Westinghouse Air Brake Co.

In the Matter of WESTINGHOUSE AIR BRAKE COMPANY and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL No. 610 Case No. C-1479.-Decided July 31, 1940 Jurisdiction : air brake manufacturing industry. Unfair Labor Practices Discr2mination: charges of discriminatory lay-off of employee dismissed. Collective Bargaining: union's majority indicated by prior Board certification- failure to negotiate in good faith: refusal to bargain with union on basis of equality; attempt to undermine union's position as collective bargaining agent. Remedial Orders: respondent ordered to bargain collectively. Unit Appropriate for Collective Bargaining : all production and maintenance employees, exclusive of superintendents, foremen, assistant foremen, group leaders, working group leaders, inspectors, clerical employees , and all em- ployees in engineering and drafting departments. Mr. Peter J. Crotty, for the Board. Thorp, Bostwick, Reed c6 Armstrong, by Mr. Earl F. Reed, Mr. R. G. Bostwick, and Mr. D. W. Ebbert, of Pittsburgh, Pa., for the respondent. Mr. Julius Emspak, of New York City, for the Union. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Electrical, Radio and Machine Workers of America, Local No. 610,1 herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixth Region (Pitts- burgh, Pennsylvania), issued its complaint dated September 7, 1939, against Westinghouse Air Brake Company,' Wilmerding, Pennsyl- vania, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and 1 Formerly known as United Electrical and Radio Workers of America, Railway Equip- ment Workers Local No. 610. 2 Erroneously designated in the complaint as Westinghouse Airbrake Company. 25 N. L. R. B., No. 125. 1312 WESTINGHOUSE AIR BRAKE COMPANY 1313 Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint alleged in substance (1) that the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; (2) that on or about February 9, 1939, the respondent laid off Harold K. Briney for a period of 30 days, discriminating in regard to his hire and tenure of employment and thereby discouraging union membership and ac- tivity; and (3) that on January 10, 1938, and at all times thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of employees of the respondent in an appro- priate unit, although the Union had been designated as their repre- sentative by a majority of such employees and had been so certified by the Board in a prior representation proceeding.3 The complaint was duly served on the respondent and the Union and on September 15, 1939, the respondent filed its answer denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at Pittsburgh, Pennsylvania, on Sep- tember 28, 29, and 30, and Otcober 2 and 3, 1939, before Howard Meyers, the Trial Examiner duly designated by the Board. The Board and the respondent, represented by counsel, and the Union, by its representatives, participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. At the close of the Board's case, the respondent moved to dismiss the com- plaint as not supported by the evidence, and specifically moved to dismiss certain allegations that the respondent had violated Section 8 (1) of the Act. The respondent also moved to dismiss that part of the complaint alleging a violation of Section 8 (3) of the Act. Thereafter, at the 'close of the hearing, counsel for the respondent renewed the motions to dismiss, and the Trial Examiner reserved his ruling thereon. During the course of the hearing, the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner issued his Intermediate Report, dated Janu- ary 15, 1940, copies of which were duly served upon the respondent and the Union, in which he granted the motion to dismiss that part of the complaint alleging a violation of Section 8 (3) of the Act, and also granted the respondent's motion to dismiss certain specific allegations of violations of Section 8 (1) of the Act, but denied SMatter of Westinghouse Airbrake Colmpany and United Electric and Radio Workers of America, Railway Equipment Workers Local No. 610, 4 N. L. R. B. 403. 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other motions of the respondent to dismiss all or parts of the complaint. The Union did not except to the rulings of the Trial. Examiner which, for the reasons set forth below, are hereby af- firmed. The Trial Examiner found that the respondent had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 ,(6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and, upon. request, bargain collectively with the Union as the exclusive representative of the respondent's employees in the appropriate unit, and that, if an understanding were reached, the respondent embody such undersanding in a' writ- ten agreement. Exceptions to the Intermediate Report were filed by the respondent on February 15, 1940. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on March 21, 1940, for the purpose of oral argument. The respondent and the Union appeared by counsel and presented oral argument to the Board. The Board has considered the exceptions to the Intermdiate Re- port and, in so far as they are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT . The respondent, incorporated in Pennsylvania in 1869, has its principal business office and factory at Wilnierding, Pennsylvania. It also maintains- sales and service offices in the' following cities : New York. City; Boston, Massachusetts; Washington, District of Columbia; Atlanta, Georgia; Pittsburgh, Pennsylvania; Chicago, Illinois; St. Paul, Minnesota; Denver, Colorado; Topeka, Kansas; Cleveland, Ohio; St. Louis, Missouri; Houston, Texas; San Fran- cisco, California; Tokio, Japan; Mexico City, Mexico; San Paulo, Brazil. The respondent wholly owns the following subsidiaries : American Brake Company; National Brake and Electric Company; Westinghouse Pacific Coast Brake Company; Wilmerding Corpora- tion of Pennsylvania; and Wilmerding Corpofation; and partly owns Union Switch and Signal Company. The respondent is engaged in the manufacture, sale, and distribu- tion of air-brake equipment for steam railroads, electric railways, trucks, and busses. During its fiscal year ending August 31, 1939,. it purchased raw materials costing more than $1,000,000 and prin- cipally consisting of .pig iron,, copper, brass, steel, rubber,-and aluminum, approximatly .00 per cent of which were purchased out- WESTINGHOUSE AIR BRAKE COMPANY', _ 1315 side-the Commonwealth of Pennsylvania and shipped to the respond- ent's plant by rail.