the provision in the National Agreement mentioned above, upon its certifica- tion and assent, each separately certified unit was immedi- ately covered by that agreement.4 Since 1950, bargaining on behalf of all units included in the National Agreement was conducted on a national level by Westinghouse and the Union, through a union commit- tee described as the Westinghouse conference board. The Union and Westinghouse also administered this agreement on a national basis. Pursuant to the authority granted in the National Agreement, negotiations are conducted on the local level for local supplements. The local supplements cover matters deemed to be purely local in nature and implement the provisions of the National Agreement at the local level. The local supplements cannot be inconsistent with the National Agreement and local union's agreement to the local supplements requires approval by the Union's Westinghouse conference board. The Westinghouse conference board is a body of the Union established pursuant to the Union's constitution and is the instrument through which the Union bargained with Westinghouse at the national level. Delegates to the Westinghouse conference board are elected by a secret ballot vote cast by members of their respective local unions. The delegates are elected on the basis of one delegate per each one thousand members and an additional delegate for each major fraction of the next one thousand. A Local may have not more than four nor less than one conference board delegate regardless of its size. The duties of the conference board include designating a negotiating committee from among the conference board members to formulate proposals and negotiate contracts, determining whether proposed agreements will be accepted, administer- ing the National Agreement, and determining whether or not strikes will be called. The negotiating committee is elected from the conference board and obtains suggestions 4 The Union was certified as bargaining representative for employees at the Columbus plant (Cases 9-RC-2141, 2149); the Union's Local 711 was certified as representative in the Mansfield plant (Case 5-RM-100); the Union was certified as representative of the hourly employees in the Edison plant (Case 4-RC-419) and for the salaried employees in the Edison plant (Case 4-RC-1591): the Union's Local 714 was certified as representative of the employees at the Newark, Ohio, location; and the Union's Local 680 was certified for the Miami-Fort I.auderdale locations (Case 12 RC 3399). for bargaining proposals from the conference board and from local meetings throughout the country. When the conference board approves and accepts the National Agreement, that agreement is binding immediately upon all local unions covered by the agreement. When the conference board determines to strike to obtain a National Agreement or to terminate a strike called for that purpose, all local unions are bound by such action. Upon termina- tion of the National Agreement all local supplements are also automatically terminated.5 B. The National Agreement and the Local Supplements The most recent National Agreement between Westing- house and the Union-the one in effect from July 1973 to July 1976-includes the terms normally found in collec- tive-bargaining agreements. It includes subjects such as wages, seniority, hours of work, holidays and vacations, grievance and arbitration procedures, strikes, and dues checkoff provisions. The negotiation, ratification, and execution of the National Agreement is by the Union and its conference board, not by the Local Unions originally certified. Strike action upon the termination of the National Agreement must be authorized by the Union, not by the Locals; and strikes by a Local over an exhausted grievance must be authorized by Union headquarters. Section II of the agreement provides that the conference board is the representative of the Union for the administra- tion of the agreement and for consideration of all matters which the parties deem generally applicable to the various units. The conference board is also the Union's agent for modification and termination of the agreement. The National Agreement also provides for local supplements which cover "the procedures for administering the provi- sions in this agreement and other items of collective bargaining not Company wide in character and generally applicable to the various collective bargaining units." The National Agreement also includes, as a separate agree- ment, the pension and insurance agreement between Westinghouse and the Union. This agreement provides that the Employer make available benefit plans to all employees. The benefits provided include an insurance plan, a pension plan, a savings plan, a personal accident insurance plan, and a long term disability benefit plan. Under the grievance and arbitration procedure of the National Agreement, the Local Unions handle grievances arising at their respective locations through the first three steps. At the next step the grievance is referred to the national appeal level, where representatives of Westing- house and of the Union's Westinghouse conference board meet in an effort to resolve the grievance. The most recent National Agreement between Westinghouse and the Union provides that employees in the bargaining units covered by Since then other locals have been assigned administrative responsibilities for local supplements at all the locations. I More detailed findings consistent with the above factual statement concerning the bargaining relationship between Westinghouse and the Union is found in Administrative Law Judge Marvin Roth's decision in Case 6-CA-7680 issued on February 17, 1976, and now pending before the Board. 668 WHITE-WESTINGHOUSE CORPORATION the agreement cannot invoke the arbitration proceedings set forth therein except through the Union. The wage provision of the National Agreement recog- nizes that wages are paid in accordance with wage schedules in the various local units. However, it sets forth provisions that are generally applicable to all units, including night turn adjustment compensation, guaranteed time, and salary reviews. In addition, the National Agreement provides for periodic and general wage and salary adjustments. The 1973 supplement on wages includes provisions increasing the pay of certain employees by 15 percent and provides specific increases for salaried employees in accordance with detailed tables. There is also a provision for cost-of-living increases. The local supplements between Westinghouse and the Union or its Locals include matters affecting individual plants. Some of the subjects include grievance procedures, hours of work, and specifics on application of seniority and wage schedules. The local supplements include the original supplements running generally from the date of inclusion in the National Agreement and subsequent revisions. Reference is made in all supplements to the National Agreement. For example, the Columbus local supplement includes references to the applicable grievance-arbitration provisions of the National Agreement and states, in another supplement, that "Seniority dates will be estab- lished in accordance with Section XII of the National Agreement." Another supplement on daywork states that the "established plan of payment for all employees in the bargaining unit will be daywork in accordance with the provisions of the National Agreement, Section VII, Wages, Paragraph 9." C. The Purchase of the Westinghouse Plants In early January 1975, Vincent Vingle, the Union's Westinghouse conference