Allied Signal, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 2000

330 N.L.R.B. 1201 (N.L.R.B. 2000)

ALLIED SIGNAL, INC. 1201
AlliedSignal Aerospace, a Division of Allied Signal,
Inc. and International Union, United Automo-
bile, Aerospace & Agricultural Implement
Workers of America, UAW, Local 376 and In-
ternational Union, United Automobile Aero-
space & Agricultural Implement Workers of
America, UAW, Local 1010. Cases 34–CA–7266
and 34–CA–7302
April 12, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On April 21, 1997, Administrative Law Judge D.
Barry Morris issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, the General Counsel filed a brief an-
swering the Charging Party’s exceptions, the Respondent
filed cross-exceptions and a brief both answering the
General Counsel’s and the Charging Party’s exceptions
and in support of its cross-exceptions, the Charging Party
filed a brief answering the Respondent’s cross-
exceptions, and the Respondent filed a brief in reply to
the Charging Party’s answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Decision and Order.
As explained in detail below, the issues in this case
arose out of the Respondent’s termination, at midterm, of
a job-protection agreement (the competitiveness agree-
ment or “the CA” herein); its subsequent decision to re-
locate unit work from its Stratford, Connecticut plant to
its plant in Phoenix; and its refusal to bargain with the
collective-bargaining representatives of its unit employ-
ees over that decision and (at least initially) to provide
requested information about that decision. The judge
found that the Respondent had a “sound arguable basis”
for concluding that it was free to terminate the CA, and
he found no violation in the termination. He went on to
find that the work-relocation decision was a mandatory
subject of bargaining, and that the Respondent violated
Section 8(a)(5) and (1) by refusing to bargain over that
decision and promptly to supply requested information
about it.
For the reasons stated below, we reverse the judge’s
finding concerning the CA, and conclude that the Re-
spondent violated Section 8(a)(5), (1), and (d) of the Act
by terminating it at midterm. Because the Respondent
was not free, while the CA was in effect, to transfer work
out of the Stratford plant, we find it unnecessary to reach
the decision-bargaining and information-request allega-
tions. The Respondent’s obligation during the time at
issue here was not to bargain with reference to a reloca-
tion decision, but rather to adhere to the terms it agreed
to in the CA.
1. An overview of the facts relevant to the CA issues
Since 1994, the Respondent has operated a plant in
Stratford, Connecticut, which manufactures engines for
both military and commercial sale. It is usually referred
to as the “Stratford Army Engine Plant” (“the SAEP” or
“the Stratford Plant” herein) because of its primary pur-
pose historically as a military contracting operation. The
plant property is owned by the United States Govern-
ment; it is, at least technically, a military base. The Re-
spondent, like its recent predecessors, Textron, Inc., for
example, operates the SAEP under a lease from the Gov-
ernment permitting “dual use,” i.e., permitting both mili-
tary and commercial engine production. Starting in the
early 1990’s, prior to the Respondent’s acquisition of the
plant operations, the SAEP’s military engine program
began to shrink because of dwindling demand from the
Department of Defense (DOD) for engines. Accordingly,
the overall production trend began to shift toward com-
mercial contracts, but without a corresponding increase
in such contracts. By 1994, when the Respondent pur-
chased the engine operations, 30 percent of the plant’s
production was commercial and 70 percent was for mili-
tary use. Most of the military contracting involved the
AGT 1500, a turbine engine for the Abrams M1 tank.
The Respondent began to consider purchasing the en-
gine-manufacturing business at the SAEP from Textron
in late 1993; the transaction was finalized in late October
1994. An important factor in the Respondent’s decision
to buy the engine business was the spring 1994 report of
a “blue ribbon panel” of the Defense Science Board, an
agency under the aegis of the DOD. The report included
a recommendation that the SAEP be continued long term
as a dual-use facility, rather than shut down, and that the
production and maintenance program for the AGT 1500
be continued indefinitely on a “standby” basis, with an-
nual Federal appropriations for its support in excess of
$20 million.1
The process leading up to the formal purchase from
Textron went on for much of 1994. During the spring,
Textron’s collective-bargaining agreements with UAW
Locals 1010 and 376 expired, and Textron was negotiat-
ing successor agreements with the Locals.2 The Respon-
dent was a very interested observer in the negotiations; it
had made clear to Textron that a condition of the pending
sale was the conclusion of a basic collective-bargaining

1 “Standby” status involves preservation of engine-production capa-
bility in the absence of active production of new engines; it includes
engine maintenance and the production of spare parts for the engines.
2 Local 1010 represents the Stratford plant’s production and mainte-
nance employees, and Local 376 represents a unit at the plant of techni-
cal and clerical support staff employees. Because the issues we address
here involve both Locals without significant difference, for conven-
ience we will refer to them collectively as “the Union” in this decision.
330 NLRB No. 175
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
agreement acceptable to the Respondent. The Respon-
dent’s plan was to adopt this agreement and succeed
Textron as the Union’s collective-bargaining partner
when the sale was finalized. In June, while negotiations
were under way, an internal AlliedSignal memorandum
circulated in the plant. It clearly raised the possibility that
the Respondent would shut down the plant after its pur-
chase because of diminishing DOD demand for new tank
engines. The Union had already been concerned that the
Respondent’s ultimate intention was to move the Strat-
ford manufacturing operation to the Respondent’s exist-
ing commercial engine plant and corporate headquarters
in Phoenix. Dissemination of the Respondent’s memo-
randum brought the collective-bargaining negotiations to
a virtual standstill.
To show that a shutdown of the plant was neither con-
templated nor inevitable, and thus to get the negotiations
back on track, the Respondent and Textron offered the
Union an initial draft of the CA. The Respondent ex-
plained that this proposed agreement would establish the
basis for keeping bargaining unit work in the Stratford
plant upon the Respondent’s purchase. In July, the Union
reached agreement with Textron on the CA, on a succes-
sor bargaining agreement, and on an “effects bargaining
agreement,”3 all with the same duration—retroactively
effective from May 30, 1994, until June 6, 1997. The
Respondent, as previously understood, assumed all of the
agreements when its purchase of the SAEP engine opera-
tion was completed in late October 1994.
In essence, the CA was an agreement between the Un-
ion and the Respondent that, upon purchase, the Respon-
dent would maintain unit work at the Stratford plant if
agreed conditions were met. Thus, the parties agreed
broadly to seek together to improve the competitive
status of the plant in the economic context of diminishing
military contracts and intense commercial competition. It
contemplated commitments by the Union to cooperate in
seeking and carrying out cost-cutting measures for more
efficient production. In short, the parties would try to
shift the plant’s primary manufacturing focus from mili-
tary contracting to production for commercial sale, and
to enhance the latter, in order to safeguard the business
future of the plant and the unit employees’ jobs.
One very important condition in the CA concerned ac-
quisition of adequate Federal funding to maintain the
plant’s “standby status” for the AGT-1500 program. Sec-
tion 6 of the CA, in relevant part, sets forth in detail this
condition, the parties’ obligations thereunder, and the
Respondent’s related right to terminate the CA prior to
its expiration date:

Should AlliedSignal purchase [Textron’s] assets,
AlliedSignal intends to make application to appro-
priate officials of the United States Government for

3 The “effects bargaining agreement” addressed severance pay mat-
ters negotiated by the parties which are not at issue in this case.
financial arrangements in an amount considered by
AlliedSignal to be adequate to support the future of
the Stratford plant by AlliedSignal on a standby ba-
sis for the production of the AGT1500 engine, if ac-
tive procurement of that engine should cease.
AlliedSignal and the Union shall exert their best ef-
forts to work together and to coordinate actively in
the efforts to obtain such adequate financial ar-
rangements from either the federal government or
some other alternative governmental funding source.
[Emphasis in original.]
AlliedSignal will share cost data and other
backup information with the Union at least sufficient
to provide an understanding of the calculation of the
amount sought from the Government and to enable
the Union to act effectively in support of the applica-
tion with appropriate officials. It is the intention of
the parties to work together so as to make a persua-
sive case for the continued viability of the Stratford
Plant and the bargaining unit operational capability.
After AlliedSignal makes such an application to
the Government, if no provision to fund such finan-
cial arrangements in the amount sought by Allied-
Signal shall be made in the federal budget as next
thereafter enacted by the Congress of the United
States, then at any time after such next enactment of
a federal budget, AlliedSignal may terminate this
Competitiveness Agreement. Such termination shall
be accomplished only upon notice given by Allied-
Signal to the Union in writing no less than ninety
(90) days before the intended effective date of such
termination.