- 'During the same period the respondent sold and shipped to points outside_'of' Pennsylvania finished products aggre- gating more than 70 per cent of its total gross sales, which were in excess of $1,000.000. As 'of'`September- 15, 1939, the' respondent employed 2,999 em- ployees at its Wilmerding, Pennsylvania, plant, 2,906 of whom were engaged in nonsupervisory production and maintenance work. IT. THE LABOR ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America, Local No. 610, is -a labor organization affiliated with the , Congress of Industrial Organizations, admitting to membership production and maintenance employees of the respondent, exclusive of supervisory, clerical, and salaried employees.. III. THE UNFAIR LABOR PRACTICES ':A. The refusal to bargain collectively 1. The appropriate unit In the prior representation proceeding,4 the Board found that all the production and maintenance employees of the respondent at' its' Wilmerding, Pennsylvania, plant, except superintendents, fore- men, assistant foremen, group leaders, working group leaders, in- spectors, clerical employees, and all employees in the engineering and drafting departments, constituted a unit appropriate for the purposes of collective bargaining. Although the respondent in its answer asserted-that it had no knowledge of the appropriateness of the unit above set forth and demanded "proof thereof," the respond- ent's counsel at the hearing stated, "We are making no. issue of it [the appropriate unit] in this case, and I would assume the certifica- tion . . . heing uncontradicted, would cover the matter 0-K." The respondent introduced no evidence tending to show the aforesaid unit to be inappropriate. We find that all production and maintenance employees of the respondent at its Wilmerding, Pennsylvania,- plant, exclusive of superintendents, foremen, assistant foremen, group leaders, vvorking group leaders, inspectors, clerical employees, and all employees in the engineering and drafting departments, at all times material herein constituted and` that they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that 4 See footnote 3, supra. 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' said unit insures to the employees of the respondent the full benefit of their ' right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit In the above-mentioned representation proceeding, the Board, cer- tified the Union as the exclusive representative of the employees in the appropriate unit on December 4, 1937. Although the respond- ent's' answer sets forth that it "has no knowledge as to whether said Union has represented, during said period, or does now repre- sent the majority of its employees in said unit," there is nothing in the record to ' indicate, nor did the respondent endeavor to prove, that the Union at any time after December 4, 1937, ceased to be the exclusive bargaining representative, designated by a majority of the respondent's employees in the appropriate unit. Under the circum- stances of this case, we must presume the continuing effectiveness of the Board's certification. In Matter of Whittier Mills Company and Silver Lake Company and Textile Workers Organizing Committee, etc.,' we said: The Congress cannot have intended by Section 9 (c) of the Act to authorize the Board to do a futile and meaningless thing. A certification would be futile and meaningless, could an em= ployer, shortly thereafter . . . require the certified representa- tive to prove anew its status as a majority representative. We find that on December 4, 1937, and at all times thereafter, the Union had been designated by a majority of the employees in„the appropriate unit as their representative for the purposes of collec- tive bargaining. Pursuant to Section 9 (a) of the Act, it at all such times has been the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The negotiations After the Board's certification, the union negotiating committee met with Works Manager H. L. Nicholson and Assistant Works Manager W. C. Landis, representatives of the respondent, on De- cember 15, 1937, to discuss the respondent's lay-off policy. There- after, and until August 15, 1939, a series of 25 formal conferences 5 15 N. L. R. B 457 , 463, enforced, National Labor Relations Board V. Whittier Mills Company, Silver Lake Company, and Scottdale Mills, May 2 , 1940 (C. C. A 5). , I3 K Briney , P. J. Fallon , and three other employees represented the Union at this conference. WESTINGHOUSE AIR BRAKE COMPANY 1317 were held between the Union and the respondent's representatives, during which a number of proposals by the Union as to collective bargaining, as well as a number of individual grievances, were discussed. At the December 15 meeting the respondent's representatives re- quested the Union to present its various suggestions in writing. As a result, the Union on about December 17,,1937, forwarded to the respondent certain "Articles" detailing a proposed grievance pro- cedure, providing for a. shop-steward system, requesting use of the respondent's bulletin boards, and proposing a change in lay-off policy and the distribution of work. On January 5, 1938, when the parties met to discuss the "Articles," the respondent rejected all the union proposals. With respect to one of them, Landis observed that rate or wage readjustment "was entirely a matter for the company to decide," that union objections to adjustments of rates should be submitted as "a grievance after adjustment was made," and that the Union was not entitled to open a discussion on "a change of working conditions or rates" before the change was made by the respondent. In respect to the lay-off proposals submitted by the Union, Nicholson said that any employee was subject to movement or lay-off at the will of the management , and that to hold otherwise "would be prac- tically admitting [the Union] to co-managership with the company." In short, the respondent took the position that all matters relating to lay-offs and rates of pay were to be determined solely by it, with the Union functioning as a means by which the employees thereafter could present grievances in connection with such matters. Through- out all subsequent negotiations, the respondent did not recede from the position so expressed and frequently asserted that the function of the Union in collective bargaining should be confined to raising objections after the respondent took action which it deemed expedient in the conduct of its business. In connection with the presentation of grievances, Nicholson stated at the January 5, 1938, meeting that he would submit to the Union a suggested procedure to be followed. On January 10, 1938, Nichol- son sent the Union a "Rough Draft" of