secretary, received a telephone call from W. A. Towle, director of personnel relations at Westinghouse. Towle requested that Vingle advise Robert Nellis, chairman of the Westinghouse conference board, that Westinghouse was contemplating the sale of its appliance division to White Consolidated Industries. Vingle questioned Towle as to whether he knew the intentions of White with respect to the collective-bargain- ing agreement between the Union and Westinghouse. Towle replied that he could not speak for White and that the Union itself should discuss this with White officials. Vingle requested that a meeting be arranged between the Union and White. On January 16, 1975, representatives of White and of the Union met at Westinghouse headquarters in Pittsburgh, Pennsylvania, to discuss issues respecting the sale of the Westinghouse appliance division. The Union was repre- sented by Paul Jennings, International president; Robert Nellis, chairman of the Westinghouse conference board; Ted Wierzbic, assistant to Nellis; Winn Newman, the Union's general counsel, and Vingle. White was represent- 6 At the hearing, there was a minibattle over Reddig's exact reply to Jennings. Vingle testified Reddig said, "If it is good enough for Westing- house, it is good enough for us and all you have to do is send your attorney out and they will come up with an agreement substituting the two names." Lynch testified that Reddig replied. "If it is good enough for you, it is good ed by Edward Reddig, chairman of White's board of directors; Charles Conlin, vice president of labor relations; and Vice President Chiarrucci, of White's appliance division. George Lynch, counsel for White, was also present. Towle introduced the union representatives to the White representatives and left the room. At the meeting, Union President Jennings asked White representatives what their intentions were with respect to the existing Westinghouse agreement. Reddig responded that he intended to abide by the Westinghouse agreement. Someone also indicated that all that had to be done was to substitute the name White-Consolidated Industries for Westinghouse. Thereafter, some representatives, including attorneys for each side, went into another room and worked out an agreement. 6 The agreement provided as follows: Subject to the final approval of the sale of certain Westinghouse facilities including its plants at Mans- field, Ohio; Newark, Ohio; Columbus, Ohio; Edison, New Jersey; and Miami, Florida, referred to in the Appendix of the National Agreement as Items 12, 26, 27, 28, 29 and 34, it is hereby agreed that the outstanding National Agreement and Pension and Insurance Agreement between Westinghouse and IUE, executed June 16, 1973, including the In Hospital Indemnity Plan effective as of January 1, 1974, and Local Supplements at each of these locations shall be binding upon White Consolidated Industries, Inc., and IUE. Accordingly, the parties agree that the name of White Consolidated Industries, Inc.... as may be designated by W.C.I. to receive the above assets shall be substituted for the name of Westinghouse Electric Corporation wherever it appears in said Agreements, and that all seniority, as presently computed under said Agreements, shall be credited as seniority with White Consolidated Industries, Inc., under the applicable Labor Agreements. Representatives of White Consolidated Industries, Inc., and the Union shall meet promptly following the completion of the purchase to discuss a suitable termination of the Westinghouse Savings Plan applica- ble to employees at the above plants. The parties agree to apply the value of the Westinghouse monetary contribution for the most recent completed Savings Plan year to the Union-represented employees at the above plants. The monetary application shall be in the form of a general wage adjustment or such other benefit as the parties may determine. All of the above shall be effective upon the transfer of ownership of the above plants to White Consolidated Industries, Inc. Nothing was said, one way or the other, by any responsible official on either side about the unit in which future bargaining would take place. enough for us." Conlin testified that Reddig responded, '[ If it's good enough for the Union it is good enough for White." Whatever Reddig said, it is clear he expressed an intent to adopt the existing National and Pension Agreements and local supplements. 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only provision of the Westinghouse National Agreement which White did not agree to assume was the provision dealing with the savings plan. Because the original January 16, 1975, agreement included some handwritten notations, Vingle had the agreement retyped to include the handwriting and submitted the retyped copy to White for signature. The retyped copy of the January 16, 1975, agreement was signed by Conlin and Chiarrucci on behalf of White and returned to the Union. On March 1, 1975, White-Westinghouse, the Respondent herein, was incorporated, and, on that date, the five facilities involved herein, constituting Westinghouse's major appliance division, were transferred to the Respon- dent. It is conceded that Respondent is a successor to Westinghouse with respect to the ownership and operation of the facilities which it purchased from Westinghouse. It is also conceded that Respondent engaged in substantially the same business operations and employed substantially the same employees and supervisors at the same locations operated by Westinghouse. 7 D. Administration of the Westinghouse Agreement by Respondent and the Union On March 5, 1975, shortly after Respondent took over the Westinghouse facilities, Vingle received a telephone call from Towle informing him of the consummation of the sale and advising him that all grievances at the appeal level would be transferred to Respondent. After the takeover, Respondent answered grievances and administered the grievance-arbitration provisions of the National Agreement. It dealt with the Union's newly redesignated White-Westinghouse conference board, which was reconstituted to represent employees in the former Westinghouse appliance division. Appeal level grievances and arbitration proceedings were conducted by the Union through the conference board and Respondent in the same manner as they were conducted under Westinghouse. The only differences were that the appeal level meetings were held, at Respondent's insistence, in cities where the individual plants were located instead of in a central location, and Respondent designated local instead of headquarters representatives as its agents at these meetings. Neither of these changes was inconsistent with the National Agreement. Section VII, paragraph 12(c) of the National Agreement provides that a summarization of local union dues remittance summaries will be forwarded to the Internation- al Union on or about the 20th of the following month. By letter dated April 30, 1975, the Union notified Conlin that the White-Westinghouse locations represented by the Union were not complying with the above-mentioned provision of the National Agreement and further requested Conlin to advise management at each of the five locations as to their responsibility to submit dues summaries to the International headquarters. By letter dated May 8, 1975, 7 There was testimony from a White representative that after the acquisition of the Westinghouse plants they were set up and operated as individual business centers just as the other White appliance plants. The testimony also indicates that there may have