In the summer of 1994, even before its purchase of the
SAEP operation was final, the Respondent lobbied Con-
gress for DOD appropriations that would benefit the
Stratford plant. In September, Congress appropriated
$47.5 million to the DOD in the fiscal-year 1995 budget
for the AGT-1500 program at the plant.4 However, the
DOD did not release these funds immediately for use at
the SAEP. Meanwhile, the Respondent and the Union
began implementation of the terms of the CA at the
plant.
In February 1995, the Secretary of Defense announced
his department’s recommendations for the closure of a
large number of military bases within the United States.
In what apparently was a surprise to all concerned, the
SAEP was on the list of recommendations. The DOD
presented the list to the Defense Base Closure and Re-
alignment Commission, commonly known as the BRAC
Commission, for further evaluation and final recommen-
dations to President Clinton. Once it sent its recommen-
dations to the BRAC Commission, the DOD became
4 This 1995 appropriation included $17 million which had been ap-
propriated in fiscal year 1994 for the SAEP, but which the DOD had
withheld from Textron.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1203
reluctant to release the $47.5 million in appropriated
funds for use at the SAEP. It is apparent that there was
significant internal disagreement at the DOD over
whether expenditure of these funds was prudent in light
of the BRAC Commission’s ongoing evaluation. The
Respondent and the Union lobbied the DOD and mem-
bers of Congress for release of the funds. In mid-April,
the DOD authorized disbursement of the funds.
In late June 1995, the BRAC Commission recom-
mended to the President that the SAEP be “closed.”5 It is
undisputed that all interested parties understood at that
time that the recommendation would be effectuated, and
in fact, the President subsequently approved it on July
13. In late June and again in July, the Respondent ex-
plained to the Union and the unit employees that, due to
the BRAC decision, it was considering relocation of the
Stratford manufacturing operation to Phoenix for con-
solidation. It identified a $30 million annual shortfall in
funds should the Respondent remain in Stratford rather
than consolidate in Phoenix. The Union responded that
any transfer of unit work from the SAEP would violate
the CA.
Through the remainder of the summer, the Union,
members of Congress, and local government officials
engaged in a search for alternative government funding
at the state and local level to cover the $30 million short-
fall asserted by the Respondent. Ultimately, this effort
was fruitless. On September 29, 1995, the Respondent
notified the Union that it was putting into effect the ter-
mination provisions of section 6 of the CA. Subse-
quently, the Respondent made clear that it had in fact
decided to relocate the Stratford engine operation in
Phoenix.
The record establishes some significant points con-
cerning a BRAC base closure determination. It does not
mean an immediate, physical shutdown of the base.
Rather, the DOD must initiate a closure process no more
than 2 years after the date of the President’s approval of
the recommendation, and it must complete the process no
more than 6 years after that date. The process itself in-
volves a gradual relinquishment of the DOD’s responsi-
bility for the property to civilian entities, either private or
governmental. In general, it amounts to a transition pro-
gram wherein the property is converted from military to
civilian use. With regard to the SAEP, the DOD was re-
quired to initiate the closure process by mid-July 1997
and complete it by mid-July 2001.
2. The judge’s decision and the exceptions
On the question of whether the Respondent violated
the Act by prematurely terminating the CA, the judge
focused on a dispute between the parties over the proper
interpretation of part of section 6. The Union and the

5 As explained below, a BRAC determination of base closure, with
presidential approval, initiates a lengthy transition process rather than
an automatic shutdown of the base.
General Counsel contended that the Federal Government
funding provisions required just one round of appropria-
tions in a single Federal budget year, i.e., fiscal year
1995. Thus, in their view, the Respondent was ade-
quately funded with $47.5 million through the June 6,
1997 expiration of the CA. The Respondent argued that
those provisions actually required yearly appropriations
in successive Federal budget years, and that the $47.5
million was adequate for only 1 year. The judge deter-
mined that there was no need to definitively interpret the
contract language at issue because the Respondent’s in-
terpretation had a “sound arguable basis” pursuant to
NCR Corp., 271 NLRB 1212, 1213 (1984). Accordingly,
he dismissed the allegation that the termination of the
CA was unlawful, and he proceeded to address the “deci-
sion-bargaining” question, as set forth in detail in the
attached decision.
The General Counsel, the Union, and the Respondent
all excepted to different aspects of the judge’s recom-
mended decision and remedy. The Union excepted, inter
alia, to the judge’s failure to account for the fact that the
Respondent did not fulfill the prerequisites to termination
set out in section 6, even assuming that the Respondent’s
annual funding version of the disputed contract language
is correct. The Union points especially to the Respon-
dent’s failure to “make application” to the Federal Gov-
ernment for funding for fiscal year 1996, and its failure
to share information with the Union concerning the
amount of Federal funding the Respondent had deter-
mined it would need in that year. We agree that the Re-
spondent did not follow the steps required by Section 6
to permit early termination of the CA, and that, as a re-
sult, the Respondent violated Section 8(a)(5) by its mid-
term termination of the CA.
3. Discussion
A party to a collective-bargaining agreement contra-
venes Section 8(d), and violates Section 8(a)(5), when, at
midterm of the agreement, it unilaterally modifies or
terminates contract provisions which are mandatory bar-
gaining subjects. Allied Chemical & Alkali Workers v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 185–186
(1971). See also, e.g., C & S Industries, 158 NLRB 454,
458 (1966). The essential design of the CA was the pro-
tection of jobs; i.e., the preservation of bargaining unit
work for unit employees in threatening economic cir-
cumstances. Preservation of unit work for unit employees
is “[a]mong the primary purposes protected by the Act,”
NLRB v. Longshoremen, 447 U.S. 490, 504 (1980). A
collective-bargaining provision which is essentially in-
tended to protect bargaining unit jobs is of vital interest
to the unit employees; the subject matter of such a provi-
sion is a mandatory bargaining subject. Teamsters Union
v. Oliver, 358 U.S. 283, 294–295 (1959). See also, e.g.,
National Woodwork Mfrs. v. NLRB, 386 U.S. 612, 642
(1967); Davol, Inc., 237 NLRB 431, 434 (1978), enfd.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
597 F.2d 782 (1st Cir. 1979). We find that the CA, a job-
protection agreement, was the product of collective bar-
gaining on a mandatory subject.6
The primary question before us is whether the Re-
spondent violated the Act by its early termination of the
CA. This is, in part, a contractual issue; it is not, how-
ever, the sole issue of unlawfulness raised in the com-
plaint allegations.
Before resolving the contract question, we find as a
preliminary matter that the judge’s application of NCR
Corp., supra, was erroneous in the circumstances of this
case. In NCR, the Board, faced with both an allegation
that the employer had unlawfully transferred bargaining
unit work at midterm of the collective-bargaining agree-
ment and with competing interpretations of the same
contract language, stated:

The Board is not compelled to endorse either of these
two equally plausible interpretations of the contract’s
operation in this case. The present dispute is solely one
of contract interpretation. As the Board has stated in
Vickers, Inc., 153 NLRB 561, 570 (1965), when “an
employer has a sound arguable basis for ascribing a
particular meaning to his contract and his action is in
accordance with the terms of the contract as he con-
strues it,” the Board will not enter the dispute to serve
the function of [an] arbitrator in determining which
party’s interpretation is correct.

271 NLRB at 1213 (fn. citations omitted). The Board also
noted that even if the General Counsel’s and the union’s
contract interpretation were controlling, the matter was “a
mere breach of the contract” not necessarily establishing an
unfair labor practice. Id. at fn. 6. The Board dismissed the
complaint. In Vickers, Inc., supra, the judge, with Board
approval, dismissed a complaint alleging unlawful unilateral
changes where the parties had raised competing contractual
interpretations. The judge applied the “sound arguable ba-
sis” standard above, noting that it was only a breach-of-
contract case involving a matter of contract interpretation.
153 NLRB at 570. He also noted that there was no evidence
that the respondent sought to undermine the union or to
evade its collective-bargaining obligations by its conduct.
Id. at 571.