the proposed procedure, in eluding the following: Purpose: To provide a procedure whereby the authorized representatives of the Local may carry 'out the collective bargaining relationship between the Local and the Management, this relationship con- sistinng of presenting of grievances by the representatives, fair consideration by the Management, and issuance by the Manage- ment of necessary instructions covering the decisions reached. Regardless of the fact that such a procedure is available, any 283036-42-vol 2b 84 1318 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD individual employee or group of, employees shall continue, as in the past; to have the right to present grievances to anyone in the Management at any time.' The "Rough Draft" was mimeographed and distributed to the re- spondent's supervisoryemployees on January 20, 1938. The respond- ent also prepared a "Grievance Form" which it maintained should be used by employees in presenting grievances. This form called for the signature of the aggrieved employee, and on its back was printed language similar to that quoted above, asserting the right of indi- vidual employees 'to present their grievances without the intermedia= tion of the Union. Between January and July 1938 nine or more meetings were held to adjust individual grievances and to discuss the reslionclent's grievance policy. During these conferences the union representa- tives strongly objected to both the statement of grievance procedure and the "Grievance Form." With respect to the respondent's state- ment as to the grievance procedure, the Union particularly objected to the language defining the collective bargaining relationship as con- sisting of the presenting of grievances by the Union and the issuance by the management of "necessary instructions covering the decisions reached" after considering, the grievances. At a meeting on April 12, according to the testimony of Frank J. Guerin," Nicholson stated his opinion "that the relationship could not be otherwise between the Union and the management." When asked at the hearing, "What else do you consider as part of the collective bargaining relationship besides the taking up of grievances?" Nicholson replied, "I don't know that I have ever considered it." The respondent's minutes cov- ering a later meeting on June 30, 1938, recite : They (the union representatives) questioned our definition of Collective Bargaining which is "presenting of grievances by the representatives, fair consideration by the management, and is- suance by the management of necessary instructions covering the decisions reached" : . . we said the present Procedure still repre- sented the Company's attitude. Landis acknowledged at the hearing that all of the respondent's negotiations with the Union proceeded on the basis of this concep- tion of the bargaining process, that the Union was confined to objec- tions after the event, and that the Union had no power to "prevent a grievance popping up." It is thus clear that the respondent's posi- tion during negotiations with the Union was that "collective bar- _ gaining" between the parties should consist of the presentation by ° Italics added Member of the union negotiating committee. IVESTINGHOUSE AIR-BRAKE COMPANY 1319 the Union of grievances after the respondent by unilateral action had determined upon its "policy" as to the normal subjects of collective bargaining. With respect to the "Grievance Form," the Union protested against the legend appearing on its reverse side to the • effect that any indi-, vidual might, as formerly, present his grievance directly to the man-- I aement. The Union urged that if this statement appeared it should be accompanied by language indicating that employees had the alter- native of clearing their grievances through the Union.0 After the Union's objections to the grievance procedure and form had been repeatedly brought home to the respondent, as of July 1, 1938, the' respondent remained adamant and the matter was dropped.10 At a meeting held on August 4, 1938, the Union presented a pro- posed contract to Nicholson and Landis. After a general discussion the respondent's representatives stated that "the proposal would be given the necessary consideration," and the Union would be advised' "of -the Company's attitude in the matter." On August 18, 1938, the union representatives met with Nicholson and Landis to discuss the proposed contract again. The respondent's position as stated at this time is recounted as follows in its minutes of the meeting: Mr. Nicholson advised,them (the union representatives) that we had considered the contract which they had submitted and wanted to say at the outset that the Company would not enter into any contract for any de/lnite team covering our labor, rela- tions. He also pointed out that a large part of our business is competitive and that our rates of pay and other employment arrangements must be kept flexible and subject to change in order to meet conditions as they arise.. He added that there are a great many men in our employ who do not belong to the C. I. O. and we know from experience of others that if we were to sign a contract that fact would, immediately be used as a means,-of trying to force these employees into the Union, and we do not want to be a party to that. He also said that in our opinion their Union has not yet established itself as a responsible agency with whom to contract, whereas the Company is responsible to the full extent of its assets, and a contract under such circumstances would be entirely inequitable told (sic) them that we had been meeting with them as often as occasion required and had dis- cussed every question which had been brought up and reduced 9 On January 27, 1938, Nicholson stated that the respondent would not post a notice recognizing the Union , since to do so would "lend prestige to the Union " More than a year later, on March 11, 1939, Nicholson commented that the respondent would consider the posting of such notice only on the basis of including in it "the added information that any individual or group of individuals can present their own grief ances." 