Otis Elevator Co.

National Labor Relations Board - Board Decisions

Apr 6, 1984

269 N.L.R.B. 891 (N.L.R.B. 1984)

OTIS ELEVATOR CO.
Otis Elevator Company, a wholly owned subsidiary
of United Technologies and Local 989, Interna-
tional Union, United Automobile, Aerospace &
Agricultural Implement Workers of America.
Case 22-CA-8507
6 April 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
On 25 March 1981 the National Labor Relations
Board issued a Decision and Order1 in this pro-
ceeding, finding that the Respondent had engaged
in unfair labor practices in violation of Section
8(a)(5) and (1) of the National Labor Relations
Act. The Board held that the Respondent had vio-
lated the Act by: (1) refusing to bargain with the
Union over its decision to transfer and consolidate
certain unit work from its Mahwah, New Jersey fa-
cility to other facilities in East Hartford, Connecti-
cut; (2) refusing to provide the Union with infor-
mation relevant to the Respondent's decision; and
(3) refusing to bargain with the Union over the ef-
fects of the Respondent's decision.
The Union and the Respondent filed petitions for
review of the Board's Decision and Order with the
United States Court of Appeals for the District of
Columbia Circuit, and the Board filed a cross-appli-
cation for enforcement of its Order. On 12 August
1981 the court granted the Board's motion to
remand this case to the Board for reconsideration
in light of the Supreme Court's decision in First
National Maintenance v. NLRB, 452 U.S. 666
(1981).
On 11 September 1981 the Board informed the
parties that it intended to reconsider this case and
invited them to submit statements of position. All
parties filed statements of position.
I
The Board has reconsidered its Decision and
Order in this case in light of the Supreme Court's
opinion in First National Maintenance. We con-
clude that the Respondent was free to decide to
discontinue its research and development activities
in Mahwah, New Jersey, and to consolidate them
with its operation in East Hartford, Connecticut,
unrestrained by Sections 8(a)(5) and 8(d) of the
Act. Acknowledging that this decision touched on
a matter of central concern to the Union and to the
employees it represented, we nevertheless find
under the guidance of First National Maintenance
255 NLRB 235 (1981) (Otis Elevator 1).
269 NLRB No. 162
that the decision turned not upon labor costs, but
instead turned upon a change in the nature and di-
rection of a significant facet of its business. Thus it
constituted a managerial decision of the sort which
is at the core of entrepreneurial control outside the
limited scope of Section 8(d).
Our understanding of the Court's construction of
Section 8(d) is best explicated by Mr. Justice Stew-
art's concurring opinion in Fibreboard Corp. v.
NLRB, 379 U.S. 203, 217 (1964), explicitly relied
on by the Court in First National Maintenance: "If,
as I think clear, the purpose of Section 8(d) is to
describe a limited area subject to the duty of col-
lective bargaining, those management decisions
which are fundamental to the basic direction of a
corporate enterprise or which impinge only indi-
rectly upon employment security should be ex-
cluded from the area." 379 U.S. at 223.
II
United Technologies acquired Otis Elevator
Company in 1975. A review was then made of
Otis' engineering organization and the state of Otis'
technological development. Based on that review,
a formal evaluation of Otis' operations was under-
taken by Booz-Allen & Hamilton and by the Presi-
dent of Otis, Robert Cole. In addition, Otis' vice
president Dr. William M. Foley independently
studied the Company's existing technology. All
three studies showed that Otis' technology was
outdated, having resulted in product designs that
were too expensive and not competitive. Otis'
share of the world elevator market was steadily de-
clining, and the Company was selling its products
at less than cost in order to remain in the market.
Otis' engineering activity was scattered throughout
North America, and work performed in one loca-
tion was being' duplicated elsewhere. In particular,
the Respondent did research and development
work in Parsippany, New Jersey, and did similar
work at its outdated and inadequate engineering
center in Mahwah, New Jersey.2 By contrast,
United Technologies had a major research and de-
velopment center in East Hartford, Connecticut,
employing approximately 1000 employees, some of
whom were working on elevator-related research
projects for Otis.
' Professional and technical employees employed at the Mahwah engi-
neering center have been represented by the Union for a number of
years. The unit consists of employees employed in the Respondent's engi-
neering division, which is headquartered in the Mahwah engineering
center, and includes a small number of employees working at the Re-
spondent's Harrison, New Jersey, and Yonkers, New York, fcilities. In
December 1977 there were approximately 274 employees in the unit. The
most recent collective-bargaining agreement wa effective by its terms
from I April 1977 to 31 March 1980.
The Parsippany employees are not represented by the Union.
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on its review of Otis' problems, the Re-
spondent decided to terminate Otis research and
development operations in Parsippany and
Mahwah and to consolidate them at its facility in
East Hartford, Connecticut. The Respondent's
management believed that consolidation of research
and development functions in close proximity to
United Technologies would strengthen the overall
engineering effort and enable Otis to redesign its
product to reduce its production costs. In July
1977, Otis closed its Parsippany facility, transferred
its research and development operations to East
Hartford, and relocated there approximately 30
Parsippany employees. In the fall of 1977, Vice
President Foley recommended a merger of the
Mahwah product improvement effort (part of the
Otis engineering division) with the overlapping
Otis research and development function now locat-
ed in East Hartford. In October 1977 President
Cole approved Dr. Foley's recommendation to
transfer the Mahwah product improvement group
to East Hartford.
As part of the research and development consoli-
dation, Otis began construction of a research
center, including an elevator test tower, adjacent to
Otis' North American Operations headquarters in
East Hartford, with which it would share comput-
er facilities. The new research center represented a
capital investment of between $2 and $3.5 million.
On 2 December 1977 Dr. Foley informed the
Mahwah employees of Otis' plans: by July 1979
there would be a research and development center
in East Hartford housing research, development,
product engineering, product improvement, testing,
and cost reduction operations. The Mahwah facili-
ty would continue to house contract engineering,
final drafting, data handling, data release, and
worldwide data distribution. As part of its plan,
Otis transferred 17 unit employees from Mahwah
to East Hartford.