6 The standard for evaluation of mandatory bargaining subjects set
out in Dubuque Packing Co., 303 NLRB 386 (1991), enfd. sub nom.
Food & Commercial Workers Local 150-A v. NLRB, 1 F.3d 24 (D.C.
Cir. 1993), cert. dismissed 511 U.S. 1138 (1994), is inapposite in the
instant situation. The Dubuque test, like the Supreme Court precedent it
relies on, focuses on a discrete decision affecting bargaining unit work.
303 NLRB at 391; see also First National Maintenance Corp. v. NLRB,
452 U.S. 666 (1981), Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964).
Here, we do not evaluate whether the Respondent’s decision to relocate
to Phoenix was a mandatory bargaining subject. Rather, we analyze the
mandatory nature of the CA, an agreement the Respondent reached
with the Union which effectively precluded the Respondent from con-
sideration of such a decision during its term. See also Otis Elevator
Co., 269 NLRB 891 fn. 16 (1984) (Member Dennis concurring).
Consistent with these decisions, the Board has applied
the “sound arguable basis” standard in cases where solely
“a contract dispute” was presented, see, e.g., Thermo
Electron Corp., 287 NLRB 820 (1987), and has refrained
from its application where the circumstances involved
more than a mere matter of contract interpretation, see,
e.g., Trojan Yacht, 319 NLRB 741 fn. 5 (1995;, Flatbush
Manor Care Center, 315 NLRB 15 fn. 1 (1994); see also
Oak Cliff-Golman Baking Co., 207 NLRB 1063, 1064
(1973), enfd. mem. 505 F.2d 1302 (5th Cir. 1974), cert.
denied 423 U.S. 826 (1975) (employer’s midterm unilat-
eral change in the collective-bargaining agreement’s
wage provisions was “not just a mere breach of contract”
but a “basic repudiation of the bargaining relationship”).
Application of the “sound arguable basis” standard is
not appropriate in the instant case. The Respondent is
alleged to have repudiated the CA in its entirety, not
simply breached one of its provisions. The cancellation
of the CA opened the door to the Respondent’s decision
to shut down the engine operation at the Stratford plant
and relocate it to Phoenix, over half a continent away,
and is a basis for the Respondent’s claim that it was free
to make the relocation decision without bargaining with
the Union. Thus, the issue of whether the Respondent
could lawfully cancel the CA is more than a mere con-
tract dispute. It is situated at the threshold of matters go-
ing to the heart of the collective-bargaining relationship
and to the Respondent’s duty to bargain in accordance
with the Act.7
Thus, while the Respondent’s termination of the CA
does present a contractual issue, it is clear that we are
empowered to decide it in the course of determining
whether the Respondent violated Section 8(a)(5) and (d)
of the Act by its actions. NLRB v. C&C Plywood Corp.,
385 U.S. 421, 428–429 (1967). We find, on the basis of
undisputed evidence, that the Respondent was not privi-
leged to terminate the CA when it did because it had not
satisfied certain provisions of section 6 of that agreement
which were a prerequisite to early termination. The par-
ties do not dispute that section 6 expressly required the
Respondent to take certain steps before it was permissi-
ble to cancel the agreement short of its term. Thus, the
Respondent was required:

to make application to appropriate officials of the
United States Government for financial arrangements
in an amount considered by AlliedSignal to be ade-
quate. . . .
AlliedSignal will share cost data and other back-
up information with the Union at least sufficient to
7 Our dissenting colleague would apply the NCR standard because
the Respondent held a “good-faith position” on a contract-breach ques-
tion. In taking this view, he ignores the context of the Respondent’s
conduct, as set forth above—a setting that implicated core issues in the
collective-bargaining relationship.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1205
provide an understanding of the calculation of the
amount sought from the Government.
After AlliedSignal makes such an application to
the Government, if no provision to fund such finan-
cial arrangements in the amount sought by Allied-
Signal shall be made in the federal budget as next
thereafter enacted, then . . . AlliedSignal may termi-
nate this Competitiveness Agreement.

Assuming that the Respondent is correct that section 6 es-
tablishes a recurrent, annual funding need to be satisfied by
Federal appropriations, the Respondent was required to
carry out the “application” and “sharing information” obli-
gations above in 1995 for fiscal 1996 funding. The record
establishes sufficiently that the Respondent satisfied neither
prerequisite.
Both requirements indicate that it was incumbent on
the Respondent to identify a financial “amount” it con-
sidered adequate to seek from the Federal Government.
No such amount has been identified in this record. The
“$30 million annual shortfall” figure that the Respondent
presented to the Union after the BRAC closure determi-
nation does not fulfill this requirement. Michael Meshay,
the Stratford plant’s site manager, was responsible for
this and other financial calculations involving the plant in
1995. He testified that the $30 million figure was not
related to any potential cutoff of Federal funding. He
stated that a loss of annual Federal funding would be
additional to the $30 million shortfall the Respondent
had identified.
More significantly, and apart from any failure to iden-
tify an “amount” and share information about it with the
Union, the Respondent never “made application” pursu-
ant to the terms of the CA with any agency, representa-
tive, or official of the Federal Government for fiscal
1996 funding. This was admitted on the record by James
Robinson, in 1995 the president of AlliedSignal Engines,
the division in the Respondent’s corporate structure re-
sponsible for the Stratford plant.
In reply to the Union’s exceptions raising this issue,
the Respondent suggests that it was excused from the
application requirement because it would have been an
exercise in futility. The Respondent’s view is that, in
light of the DOD’s refusal until April 1995 to release the
$47.5 million already appropriated and the BRAC base
closure decision in June, the circumstances were clear
that the DOD would not support any future Federal fund-
ing for the Stratford plant. However, it does not appear
that the situation was so devoid of expectation that the
Respondent could preemptively excuse itself from its
contractual obligations.
The Respondent was aware in 1995 that the DOD’s re-
cent relationship with the Stratford plant was one of in-
consistent funding signals. Thus, the Respondent knew
that in the previous 2 years the DOD had withheld from
Textron $17 million that Congress had appropriated for
the SAEP for fiscal year 1994. Nevertheless, and despite
the DOD’s obstinacy, these funds were subsequently
redesignated for the SAEP in Congress’ fiscal 1995 ap-
propriations. Further, in early 1994, the Defense Science
Board, an agency operating within the DOD, recom-
mended that the AGT-1500 program at the Stratford
plant be supported long term on a standby basis, with at
least $20 million per year in funding. In fact, this af-
firmative, long-term funding recommendation was sig-
nificant in the Respondent’s decision to purchase the
Stratford engine operation. In February 1995, about a
year later, the DOD’s view of the SAEP reversed 180
degrees. The Secretary of Defense recommended to the
BRAC commission that the SAEP’s closure as a military
base be initiated; this included its AGT-1500 production-
and-maintenance standby capacity. After this recommen-
dation, and while the BRAC commission evaluated the
matter, the DOD refused to release the $47.5 million that
Congress had appropriated for the SAEP in the 1995
fiscal year budget. Then, due at least in part to lobbying
by the Respondent and the Union, the DOD again about-
faced, releasing the $47.5 million in spring 1995. In
summary, the Respondent had witnessed firsthand the
DOD’s several turnabouts in the recent past concerning
the funding of the Stratford plant. There is no evidence,
before or after the President’s final base closure determi-
nation, that the DOD, or any other Federal Government
entity, provided an unequivocal message to the Respon-
dent that Federal funding for the plant for fiscal year
1996 was not a possibility.
As a related matter, one indicating that the Respondent
could reasonably expect continued DOD funding, the
closure of the SAEP as a military base was subject to a 6-
year process. It was not immediate upon the President’s
final approval in July 1995. The Respondent accordingly
could not reasonably assume at that time that Federal
funding for the base would be terminated automatically
and immediately. In fact, despite the Respondent’s asser-
tion that it was futile to apply for fiscal year 1996 fund-
ing, Meshay’s testimony establishes that Congress did
appropriate some funds for the AGT-1500 maintenance
program at Stratford for that fiscal year.
In addition, the initiation of the closure process was
scheduled to begin as late as mid-July 1997. This would
be after the CA’s June 6, 1997 expiration date, suggest-
ing that the CA’s purpose—a joint effort to protect jobs
by enhancing the plant’s commercial production capabil-
ity—could be pursued in the face of the BRAC closure
decision. Moreover, the 6-year closing process includes a
program for transition of the military base to civilian use,
which was, in essence, the primary strategy underlying
the terms of the CA. The BRAC program, which appar-
ently is designed to mitigate the negative economic im-
pact of the closure in the immediate geographic area, is
fully consistent with the goals of the CA as a transitional
document.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
In view of the circumstances above, the Respondent
has provided no acceptable justification for dispensing
with the section 6 requirement that it apply for funding
for fiscal year 1996. Because the Respondent clearly
failed to satisfy the prerequisites set out in section 6, its
termination of the CA in September 1995 constituted an
improper unilateral repudiation of the parties’ agree-
ment.8
As we determined above, the CA’s job-preservation
purpose marks it as a matter for mandatory bargaining
under the Act. Accordingly, we conclude that the Re-
spondent’s premature unilateral termination of the CA
violated Section 8(d) and (a)(5), and we will order an
appropriate remedy for this violation. We find it unnec-
essary to reach the two other 8(a)(5) allegations ad-
dressed by the judge. Both are based on the Respondent’s
decision to relocate the Stratford plant. Independent un-
fair labor practice issues related to this decision could
arise only in the context of a legitimate cancellation of
the CA, which precluded such decisions during its term.
Because the Respondent’s termination of the CA was
unlawful, there was no legitimate basis for the Respon-
dent to even address such a decision. Thus, any injury to
unit employees resulting from the relocation decision is
properly treated in the remedy for the Respondent’s
unlawful repudiation of the CA.
AMENDED REMEDY
The standard remedy for the Respondent’s unfair labor
practice is restoration of the status quo ante by reinstate-
ment of the terms of the CA, with directions to make the
bargaining unit employees whole for any relevant losses
they may have suffered as a result of the Respondent’s
misconduct, with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). We shall so
order.
In the remedy section of his decision, the judge dis-
cussed at length the remedial ramifications of his conclu-
sion that the Respondent unlawfully refused to bargain
about its decision to relocate the Stratford plant. Al-
though the violation we have found is different, its reme-
dial implications are quite similar, and accordingly, we
affirm the judge’s discussion concerning the transfer of
bargaining unit work and equipment, and concerning
layoffs of unit employees, both of which may have been
consequences of the Respondent’s repudiation of the CA.
In addition, we affirm his rejection of the Union’s re-
quest that the Respondent be ordered to dismantle any
duplicate engine-manufacturing capacity in Phoenix, and