10 Late in the negotiations, and after the charge in this proceeding was filed, the respond; ent on August 15, 1939 , agreed to accept grievances in any form presented 1320 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD our decisions to writing whenever necessary and that we intended to continue to bargain collectively with them in this way.', The testimony at the hearing as to what transpired at the meeting did not differ substantially from the respondent's minutes 12 and we find that Nicholson made the statements recited therein. Following Nicholson's statement, certain specific provisions of the contract were discussed, with the union representatives pointing out that the .wage provisions of the contract were flexible, and provided for changes which the respondent might make from time to time.13 The respond- ent, however, made no counterproposals 14 as to any provisions of the proposed contract, and the meeting terminated after Nicholson prom- ised a letter confirming what the respondent had said. Under date of September 28, 1938, Nicholson wrote to Kenneth O. Jones, union president, stating the respondent's position in respect to the proposed contract. This letter reads in part: We did tell you that we were unwilling to sign the contract . . . The contract that you submitted also contained certain clauses by which you agreed not to strike and it was in that connection that we told you we did not regard your organization as a respon- sible organization, and pointed out numerous instances where such promises had not been observed by unions affiliated with the C. I. O. We further told you that we knew what, use was made by union organizations of a contract signed by the company. The uniform practice is to go out and use the fact, that the company signed a contract as a means of coercing employees into joining the union, and that we did not want that situation to occur in our plant .. . We told you at the same time that we were willing to continue the practice we have had in the past of discussing any particular grievance or change in our collective bargaining procedure. We 11 Italics supplied la Nicholson , according to one of the union representatives , opened the meeting by reading a prepared statement to the general effect that "the company is not prepared to sign an agreement for the reason that they did not feel that the union is a responsible organization, and do not care to tie themselves up to a definite wage contract for a definite period of time " 13 Article 10 of the proposed contract provides a procedure for fixing piece-work prices [most of the respondent 's operations are paid for at piece rates ], but does not provide for union collaboration in the fixing of these rates Article 11 thereof reads as follows : "The hourly rates of pay, that is, day rates, and piece work prices which have been fixed on a permanent basis and are prevailing on -------------------- shall remain in effect during the term of this agreement 11 As to the reaction of the union representatives to Nicholson's statement, the respond- ent's minutes relate : "Guerin said he was surprised ; Jones said he was disappointed ; Fallon said he thought the least we could have done would have been to submit a counter- contract ; Schimpf and Sharp could not understand why we did not have enough faith in them to consider them responsible . Of course , we explained to these latter two that it was not a question of lack of confidence in them personally , but lack of confidence in their Union to carry out its part of the contract." VS'ESTINGFIOUSE AIR BRAKE COMPANY 1321 called your attention to the fact that we had from time to time confirmed matters of agreement by writing to you on the subject, and that we were willing to continue that practice.15 On February 23, 1939, the Union submitted a new proposed con- tract, approved by the union membership, and asked the respondent to designate representatives who would be authorized to bargain with the Union in respect to the contract. G. A. Blackmore, president of the respondent, replied that Nicholson and Landis would meet with the union negotiating committee, and on March 7, 1939, Nicholson wrote to Union President Jones setting March 11 as -a date for the initial conference, and stating, "Whether or not anything can be agreed upon or, if agreed upon, whether or not it should take the form of a term agreement as suggested by you, is a question." The letter goes on to observe, ". . . it seems to us that you have collected in this paper a great many things that have previously been the sub- ject of collective bargaining between us and to which we have refused to agree for reasons that have been fully explained to you," and then lists wage, arbitration, lay-off, and other union proposals to which the respondent had previously refused to agree. Nevertheless, on March 11, 1939, Nicholson and Landis met with the Union's committee. What transpired at that meeting was re- corded by a stenographer with the consent of both parties, and the transcription of her notes was introduced in evidence. At the start of the conference the respondent's representatives were asked for a statement as to whether or not the respondent would enter into a signed agreement if any agreement as to terms were reached. Both Nicholson and Landis were evasive in response to the question, indi- cating that agreement would have to be reached before the respondent decided about signing, and that there was little likelihood that such agreement would be reached.16 Although both Nicholson and Landis had been designated as bargaining representatives by the president of the respondent, they stated' that they were powerless to assent to a 15 Italics in original 16 At the start of the meeting, Article I of the proposed contract contemplating a written agreement was read by the union president . The minutes of the meeting detail the following - Mr. Haug [union representative ]-". . . I think that before we even go into a discussion of this particular thing, we would like to establish one fact-if we are able to discuss certain problems and come to an agreement on them, will it be possible- can the Management say here and- now if we reached an agreement, will it be a bilateral agreement and signed "' Mr. Nicholson-"We can't say that now. We will have to de- termine what we will agree upon first and then decide whether it will be oral or confirmed in writing or signed." Mr Haug-" Suppose all of the proposals of those that we discuss, we agree upon-say, both agiee to-would the Management then sign the agreement?" Mr Nicholson-" I can't say that today. We would have to submit that to the top man- agement-the officials of the Company. We are empowered to negotiate with you, but the question of signing any agreement would be up to someone above us " Mr. Landis-"I think we can say this right now , that this proposal is so far from anything that we would agree to, as you know, and as we have said many times , that there is hardly any use in talking about signing anything until we have something to sign 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed agreement, asserting, nevertheless, "that whatever we agreed on we would confirm in writing." 