We conclude that the Respondent's decision to
discontinue its research and development functions
in Mahwah, New Jersey, and to transfer those
functions to its facility in East Hartford, Connecti-
cut, was not subject to mandatory bargaining. In
the language of the Court in First National Mainte-
nance:
Management must be free from constraints of
the bargaining process to the extent essential
for the running of a profitable business. It also
must have some degree of certainty before-
hand as to when it may proceed to reach deci-
sions without fear of later evaluations labeling
its conduct an unfair labor practice. Congress
did not explicitly state what issues of mutual
concern to union and management it intended
to exclude from mandatory bargaining. None-
theless, in view of an employer's need for un-
encumbered decisionmaking, bargaining over
management decisions that have a substantial
impact on the continued availability of em-
ployment should be required only if the bene-
fit, for labor management relations and the col-
lective-bargaining process, outweighs the
burden placed on the conduct of the business.
[452 U.S. at 678-679.]
In this case the Respondent decided to discontinue
its research and development operations in Parsip-
pany and Mahwah, New Jersey, and to consolidate
them in East Hartford, Connecticut, to improve its
research and development and hopefully the mar-
ketability of its product. Good or bad, this type of
decision is beyond the reach of Section 8(d). The
Respondent made its decision because of its opinion
that its technology was dated, its product was not
competitive, its Mahwah research and development
operation duplicated other operations, and because
a newer and larger research and development
center was available in East Hartford.3 These facts
establish that the Respondent's decision did not
turn upon labor costs4 even though that factor may
have been one of the circumstances which stimulat-
ed the evaluation process which generated the de-
cision. Despite the evident effect on employees, the
critical factor to a determination whether the deci-
sion is subject to mandatory bargaining is the es-
sence of the decision itself, i.e., whether it turns
upon a change in the nature or direction of the
business, or turns upon labor costs; not its effect on
employees nor a union's ability to offer alterna-
tives. The decision at issue here clearly turned
upon a fundamental change in the nature and direc-
tion of the business, and thus was not amenable to
bargaining.
We see no need to reexamine the full scope of
the Court's analysis in First National Maintenance.
The Court discussed at length the Board's extant
decisions and the opinions of the Courts of Appeals
a In any particular case, although perhaps not here, either the sound-
ness of the judgment or the value of these concerns might be debatable.
We see no value in such a debate. Whatever the merits of the decision, so
long as it does not turn upon labor costs, Sec. 8(d) of the Act does not
apply.
4 We note there is no allegation present that the Respondent acted for
antiunion reasons, or from a desire to modify or lower labor costs. As the
Court stated:
Moreover, the union's legitimate interest in fair dealing is protected
in § 8(aX3), which prohibits partial closings motivated by antiunion
animus, when done to gain an unfair advantage. Textile Workers v.
Darlington Co., 380 U.S. 263 (1965). Under § 8(aX3) the Board may
inquire into the motivations behind a partial closing. An employer
may not simply shut down part of its business and mask its desire to
weaken and circumvent the union by labeling its decision "purely
economic." [452 U.S. at 682.]
892
OTIS ELEVATOR CO.
in this difficult area. For all the reasons given by
the Court, we find that the Respondent's decision
here turned upon a fundamental change in the
nature and direction of the business, and for that
reason is excluded from the limited area of bargain-
ing described by Section 8(d).
III
The Board, before the Supreme Court decided
First National Maintenance, had applied its ap-
proach to plant closure to other managerial deci-
sions which affected both the direction of the busi-
ness and employees. The Court's opinion rejected
that approach. The Court's view that predictability
in this area is necessary for both labor and manage-
ment leads us to elaborate on our present view of
Section 8(d) as it impacts upon management deci-
sions, other than partial closings, to change the
nature of the enterprise.
In footnote 22 of its opinion the Supreme Court
excluded from its ruling questions whether other
types of management decisions, such as plant relo-
cations, sales, various kinds of subcontracting, auto-
mation, etc., are excluded from mandatory bargain-
ing. In view of the Court's rejection of the Board's
approach we have decided to follow the Court's
lead and to rely on the analysis of Justice Stewart's
opinion in Fibreboard:
Yet there are other areas where decisions by
management may quite clearly imperil job se-
curity, or indeed terminate employment entire-
ly. An enterprise may decide to invest in
labor-saving machinery. Another may resolve
to liquidate its assets and go out of business.
Nothing the Court holds today should be un-
derstood as imposing a duty to bargain collec-
tively regarding such managerial decisions,
which lie at the core of entrepreneurial con-
trol. Decisions concerning the commitment of
investment capital and the basic scope of the
enterprise are not in themselves primarily
about conditions of employment, though the
effect of the decision may be necessarily to
terminate employment. If, as I think clear, the
purpose of Section 8(d) is to describe a limited
area subject to the duty of collective bargain-
ing, those management decisions which are
fundamental to the basic direction of the cor-
porate enterprise or which impinge only indi-
rectly upon employment security should be ex-
cluded from that area. [379 U.S. at 223.]
Thus, for the reasons the Court gave in First Na-
tional Maintenance (inter alia, management's need
for predictability, flexibility, speed, secrecy, and to
operate profitably), we hold that excluded from
Section 8(d) of the Act are decisions which affect
the scope, direction, or nature of the business.6 For
example, we are aware that in the past the Board's
decisions reflected an almost reflexive response to
"subcontracting" decisions as requiring bargaining.
We emphasize, again, that the appellation of the
decision is not important. Fibreboard "subcontract-
ing" must be bargained not because the decision
turns upon the label, but because in fact the deci-
sion turns upon a reduction of labor costs. In First
National Maintenance the Court explained that its
holding in Fibreboard derived from the fact that the
employer's decision to subcontract did not turn
upon a change in the basic operation, but rather
turned upon a reduction of labor costs.