8 Our dissenting colleague finds that a fiscal-1996 funding applica-
tion would have been futile—that future funding was “simply not in the
cards.” However, as set forth above, there is no evidence that the Re-
spondent received a clear signal from any appropriate entity that an
application for 1996 funding would be a waste of time. And the rele-
vant circumstances indicate that a request for further funding, at least
through the remainder of the CA’s term, would have been consistent
with the transitional objectives of both the CA and the BRAC program.
his rejection of the Union’s request for an award of costs
and fees.
We agree with the General Counsel’s and the Union’s
exception that any unit work which may have been sub-
contracted as a result of the Respondent’s unlawful con-
duct should be addressed in the Order. Accordingly, we
will add appropriate language to the Order restoring any
such work to the Stratford plant and making whole any
unit employees who may have been affected thereby.
See, e.g., Power, Inc., 311 NLRB 599, 600 (1993), enfd.
40 F.3d 409 (D.C. Cir. 1994).
The General Counsel has joined the Union in except-
ing to the judge’s rejection of the request for an exten-
sion of the duration of the CA by approximately 20
months to remedy the Respondent’s unlawful, premature
termination of the agreement. We agree with the judge,
however, and we note that such an extraordinary remedy
would constitute an impermissible change in the substan-
tive terms of the CA. See Operating Engineers Local 30
(Hyatt Management), 280 NLRB 205 (1986), petition for
review denied 817 F.2d 140 (D.C. Cir. 1987); Raven
Industries, 209 NLRB 335 fn. 2 (1974), affd. in relevant
part 508 F.2d 1289 (8th Cir. 1974). As indicated above,
we will order the standard remedy for the Respondent’s
violation, which includes reinstatement of the CA
through its June 6, 1997 expiration date, and continuation
of its terms thereafter until the Respondent negotiates a
new agreement in good faith with the Union or the par-
ties reach impasse. See, e.g., Air Vac Industries, 282
NLRB 703 (1987); Auto Fast Freight, 272 NLRB 561,
564 (1984), enfd. 793 F.2d 1126 (9th Cir. 1986).
ORDER
The National Labor Relations Board orders that the
Respondent, AlliedSignal Aerospace, a Division of Al-
lied Signal, Inc., Stratford, Connecticut, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, and its Locals 1010
and 376, by repudiating the competitiveness agreement at
mid-term.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reinstate all terms and conditions of employment
provided under the competitiveness agreement, whose
duration was from May 30, 1994, until June 6, 1997, and
maintain them until such time as the parties have bar-
gained in good faith and have either reached a new
agreement or a lawful impasse.
(b) In the event that bargaining unit work has been
transferred or subcontracted, or equipment necessary for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1207
such bargaining unit work has been transferred or relo-
cated, to the Respondent’s Phoenix, Arizona facility or to
other locations, as a consequence of the Respondent’s
premature termination of the competitiveness agreement,
return such work and/or such equipment to the Respon-
dent’s Stratford, Connecticut facility.
(c) In the event that bargaining unit employees have
been laid off as a consequence of the Respondent’s pre-
mature termination of the competitiveness agreement,
offer those employees immediate and full reinstatement
to their former positions, or if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges previously enjoyed.
(d) In the event that bargaining unit employees have
suffered any loss of earnings or other benefits as a con-
sequence of the Respondent’s premature termination of
the competitiveness agreement, make those employees
whole for such losses, in the manner set forth in the
amended remedy section of this decision.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility copies of the attached notice marked “Appen-
dix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since September 29, 1995.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

9 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MEMBER HURTGEN, dissenting.
I do not agree that Respondent breached section 6 of
the competitiveness agreement (CA). Further, even if it
did, that breach was not a violation of Section 8(d)-
8(a)(5).
There is a significant distinction between a contract
breach and an 8(d) “termination or modification.” In
cases where the employer has a reasonable position con-
cerning a contractual issue, the Board will dismiss an
8(d)-8(a)(5) complaint.1 For, in such cases, even if it
turns out that the employer was wrong, the employer has
simply breached the contract. By contrast, in cases
where the employer ignores the contract, i.e., fails to
follow its clear provisions, the employer has violated
Section 8(d) by terminating or modifying the contract
(depending on whether he has abrogated all or part of the
contract).
The instant case involves a contract dispute in which
both parties have reasonable positions on the contract
issue. Indeed, my colleagues do not even assert that Re-
spondent’s position was unreasonable. Instead, they say
that NCR does not apply in circumstances where the
whole contract is in issue, rather than simply one of its
terms.
I disagree on this point. I note initially that only one
provision is in dispute here, i.e., section 6 of the CA.
More importantly, the distinction between a contract
breach and an 8(d) violation is not whether all or part of
the contract is in dispute. As discussed above, the dis-
tinction is between cases where there is a bona fide issue
of contract interpretation and cases where there is not
such an issue.
My colleagues’ position is directly contrary to the stat-
ute. That is, Section 8(d) speaks of “termination and
modification.” Thus, if the employer terminates the
whole contract or only modifies one of its terms, without
a reasonable position, such conduct is unlawful under
Section 8(d). Similarly, if the employer has a good-faith
position on the contractual issue, such conduct is at most
a contract breach, irrespective of whether the case in-
volves a single clause or the entire contract.
As I show below, Respondent here did not breach the
contract. However, even if Respondent did so, its posi-
tion was reasonable. (Again, my colleagues do not argue
the contrary.) Thus, Respondent did not violate Section
8(d) of the Act.
As to the first point, my colleagues assert that Respon-
dent failed to honor section 6 of the CA. That section
provided that Respondent was obligated:

1 See NCR Corp., 271 NLRB 1212 (1984); Thermo Electron Corp.,
287 NLRB 820 (1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
to make application to appropriate officials of the
United States Government for financial arrangements
in an amount considered by AlliedSignal to be ade-
quate to support the future of the Stratford plant by
AlliedSignal . . . .

My colleagues assert that Respondent failed to carry
out this obligation with respect to funding for fiscal year
1996, i.e., October 1, 1995, to September 30, 1996. Re-
spondent defends by saying that it would have been futile
to “make application” because it was clear that such an
effort would have been futile. In this regard, Respondent
notes that the Department of Defense (DOD) recom-
mended in February 1995 that the facility involved
herein be closed. The recommendation was sent for ap-
proval to the Defense Base Closure and Realignment
Commission (BRAC Commission) and then to the Presi-
dent. In light of this, DOD would not even release the
$47.5 million appropriated for this facility for fiscal year
1995.2 In late June, BRAC concurred in the DOD rec-
ommendation to close, and the President approved it on
July 13.
In these circumstances, it would have been futile to
seek the necessary funding. That is, it was simply not in
the cards that Congress would appropriate funds “to sup-
port the future of the Stratford plant,” in circumstances
where it was clear that the Stratford plant was going to
close.
My colleagues assert that an effort would not have
been futile. In this regard, they rely on: (1) the release of
funding for fiscal years 1994 and 1995; (2) a recommen-
dation by the Defense Science Board to support long-
term funding for the Stratford plant; (3) the fact that the
plant closing did not have to be completed until 2001.
With respect to (1) above, I note that it is one thing to
release appropriated funds for a plant. It is quite another
to secure an appropriation for a plant that is destined to
close. With respect to (2) above, suffice it to say that the
recommendation was effectively overruled by the Secre-
tary of Defense, BRAC, and the President himself in July
1995. With respect to (3) above, the issue here is not
when the plant would actually close, but rather the likeli-
hood of obtaining full funding for a plant that is destined
to close.
Thus, it is clear that it would have been futile to seek
funding “for the future of the Stratford plant” that was
destined to close. Further, even if the Board now con-
cludes that it was not futile, there is at least a reasonable
argument that it was futile. Phrased differently, Respon-
dent is not unreasonable in arguing that such efforts
would have been futile.
In light of the above, I conclude that Respondent did
not breach the contract. And, even if it did, that breach
was not a violation of Section 8(d)–8(a)(5).

2 The funds were ultimately released in mid-April 1995.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain with the International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, and its Locals
1010 and 376, by repudiating the competitiveness
agreement at midterm.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL reinstate all terms and conditions of employ-
ment provided under the competitiveness agreement,
whose duration was from May 30, 1994, until June 6,
1997, and WE WILL maintain them while we bargain in
good faith with the Unions until we reach either a new
agreement or a lawful impasse.
WE WILL, in the event that bargaining unit work has
been transferred or subcontracted, or equipment neces-
sary for such bargaining unit work has been transferred
or relocated, to our Phoenix, Arizona facility or to other
locations, as a consequence of our premature termination
of the competitiveness agreement, return such work
and/or such equipment to our Stratford, Connecticut fa-
cility.
WE WILL, in the event that bargaining unit employees
have been laid off as a consequence of our premature
termination of the competitiveness agreement, offer
those employees immediate and full reinstatement to
their former positions, or if such positions no longer ex-
ist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights and privileges
previously enjoyed.
WE WILL, in the event that bargaining unit employees
have suffered any loss of earnings or other benefits as a
consequence of our premature termination of the com-
petitiveness agreement, make those employees whole for
such losses, with interest.