been some regrouping in December 1975. However, Respondent continues to function as a financial Conlin responded that he had contacted all of the appropriate locations with respect to the dues problem. On March 18, 1975, the Union met with the Respondent in Pittsburgh. The Respondent was represented by Conlin, Joe Burke, an industrial relations staff assistant, the managers of the Mansfield, Columbus, Newark, and Miami-Fort Lauderdale facilities, and James Tritschler, counsel for Respondent. The Union was represented by Nellis, Wierzbic, Rex Clifford, the union pension and insurance representative from the Union's Washington office, Vingle, and a representative from each of the local unions with the exception of the Miami-Fort Lauderdale local. The meeting primarily concerned the pension funds, longterm disability plan funds, personal accident insurance funds, and involved all of the White-Westinghouse units covered under the January 16, 1975, agreement, including the Miami-Fort Lauderdale location. At the meeting, Tritschler informed the Union that the White actuaries were working with actuaries from Westinghouse to deter- mine the amounts involved in the various funds and that, when this was completed, Respondent would report to the Union. The parties also discussed problems concerning appeal level grievance meetings. On October 31, 1975, during a telephone conversation with Conlin, Vingle requested that a meeting be arranged between the Union and the Respondent to discuss problems under dues-checkoff and military leave provi- sions of the National Agreement, as well as problems concerning moneys in the Westinghouse savings plan, long term disability, and personal accident insurance plan, and establishing a date for upcoming contract negotiations. As a result of the conversation, a meeting between the Union and the Respondent was held in Pittsburgh on November 12, 1975. The Union was represented by Nellis, Wierzbic, and Boren Chertkov, its assistant general counsel. Respon- dent was represented by Conlin, Burkel, and Tritschler. The first item discussed at the November 12 meeting concerned the matter of an agreement to increase union dues. An amendment to the National Agreement was required before the Union could increase the amount of union dues deductions more often than once in a 2-year period. An agreement to permit the proposed dues increase was negotiated by members of Respondent's corporate staff and officials of the White-Westinghouse conference board and was to affect all employees employed by the Respondent who were represented by the Union. Subse- quent to the November 12 meeting a memorandum of agreement was drafted by counsel for Respondent to be executed by Conlin and by Union President Jennings, and Conference Board Chairman Nellis. Copies of this docu- ment were mailed by Respondent's representative to Union Representative Wierzbic. Copies were also sent by Respon- dent to the two local union presidents at the New Jersey facility and were executed by them. Also at the November 12 meeting, the Union discussed with Respondent the subject of military leave provisions of the National Agreement. The military leave issue was division which owns and accounts for the results of the acquired Westinghouse plants. The Westinghouse agreements were applied in the acquired plants. The same products were produced but under different names or labels. 670 WHITE-WESTINGHOUSE CORPORATION apparently not resolved at that meeting. Respondent indicated that it would consider the Union's proposals. During the meeting Nellis questioned Respondent's repre- sentatives concerning the disposition of savings plan funds, long term personal disability plan funds, and personal insurance plan funds which had been funded by the employees when the facilities were managed and owned by Westinghouse. Respondent indicated that it was unsure as to the disposition of those funds and that it would check with its accountants to determine the exact status of the funds. At the November meeting, Nellis also raised the issue of negotiations for a new National Agreement, noting that the contract expired in July 1976 and suggesting that national negotiations should begin in May. Nellis further stated that while the Union would prefer Pittsburgh as the site of national negotiations because it was headquartered there, it would consider meeting in Cleveland since that was the location of Respondent's headquarters. Conlin replied that he would get back with Nellis concerning the details of the negotiations and also asked Nellis how local supplemental negotiations were conducted. Nellis referred Conlin to sections of the National Agreement which govern the subject of negotiations at the local level. On January 12, 1976, Nellis sent a letter to Conlin in which various items of information were requested to enable the Union to prepare for the upcoming negotiations for a new agreement with Respondent. Nellis' letter also suggested a date for negotiations. By letter dated February 17, 1976, Conlin responded to Nellis' letter, indicating that Respondent operated on a highly decentralized basis, acknowledging that the facilities which Respondent had acquired from Westinghouse had been operated by the predecessor as a single appliance group highly integrated with its Pittsburgh headquarters. On January 22, Nellis transmitted to Conlin a copy of a letter from W. A. Towle, Westinghouse's personnel relations director, concerning changes in the Westinghouse pension plan, and, on February 2, Nellis again mentioned his interest in setting a date for national negotiations. By letter dated February 16, Conlin responded to Nellis' letter, advising Nellis that Respondent would administer the Westinghouse pension plan assumed by Respondent generally in accordance with the principles set forth in Towle's letter. However, Conlin did not respond to the Union's letters asking to establish a date and place for commencing contract negotiations. E. Respondent's Refiusal To Bargain on a Multiplant Basis and the Ensuing Strike On March 2, 1976, Conlin called Vingle and asked him to inform Nellis that Respondent was still having difficulty in compiling some of the information Nellis had requested and that Respondent was working on this and would forward the information to the Union's office as soon as it became available. During the telephone conversation, Vingle reminded Conlin that he had still not replied to the Union's letter requesting designation of a location and a time to commence negotiations for a new national agreement. At this point, Conlin advised Vingle that Respondent had no intention of bargaining with the Union on a national basis. By letter dated March 5, 1976, Conlin confirmed his March 2 telephone conversation with Vingle. In the first paragraph of the letter, Conlin recites that Respondent had substituted itself in place of Westinghouse as the contract- ing employer under the existing labor agreements and that those labor agreements include the National Agreement, the pension and insurance agreement, and various local supplements. The second paragraph notifies the Union of the termination of the above-specified agreements as of midnight July 11, 1976, absent a mutually agreed-upon modification. The third paragraph is in effect a refusal to bargain in a single multiplant unit and an offer to negotiate in the separate single-plant units. At the expiration of the National Agreement, on July I I, 1976, Respondent's Union-represented employees struck. It is undisputed that the reason for the strike was the Respondent's