In contrast, if Adams Dairy, 137 NLRB 815
(1962), enf. denied in relevant part 350 F.2d 108
(9th Cir. 1965), cert. denied 382 U.S. 1011 (1966),
were before us today, we would hold that decision
to "subcontract" is not subject to Section 8(d), be-
cause the employer's decision there to discontinue
its own distribution operation and to contract out
that function turned upon a fundamental change in
the scope and direction of the enterprise. The em-
ployer retained no control over the equipment or
the employees in the subcontractors' distribution
system. Further, no alter ego or other sham de-
vices were employed to disguise a unilateral reduc-
tion in labor costs in an operation over which the
employer maintained surreptitious control. As the
court of appeals said: "[T]here is a change in basic
operating procedure in that the dairy liquidated
that part of its business handling distribution of
milk product. ... " 350 F.2d at 111. Included
within Section 8(d), however, in accordance with
the teachings of Fibreboard, are all decisions which
turn upon a reduction of labor costs. This is true
whether the decision may be characterized as sub-
contracting, reorganization, consolidation, or relo-
cation, if the decision in fact turns on direct modifi-
cation of labor costs and not on a change in the
basic direction or nature of the enterprise. We note
in this regard our recent decision in Milwaukee
Spring II, 268 NLRB 601 (1984). In Milwaukee
I Such decisions include, inter alia, decisions to sell a business or a part
thereof, to dispose of its assets, to restructure or to consolidate oper-
ations, to subcontract, to invest in labor-saving machinery, to change the
methods of finance or of sales, advertising, product design, and all other
decisions akin to the foregoing. See generally Machinists v. Northeast Air-
lines, 473 F.2d 549 (Ist Cir. 1972), cert. denied 409 U.S. 845 (1972), aris-
ing under the Federal Aviation Act of 1958, Sec. 408, 49 U.S.C.A. Sec.
1378, and Railway Labor Act, Sec. 2, subd. 1, 45 U.S.C.A. Sec. 152.
subd. 1, where the court held that Northeast Airlines had no duty to bar-
gain over its decision to merge into Delta Air Lines. The court held that
Fibreboard did not guarantee union participation in a decision to merge.
"[M]erger negotiations require a secrecy, flexibility and quickness anti-
thetical to collective bargaining." 473 F.2d at 557, cited with approval in
First National Maintenance, 452 U.S. at 683 fn. 20.
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spring II the parties stipulated that the employer's
decision to relocate work from its unionized plant
to a nonunion plant turned upon a reduction of its
labor costs, and that the decision thus was a man-
datory subject of bargaining. Had the parties not
stipulated, we would have so held. Indeed, in Mil-
waukee Spring II, the Respondent recognized the
decision as such, and did in fact bargain in good
faith to impasse with the Union concerning wages.
We also recognize that these decisions do not fit
neatly into categories. Such decisions often involve
elements of one or more types of decisions, such as
the termination, relocation, and consolidation of
the research and development operations in this
case. As we noted before, it is also evident that
labor costs often are among the considerations
which cause management to decide to alter the
scope or direction of its business. The Court in
First National Maintenance stated with respect to
partial closings that: "If labor costs are an impor-
tant factor in a failing operation and the decision to
close, management will have an incentive to confer
voluntarily with the Union to seek concessions that
may make continuing the business profitable." 452
U.S. at 682. The Court nevertheless found that this
factor was insufficient to put the decision within
Section 8(d), despite its acknowledgement that in
the past unions had aided employers by various de-
vices to save faltering businesses. The Court rea-
soned that if labor costs were a factor, that element
of the decision could be adequately dealt with in
effects bargaining. We discern no substantial reason
why this analysis is not equally applicable to other
decisions which turn upon a significant change in
the nature or direction of a business.
IV
In Otis Elevator I, the Board affirmed the admin-
istrative law judge's findings that the Union was
entitled to the Booz-Allen and Cole reports in
order to bargain over the Respondent's decision.
Based on our holding that the Respondent was not
required to bargain over its decision, we conclude
that it was not obligated to provide the requested
information. We shall dismiss this allegation of the
complaint. 8
V
The complaint alleges that the Respondent uni-
laterally determined the transfer criteria, as well as
the individuals selected for transfer; that the Re-
6 In Otis Elevator 1, the Board concluded that the information was also
relevant to bargaining over the effects of the Respondent's decision. 255
NLRB 235 fn. 3. This conclusion was in error because the complaint al-
leges only that the information was relevant to the Respondent's decision;
the issue whether the information was also relevant to effects bargaining
was neither alleged nor litigated.
spondent unilaterally refused to allow union repre-
sentatives to attend the transfer interviews; and
that the Respondent failed and refused to bargain
over the effects of the research and development
consolidation on the unit employees transferred and
on the unit employees remaining at Mahwah. In
Otis Elevator I, the Board found that the Respond-
ent committed these effects-related violations. In so
finding, the Board relied substantially on its hold-
ings that the Respondent unlawfully refused to bar-
gain over its consolidation decision and unlawfully
withheld information from the Union.
In view of our conclusions here, we shall
remand the effects-bargaining allegations of the
complaint to the administrative law judge for fur-
ther consideration. In order to assure that the par-
ties' rights to litigate these issues are not abridged,
any party shall have the opportunity to adduce fur-
ther evidence bearing on these outstanding com-
plaint allegations. Thereafter, or in the event no
party seeks a further hearing, the administrative
law judge shall reconsider these complaint allega-
tions in light of our decision today and shall issue a
Supplemental Decision.
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Otis Elevator Company, a
wholly owned subsidiary of United Technologies,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 989, International Union, United Auto-
mobile, Aerospace & Agricultural Implement
Workers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All classifications of employees employed in
the Respondent's Engineering Division located in
Mahwah and Harrison, New Jersey, and Yonkers,
New York, in the classifications described in Ap-
pendix A of the collective-bargaining agreement ef-
fective 1 April 1977 to 31 March 1980, but exclud-
ing nontechnical, secretarial, clerical employees not
described in Appendix A, maintenance employees,
guards and all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since some time prior to 1 June 1950, the
Union has been and is now the exclusive represent-
ative of all employees in the appropriate unit de-
scribed above for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. The Respondent has not violated the Act by
failing and refusing to bargain with the Union over
its decision to terminate its research and develop-
ment functions in Mahwah, New Jersey, and to re-
894
OTIS ELEVATOR CO.
locate and consolidate those functions in East Hart-
ford, Connecticut.
6. The Respondent has not violated the Act by
failing and refusing to provide the Union with re-
quested information about its decision.
ORDER
This proceeding is remanded to Administrative
Law Judge Irwin Kaplan, who shall take the
action required by our Supplemental Decision and
Order.
IT IS FURTHER ORDERED that the administrative
law judge prepare and serve on the parties a Sup-
plemental Decision containing credibility resolu-
tions, findings of fact, conclusions of law, and rec-
ommendations, and that, following service of the
Supplemental Decision on the parties, the provi-
sions of Section 102.46 of the Board's Rules and
Regulations shall be applicable.