ALLIEDSIGNAL AEROSPACE, A DIVISION OF
ALLIED SIGNAL, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1209
Thomas E. Quigley, Esq., for the General Counsel.
Richard C. Hotvedt, Esq. (Morgan, Lewis & Bockius) and Pat-
rick W. McGovern, Esq., for the Respondent.
Thomas W. Meiklejohn, Esq. (Livingston, Adler, Pulda & Meik-
lejohn), for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me during 16 days of hearing commencing
September 18, 1996, and concluding on December 19, 1996.
Upon charges filed on October 12 and November 20, 1995, a
consolidated complaint was issued on July 3, 1996, alleging
that AlliedSignal Aerospace, a Division of Allied Signal, Inc.
(Respondent or Allied) violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act). Respondent filed an
answer denying the commission of the alleged unfair labor
practices.1
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by the parties on Feb-
ruary 12, 1997.2
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, with its corporate
office and principal place of business located in Morristown,
New Jersey, and a production facility located in Stratford, Con-
necticut, has been engaged in the manufacture and sale of en-
gines and related products. Respondent has admitted, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. In addition, it
has been admitted, and I find, that International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW and Local 1010 (the Union or Local 1010)
are labor organizations within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this proceeding are (1) whether Respondent
unlawfully terminated the competitiveness agreement; (2)
whether Respondent was required to engage in decision bar-
gaining with respect to its decision to close the Stratford facility
and relocate unit work; and (3) whether Respondent unlawfully
failed to provide certain information to the Union concerning
its decision to relocate unit work.
B. The Facts
1. Background
In late 1993, Respondent began to actively consider purchas-
ing the business of Textron Lycoming Division of Textron, Inc.
(Textron) located in Stratford, Connecticut. The Stratford facil-

1 In its answer Respondent stated as an affirmative defense that the
matter should be deferred to arbitration. This request was withdrawn
on December 16, 1996.
2 G.C. Exh. 114 is admitted into evidence.
ity is commonly known in the defense industry as the Stratford
Army Engine Plant or (SAEP). For many years the plant’s
primary product was the production of helicopter and other
engines for the Armed Services and since the late 1970s pro-
duction of the AGT 1500, a gas turbine engine for U.S. Army
tanks.
2. 1994 negotiations for a collective-bargaining agreement
Local 1010 represents a unit of production and maintenance
employees at SAEP while Local 3763 presents a much smaller
unit of technical and clerical support staff employees. Histori-
cally, bargaining with Local 1010 occurred first, followed by
bargaining with Local 376 over issues unique to that unit. The
labor agreements between Textron and the Union were to ex-
pire on May 30, 1994. One of the conditions of the sale of
Textron to Allied was that labor agreements acceptable to Al-
lied be reached between Textron and the Union. On May 12,
1994, Allied and Textron announced that Allied would pur-
chase the Textron Lycoming Turbine Engine Division.
On June 9, 1994, an internal Allied memorandum circulated
in the plant which stated that the “best assumption today is that
the Army will not buy any new tank engines. We need to
evaluate the barriers to closing the plant in case that it eventu-
ally becomes expedient.” On learning of this memorandum, the
union representatives became concerned that once the acquisi-
tion took place Allied would close the plant and relocate to its
headquarters in Phoenix, Arizona. Accordingly, negotiations
virtually ground to a halt. Philip A. Wheeler, the Union’s re-
gional director, spoke to Edward J. Bocik, Allied’s vice presi-
dent of labor relations, and told Bocik that the Union was seek-
ing a long-term commitment from Allied to remain in Stratford.
Bocik replied that it was essential to obtain “military funding.”
It was agreed that a meeting would be scheduled with represen-
tatives of Local 1010, Local 376, Textron, and Allied.
3. Status of Federal funding as of June 1994 and
June 27 meeting
In the 1994 Federal budget, which had been passed in Octo-
ber 1993, Congress appropriated $17 million for the tank en-
gine base but as of mid-1994 the funds had not actually been
released by the Army to Textron. On March 14, 1994, the
“Blue Ribbon Panel” of the Defense Science Board recom-
mended that the Army release the $17 million to SAEP.
Bocik arranged for a meeting to be held on June 27 at
Wheeler’s office. Bocik and Donald Shaw, Allied vice presi-
dent of human resources, attended for Respondent, while Tex-
tron’s chief negotiators, George Metzger and Frank McNally
attended for Textron. The Union was represented by Wheeler,
his assistant Robert Madore, Joseph Ciuci, then-president of
Local 1010, and Russell See, president of Local 376.
Bocik presented a draft “competitiveness agreement” (CA),
which Bocik stated, “[D]escribes the context in which Allied-
Signal can commit to keep certain work in the plant.” Bocik
also stated that “Textron and AlliedSignal are most interested in
reaching agreements with Local 1010 and Local 376 that will
address the concerns of the Union membership and support the
future of the Stratford plant.” Bocik read aloud each of the six
3 On September 18, 1996, the General Counsel moved to amend the
complaint to include allegations concerning Local 376 similar to those
involving Local 1010. I granted the motion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
provisions of the CA at the meeting. Section 6 of the draft CA
proposed as follows:

Should AlliedSignal purchase TLTED’s assets,
AlliedSignal intends to make application to appropriate of-
ficials of the United States Government for financial ar-
rangements in an amount considered by AlliedSignal to be
adequate to support the future of the Stratford plant by
AlliedSignal on a stand-by basis for the production of the
AGT-1500 engine, if active procurement of that engine
should cease . . . .
After AlliedSignal makes such an application to the
Government, if no provision to fund such financial ar-
rangements in the amount sought by AlliedSignal shall be
made in the Federal budget as next thereafter enacted by
the Congress of the United States, then at any time after
such enactment of a Federal budget, AlliedSignal may ter-
minate this Competitiveness Agreement.

Bocik testified, that when going through the language of sec-
tion 6, he explained to the union representatives that “this
meant we needed funding in each year. And if we didn’t get
what we needed in each year, we had to maintain the right to
cancel the competitiveness agreement.” Wheeler recalled,
however, that Bocik specifically referred to the amount that had
already been submitted by Textron in the 1995 Federal budget
as the Federal funding being sought by Respondent, and that
Bocik stated that Respondent needed this money to “get over
the hump.” Bocik denied that he used the phrase “get over the
hump.” The draft of Bocik’s prepared text states “for Allied-
Signal to competitively manufacture the remaining engines that
are now being produced in Stratford, it must obtain financial
U.S. from the Government.”
On July 7 the Union submitted a counterproposal to the June
27 draft of the CA, which proposed to insert the language in
section 6 “to fund such financial arrangements in the amount
reasonably required.” The Union’s proposal was not accepted,
and on July 15, 1994, the parties entered into the competitive-
ness agreement. On July 19 new 3-year collective-bargaining
agreements expiring June 6, 1997, were reached, and made
retroactive to May 30, 1994. Also, on July 19 Allied signed a
“memorandum of agreement” in which it agreed to assume the
contractual obligations of Textron, including the collective-
bargaining agreement, the competitiveness agreement, and the
effects bargaining agreement. A similar agreement with respect
to Local 376 was reached on July 22, 1994.
4. 1994 Federal appropriations
On July 13, 1994, Allied sent letters to various members of
Congress urging release of the $17 million previously appropri-
ated but not released, and urging approval of the Blue Ribbon
Panel’s recommendation. The total amount requested by Allied
in July 1994 was $52 million ($35 million plus $17 million left
over from the 1994 Federal budget). On September 26, 1994,
Congress appropriated $47.5 million. This included the $17
million previously appropriated but not released.
5. Placement on the BRAC list
On February 28, 1995,4 Secretary of Defense William Perry
announced the Department of Defense’s recommendations to
close or realign 146 military installations in the United States.