insistence on bargaining in the single-plant units. Resolutions to this effect were passed by vote of the employees. The strike was still in progress at the time of the hearing in this case, but I was advised by letter, copies of which were sent to all parties, that the strike has ended. II1. DISCUSSION AND ANALYSIS A. The Issue and Applicable Principles The question in this case is whether Respondent may insist on separate bargaining in the single-plant units where the Union or its locals were originally certified as bargaining representatives, rather than the multiplant unit which comprised Westinghouse's appliance division pur- chased by Respondent and covered under the Westing- house National Agreement. The General Counsel asserts that Respondent was obligated to bargain, and indeed assumed an agreement to bargain in the multiplant unit. He also asserts that Respondent could not unilaterally insist on alteration of the unit because the scope of a bargaining unit is a permissive and not a mandatory subject of bargaining, and insistence upon a nonmandatory subject as a condition for bargaining is a violation of the Act. Respondent urges that its conduct was not violative of the Act because the Westinghouse bargaining unit to which it succeeded was not a multiplant bargaining unit, it did not assume the multiplant bargaining obligation of its predecessor either by operation of law or by contract and, in any event, the multiplant unit of Union-represented former Westinghouse plants was inappropriate. Respon- dent also agrues that, if it is obligated to bargain in a multiplant unit, it should be given the opportunity unilaterally to break loose from that obligation upon proper notice. It is settled law that an employer or a union which insists, as a condition for bargaining, upon a nonmandatory or permissive subject of bargaining violates Section 8(a)(5) or 8(bX3) of the Act respectively. N. L R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 349-350 (1958). It is also settled that the existing appropriate collective- bargaining unit, whether established by certification or by 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mutual consent, is not a mandatory but rather a permissive subject of bargaining.8 In situations where a change in ownership does not affect the essential nature of the enterprise, a successor employer who purchases the business of a union-represented employ- er is not obligated to honor the collective-bargaining agreement entered into by the predecessor and the incumbent union. N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972). However, it is required to recognize and bargain with the incumbent union which represented the predecessor's employees in the unit to which the employer succeeded provided it remains intact as an appropriate unit within the meaning of the Act. N.L.R. B. v. Burns, supra. The usual factors which support a successorship finding include the retention of the employ- ees of the successor in the same job function, the operation of the same facilities, the use of the same supervisors, and production of the same products. In deciding the issue, the Board must examine the "totality of the circumstances," the essential questions being whether the successorship unit remains intact as an appropriate unit and as one in which the union's majority can be presumed to continue. N.L.R.B. v. Band-Age, Inc., 534 F.2d 1, 3 (C.A. 1, 1976). 9 In this case, the Respondent did assume the obligations of the Westinghouse National Agreement and other agreements as they applied to the purchased plants and it does not dispute that it succeeded to a bargaining obligation with the incumbent Union. The question here is what are the contours of the bargaining obligation of the successor, i.e., a multiplant unit made up of the appliance division represented by the Union in its relationship with Westinghouse or the single-plant units which were sepa- rately certified. To answer this question it is necessary to examine the bargaining relationship between Westinghouse and the Union as well as the circumstances of Respon- dent's takeover of the Westinghouse operations. B. The Bargaining Relationship Under Westinghouse It is axiomatic that parties to a collective-bargaining relationship may, by contract, bargaining history, and a course of conduct, merge existing certified units into multiplant appropriate units. General Electric Company, 180 NLRB 1094, 1095 (1970); Oil, Chemical Atomic Workers v. N.L.R.B., supra at 1268. The merger of separately certified units, in effect, destroys the separate identity of the individual units. General Electric Co., supra at 1095. An examination of the evidence of bargaining history between the Union and Westinghouse as well as the National Agreement itself and its application establishes that the parties had merged individually certified units into a multiplant contractual unit. The parties negotiated on a multiplant basis through the Union's Westinghouse confer- ence board. The conference board contained representa- H Utility Workers Union of America, AFL-CIO, and its Locals Nos. 111, 116, 138, et al. (Ohio Power Company), 203 NLRB 230, 238 (1973), enfd. 490 F.2d 1383 (C.A. 6, 1974); Oil, Chemical and Atomic Workers, International Union, AFL-CIO [Shell Oil Companyl v. N.L.R.B., 486 F.2d 1266, 1268 (C.A.D.C., 1973); Hess Oil & Chemical Corporation v. N.L.R.B., 415 F.2d 440, 444 445 (C.A. 5, 1969), cert. denied 397 U.S. 916 (1970). 9 See also Boston-Needham Industrial Cleaning Co., Inc., 216 NLRB 26 (1975), enfd. 526 F.2d 74. 77 (C.A. I, 1975): Zim's Foodliner, Inc., d/b/a tion from employees in all Westinghouse plants represent- ed by the Union or its locals. The National Agreement provides for coverage of all newly certified units. The evidence shows that every such unit was covered by the National Agreement upon its certification and no unit ever negotiated a separate single-plant agreement. The plants involved herein had long been covered by the National Agreement. Grievance and arbitration matters are covered under the National Agreement. The processing of grievanc- es is controlled by the conference board which dealt with Westinghouse at a national level in the final grievance appeal step and in arbitration. Local unions are not permitted to bring cases to arbitration. Strike action upon the termination of the National Agreement is controlled by the Union and applies to all locals; strikes by locals over grievances must be authorized by the Union. The National Agreement contains other substantive terms normally found in collective-bargaining agreements such as wages, hours of work, overtime, seniority, holidays, and vacations, which, for all practical purposes, govern the employment relationship. In addition, there is a separate National Pension Agreement covering all Westinghouse employees. Details on many provisions in the National Agreement are left to local supplements. However, local provisions may not be inconsistent with the provisions of the National Agreement and must be approved, in the case of the Union or its locals, by the Union's Westinghouse conference board. The facts mentioned above are virtually indistinguish- able from those which the Board found, in General Electric, supra at 1094, had established a merger of individual units into a national multiplant unit. Respondent has not attempted to distinguish the General Electric case. As in that case and unlike those cases cited by Respondent,' 0 the evidence here establishes that the parties had by their own conduct effected a merger of local plant units