IT IS FURTHER ORDERED that the complaint alle-
gations that the Respondent violated the Act by re-
fusing to bargain over its decision to terminate its
research and development functions in Mahwah,
New Jersey, and to relocate and to consolidate
those functions in East Hartford, Connecticut, and
by its refusal to provide information relevant to its
decision, are dismissed.
MEMBER DENNIS, concurring.
I join my colleagues in reversing the Board's
original Decision and Ordert to the extent it held
that the Respondent violated the Act by: (1) refus-
ing to bargain with the Union over its decision to
consolidate and transfer certain unit work from its
Mahwah, New Jersey facility to other facilities in
East Hartford, Connecticut; and (2) refusing to
provide the Union with information relevant to the
Respondent's decision. I also agree with my col-
leagues that the remaining aspect, the Respondent's
alleged refusal to bargain over the effects of its de-
cision, should be remanded to the judge for further
consideration.
Although I join Chairman Dotson and Member
Hunter in the result they reach, I do not rely on
their rationale for dismissing the complaint allega-
tion that the Respondent unlawfully refused to bar-
gain over its decision. I rely instead on my analysis
of the Supreme Court's decision in First National
Maintenance v. NLRB, 452 U.S. 666 (1981).
I. THE SUPREME COURT'S FIRST NATIONAL
MAINTENANCE DECISION
First National Maintenance Corporation (FNM)
provided cleaning and maintenance services for
1 255 NLRB 235 (1981).
commercial establishments, including Greenpark
Care Center (Greenpark), a nursing home. FNM
supplied the labor force, including supervision, at
Greenpark's premises. Under the service contract,
Greenpark reimbursed FNM for labor costs and
paid a fixed management fee. FNM was losing
money at Greenpark, but was unable to secure an
increase in its management fee. As a result, FNM
decided to discontinue operations at Greenpark.
FNM discharged its employees working at Green-
park without bargaining with their union over the
decision to close a part of its business.
An administrative law judge, citing Board prece-
dent and the Supreme Court's Fibreboard decision,2
found that the decision to terminate operations at
Greenpark was a mandatory subject of bargaining
because it did not involve a significant withdrawal
of capital or affect the scope and direction of the
enterprise. Therefore, the administrative law judge
concluded that FNM's refusal to bargain over the
decision violated Section 8(a)(5) and (1). The
Board affirmed.3
The Second Circuit enforced the Board's Order,
but adopted a different rationale. 4 The court stated
that an employer's decision to close a part of its
business is presumptively a mandatory subject of
bargaining. The presumption could be rebutted by
showing that the purposes of the statute would not
be furthered by imposing a duty to bargain, for ex-
ample, by demonstrating that bargaining would be
futile. 6
The Supreme Court reversed. First National
Maintenance v. NLRB, 452 U.S. 666 (1981). The
Court's decision is broadly worded, no doubt be-
cause the Court recognized the need to provide
guidance to the Board and the courts of appeals in
an area of national importance.6
Referring to Justice Stewart's influential concur-
ring opinion in Fibreboard,7 the Court divided
management decisions into three categories. Cate-
gory I "decisions, such as choice of advertising and
promotion, product type and design, and financing
arrangements, have only an indirect and attenuated
impact on the employment relationship." Category
II "decisions, such as the order of succession of
layoffs and recalls, production quotas, and work
rules, are almost exclusively" an aspect of the em-
I Fibreboard Corg P. NLRB, 379 U.S. 203 (1964).
' First National Maintenance, 242 NLRB 462 (1979).
4 NLRB v. First National Maintenance, 627 F.2d 596 (2d Cir. 1980).
' Id. at 601-602.
6 452 U.S. at 674.
Indeed the particular facts of the case played no part in the Court's
analysis until the penultimate paragraph of the opinion. Only then did the
Court return to the facts "to illustrate the limits of [the] holding." 452
U.S. at 687. No limitation was placed on the breadth of the Court's ra-
tionale.
7 379 U.S. at 217-226.
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment relationship. Category III decisions have
"a direct impact on employment," but have as their
"focus" only the economic profitability of the em-
ployer's operation, a concern wholly apart from
the employment relationship. 452 U.S. at 676-677.
The Court placed FNM's partial closing decision in
Category III. "This decision," the Court said, "in-
volving a change in the scope and direction of the
enterprise, is akin to the decision whether to be in
business at all, 'not in [itself] primarily about condi-
tions of employment, though the effect of the deci-
sion may be necessarily to terminate employment."'
452 U.S. at 677 (quoting Fibreboard, 379 U.S. at
223 (Stewart, J., concurring)).
While Category I decisions are clearly nonman-
datory subjects of bargaining, and Category II de-
cisions are just as clearly mandatory, Category III
decisions cannot be so neatly classified. Further
analysis is necessary before deciding whether a
Category III decision is subject to mandatory bar-
gaining or whether it is "part of [an employer's] re-
tained freedom to manage its affairs unrelated to
employment." 452 U.S. at 677.
"[L]abeling a matter a mandatory subject of bar-
gaining," the Court reasoned, will benefit labor,
management, and the society at large "only if the
subject proposed for discussion is amenable to reso-
lution through the bargaining process." 452 U.S. at
678 (emphasis added). In addition, competing inter-
ests must be considered before concluding that bar-
gaining over the decision is mandatory: "Manage-
ment must be free from the constraints of the bar-
gaining process to the extent essential for the run-
ning of a profitable business. It also must have
some degree of certainty beforehand as to when it
may proceed to reach decisions without fear of
later evaluations labeling its conduct an unfair
labor practice." 452 U.S. at 678-679 (footnote omit-
ted). Accordingly, the Court formulated the fol-
lowing balancing test to take account of both the
subject matter's amenability to the bargaining proc-
ess and the burdens that bargaining would place
upon management:
[I]n view of an employer's need for unencum-
bered decisionmaking, bargaining over man-
agement decisions that have a substantial
impact on the continued availability of em-
ployment should be required only if the bene-
fit, for labor-management relations and the col-
lective-bargaining process, outweighs the
burden placed on the conduct of the business.
[Emphasis added. 452 U.S. at 679.]