4 All subsequent dates refer to 1995 unless otherwise specified.
The recommendations were being forwarded to the Base Clo-
sure and Realignment Commission (BRAC). SAEP was on the
list. News of the plant’s inclusion on the base closing list took
Allied and union representatives by surprise. James Robinson,
then Allied’s vice president and general manager, testified that
when the BRAC closure list came “zinging out of the blue” it
was “like getting kicked in the stomach . . . that was the date
when the world changed.”
Once SAEP appeared on the BRAC list a split developed
within the Armed Services as to whether the $47.5 million were
still required. Allied began lobbying the Defense Department
and members of Congress for release of the withheld funds.
The Union joined in the effort and lobbied the Connecticut
delegation, meeting with Senators Dodd and Lieberman and
Congresswoman Rosa DeLauro. On March 3 David Coventry,
Allied’s AGT 1500 program manager, wrote to Prince Young
Jr. of the U.S. Army’s tank automotive command (TACOM)
that “without Army support, AE (AlliedSignal Engines) will
discontinue their downsizing efforts and make arrangements to
move commercial production to Phoenix . . . AE views the
release of the $47.5 million industrial base funds as a require-
ment to keep commercial business at SAEP.” On April 13
Robert Choulet, president of AlliedSignal Engines, a Division
of AlliedSignal Aerospace, wrote to the then Deputy Secretary
of Defense, John Deutch, and expressed his concern over the
delay in the obligation of the funds for the tank engine base.
The letter stated that, “without the release of these funds . . .
AlliedSignal will have no alternative but to begin moving our
commercial business out of Stratford.” On April 14 the Secre-
tary of Defense approved release to the Army of the $47.5 mil-
lion tank engine industrial base funds.
6. Subsequent events
On June 23 the BRAC Commission rejected the arguments
in favor of removing the plant from the list and sent its report to
President Clinton and on July 13 the President accepted the
BRAC Commission’s recommendations. On June 26 there was
an employee meeting in the plant attended by Congresswoman
DeLauro, Michael Meshay, site manager, and Local 1010
president, David Kelly. Meshay announced to the work force
that Allied would immediately be putting in place “an imple-
mentation team . . . that will be reviewing with the Army what
they want to do with the facility.” Kelly stated, “I’m not sure
that this is the end of the line. It does appear to be. We don’t
know when the final closing will occur . . . I’m going to contact
Larry Bossidy, CEO of Allied Signal Corporation, to see
whether or not they would be willing to sit down with us and
see if there’s some kind of option to keep the manufacturing
here in the State of Connecticut.” On June 28 Kelly and Me-
shay met, at which time Meshay presented a plan showing how
Allied could save $30 million by consolidating operations in
Phoenix. Kelly told Meshay “if you move any of the bargain-
ing unit work out of the Stratford plant we’ll consider that to be
a violation of our agreement.”
On July 14 Meshay sent a letter to plant employees stating
that “it does not appear that an economic case can be made to
remain in Stratford without the ownership and support of the
Army [and] it is difficult to foresee a way that AlliedSignal can
economically operate the facility, even if incentives were of-
fered by the U.S. Government, Connecticut or Stratford
authorities.” The letter continued:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1211
Ultimately, the BRAC decision requires AlliedSignal to em-
bark upon further evaluation of options for continued delivery
of ongoing production and engineering contracts that the
Stratford facility is obligated to fulfill. These options include
transitioning Stratford operations to another AlliedSignal fa-
cility, most likely the Engines facility in Phoenix.

On the same day Kelly sent a letter to Meshay, stating:

Local 1010 and the International Union consider your letter to
all employees on July 14, 1995 concerning the transfer of
production operations to Phoenix, AZ to be in violation of our
Labor Agreement, the Competitiveness Agreement and the
National Labor Relations Act . . . . If it is AlliedSignal’s inten-
tion to move any bargaining unit work we demand to bargain
over the decision and effects of such action.
7. Request for information
On July 31 Kelly wrote to Meshay requesting certain infor-
mation. The letter stated, “This information is essential to the
Union in order for us to bargain informatively over the ‘deci-
sion’ and ‘effects’ created by your desire to relocate production
lines, engine assembly, engine testing and equipment and ma-
chinery.” By letter dated August 16, Brian McMenamin, Al-
lied’s director of human resources, stated, “As of this writing,
AlliedSignal still has not made a decision to close the facility.
Until such time as a decision to close is made, AlliedSignal will
defer replying to your letter.”
8. Termination of the competitiveness agreement
On September 29 Meshay wrote to Kelly:

I regret to inform you that pursuant to Section 6 of the 1994
Competitiveness Agreement AlliedSignal is exercising its
right to terminate the Competitiveness Agreement. Pursuant
to Section 6, this letter is AlliedSignal’s 90-day notice of ter-
mination which shall take effect upon the enactment of the
1996 Federal budget or 90 days from the date of this letter,
whichever is later. Pursuant to Section 4 of the Agreement,
AlliedSignal is prepared to commence impact bargaining.

On October 3 Kelly sent the following reply to Meshay:

The Company’s right to terminate the Competitiveness
Agreement is limited to specific financial circumstances.
Inasmuch as the Army awarded AlliedSignal $47.5 million
for preservation of the tank engine industrial base at Strat-
ford, there are no grounds to terminate the Competitive-
ness Agreement.

Subsequently, the parties met but Allied insisted that it
would meet to discuss effects bargaining only and that the deci-
sion to relocate did not turn on labor costs. Until mid-August
1996 Allied maintained its position that the decision to relocate
was not a mandatory subject of bargaining and thus it would
not provide information to the Union about the decision. How-
ever, shortly before the hearing began, Allied provided the
Union with a majority of the information it had been request-
ing since July 31.
C. Discussion and Conclusions
1. Termination of competitiveness agreement
Section 6 of the competitiveness agreement, which was exe-
cuted on July 15, 1994, states, in pertinent part:

Should AlliedSignal purchase TLTED’s assets,
AlliedSignal intends to make application to appropriate of-
ficials of the United States Government for financial ar-
rangements in an amount considered by AlliedSignal to be
adequate to support the future of the Stratford plant by
AlliedSignal on a stand-by basis for the production of the
AGT 1500 engine, if active procurement of that engine
should cease . . . .
After AlliedSignal makes such an application to the
Government, if no provision to fund such financial ar-
rangements in the amount sought by AlliedSignal shall be
made in the Federal budget as next thereafter enacted by
the Congress of the United States, then at any time after
such next enactment of a federal budget, AlliedSignal may
terminate this Competitiveness Agreement.

Respondent contends that it was the intention of this section
that if in any year adequate financial arrangements were not
provided in the Federal budget, Allied was permitted to termi-
nate the CA. In this vein, Bocik, one of the drafters of the
competitiveness agreement, testified that at the June 27 meeting
“I explicitly stated to Mr. Wheeler and the other union people
in that meeting, that this meant we needed funding in each year.
And that if we didn’t get what we needed in each year, we had
to maintain the right to cancel the competitiveness agreement.”
Similarly, Shaw testified that Bocik “made it very clear that
there had to be Federal funding that was at a level satisfactory
to AlliedSignal year-by-year.” On the other hand, Fabrizio
testified that at the June 28 meeting Bocik stated that Allied
“needed Government funding to keep Stratford going.” When
asked whether Bocik specified what Federal funding was
needed, Fabrizio testified, “he just used the term we need fund-
ing.” Fabrizio further testified that there was no discussion at
this meeting of funding being required for “future use.” Russell
See testified that at the June 27 meeting Bocik stated that it was
necessary to “get over the hump.” See explained that the
“hump” was the money currently being requested by Textron in
the current Federal budget. Bocik denied that he made any
such statement. Kelly initially testified that at the June 28
meeting both Bocik and Metzger stated that the “competitive-
ness agreement will stay in full force and effect unless Con-
gress does not approve the $47-1/2 million funding.” He sub-
sequently retracted this testimony.
I do not credit the testimony that Bocik specifically stated
that Respondent required year-to-year funding. Nor do I credit
the testimony that Bocik stated a specific amount that was nec-
essary to “get over the hump.” Instead, I believe that the matter
was left vague. Just as in the competitiveness agreement there
is no mention of continual year-to-year funding, I believe that
in the negotiations leading up to the signing of the competitive-
ness agreement the amount of Federal funding was not speci-
fied. In this regard Respondent’s Exhibit 23, which is the draft
of Bocik’s statement at the June 27 meeting, states, “for
AlliedSignal to competitively manufacture the remaining en-
gines that are now being produced in Stratford, it must obtain
financial assistance from the Government.” There is no men-
tion of continual or year-to-year funding. Similarly, Shaw’s
notes of the June 28 meeting concerning the competitiveness
agreement state that Bocik read the “list of engines which will
continue to be manufactured in Stratford if sufficient Govern-
ment funding is provided.” Again, the notes do not specify
year-to-year or continual funding. I believe that there was no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
specificity with respect to funding because it was the intent of
Allied to continue at the Stratford location at least until the
expiration of the collective-bargaining agreement. In May
1994 the Blue Ribbon Panel had recommended continued fund-
ing for SAEP. It was not until the initial BRAC list was pub-
lished on February 28, 1995, that the parties realized that there
may be no more Federal funding. As Robinson credibly testi-
fied when the BRAC closure list came “zinging out of the
blue,” it was like “getting kicked in the stomach . . . that was
the date when the world changed.” Accordingly, I find that the
statements made during the negotiations concerning the mean-
ing of what Federal funding was required are not helpful.
Therefore, I must look to the text of the competitiveness
agreement to determine what I believe is its proper interpreta-
tion.
In NCR Corp., 271 NLRB 1212, 1213 (1984), the Board
stated:

The Board is not compelled to endorse either of these two
equally plausible interpretations of the contract’s operation in
this case. The present dispute is solely one of contract inter-
pretation. As the Board has stated in Vickers, Inc., 153 NLRB
561, 570 (1965), when “an employer has a sound arguable ba-
sis for ascribing a particular meaning to his contract and his
action is in accordance with the terms of the contract as he
construes it,” the Board will not enter the dispute to serve the
function of arbitrator in determining which party’s interpreta-
tion is correct. [Footnote omitted.]