into a multiplant bargaining unit. Some language in the cases cited by Respondent seems to require an explicitly stated contractual intent to effect a merger of local plant units. In General Electric Co., supra at 1095, fn. 6, however, the Board clearly eschewed such a requirement in favor of a course of conduct approach. As in General Electric but unlike the cited cases, the units involved herein have had a long history of participation in bargaining in a multiplant basis and coverage under successive national agreements. Moreover, the bargaining history, as well as the terms of the National Agreement, shows that local units gave up important rights, such as the right to bargain over pensions and fringe benefits, the right to take cases to arbitration, and the right to make local supplements that were inconsistent with the National Agreement. Finally the employer, Westinghouse, had dealt with the Union's Westinghouse conference board for all practical purposes as a defacto accredited representative of Zim's IGA Foodliner v. N.LR.B., 495 F.2d 1131, 1140-42 (C.A. 7, 1974), cert. denied 419 U.S. 838; N.LR.B. v. Zayre Corp., 424 F.2d 1159, 1163-64 (C.A. 5, 1970); Ranch-Way, Inc., 183 NLRB 1168, 1169 (1970), enfd. 445 F.2d 625 (C.A. 10, 1971). 10 Radio Corporation of America, 127 NLRB 1563(1960); Continental Can Company, Inc., Plant No. 11, 110 NLRB 1042 (1954); American Can Company, 109 NLRB 1284(1954). 672 WHITE-WESTINGHOUSE CORPORATION Union-represented employees in a single overall unit. Although there exist in this case, as in General Electric, some factors, such as the use of local supplements, which might tend to support a contrary finding, on balance the evidence, the national agreement, bargaining history, and the reality of the bargaining relationship show that the parties had merged the single-plant units into a national multiplant unit. This evidence distinguishes the instant case factually from those cited by Respondent. C. The Bargaining Obligation of Respondent After the Takeover In its answer to the complaint herein, the Respondent admitted it was a successor employer to Westinghouse with respect to the ownership and operation of the Union- represented plants in the appliance division. It also admitted that it operated these facilities and engaged in substantially the same business operations and employed substantially the same employees and supervisors at the same locations as Westinghouse. Thus, I find, in accord- ance with N.L.R.B. v. Burns, supra, and the other authorities cited, supra, in section III,A, paragraph 3, that the employing industry purchased by Respondent re- mained the same and Respondent was a successor employer with respect to the Westinghouse appliance division plants represented by the Union. 1. The five-plant unit was the successor unit which remained intact after Respondent's purchase As indicated above, the individually certified units lost their identity such that the bargaining obligation of the predecessor was defined in terms of a multiplant unit. Respondent's conduct immediately following the takeover confirms the continuity of multiplant bargaining in the successor unit. That unit was defined more specifically after the takeover in terms of the Union-represented appliance division plants. Respondent assumed and ap- plied the National Agreement and other agreements with respect to this unit. Accordingly, I find that the successor unit which remained intact after Respondent's takeover was the five-plant Union-represented appliance division which was the unit covered under the assumption agree- ment signed on January 16, 1975, and applied for over a year thereafter by Respondent and the Union. The evidence surrounding the assumption agreement supports a finding that the parties-Respondent and the Union-intended to continue, for the purchased five-plant unit, the same bargaining relationship in the same manner-namely a multiplant basis-as under Westing- house. The assumption agreement of January 16 provides that the outstanding National Agreement, the Pension Agreement, and local supplements were to be binding on White for the purchased five-plant unit and that Respon- dent's name would be substituted for that of Westinghouse on all agreements. The parties did not discuss whether their relationship during the remainder of the contract term would be multiplant or single-plant bargaining. Nor did " For example. Respondent did attempt to have local union officials sign the dues-checkoff modification which had been agreed upon at the November 12 meeting between union and management officials. I do not they state that the relationship would change at the expiration of the agreement. The absence of any expressed intent to change the existing bargaining relationship under Westinghouse is significant. I note that when Respondent meant not to assume a provision of the National Agree- ment-the Westinghouse savings plan-it said so explicit- ly. That it did not take a position on the recognition and other provisions of the National Agreement, which togeth- er with prior bargaining history established a national multiplant bargaining unit, tends to support the inference that Respondent as well as the Union intended to bargain in the same manner and relationship as under Westing- house. The conduct of the Respondent and the Union under the assumed Westinghouse agreement confirms the continuity of the purchased bargaining unit which remained intact after the takeover. Those provisions of the Westinghouse agreement which pointed to a multiplant unit were concededly assumed. The Union's conference board continued to administer the contract as before with necessary modifications to reflect the takeover by Respon- dent. Grievance appeal meetings and arbitration decisions continued to be handled as before by the Union's conference board and by Respondent. The only apparent change was Respondent's insistence that grievance meet- ings be held in the city where the plant involved in the dispute was located and local plant officials represented Respondent. This change, however, is consistent with the National Agreement which permits the employer to choose his own representative and leaves open the site of the meetings. In addition, the Union, through its conference board, continued to seek agreement on issues affecting all employees during the period after Respondent's takeover. Such issues included dues checkoff, veteran's preference, and pensions. Respondent spoke with union conference board representatives and at no time suggested that discussions on these issues should be limited to local individual units and with local union officials. Although the evidence tends to show that Respondent at some point resisted the Union's attempt to bargain nationally on all issues-perhaps in anticipation of its position now urged that the National Agreement had not merged the single- plant units into a multiplant unit-Respondent did not seek to bargain or administer the National Agreement separately with local unions at each plant.lt 2. Respondent's contentions in defense to a successorship obligation are without merit Respondent argues that Burns recognizes the successor's obligation to bargain only with the certified representative of the employees. While the Burns case itself involved the successorship obligation with respect to a previously certified unit, the rationale of the decision, and indeed case law prior to and after Burns, indicates that the successor- ship bargaining obligation flowing from voluntary or contractual recognition is as binding as that arising from a certification, provided that such was in an appropriate unit. See Zim's Foodliner, Inc. v. N.LR.B., supra, 495 F.2d at believe, however, that this circumstance negates the evidence which shows national administration and bargaining on this and other issues. 