Turning to its prior precedent, the Court stated
that in Fibreboard it "implicitly" applied this analy-
sis. The employer's decision in Fibreboard to sub-
contract maintenance work previously performed
by unit employees was amenable to the bargaining
process because it was based on a desire to reduce
labor costs. Requiring bargaining about the subcon-
tracting decision did not place a significant burden
on the conduct of the business because the decision
did not alter the company's basic operation, no
capital investment was contemplated, and the deci-
sion involved only the replacement of the compa-
ny's employees by the employees of an independ-
ent contractor to do the same work under similar
employment conditions. Thus, the First National
Maintenance Court cited Fibreboard as an example
of a Category III decision in which the "benefit"
outweighed the "burden" and bargaining was
therefore required.
The Court reached a contrary result when it ap-
plied the test to economically motivated partial
closings. The Court began its analysis by acknowl-
edging that in a partial closing situation a union
typically is in a position "to offer concessions, in-
formation, and alternatives that might be helpful to
management or forestall or prevent the termination
of jobs." 452 U.S. at 681. The Court explicitly
stated that it was "aware of past instances where
unions have aided employers in saving failing busi-
nesses by lending technical assistance, reducing
wages and benefits or increasing production, and
even loaning part of earned wages to forestall clo-
sures." Id. at fn. 19. Such factors tend to show the
decisions' amenability to resolution through the
bargaining process. The Court, however, did not
end its analysis at that point and simply conclude
that bargaining over partial closing decisions would
be required.
Instead, the Court looked to the other side of the
scale and found that labeling such decisions manda-
tory would place significant burdens on an employ-
er. "If labor costs are an important factor in . . .
the decision to close," the Court said, "manage-
ment will have an incentive to confer voluntarily
with the union to seek concessions that may make
continuing the business profitable." 452 U.S. at 682
(emphasis added). In other instances, "management
may have great need for speed, flexibility, and se-
crecy in meeting business opportunities and exigen-
cies." 452 U.S. at 682-683. The Court especially
criticized the Second Circuit's presumption analysis
because an employer would have difficulty deter-
mining beforehand whether. its decision was subject
to a duty to bargain.
On the basis of the foregoing, the Court
"conclude[d] that the harm likely to be done to an
employer's need to operate freely in deciding
whether to shut down part of its business purely
for economic reasons outweighs the incremental
benefit that might be gained through the union's
896
OTIS ELEVATOR CO.
participation in making the decision, and ...
[held] that the decision itself is not part of § 8(d)'s
'terms and conditions' . . . over which Congress
has mandated bargaining." 452 U.S. at 686 (empha-
sis in original; footnote omitted). In footnote 22 the
Court added: "In this opinion we of course inti-
mate no view as to other types of management de-
cisions, such as plant relocations, sales, other kinds
of subcontracting, automation, etc., which are to be
considered on their particular facts." (Citations
omitted.) The Court thus left these matters for the
Board to consider in light of the Court's analysis.
11. A FRAMEWORK FOR ANALYZING CATEGORY
III DECISIONS
A. Statement of the Framework
Based on the foregoing examination of the First
National Maintenance opinion, I shall apply the fol-
lowing analysis in cases raising the issue of whether
bargaining should be required over Category III
management decisions (i.e., decisions that have a
direct impact on employment, but have as their
focus only the economic profitability of the em-
ployer's operation). These decisions include, with-
out limitation, the following: plant relocations, con-
solidations, automation, and subcontracting. s
The first step is to determine whether "the sub-
ject proposed for discussion"-the employer's deci-
sion-is "amenable to resolution through the bar-
gaining process." 452 U.S. at 678. This determina-
tion requires examining the factors underlying the
decision. The key question to be answered is this:
Is a factor over which the union has control (e.g.,
labor costs) a significant consideration in the em-
ployer's decision? A factor over which the union
has control is a "significant consideration" if the
union is in a position to lend assistance or offer
concessions that reasonably could affect-i.e., make
a difference in-the employer's decision. If the de-
cision is not based on a factor over which the
union has control, or if such a factor is at best an
insignificant consideration in the employer's deci-
sion, the analysis ends, and bargaining is not re-
quired.
' Of course, if the matter presented is an economically motivated par-
tial closing or a sale, no decision bargaining is required. First National
Maintenance and prior Board precedent strike the balance in favor of no
duty to bargain about such decisions. US. Contractors, 257 NLRB 1180
(1981), petition for review denied 697 F.2d 692 (5th Cir. 1983) (partial
closing); General Motors Corp., 191 NLRB 951 (1971), petition for review
denied sub nom. Auto Workers Local 864 v. NLRB, 470 F.2d 422 (D.C.
Cir. 1972) (sale). Partial closing and sale decisions necessarily involve
management's "retained freedom to manage its affairs unrelated to em-
ployment." First National Maintenance, 452 U.S. at 677.
I do not agree with the analysis of the Supreme Court's First National
Maintenance decision set forth in Bob's Big Boy Restaurants, 264 NLRB
1369 (1982).
If it is determined that the employer's decision is
"amenable to resolution through the bargaining
process," bargaining is required "only if the benefit,
for labor-management relations and the collective-
bargaining process, outweighs the burden placed
on the conduct of the business." 452 U.S. at 679
(emphasis added). The second step in the analysis,
therefore, involves weighing the fact that the deci-
sion is amenable to resolution through the bargain-
ing process ("the benefit") against the constraints
that process places on management ("the burden").
As outlined in First National Maintenance, the
burden elements to be examined include, without
limitation, the following:
(a) extent of capital commitment (452 U.S.
at 680, 688);
(b) extent of changes in operations (id. at
679, 688);
(c) need for speed (id. at 682-683);
(d) need for flexibility (id.);
(e) need for confidentiality (id.).
There is no presumption in favor of mandatory
bargaining over Category III decisions. To the
contrary, before a Category III decision can be
found to be a mandatory subject of bargaining the
General Counsel must prove (1) that a factor over
which the union has control was a significant con-
sideration in the employer's decision, and (2) that
the benefit for the collective-bargaining process
outweighs the burden on the business.
B. Practical Application of the Framework
I readily acknowledge that applying the forego-
ing analytical framework to a wide-ranging catego-
ry of management decisions is not an easy matter.