I believe that both the Union’s and Respondent’s interpreta-
tions are reasonable. The Union’s interpretation is that the
funding relates to the requests made by Allied in the spring and
summer of 1994 and the eventual authorization in “the Federal
budget as next thereafter enacted” of $47.5 million. On the
other hand, Allied’s interpretation of section 6 is also reason-
able. It points out that section 6 states that at any time after
such next enactment of “a” Federal budget, which would indi-
cate that section 6 is not referring to one specific year’s Federal
budget. The reasonableness of Respondent’s interpretation is
buttressed by a memorandum dated June 24, 1994, which
states, “each year after FY 95, they will have to ‘lock arms’
with management to insure the $15M in spares and $20M of
overhaul work gets authorized and appropriated in case the
Army does not include it in their budget.” Indeed, as pointed
out earlier, at the employee meeting of June 26 after the BRAC
report was approved, Kelly stated, “I’m not sure that this is the
end of the line. It does appear to be. We don’t know when the
final closing will occur.” Accordingly, I find that Respondent
had a “sound arguable basis” for ascribing its meaning to the
competitiveness agreement and that its termination of the CA
was in accordance with the terms of the agreement as it con-
strued it. See NCR Corp., supra at 1213; Yellow Freight Sys-
tems, 313 NLRB 309, 331 (1993), enfd. in part 37 F.3d 128 (3d
Cir. 1994). Therefore, I conclude that Respondent’s termination
of the competitiveness agreement on September 29, 1995, was
not in violation of the Act. Accordingly, the allegation is dis-
missed.
2. Decision bargaining
(a) Waiver
In its counterproposal of July 7, 1994, of the competitiveness
agreement the Union proposed in section 4 that the provision
state “the Union retains the right to engage in collective bar-
gaining with AlliedSignal with respect to the decision and ef-
fects upon bargaining unit employees should AlliedSignal de-
cide in the future to close the Stratford plant.” The right to
engage in “decision” bargaining was rejected and the final ver-
sion of the CA states that “the Union retains the right to engage
in collective bargaining with AlliedSignal with respect to the
effects upon bargaining unit employees should AlliedSignal
decide in the future to close the Stratford plant.” Respondent
appears to argue that by virtue of the fact that decision bargain-
ing was not included in the final version of the competitiveness
agreement, the Union waived its right to such bargaining.
The Board will not find a waiver of the right to bargain over
a mandatory subject unless the waiver is “clear and unmistak-
able.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
(1983); Exxon Research & Engineering Co., 317 NLRB 675
(1995); Johnson-Bateman Co., 295 NLRB 180, 184 (1989).
The fact that section 4 specifically preserves the right to engage
in effects bargaining is not an explicit waiver of the right to
engage in decision bargaining. The failure to win explicit rec-
ognition of a right is insufficient to establish a waiver. As the
Board stated in Johnson-Bateman Co., supra 295 NLRB at 185:

Waiver of a statutory right may be evidenced by bargaining
history, but the Board requires the matter at issue to have been
fully discussed and consciously explored during negotiations
and the union to have consciously yielded or clearly and un-
mistakably waived its interest in the matter. [Footnote omit-
ted.]

Kelly testified that when discussing the “decision and ef-
fects” language of the Union’s counterproposal to section 4 of
the CA, Metzger said, “it’s not necessary. This is redundant.
The whole section 4 is a commitment to engage in decision
bargaining. I checked it out and I agreed with that, and we
dropped our proposal. It wasn’t necessary.” While McNally
denied that Metzger made such a statement, it appears that at
least in Kelly’s thinking the right to decision bargaining was
not being waived. Based on the previously cited cases, I find
that the Union did not “clearly and unmistakably” waive its
right to decision bargaining.
(b) Dubuque Packing Co.
In Dubuque Packing Co., 303 NLRB 386, 391 (1991), enfd.
sub nom. Food & Commercial Workers Local 150-A v. NLRB,
1 F.3d 24 (D.C. Cir. 1993), cert. dismissed 114 S.Ct. 2157
(1994), the Board announced the test to be applied in cases
involving decisions to relocate bargaining unit work:

Initially, the burden is on the General Counsel to establish that
the employer’s decision involved a relocation of unit work
unaccompanied by a basic change in the nature of the em-
ployer’s operation. If the General Counsel successfully car-
ries his burden in this regard, he will have established prima
facie that the employer’s relocation decision is a mandatory
subject of bargaining. At this juncture, the employer may
produce evidence rebutting the prima facie case by establish-
ing that the work performed at the new location varies signifi-
cantly from the work performed at the former plant, establish-
ing that the work performed at the former plant is to be dis-
continued entirely and not moved to the new location, or es-
tablishing that the employer’s decision involves a change in
the scope and the direction of the enterprise. Alternatively,
the employer may proffer a defense to show by a preponder-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1213
ance of the evidence: (1) that labor costs (direct and/or indi-
rect) were not a factor in the decision or (2) that even if labor
costs were a factor in the decision, the union could not have
offered labor cost concessions that could have changed the
employer’s decision to relocate.

The first step in the Dubuque analysis is to determine
whether Respondent’s decision involves the relocation of bar-
gaining unit work. There does not seem to be any serious dis-
pute that this case involves such a relocation. When Meshay
first informed the Stratford employees that Allied was contem-
plating closing the plant, he wrote that Respondent was evaluat-
ing the option of “transitioning Stratford operations to another
AlliedSignal facility, most likely the Engines facility in Phoe-
nix.” In Respondent’s news release of September 29, 1995, it
stated “AlliedSignal Aerospace announced today that it will
vacate the Stratford plant by mid-1997. The company is plan-
ning to move production to other AlliedSignal facilities, with
its Phoenix operations being its first choice.” When testifying
concerning the $30 million savings of moving to Phoenix, Rob-
inson stated that, “we got the recommendation that the numbers
that were produced would yield a decision that we should close
the business and move it.” The explanation of the decision sup-
plied by Meshay to Local 1010 in February 1996 focuses on the
savings to be achieved by transferring the work to Phoenix and
states “no new facilities to be constructed in Phoenix to absorb
SAEP.” Thus, I find that Respondent’s decision “involves a
relocation of unit work.”
The Dubuque decision also states that the relocation of unit
work must be “unaccompanied by a basic change in the nature
of the employer’s operation.” In Dubuque itself the Board
concluded that the decision to relocate the employer’s hog
slaughtering operation did not constitute a “basic change” be-
cause the same basic functions would be performed at the new
location, supra, 303 NLRB at 393. In Owens-Brockway Plastic
Products, 311 NLRB 519, 522 (1993), the Board found that a
relocation decision did not involve a change in scope and direc-
tion because the same machines were to be used at the new
location, the same basic manufacturing process was to be em-
ployed, no other plants were closed and the employer continued
to produce the same basic products. In addition, in Holmes &
Narver, 309 NLRB 146, 147 (1992), the Board held that a sub-
contracting decision did not change the “scope and direction of
the enterprise” because the employer did not abandon a line of
business or cease a contractual relationship with any customers.
In order for Respondent to show a “change in the scope and
direction in the enterprise” it must establish a basic change in
its business. I believe that closing the SAEP does not involve a
basic change in the nature of Respondent’s business.
McMenamin testified that Allied is in the process of establish-
ing the “capacity to produce in Phoenix the engines which here-
tofore have been produced in Stratford.” Thus, Respondent will
continue to produce the engines that had previously been pro-
duced in Stratford. The decision to relocate does not involve
any change in products, customers, or methods of production.
A consolidation of production, resulting in the elimination of
one of many plants, is not a basic change. Owens-Brockway
Plastic Products, supra, 311 NLRB at 522. Accordingly, I find
that Respondent’s decision to relocate is a “relocation of unit
work unaccompanied by a basic change in the nature of the
Employer’s operation,” Dubuque Packing Co., supra, and that
the General Counsel has made a prima facie showing that Re-
spondent’s decision is a mandatory subject of bargaining.
As a defense, Respondent maintains that labor costs were not
a factor in the decision to relocate and that even if labor costs
were a factor, the Union could not have offered concessions
that could have changed Respondent’s decision to relocate. I
credit Kelly’s testimony that at a meeting on August 31, 1995,
Meshay asked him “whether or not the local union would be
willing to . . . take a 10 percent cut.” Kelly responded, “if the
company agreed to accept the State’s offer of economic assis-
tance and stay here, that speaking on behalf of Local 1010 we
were prepared to meet with the company and open the contract,
and do whatever was necessary to make adjustments that would
be satisfactory to both Allied Signal and our union members.”
McMenamin corroborated Kelly’s testimony. Respondent an-
ticipated $30 million in savings from the relocation. Initially,
Allied maintained that the bargaining unit payroll was only $25
million. However, after subsequent testimony by McMenamin,
Respondent stipulated that total labor costs for Local 1010 and
Local 376 are approximately $61 million, twice the savings that
Respondent relied upon in making its decision to relocate. I
conclude that Respondent has not shown by a preponderance of
the evidence that labor costs were not a factor in its decision to
relocate, or that even if labor costs were a factor, that the Union
could not have offered concessions that could have changed the
Employer’s decision to relocate. Accordingly, I find that Re-
spondent’s notification to the Union on September 27, 1995,
that it would relocate unit work to its Phoenix, Arizona facility,
without affording the Union an opportunity to engage in deci-
sion bargaining, violated the Act.
3. Request for information
In Conrock Co., 263 NLRB 1293, 1294 (1982), the Board
stated:

It is well settled that an employer has an obligation, as
part of its duty to bargain in good faith, to provide infor-
mation needed by a union to enforce and administer a col-
lective-bargaining agreement. An employer must furnish
information that is of even probable or potential relevance
to the union’s duties. The refusal by an employer to pro-
vide relevant information requested by the union is a
violation of Section 8(a)(5) and (1) of the Act. [Footnotes
omitted.]