17 With respect to Article V of the proposed contract providing for wages,", Nicholson stated at the March 11, meeting, ."We have told you before in writing, and we reiterate, that the Company does not rare to enter into any agreement fixing wages for any period of 'time. We want to keep it flexible to meet changes in conditions- maybe up or down, but we must be in a position to meet competitive conditions as they arise." Nicholson further stated that the manage- ment reserved-the right _to raise or lower wages without consulting with the Union and felt,it impracticable to inform union repre- sentatives in advance of a rate change. It is apparent that the re- spondent was unwilling to discuss with the Union its policy as to any matter which it deemed to be related to the earnings of the employees. Thus, Landis testified : Q. How about other provisions that would be included in a collective 'bargaining contract, besides wages, would they be too inflexible for you? A. What would you have in mind? Q. For,instance, vacations with pay? A. Yes, I would say it would apply to vacations with pay, yes, sir. Things that are dependent upon earnings. * * * * s A. . . . it would apply to overtime. In line with its unwillingness to enter into any agrement with re- spect to things "dependent upon earnings," the respondent consist- ently refused to discuss proposals relating to such matters. A request 17 Mr. Jones [ union representative ]-"We will still consider the first article . We feel that we would like to have the Management's reply as to whether if we do reach accord or agreement on any specific article in the agreement-would the management be willing to sign this agreement covering these articles ?" Mr. Nicholson-"I won't say it will take the form of an agreement I told you in a previous letter that whatever we agreed on we would confirm in writing" Mr Guerin [ union representative]-"Single items, you mean?" Mr. Nicholson-" Single or several items-that we would confirm them in writ- ing If I remember correctly , we sent you it letter to that effect some time ago" Mr. Jones read first article again. Mr. Nicholson-"That contemplates signing the agree- ment." Mr. Jones-"That s right." Mr. Nicholson-"We will tell you now, we are not empowered to sign the agreement . We will confirm in writing anything we will agree upon." * * * [ re the language in Article I of the proposed contract : "In consideration of the mutual performance in good faith by both parties , the following articles of agree- ment are made "] Mr. Nicholson-"I don't see any, objection if we agree upon something unless you have in nand a signed agreement , and we are not prepared to say we will sign an agreement and we are not prepared to say we will not sign an agreement, but we will consider it merely on its phrasing here, but that would not imply a signed , agreement later on We will discuss signing cf it when we come to that." ii Article V reads in part: "Wages in existence on -------------------- 1939 shall remain in effect during the life of this agreement ' Individual and group adjustments of hourly rates and piece rates can be made during the life of this agreement through nego- tiations and mutual , understanding between the plant management and the local union." ' C '. ' WESTINGHOUSE AIR- BRAKE "COMPANY " . .1323 ,by the Union for a work "schedule was denied on the ground that its granting would amount to accepting the Union into comanagership. 'Payment for vacations also was ruled by Landis not to be a subject of collective bargaining on the ground that it was a matter resting .solely with the management. As already noted, Nicholson took a similar view with respect to lay-off s. Other than to observe that there are many thousands of piece-work prices in a year, the respondent advanced no reason why the Article proposed by the Union was inflexible, nor did it advance any counter- -proposal in this regard. Near the close of the March 11 meeting, when asked if the respondent would submit counterproposals in agree- thent form, Landis observed : "I think that in the present stage 19 it -is just unnecessary to talk about signing any agreement . . . and we shall be glad to reduce to writing the decisions as we understand them in cases where we have agreed with you." 20 ' 'With respect to a proposed provision governing payment for night -Work '21 Nicholson, when requested to submit a counterproposal, stated, "We would certainly confirm just -what our policy is on it." A pro- vision about hours and overtime 22 was found acceptable 'by the re- spondent's representatives in so far as it conformed with "our estab,- lished policy." A guarantee of 4 hours' pay to employees requested to report to work 23 was similarly assented to, since "it is our estab- lished policy." It is apparent that the representatives of the respond- ent were willing to "confirm" union proposals only when they coin- cided with the established, policy of the respondent. As already noted the respondent was at all times unwilling to agree to adhere to its -existing policy, in these respects, nor would it attempt to deter- mine with, the. Union ,what working conditions or wage, rates should prevail at the plant in advance -of unilaterally putting them into effect.. On March 30, 1939, Nicholson wrote to the Union confirming the March 11, 1939, discussion. In this letter the respondent repeated its position as declared at the meeting of March, 11 with regard to cer- tain provisions of the proposed contract. Inter alia,,the letter states "You ,suggested that employees Who, are requested to report to work shall be guaranteed at least four hours' pay. We agree that when an employee is, called in during regular working hours, he should is Italics added. 