Nevertheless, First National Maintenance mandates
this approach,9 and the Board has no discretion to
ignore the Supreme Court's statutory interpreta-
tion. To paraphrase the Court's decision in Electri-
cal Workers IUE Local 761 v. NLRB, 366 U.S. 667,
674 (1961), "However difficult [the application may
be], the statute compels the task."
In accord with the First National Maintenance
Court's admonition that an employer "must have
some degree of certainty beforehand as to when it
may proceed to reach decisions without fear of
later evaluations labeling its conduct an unfair
labor practice" (452 U.S. at 679), I believe that the
Board should try to provide the maximum possible
practical guidance to both management and labor
in this troublesome area. Some guidance is present-
ly available to the labor-management community in
9 See NLRB v. Island Typographers, 705 F.2d 44, 50 fn. 8 (2d Cir. 1983)
(balancing test applies to management decision to update plant technolo-
gy).
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circuit court decisions that have foreshadowed an
important aspect of the balancing test. At the
second or balancing step of the analysis, the critical
question is the weight of "the burden placed on the
conduct of the business," because the decision has
already been determined to be amenable to resolu-
tion through the bargaining process ("the benefit"),
and the task that remains is the weighing of the
one against the other. In the decisions discussed
below, courts of apppeals rejected the Board's reli-
ance upon Fibreboard and identified circumstances
where mandatory bargaining would have placed
substantial burdens on the conduct of the busi-
ness. I0
Transmarine Navigation"l highlights the follow-
ing burden elements: extent of changes in oper-
ations, extent of capital commitment, need for flexi-
bility, and need for speed. The employer in that
case operated a terminal in the Los Angeles
harbor. During the summer of 1963, the Japanese
Government consolidated its shipping lines, creat-
ing a need for larger port facilities in the United
States. The employer's facilities did not meet the
new requirements and, facing the resultant loss of
its principal customer, the company executed a
joint venture agreement with two other terminal
operators. The agreement provided that the compa-
ny would terminate its Los Angeles operations and
relocate in Long Beach as a minority partner in the
joint venture to be known as Sierra Terminals. The
company completed its relocation within 2 months
of the agreement's execution.
The Ninth Circuit pointed out that in deciding to
join Sierra Terminals the company "made funda-
mental changes in the direction and operation of
the corporate enterprise, which greatly affected its
capital, assets, and personnel." 12 In addition, the
certain loss of its principal customer required that
the company take a flexible approach regarding
possible solutions to its facilities problem, and that
it act quickly.' 3
10 I caution that the circuit court decisions are discussed only to illus-
trate appellate court analysis of burden elements before First National
Maintenance; I do not mean to suggest that the first step amenability test
would, or would not, have been met in any particular case.
'i NLRB v. Transmarine Navigation Corp., 380 F.2d 933 (9th Cir.
1967), remanding 152 NLRB 998 (1965).
i" 380 F.2d at 937. The court continued: "The Company became a mi-
nority partner in Sierra. Sierra has three times the former employees of
the Company, some who work in capacities which did not exist in the
Company, such as longshoring. The Company had $40,000 of working
capital at the Los Angeles facility, whereas Sierra has two and one-half
times that amount. Sierra has far larger and more modern terminal facili-
ties which service a larger shipping line of approximately ten times the
size of the Company's former customers." Id.
Is See also NLRB v. Rapid Bindery, 293 F.2d 170 (2d Cir. 1961), modi-
fying 127 NLRB 212 (1960), which illustrates the burden elements of
need for speed, need for flexibility, and the extent of capital commitment.
The employer in that case also faced the immediate loss of its principal
customer because its facilities were unable to accommodate a sudden in-
crease in business. The employer then transferred its operations to an-
Royal Plating & Polishing 14 illustrates the burden
elements of need for speed, extent of capital com-
mitment, and extent of changes in operations. A
company that had been suffering severe economic
losses over a 7-year period decided to close one
plant located in an urban renewal area. The compa-
ny granted the Housing Authority a 90-day option
to purchase. The Authority excised the option, ten-
dered its final offer, and gave the company 6
months to vacate.
The Third Circuit recognized that the company
was forced to close the plant swiftly or litigate the
question of market value in a condemnation pro-
ceeding. 350 F.2d at 195. The court also found that
the decision to close the plant rather than relocate
"involved a management decision to recommit and
reinvest funds in the business . . . [and was] a
major change in the economic direction of the
Company." 350 F.2d at 196.
Adams Dairy 5 illustrates the burden elements of
extent of changes in operations and extent of cap-
ital commitment. A dairy decided to change its ex-
isting distribution system by replacing its driver-
salesmen with independent contractors. The inde-
pendent distributors took title to the products at
dockside and were solely responsible for selling
them. Trucks used previously by driver-salesmen
were sold to the independent distributors.
The Adams court said that the case did not in-
volve "just the substitution of one set of employees
for another.... [T]here is a change in basic oper-
ating procedure in that the dairy liquidated that
part of its business handling distribution of milk
products.... [T]here was a change in the capital
structure of Adams Dairy which resulted in a par-
tial liquidation and a recoup of capital investment."
350 F.2d at 111.
I stress that these burden elements cut across all
types of Category III decisions. Where the burden
elements in a particular case are weighty, as illus-
other plant. The Transmarine court cited Rapid Bindery as being "closest
in point analytically with the case at bar .... While ... Rapid Bindery
..predates Fibreboard. . . its reasoning and conclusions are sound and
consistent with the principles of Fibreboard." 380 F.2d at 939.
See generally Machinists v. Northeast Airlines, 473 F.2d 549 (Ist Cir.
1972), cert. denied 409 U.S. 845 (1972), arising under the Federal Avia-
tion Act of 1958, Sec. 408, 49 U.S.C.A. Sec. 1378, and Railway Labor
Act, Sec. 2, subd. 1, 45 U.S.C.A. Sec. 152, subd. I. The court held that
Northeast Airlines had no duty to bargain over its decision to merge into
Delta Air Lines, stating that Fibreboard should not be extended to guar-
antee union participation in a decision to merge. "[M]erger negotiations
require a secrecy, flexibility and quickness antithetical to collective bar-
gaining." 473 F.2d at 557. The Supreme Court cited Northeast Airlines
with approval in First National Maintenance. 452 U.S. at 683 fn. 20.
i4 NLRB v. Royal Plating & Polishing Co., 350 F.2d 191 (3d Cir. 1965),
denying enf. in relevant part to 148 NLRB 545 (1964).