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1142; Hess Oil & Chemical Corporation, supra, 415 F.2d at 444-445. Thus, the consensual merger of the individually certified units into a multiplant unit by the predecessor and the assumption and administration of the National Agree- ment by Respondent in the five-plant successor unit has the same force and effect as the certification in Burns. The Respondent also argues that the Burns rationale does not apply to this case for other reasons. It alleges that it substantially reorganized the Westinghouse operations. It also asserts that any multiplant unit that existed under Westinghouse consisted of 42 units and 40 locations, whereas the successor unit here is alleged to be 6 units at 5 locations. To the extent that these contentions are attempts to escape the bargaining obligation which flows from a successorship finding, neither is convincing on the record of this case. The allegation of changed operations is not supported by the evidence. Respondent relies on two pieces of evidence: (I) that production emphasis has changed from national to private label products; and (2) that this has resulted in independent profit responsibility for each location. It also appears that even though Respondent remains as the financial entity which owns the purchased plants, there has been some operational regrouping of the appliance plants owned by White. However, there is no showing that these changes affected the touchstone of any successorship determination-the employment relationship at the time of the takeover. Despite these changes, Respondent assumed and applied the Westinghouse agreements at all the Union- represented plants; these agreements defined the employ- ment relationship in conclusive terms. In these circum- stances the allegedly changed circumstances mentioned above are insufficient to outweigh the overwhelming evidence-and indeed the concession-that Respondent took over the Westinghouse plants with no significant change in the employing industry. The evidence shows that its takeover satisfied all the evidentiary requirements of a successorship finding under Board law. Thus, Respondent operated Westinghouse's plants with essentially the same employees and supervisors at the same plants and locations and produced the same products-albeit under different labels; and the employees operated under the same working conditions-indeed, their Westinghouse collec- tive-bargaining agreements were assumed. In these circum- stances, even if Respondent's control was more localized as it contends, the factors mentioned above establish a successorship bargaining obligation. See Zim's Foodliner v. N.L.R.B., supra at 1141-42; N.LR.B. v. Burns, supra at 280, footnote 4; Ranch-Way, Inc., supra at 1169. The contention that the purchase of only part of a preexisting appropriate unit of itself defeats a successorship bargaining obligation has been rejected by the Board and the courts. See Zim's Foodliner v. N.L.R.B., supra at 1141- 42; Boston-Needham Industrial Cleaning Co., supra at 28; N.L.R.B. v. Band-Age, supra at 4, 6. From the standpoint of the employees in the purchased plants, the employment relationship remained essentially unchanged and it made no difference to them whether all Westinghouse plants or some had been taken over by a new employer. There is no question concerning the Union's majority status in the purchased multiplant unit. And bargaining rights had been implemented in a multiplant unit both by the predecessor and, by virtue of its assumption of the Westinghouse agreements, by Respondent. Thus here, as in Boston- Needham, supra, "diminution in the unit scope" does not defeat a successorship finding since "the slight changes instituted by Respondent are not such as to affect employee attitudes significantly ... " 216 NLRB at 28. On the other hand, the purchaser's right to make changes in operations and to bargain in a unit which adequately reflects business realities after the purchase is protected by the proviso that the successorship unit must be an appropriate one. In Burns, the Supreme Court recognized that there might be some differences and changes in a takeover, but it also recognized that the crucial question is whether the bargaining unit remains essentially unchanged or is otherwise rendered inappropriate after the takeover. As the Supreme Court stated, "Although the labor policies of the two companies differed somewhat, the Board's determination that the bargaining unit remained appropri- ate after the changeover meant that Burns [the successor] would face essentially the same labor relations enviroment as Wackenhut [the predecessor]: it would confront the same union representing most of the same employees in the same unit." N.LR.B. v. Burns, supra at 280, footnote 4. 3. The successor unit remained appropriate after the takeover Thus, Respondent's contentions are reduced to the legally significant assertion that the five-plant successor unit is inappropriate. I find, to the contrary, that the five- plant successor unit is an appropriate unit for bargaining by Respondent as the successor employer of Westing- house's appliance division. The unit sought is made up of a definable grouping-the Union-represented portion of the Westinghouse appliance division purchased by White. All of the employees involved were covered by the same National Agreement which was assumed by Respondent. Some plants were covered by National Agreement for 20 years. Although this multiplant unit was only part of the industrywide unit under Westinghouse and only part of White's appliance division which included some plants not represented by the Union, its bargaining history is such that the wages, terms, and conditions of employment involved were determined as a group. For example, all former Westinghouse employees have pension rights negotiated by the Union on a national basis. All former Westinghouse employees have wages, benefits, and work- ing conditions which have been negotiated on a group basis. All have a national representative in appeal level grievances and all have surrendered the decision to arbitrate significant grievances to the Union on a national basis. Thus, there is a community of interest among the former Union-represented Westinghouse employees, quite different from other White employees simply because of their historical multiplant representation. Any prior differ- ences, including geographical separation and lack of interchange of employees-matters sometimes relevant in determining ab initio unit appropriateness-are rendered considerably less significant by this common history. Indeed, there is no evidence of separate bargaining in single-plant units which was not in accordance with or 674 WHITE-WESTINGHOUSE CORPORATION consistent with the national agreement. Certain issues, including those arising from the old Westinghouse savings plan and from the Westinghouse Pension Agreement, continue to impact on all former Westinghouse employees. All former Westinghouse plants are owned by Respon- dent-a separate subsidiary formed specifically to hold the assets purchased from Westinghouse. Respondent also assumed the Westinghouse National Agreement covering all former Westinghouse plants represented by the Union and applied it to this group of employees. There is no showing that even in the period in which Respondent applied the agreement to the multiplant unit that bargain- ing in such a unit was not successful. In these circumstances, I find that the multiplant unit of the former Westinghouse plants is an appropriate unit for collective bargaining under Section 9(b) of the Act. This is so even though the unit is less than White's present employerwide appliance division and even though there may be other identifiable units which may also be appropriate. 