20 Nicholson, after stating, "I don't know that we have said we would make counter- proposals," observed, "We . . . agree we will confirm in writing to you, what we have agreed upon." 2' Article Y. _ 22 Article VI 2s Ib¢d 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be given at least four hours of work." 24 It is urged that this language constitutes a concession made by the respondent as a result of col- lective bargaining. But Nicholson stated at the March 11 meeting that,a 4-hour guarantee was the respondent's policy, that the respond- ent would not call an employee for less than 4 hours, that, if called in, he is kept for half a day. Landis at the same time stated, "We do follow this policy-any infractions are without our knowledge. We agree with this." In the light of the entire course of negotiation be- tween the parties it is clear, and we find, that the letter does no more than indicate that at the moment it was written, the respondent in- tended no immediate unilateral change in its existing policy. There is no substantial showing that the respondent intended to agree that it would continue to observe its policy in this regard. We do not re- gard the letter as constituting a departure from the respondent's previously established position that it would not bargain with the Union in advance concerning changes which it desired to make in its policy as to wages, lay-offs, vacations, and other conditions of employment. The, Union and the respondent continued negotiations until August of 1939. At a meeting on May 9, 1939, the Union complained of the respondent's method of computing vacation time for veteran em- ployees, members of a veterans' social organization. The respondent's representatives commented, "We felt it was solely 'a matter of the Company's decision whether it wished to grant special privileges in such a case." On August 15, 1939, a final meeting was held between • the parties. The respondent's minutes of this meeting relate : In regard to the request for a statement of the Company's attitude regarding the possibility of reaching a signed agreement with the Union, we told them that we did not know whether the Company would sign a contract or not. We again stated our feeling that the inflexibility of a contract would work hardship on everyone, often to the detriment of the employees' interests. Under date of August 24, 1939, the respondent, in accordance with its practice, sent to the Union a letter confirming its discussion with the union bargaining committee on August 15. In addition to con- firming the matter set for in the preceding paragraph, this letter reasserts the respondent's concept of collective bargaining, as fol- lows : "We feel that the most saisfactory procedure in carrying out the bargaining relationship between us is to carefully consider with 24 The respondent, after conferences with the Union, followed the practice of sending letters confirming the discussions held. The Union did not reply to these letters, includ- ing the letter of March 30, 1939. WESTINGHOUSE AIR BRAKE COMPANY 1325 you any and all questions which you might raise and to confirm our decisions in writing as we have been doing.25 4. Conclusions with respect to the refusal to bargain As we have noted, early in the negotiations the respondent took the position that the "collective bargaining relationship" consisted merely of the presenting of grievances by the representatives (union), fair consideration by the Management, and issuance by the Manage- ment of necessary instructions covering the decisions reached." On April 12 and again on June 30, 1938, the respondent's officials ex- pressly adhered to the position thus taken. On August 24, 1939, when negotiations finally had broken down, the respondent, by letter, stated that in its view "the most satisfactory procedure in carrying out the bargaining relationship between us' is to carefully consider with you any and all questions which you might raise and to confirm our decision in writing as we have been doing." Under the circum- stances, it is a fair inference, and we find that in this letter the respondent was merely reiterating the position which it had held throughout the negotiation, namely, that "collective bargaining" was to be limited to the presentation of grievances by the Union. It is clear that at no point in the negotiations was the respondent willing to bargain with the Union before making any substantive changes which it desired as to its policy concerning rates of pay, wages, hours of employment; or other of the usual subjects of col- lective bargaining.2e Thus the respondent, through a year and a half, of negotiation, persisted in the view that it would not come to any agreement with the Union concerning "things that are dependent upon earnings." 27 At the January 5, 1938, conference the respond- ent's position was that the establishment of rates of pay was "entirely a matter for the company to decide." Substantially the same posi- tion was taken as to the establishment of a lay-off procedure. On a later occasion; the question of granting vacation pay was declared by 25 Italics supplied. 26 Cf Matter of Highland Park Manufacturing Co and Textile Workers Organizing Com- mittee; 12 N. L R B. 1238 , 1250, enforced 110 F. ( 2d) 632 ( C C A 4 ) In Globe Cotton Mills V. National Labor Relations Board, 103 F (2d) 91 (C. C A 5), the Court stated: .. there is a duty . . . to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of labor, and If found to embody it in a contract as specific as possible , which shall, stand as a mutual guaranty of conduct , and as a guide for the adjustment of grievances. See also National Labor Relations Board v. Biles-Coleman Lumber Co., 98 F. ( 2d) 18, 22, enforcing 4 N L R B 679 21 The letter of March 30 , 1939 , for the reasons stated above , constituted no departure from the respondent's established position that it would not discuss in advance with the Union changes to be made by it in respect to wages, hours , and working conditions. See Section 111-3, supra. - 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's officials to be solely in the discretion of the manage- ment. At the May 9, 1939, meeting when the Union sought to discuss the respondent's policy in granting vacations to its veteran employees, the respondent's officials remarked that this "was solely a matter of the company's decision." 28 From the foregoing, it is clear that the respondent sought to con- fine its bargaining relations with the Union to consideration of griev- ances presented by the Union'21 and concomitantly to reserve to itself 2s The respondent contended that the need for flexibility as well as competitive condi- tions prevented its reaching any agreement. We have recently stated in disposing of a similar contention : the respondents cannot avoid the mandate of the statute by asserting their belief, or introducing supporting evidence that compliance with Section 8 (5) of the Act would result in economic loss or other detriment, of the kind here asserted, to the respondents or their employees. Matter of Westinghouse Electric & Manufacturing.Colmpany, And Its .Subsidiaries, Westing- house X-Ray Company, Inc. and The Bryant Electric Company and United Electrical, Radio and Machine Workers of America and its Locals Nos. 601, 202, 1207, 107, 111, 130, 1105, 14t?, and 209, 22 N. L R B 147. 