In a letter to Respondent dated July 31, 1995, Kelly re-
quested 56 items of information. The Union acknowledged that
it has received all of the documents relating to the request for
information except for items 3, 6, 16, 30, 42, 43, 45, and 55.
Item 3 requests information on work performed by bargaining
unit employees which has been subcontracted or relocated.
Item 6 requests documentation relating to the actual or esti-
mated cost per employee for bargaining unit work performed at
the Stratford facility. Item 16 requests the Respondent’s finan-
cial statements. Item 30 requests a list of bargaining unit em-
ployees with the estimated earnings lost due to the reduction of
employees. Item 42 requests a copy of the memorandum of
understanding or purchase agreement of the sale of assets of
Textron Lycoming to Respondent. Item 43 requests copies of
current contracts with the military services for the procurement
of engines and related parts and services. Item 45 requests
copies of similar commercial contracts. Item 55 requests sup-
porting data for Respondent’s estimate of a savings of $30 mil-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
lion annually by consolidating the Stratford work in Phoenix.
Respondent refused to provide this information because it be-
lieved that the information was relevant to “decision” bargain-
ing, but not to “effects” bargaining. Inasmuch as I have found
that Respondent was required to engage in decision bargaining
over the relocation of bargaining unit work from Stratford to
Phoenix, I find that the information contains “probable or po-
tential relevance to the Union’s duties.” Conrock, Id. Accord-
ingly, the refusal by Respondent to provide this information is a
violation of Section 8(a)(5) and (1) of the Act.
4. Amendment to the complaint
On the first day of hearing the General Counsel moved to
amend the complaint to add certain allegations concerning em-
ployees represented by Local 376. Respondent objected. After
affording Respondent an opportunity to file an opposition, on
September 25, 1996, citing Redd-I, Inc., 290 NLRB 1115
(1988), I granted the General Counsel’s motion. In Redd-I, Id.
at 1116, the Board stated “Traditionally, the Board and the
courts have allowed the General Counsel to add complaint alle-
gations . . . if they are closely related to the allegations of the
timely filed charge.” Citing Jack La Lanne Management
Corp., 218 NLRB 900, 913 (1975), enfd. 539 F.2d 292, 295 (2d
Cir. 1976), the Board stated, “the Board has found complaint
allegations closely related when they ‘arise from the same fac-
tual situation, are of the same class as, and clearly related to,
the [allegations] . . . set forth in the charge.”’ With reference to
Jack La Lanne, the Board stated (supra, 290 NLRB at 1116 fn.
11):

In enforcing the Board’s decision on this point, the Second
Circuit stated that the additional complaint allegations “are all
concerned with similar unfair labor practices designed to fur-
ther the Company’s common objective . . . represent “closely
related” parallel conduct toward other employees . . . and con-
stitute “the same class of violations as those set up in the
charge.”

Historically, Locals 1010 and 376 have conducted separate
negotiations. However, since 1976 the two collective-
bargaining agreements have a common expiration date. The
parties customarily engaged in what they referred to as a “tan-
dem” bargaining process under which both locals would nego-
tiate language issues and grievances simultaneously, but Local
1010 would establish the pattern for economic terms. The ter-
mination language of the two CAs is identical. The idea for the
two CA’s was initially put forward in a single meeting involv-
ing the International Union and the presidents of both locals.
The termination letters from Respondent to the two local presi-
dents are identical as are the two letters from the local presi-
dents protesting the cancellations. I believe that the allegations
relating to Local 376 are “factually and legally related” to the
allegations regarding Local 1010. Accordingly, I reaffirm my
decision granting the General Counsel’s motion to amend the
complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International and Local 1010 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent, members of Lo-
cal 1010, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act:

All full-time and regular part-time hourly paid maintenance
and production employees and salaried plant clerical employ-
ees employed in the plant located in Stratford, Connecticut, or
any extensions or additions to the existing plant, excluding
executives, supervisory, managerial, confidential, profes-
sional, technical, office clerical employees, department confi-
dential clerks, time study men, and all other salaried employ-
ees, guards and watchmen.

4. The following employees of Respondent, members of Lo-
cal 376, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time office, clerical and techni-
cal salaried employees employed by Respondent at its facility
in Stratford, Connecticut, excluding professional, plant cleri-
cal, production and maintenance, confidential, supervisory,
buyers, all accounting department employees, reservationists,
and salaried employees as were excluded in the proceedings
in Case No. 2–RC–4663.

5. By notifying Locals 1010 and 376 on September 27,
1995, that Respondent would relocate unit work to its Phoenix,
Arizona facility, without prior notice to the Union, and without
affording the Union an opportunity to bargain concerning the
decision to relocate such unit work, Respondent has violated
Section 8(a(5) and (1) of the Act.
6. By failing and refusing to furnish the Union with the in-
formation requested by it on July 31, 1995, Respondent has
violated Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices constitute unfair labor
practices affecting commerce, within the meaning of Section
2(6) and (7) of the Act.
8. The Respondent has not violated the Act in any other
manner alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it necessary to order Respondent to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
I have found that Respondent violated the Act by notifying
the Union that it would relocate its bargaining unit work to its
Phoenix, Arizona facility, without affording the Union an op-
portunity to bargain concerning the relocation decision. The
record does not show whether, in fact, any bargaining unit work
has been transferred to Phoenix, or whether any equipment
necessary for bargaining unit work in Stratford has been trans-
ferred. Neither does the record show whether any employees
have been laid off because of the decision to relocate. I rec-
ommend that whether such transfer of work or of equipment,
and whether employees were laid off because of the transfer, be
left for the compliance stage of this proceeding. See Lear
Siegler, Inc., 295 NLRB 857, 861 (1989); Flamingo Hilton-
Reno, 321 NLRB 409 (1996). In the event that bargaining unit
work has been transferred to Phoenix or that equipment neces-
sary for bargaining unit work has been transferred, I shall order
Respondent to restore the status quo ante by returning such
work and such equipment to the Stratford facility. See Park-
Ohio Industries, 257 NLRB 413, 415 (1981), enfd. 702 F.2d
624 (6th Cir. 1983). However, Respondent may introduce evi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1215
dence at the compliance stage to demonstrate that the return of
such work and of such equipment would be unduly burden-
some. See Flamingo Hilton-Reno, supra, 321 NLRB at 409. In
addition, if any employees were laid off because of the transfer,
I shall order that Respondent immediately reinstate them to
their former positions, or if such positions no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole
for any loss of earnings they may have suffered. Backpay shall
be computed in accordance with the formula approved in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).5
The Union has recommended in its brief that I order the dis-
mantling of the duplicate capacity which Respondent has cre-
ated in Phoenix to produce the engines produced at Stratford.
The Union has cited no case which would warrant such a dras-
tic remedy. In addition, the Union requests that I order Re-
spondent to honor the competitiveness agreement for a period

5 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. Sec. 6621.
of time “equal to the period during which Respondent disre-
garded its obligations under that agreement.” In support of this
contention the Union cites Mar-Jac Poultry Co., 136 NLRB
785 (1962). I have found that Respondent did not violate the
competitiveness agreement. In addition, I believe that Mar-Jac
Poultry Co., supra, is not applicable inasmuch as it deals with
the extension of the certification year. See Air Vac Industries,
282 NLRB 703, 713 (1987). Furthermore, the Union requests
that I order Respondent to compensate it for the expenses in-
curred as a consequence of the cancellation of the competitive-
ness agreement. The Union contends that “Respondent’s con-
duct in canceling the CA in blatant disregard of the understand-
ing of the parties, constitutes . . . aggravated misconduct.” As
previously mentioned, I have found that Respondent did not
unlawfully cancel the competitiveness agreement and I further
find that Respondent did not engage in “unusually aggravated
misconduct.” See Frontier Hotel & Casino, 318 NLRB 857,
859 (1995). Accordingly, I deny the Union’s request that Re-
spondent be ordered to pay costs.
[Recommended Order omitted from publication.]