2 4. Respondent was not relieved of its multiplant bargaining obligation by virtue of its timely notice of intent to bargain in individual plant units Respondent also contends that, even if it were obligated to bargain in a multiplant unit, it should be permitted to escape such an obligation and bargain in the separately certified units by giving timely notice to do so. Respondent did give such notice herein well before the expiration of the assumed National Agreement in July 1976. Respondent relies on the Board's rule providing that an individual employer may withdraw from multiemployer bargaining through its bargaining association by giving timely notice before negotiations begin on a new contract, citing Retail Associates, Inc., 120 NLRB 388 (1958).13 While imagina- tive, the analogy is inapposite. Multiemployer bargaining is a consensual arrangement by which employers whose employees are represented by the same union choose to bargain with that union through an independent negotiating agent. The employerwide unit does not lose its identity but remains inchoate during the term of the agency relationship. The union must, of course, agree to accept that agency relationship. However, there are two consensual arrangements in multiemployer bar- gaining: first, that of the individual employers to band together, and secondly that of the union to accept this method of bargaining. It is the first consensual arrange- ment which the Board's rule on timely withdrawal before negotiations begin on a new contract is meant to address since it would be unfair to have separate entities tie themselves permanently to such an agency relationship. On the other hand, where a single employer and a union decide to merge existing single-plant units into a multiplant unit, there is no initial agency relationship since the individual plants are not separate entities but simply integral parts of 12 See Libbey-Owens-Ford Company v. N.L.R.B., 495 F.2d 1195., 1200 (C.A. 3, 1974), cert. denied 419 U.S. 998; N.LR.B v. Lou De Young's Market Basket, Inc., 406 F.2d 17, 23-24 (C.A. 6, 1969), vacated and remanded on other grounds 395 U.S. 828 (1969). affd. on remand 430 F.2d 912 (C.A. 6, 1970). 13 The rule also provides that, once negotiations begin, unilateral withdrawal is not permitted absent "unusual circumstances." the single employer's operations. After the merger, the single-plant units are not treated as independent bargain- ing units and they lose their separate identity for bargain- ing purposes. Since such a merger is based entirely on the consent of both parties to the bargaining relationship, this arrangement is more properly viewed as a unit rather than an agency issue. It is thus governed by the rule that unit issues-because they are permissive subjects of bargain- ing-may be altered only by mutual agreement of the union and the employer. See cases cited supra, section III, A, footnote 8. That rule is compatible with the Retail Associates rule cited by Respondent which permits with- drawal by a single employer from its own agency relationship upon timely notice to the union before negotiations begin on a new contract. Nor does the fact that Respondent is a successor render the Retail Associates rule any more analogous. That rule does not take into account the fact that, as here, a predecessor and its bargaining representative may have merged separate units into a multiplant unit. Nor does the rule give recognition to the fact that, as here, an employer has succeeded to a bargaining obligation and voluntarily continued that obligation in a multiplant unit. Indeed, the rationale for the successorship obligation is to offer the employees protection from sudden change in the employ- ment relationship. See Golden State Bottling Company, Inc., d/b/a Pepsi-Cola Bottling Company of Sacramento v. N.LR.B., 414 U.S. 168, 181-182 (1973). In short, with respect to its bargaining obligations, Respondent stands in the shoes of Westinghouse and there is no more reason to apply the Retail Associates rule in a successorship situation than in any other situation where single-plant units have lost their identity through a merger.14 D. Summary To summarize, I have found that the bargaining obligation of Westinghouse vis-a-vis the Union was defined in terms of a multiplant unit. I have also found that the Respondent was a successor employer with respect to the Union-represented Westinghouse employees because the five-plant unit purchased by it from Westinghouse re- mained intact after the takeover. I have also found that this unit continued after the takeover as an appropriate bargaining unit. Accordingly, I conclude that Respondent's refusal to bargain in such an appropriate multiplant unit was an attempt unilaterally to alter established bargaining units and thus to bargain over nonmandatory subjects in violation of Section 8(aX5) and (1) of the Act. This conclusion does not mean that an employer who purchases part of a multiplant unit is required forever to continue bargaining in that unit. It does mean that when the circumstances, including the assumption and applica- tion of an existing multiplant agreement, support a successorship finding that the purchased unit remains intact as an appropriate unit at the time of purchase, there is 14 Respondent's reliance upon language in General Electric Company, ISO NLRB 192. 264 (1964), in support of its analogy is misplaced. The reference to Retail Associates in that context was dictum and unnecessary to the resolution of the issues before the Board in that case. 675 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an obligation to continue bargaining in that unit. A successor employer may not unilaterally alter the existing appropriate unit which it has purchased and in which it is obligated to bargain. If circumstances arise, after more experience in integrating the former Westinghouse opera- tions into White's operations, which indicate multiplant bargaining in the former Westinghouse unit is a burden, Respondent may discuss the matter with the Union. Bargaining over permissive subjects may well successfully resolve disputed issues. If this fails to satisfy either party, it may petition the Board to clarify the unit.'5 In the meantime, the better course and that which promotes industrial peace and stability is to bargain in the successor multiplant unit. See Zim's Foodliner, supra, 495 F.2d at 1140-41; United States Gypsum Company, 90 NLRB 964, 966 (1950). The Supreme Court has admon- ished that a bargaining relationship once rightfully estab- lished should be given a reasonable chance of success. Ray Brooks v. N.L.R.B., 348 U.S. 96, 103 (1954), citing Franks Bros. Company v. N.LR.B., 321 U.S. 702, 705-706 (1944). This is particularly true in a successorship situation where, as here, the employer has made no immediate or basic change in the employing industry and has assumed an agreement covering the employees in the successor unit which remains intact as an appropriate unit after the takeover. Adequate protection of the employer's interests in such a situation-with due respect for employee