I' NLRB v. Adams Dairy, 350 F.2d 108 (8th Cir. 1965) (denying enf in
relevant part to 137 NLRB 815 (1962)), cert. denied 382 U.S. 1011 (1966).
898
OTIS ELEVATOR CO.
trated above, it is likely that the decision at issue
will not be a mandatory subject of bargaining. '
III. APPLICATION OF THE ANALYTICAL
FRAMEWORK TO THE INSTANT CASE
A. Identifying the Decision in Question
The facts are not in substantial dispute and are
set forth in the plurality opinion. There is disagree-
ment, however, concerning the identity of the deci-
sion allegedly subject to a duty to bargain. The Re-
spondent contends that the transfer of the 17 bar-
gaining unit employees from Mahwah, New Jersey,
to East Hartford, Connecticut, was but one part of
a corporatewide decision to consolidate research
and development functions. The General Counsel
takes a narrower view and argues that the only de-
cision at issue is the transfer of the Mahwah em-
ployees and operations.
I conclude that the Respondent's decision was to
consolidate its research and development functions
in East Hartford, Connecticut. The transfer of the
17 Mahwah employees was only one component of
the decision. Operations beyond Mahwah's bound-
aries were also involved. Thus, the Parsippany,
New Jersey research and development center was
closed and its operations and employees transferred
to East Hartford. In addition, the reason underly-
ing the selection of the East Hartford site is signifi-
cant in demonstrating the extra-unit scope of the
Respondent's decision: The parent company had a
research and development center there and em-
ployed persons already working on research
projects for Otis. Further, there is no indication
that the new multimillion dollar research facility
would be used solely by the 17 Mahwah employ-
ees. Indeed, the consolidation concept was based
on the Respondent's expectations that a centralized
facility and increased interaction among all its re-
search and development personnel would aid in
formulating new ideas, enabling Otis to regain its
former position in the world elevator market.
B. Whether Bargaining Over the Decision Is
Mandatory
The Respondent's decision to consolidate re-
search and development functions in East Hartford,
16 During contract negotiations, a proposed work-preservation clause
is a mandatory subject of bargaining. At that stage, any burden element is
necessarily speculative and "the benefit, for labor-management relations
and the collective-bargaining process," outweighs any hypothetical
"burden placed on the conduct of the business." This is to be contrasted
with a situation where, during contract negotiations for a work-preserva-
tion clause, the employer contemporaneously informs the union of a spe-
cific nonconjectural economically motivated decision to remove unit
work. Such a decision would have to be analyzed under the framework
set forth in part II,A in order to determine whether it was a mandatory
subject of bargaining.
Connecticut, is clearly one that falls within Catego-
ry III of First National Maintenance. The decision
had as its focus only the economic profitability of
Otis' operations, but it also had a direct impact on
the employment of unit employees. Under the
framework for analyzing Category III decisions set
forth in part II,A above, the first step is to examine
the factors underlying the Respondent's decision
and determine whether a factor within the Union's
control was a significant consideration in the Re-
spondent's decision. The factors underlying the Re-
spondent's decision were as follows: (1) company
technology was no longer current; (2) product de-
signs were too expensive and not competitive; (3)
engineering activity was diffuse and duplicative; (4)
the Mahwah facilities were outdated and inad-
equate; (5) the parent company had a research and
development center in East Hartford, Connecticut.
None of these factors was within the Union's
control. There were no labor-related considerations
underlying the decision. There was nothing that
the Union could have offered that reasonably could
have affected management's decision. Even if the
Union had offered pay or benefit cuts or proposed
overtime work to increase productivity, such pro-
posals would not have provided the Respondent
with the upgraded technology it sought. It is unre-
alistic to believe that the Union could have guaran-
teed that the unit employees would develop im-
proved design concepts. It is also unlikely that the
Union could have offered an alternative solution to
the problems of diffuse and duplicative engineering
activity and outmoded facilities. Certainly the
Union was unable to alter the fact that the parent
company was located in Connecticut, not New
Jersey. I therefore find that the Respondent's deci-
sion to consolidate its research and development
functions in East Hartford was not amenable to res-
olution through collective bargaining, and on that
basis join my colleagues in dismissing the com-
plaint allegation that the Respondent unlawfully re-
fused to bargain with the Union over that decision.
My finding that the Respondent's decision was
not amenable to resolution through the bargaining
process concludes my analysis of the question
whether bargaining over the decision is required. I
hasten to point out, however, that in the context of
my analytical framework a finding that a decision
is amenable to resolution through collective bar-
gaining will not automatically result in a determi-
nation that bargaining over the decision is manda-
tory. For, in that situation, bargaining will be re-
quired "only if the benefit, for labor-management
relations and the collective-bargaining process, out-
weighs the burden placed on the conduct of the
business." 452 U.S. at 679 (emphasis added).
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For example, even if labor costs had been a sig-
nificant consideration in the Respondent's decision,
I would not necessarily conclude that the decision
was a mandatory subject of bargaining. Even when
labor costs are a significant consideration the ana-
lytical framework mandates balancing the "benefit"
against the "burden," obligating the General Coun-
sel to prove that the amenability of the decision to
resolution through the bargaining process out-
weighs the constraints bargaining places on man-
agement. Such a showing would be difficult here
because the burden elements are substantial. The
Respondent's decision involved the investment of a
sizable amount of capital. Compare First National
Maintenance, 452 U.S. at 688 (absence of significant
investment or withdrawal of capital not crucial). In
addition, the decision to consolidate research and
development functions in East Hartford "represent-
ed a significant change in [Respondent's] oper-
ations, a change not unlike opening a new line of
business or going out of business entirely." Id.
IV. CONCLUSION
Accordingly, for all the foregoing reasons, I
concur in my colleagues' reversal of the Board's
prior holding that the Respondent violated Section
8(a)(5) by refusing to bargain over its decision. In
addition, I agree with my colleagues, for the rea-
sons they state, that the Respondent's failure to
provide the requested information did not violate
the Act. Finally, I join my colleagues in remanding
the effects-bargaining allegations of the complaint
to the judge for further consideration, including af-
fording any party the opportunity to adduce fur-
ther evidence bearing on the outstanding allega-
tions.