167 See also N L R B v Star Publishing Co , 97 F. (2d) 465 (C C. A 9, 1938) ; Matter of Pittsburgh Metallurgical Co , Inc. and Local 1?077, Gas and By-Products Coke and Chemical Workers Union, 20 N L R. B 1077. The respondent introduced no evidence as to the competitive requirements of its business, nor did it make any effort to submit a more feasible plan than the proposed wage provi- sions in the union contracts. See Matter of Wilson and Company and United Packinghouse Workers L I U-51 P. W. 0. C of C. 1 0., etc, 19 N L R. B 990 Although business exigencies may account for the inability of parties acting in good faith to reach agreement, we have held such factors as changing and uncertain business conditions (Matter of Holston Manufacturing Co. and American Federation of Hosiery Workers, 13 N L R. B 783), or the competitive nature of an employer's business (Matter of Harbor Boat Building Co. and Ohio Carpenters Local Union No. 1335, 1 N L• R B 349; Matter of Harry Schartz Yarn Co., Inc. and Textile Workers Organizing Committee, 12 N L. R B. 1139; Matter of American Range Lines, Inc and Marine Engineers' Beneficial Ass'n, 13 N L. R. B. 139), "do not afford any justification for failure to seek to arrive at an understanding, or to embody such an understanding, if reached in a contract binding upon both parties" Matter of Westing- houee Electric, etc, supra, at page 168 29 This view of the bargaining process was complemented by the belief that the respond-' ent's , duties • under the Act were discharged by a fair consideration of the questions raised, followed by decisions of the management confirmed in writing. These confirma- tions were unilateral statements of the respondent's position Such statements, expressing merely a business policy terminable at the will of the employer, fail to stabilize the em- ployment relationship and tend to induce employees to resort to industrial warfare rather than collective bargaining to obtain their demands. In Matter of Harnischfeger Corp. and Amal. Ass'n of Iron, Steel & Tin Workers of North America, Lodge 1114, 9 N. L. R B. 676, we said • "An essential purpose of collective bargaining is to stabilize labor rela- tions, so that workers may deal as business equals with their employers as to their terms and conditions of employment. If the employer is at all times to be free to change such terms and conditions unilaterally, collective bargaining will have failed to achieve one of its fundamental aims " We have repeatedly held it a refusal to bargain where, at a time when the employees' designated representatives are attempting to bargain collectively, an employer unilaterally acts with respect to matters which normally are the subject matters of collective bargaining. See Matter of Wilson & Company and United Packing- house Workers, 10 N L R B. 990 and cases cited in footnote 11 therein: Matter of 'John J Ovghton and Textile Workers Organizing Committee, 20 N L R B 301. Insistence of the respondent upon a statement of policy, rather, than a binding agree- ment, differs only in the immaterial circumstance that by taking such a position the respondent, in effect, threatens unilateral action in the future We find that, the re- iespondent's letters of confirmation do not satisfy the requirements for collective bargaining of Section 8 (5) of the Act. Matter of Pittsburgh Metallurgical Cc , Inc. and Local 12077, Gas and By-Products Coke and Chemical Workers, 20 N L R B. 1077. _ W ESTINGHOUSE AIR .-BRAKE - COMPANY. . 1327 unrestricted freedom of action in determining rates of pay , wages, hours of employment , and other conditions of employment. The respondent's adherence to such a^ position suggests that the true basis of its course of conduct lay in an unwillingness by the respondent's officials to accord to the Union a position of equality at the confer- ence table. Further evidence of this attitude appears in statements of the respondent's officials on various occasions that the Union was not a "responsible" agency with which to bargain . The fact that from the earliest stages of the negotiations, the respondent sought to restrict the Union's bargaining efforts to presentation of griev- ances, while at the same time stressing to the employees that they were entitled to present their grievances to the miinagement , either individually or in groups without resort to Union,30 serves to show the frame of mind with which the respondent's officials approached the matter of bargaining collectively with the Union . If the Union had acquiesced in the view that it was to confine its activity to the handling of grievances, it is clear that it would not have enjoyed recognition as the excbusive representative of the employees for any purpose. We do not doubt that this fact was understood by the respondent's officials. Further evidence of the respondent's reluctance to bargain with the Union during the negotiations from January 10, 1938, to August 15, 1939, may be found in the statement of Nicholson and Landis (luring August 1939 that they did not know whether or not the re- spondent ,was prepared to enter into a signed agreement with the Union. At this time more than a year had elapsed since the Union presented its first contract for the respondent's consideration. It is extremely ' doubtful that' during "this lengthy period of negotiations the, representatives, of the respondent had not acquainted themselves with Ithe respondent's position about signing an agreement. In this connection we deem it significant that the respondent 's representa- tives, after presentation of the first proposed contract by the Union, stated that "the company is not prepared to sign an agreement for the reason that they did not feel that the Union is a responsible organization." Under all of the circumstances of the case, and par- 90 That the respondent's assertion of the right to the presentation of individual griev- ances was designed to undermine the position of the Union as collective baigaiiung agent of the employees may be inferred from the respondent's refusal to post notices recognizing the Union on the ground that to do so would "lend prestige to the Union," as well as from the following incident : In March of 1938 Union President Kenneth 0 Jones obtained permission from his superior, Chief Engineer William B Ferguson, to hold a grievance meeting in his department during the lunch hour Ferguson, invited by Jones to talk about the works schedule, preceded Jones in addressing some 30 men present at the meeting, and after observing that Jones "was fair and square," stated, "but even so, that it was his desire that they continue to bring their grievances directly to him as previously, and that he would give them the same fair consideration that he had always given them." • Nicholson is also said to have stated that he preferred circulation of the grievance procedure summarized above to the posting of a notice of recognition. 