rights and stability in bargaining relationships which is funda- mental to the purposes of the Act-is found in the application of the successorship doctrine: i.e., if an employer purchases a predecessor's operations in a sub- stantially changed form, it is not a successor and does not assume a bargaining obligation under Burns and its progeny; and if the purchased unit is rendered inappropri- ate by virtue of its integration with the successor's operations, the successor may properly refuse to bargain in that unit. Respondent does not dispute that the evidence supports a finding that the Union's strike was for the purpose of protesting the Respondent's conduct which I have found violated the Act. The strike is therefore an unfair labor practice strike with all the attendant legal protections for employees engaging in such a strike. CONCLUSIONS OF LAW I. The following is an appropriate unit of employees for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production employees, all toolroom (tool depart- ment) employees, and all maintenance employees, including the zone maintenance men but excluding all powerhouse employees at its Columbus, Ohio, plant; All production and maintenance employees of Respondent's Mansfield Works plant at 246 East Fourth Street, Mansfield, Ohio, including group lead- ers, tool designers, and hourly paid factory production clerks, but excluding all other clerical employees, 1i See Libbey-Owens-Ford Glass Company., 169 NLRB 126 (1968). Such a proceeding under Sec. 9 of the Act would permit the parties to elicit much more detailed evidence on the employer's actual operations after the takeover. design and technical engineers, draftsmen, and time- study employees; All hourly paid production and maintenance em- ployees of Respondent's Metuchen, New Jersey, plant, excluding all salaried employees and Powerhouse employees; All salaried clerical and technical employees of Respondent's Metuchen, New Jersey, plant, including assistant buyers, but excluding all industrial relations employees; secretaries to department heads; confiden- tial salary payroll clerk; general payroll clerk; the paymaster-cashier; the internal auditor; budget ac- countants; buyers; outside expeditors; advertising assistants; sales assistants; rate and tariff analysts; renewal parts coordinators; all professional employees, design engineers, senior engineers, junior engineers, methods engineers, time and motion analysts, manufac- turing engineers, nurses and doctors; All service men, countermen, warehousemen, call takers, dispatchers, service cashier, service stock ledger coordinator, employed by the Respondent at its 3400 N.W. 31st Street, Miami, Florida, location and its 213 N.E. 9th Street, Ft. Lauderdale, Florida, location, excluding all office clerical employees, sales employees, professional employees, and senior service clerk; All employees of Respondent's Newark plant, Newark, Ohio, excluding office and clerical employees, draftsmen, timestudy employees, watchmen, guards, and design and technical engineers; Excluding professional employees, guards, and su- pervisors as defined in the Act. 2. At all times since March 1, 1975, the Union on behalf of and in conjunction with its Locals-No. 746 at the Columbus plant, No. 711 at the Mansfield Works, No. 401 for hourly employees at the Metuchen plant and No. 491 for one salaried employee at that plant, No. 680 at the Miami-Fort Lauderdale locations, and Local 714 at its Newark plant-has been the representative for the purpose of collective bargaining of the employees in the unit described above and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment.' 6 3. By refusing to bargain with the Union in the above- named appropriate multiplant unit, Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 4. The strike of employees which commenced July 12, 1976, was for the purpose of protesting Respondent's unfair labor practices and is therefore an unfair labor practice strike. 5. The aforementioned unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 16 This is not meant to preclude bargaining in the individually certified units for and concerning local supplements in accordance with past practice. 676 WHITE-WESTINGHOUSE CORPORATION THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices and bargain in the multiplant unit set forth above. In view of the fact that employees engaged in what I have found to be an unfair labor practice strike and that I have been informed that the strike has ended but the record does not show whether any employees were denied reinstatement upon their offer to return to work, and, in order to guarantee the right to reinstatement in the event offers were made to return and rejected, I shall issue a precautionary order for Respondent to reinstate the returning strikers in accordance with applicable Board law. See Louisville Chair Company, Inc., 161 NLRB 358 (1966); Wittock Supply Company 171 NLRB 201, 202-203 (1968). Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 Respondent White-Westinghouse Corporation, a wholly- owned subsidiary of White Consolidated Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with the Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the above-mentioned appropriate multiplant unit comprised of former Westinghouse appli- ance division plants at Mansfield, Columbus, and Newark, Ohio; Edison, New Jersey; and Miami-Fort Lauderdale, Florida. (b) Insisting on bargaining solely in the individual certified units which comprise the appropriate multiplant unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the excercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of employees in the appropriate multiplant unit set forth above. (b) Upon application, offer immediate and full reinstate- ment to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges to all those employees who went on strike on July 12, 1976, or thereafter, to the extent this has not yet been accomplished. (c) Post at its plants in Mansfield, Columbus, and Newark, Ohio; Edison, New Jersey; and Miami-Fort Lauderdale, Florida, copies of the attached notice marked "Appendix." Is Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that nothing in this Order be construed to invalidate bargaining for local supplements applicable to the individually certified units in accordance with past practice. i? In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the Natiolal Labor Relations Board, the findings. conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. it In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with the Internation- al Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, in an appropriate multiplant unit comprised of employees represented by the Union and its Locals in our plants in Mansfield, Columbus, and Newark, Ohio; Edison, New Jersey; and Miami-Fort Lauderdale, Florida; and WE WILL NOT insist that bargaining with the Union take place only in the individual certified units. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the Act. WE WILL, to the extent we have not already done so, upon application, offer to all employees who went on strike on July 12, 1976, or thereafter, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights. WE WILL, upon request, bargain collectively with the above-named Union with respect to rates of pay, wages, hours of work, and other conditions of employ- ment of employees represented by the Union and its Locals in the above-mentioned multiplant unit. WHITE-WEsTINGHOUSE CORPORATION, A WHOLLY- OWNED SUBSIDIARY OF WHITE CONSOLIDATED INDUSTRIES, INC. 677