1328 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD t icularly in view of the respondent's conception of the bargaining process, it is apparent that the respondent at no time during the negotiations was willing to sign a contract with the Union. We find that the claim of the respondent's representatives in August 1939 that they did not know whether the respondent would sign ari agreement with the Union was mere subterfuge. As we have many times held, the employer must, under the Act, negotiate in good faith in a sincere endeavor to reach an understanding, and such understanding, if eventually achieved, must be incorporated into a written agreement if the employees' representatives so request.31 We find that the respondent, by its course of conduct during the negotiations, by its refusal to consider with the Union any substan- tive changes in terms or conditions of employment in advance of its making such changes, by its refusal to enter into any contract with the Union, written or otherwise, and by its attempt to limit the Union's function as bargaining agent to the presentation. of griev- ances, has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, in respect to rates of pay, wages, hours of employment, and other con- ditions of employment, and thereby has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged discriminatory lay-off Harold K. Briney, chairman of the union negotiating committee, was alleged in the complaint to have been discriminatorily laid off on February 9, 1939, for a period of 30 days (constituting 8 work- ing days.) As indicated above, the Trial Examiner found that the respondent did not violate Section 8 (3) of the Act by laying off Harold K. Briney, and the Union did not except to this finding. Having re- viewed the evidence, we agree with the Trial Examiner's conclusion and find that the respondent did not discriminate against Harold, K. Briney within the meaning of the Act by laying him off on February 9, 1939. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial 31 Art Metal Construction Co v. N. L R. B, 110 F. ( 2d) 148 (C. C. A. 2), enforcing as modified as to other issues , 12 N. L. R. B. 1307 ; for a recent full collation of cases to this proposition see Matter of Westinghouse Electric, etc., footnote 28, supra, and especially footnotes 14, 15, and 23 therein. WESTINGHOUSE 'AIR BRAKE COMPANY 1329 relation to trade, traffic , and commerce among the several States, and have led and tend to, lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V.' THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom. We have found that the respondent has refused to bargain collectively with the Union. , We shall address our order specifically to the wrong sought to be remedied. In order, therefore, to effectuate the purposes and policies of the Act, we shall order the respondent, upon request, to bargain collectively with the Union in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on any such matters, reduce such understanding to writing if requested to do so. Upon the foregoing findings of fact and upon the entire record in the case , the Board makes the following : CONCLUSIONS OF LAW 1. United Electrical, Radio and Machine Workers of America, Local No. 610, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent at its Wilmerding, Pennsylvania, plant, exclusive of superintend- ents, foremen , assistant foremen, group leaders, working group leaders, inspectors, clerical employees, and all employees in the engi- neering and drafting departments, at all times material herein consti- tute and-now constitute a unit appropriate for the purpose of collec- tive bargaining, within the meaning of Section 9 (b) of the Act. 3. United Electrical, Radio and Machine Workers of America, Local No. 610, was at all times material herein and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning_ of Section 9 (a) of the Act. 4. By refusing to bargain collectively with United Electrical, Radio and Machine Workers of America, Local No. 610, as the exclusive representative of its employees in the appropriate unit, the respond- ent has engaged in and is engaging in unfair labor practices, with- in the meaning of Section 8 (5) of the Act. 5. By interfering With, restraining, and coercing its employees in the exercise of its -rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not engaged in unfair labor practices with- in the meaning of the Act by laying off Harold K. Briney on or about February 9, 1939. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Westinghouse Air Brake Company, Wilmerding, Penn- sylvania, and its officerss, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Electrical, Radio .and Machine Workers of America, Local No. 610, as the exclusive representative of its production and maintenance employees at its Wilmerding, Pennsylvania, plant, excluding superintendents, fore- men, assistant foremen, group leaders, working group leaders, in- spectors, clerical employees, and all employees in the engineering and drafting departments ; (b) In any other manner interfering with, restraining, or coercing its employees at its Wilmerding, Pennsylvania, plant, in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guar- anteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Electrical, Radio and Machine Workers of America, Local No. 610, as the ex- clusive representative of the employees in the unit described in para- graph 1 (a) of this Order, in respect to rates of pay, wages, hours of employment, and other conditions of employment; and, if an un- derstanding is reached on such matters, reduce such understanding to writing if requested to do so by United Electrical, Radio and Machine Workers of America, Local No. 610; (b) Post immediately in conspicuous places at its Wilmerding, Pennsylvania, plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) WESTINGHOUSE AIR BRAKE COMPANY 1331 of this Order, and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director in writing within ten (10) days from the `date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as, it alleges that the respondent. has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. Mr. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.