MEMBER ZIMMERMAN, concurring in part and dis-
senting in part.
I agree with my colleagues that the Respondent
did not violate Section 8(a)(5) by refusing to bar-
gain with the Union over its decision to transfer
the product improvement group from Mahwah,
New Jersey, to East Hartford, Connecticut. How-
ever, contrary to my colleagues, I find that the Re-
spondent did violate Section 8(a)(5) and (1) by fail-
ing to bargain in good faith with the Union over
the effects of its transfer decision, by dealing di-
rectly with the unit employees over the transfers,
and by refusing to furnish to the Union requested
information.
Under the analytical framework outlined in my
dissent in Milwaukee Spring,1 I find that the Re-
' 268 NLRB 601, 605-608.
spondent's transfer decision was not a mandatory
subject of bargaining.2 As I stated in that case, I
will find bargaining over an employer's decision to
relocate work to be mandatory when the decision
is amenable to resolution through collective bar-
gaining.
The amenability determination depends in large
part on an analysis of the employer's reasons un-
derlying its decision. When the employer's decision
to remove bargaining unit work is motivated by
reasons "peculiarly suitable for resolution within
the collective-bargaining framework," 3 then bar-
gaining may lead to a mutually acceptable solution
and in such circumstances cannot be predetermined
to be ineffectual. But when, as in First National
Maintenance,4 the union has no control over or
ability to affect the reasons underlying an employ-
er's decision, the union is relegated to a position of
merely offering advice with no corresponding abili-
ty to affect the decision through concessions.
In agreement with my colleagues, therefore, I
find that a decision motivated by labor costs is a
mandatory subject of bargaining. There will no
doubt be other instances, however, in which the
Act should be found to require decision bargaining
where the reasons underlying the removal of work
are not confined solely to labor costs. A decision
may be amenable to resolution through bargaining
2 Unlike my colleagues, I agree with the General Counsel that the de-
cision at issue in this case is the Respondent's decision in October 1977 to
transfer the Mahwah unit employees to East Hartford and not the Re-
spondent's decision in July 1977 to consolidate its research and develop-
ment functions in East Hartford. While the two decisions are related, the
record reveals that they were separate decisions made by the Respondent
at different times under different circumstances.
At some unspecified time in the first half of 1977 the board of directors
of United Technologies, Respondent's parent company, decided to con-
solidate the Respondent's research and development operations with
those of United in East Hartford. Pursuant to this decision, the Respond-
ent, in July 1977, closed its principal research and development operation
in Parsippany, New Jersey, and transferred the employees in that facility
to United's East Hartford research facility. No further consolidation was
apparently contemplated or envisioned by the Respondent or by United's
board of directors at that time.
However, in mid-September 1977, Dr. William Foley, who had been
deputy director of research for United, became the Respondent's vice
president of engineering in charge of the Respondent's engineering activi-
ties in its North American operations, including the Mahwah facility.
After examination of the Respondent's engineering organizational struc-
ture, Foley recommended to Robert Cole, the Respondent's president of
the North American operations, at the end of October 1977 that the Re-
spondent further consolidate its research functions in East Hartford by
transferring the Mahwah product improvement group there. Cole imme-
diately approved Foley's recommendation. Foley began working out the
details of the transfer and on 2 December 1977 Foley announced the
transfer decision to the Mahwah employees.
Under these circumstances, I find that the transfer decision constituted
a separate and distinct decision from the prior consolidation decision by
the board of directors which resulted in only the relocation of the Parsip-
pany employees to East Hartford. However, as discussed below, my anal-
ysis of the Respondent's reasons for its transfer decision leads me to
reach the same result as my colleagues.
3 Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964).
· 452 U.S. 666 (1981).
900
OTIS ELEVATOR CO.
where the employer's decision is related to overall
enterprise costs not limited specifically to labor
costs.
Amenability to resolution through the bargaining
process necessarily encompasses situations where
union concessions may substantially mitigate the
concerns underlying the employer's decision, there-
by convincing the employer to rescind its decision.
The union's capacity to affect the employer's deci-
sion in such situations places the decision within
the employer's bargaining obligation absent any
showing of the employer's urgent need for the kind
of speed, flexibility, or secrecy as referred to by
the Court in First National Maintenance.
Here the Union had no ability to affect the Re-
spondent's decision. It is undisputed that the Re-
spondent's decision to transfer the Mahwah prod-
uct improvement group to East Hartford was moti-
vated by its determination that the functions per-
formed by the Mahwah group overlapped and in
some instances duplicated the work performed by
the Parsippany group which had been relocated to
East Hartford. In addition, the Respondent deter-
mined that the Mahwah facility was outdated and
not suitable for its research and development
needs. 5 By transferring the Mahwah group to East
Hartford, the Respondent hoped to improve its
ability to make needed technological advances and
to develop new, less costly products which could
better compete on the open market. 6
These concerns are not amenable to resolution
through bargaining. No concession proposed by
the Union could reasonably be expected to alter
the Respondent's concerns. The Respondent's rea-
sons, all of which were entrepreneurial in scope
and not directly translatable into dollar figures,
were thus outside the scope of the bargaining rela-
tionship. Accordingly, I join my colleagues in dis-
missing that portion of the complaint alleging that
the Respondent unlawfully refused to bargain with
the Union over its decision to transfer the Mahwah
group to East Hartford. 7
However, unlike my colleagues, I adhere to the
Board's findings in its initial decision in this case
that the Respondent violated Section 8(a)(5) of the
Act by failing to bargain in good faith with the
Union over the effects of its transfer decision, by
' The Respondent also decided to build and began construction on a
new multimillion dollar research and development center in Farmington,
Connecticut, to house both the Parsippany and the Mahwah groups.
6 Although the Respondent expected to reduce its production costs, it
expected this reduction to be realized through a redesign of the product,
not through a reduction in labor costs.
I therefore also join my colleagues in dismissing the complaint allega-
tion that the Respondent unlawfully withheld requested information rele-
vant to the transfer decision. As explained below, however, I find that
the Union was entitled to this information because it was also relevant to
effects bargaining.
refusing to provide the Union with requested rele-
vant information, and by dealing directly with unit
employees. For the reasons set forth by the Board
and the judge, I find that a preponderance of the
evidence supports these findings and that they are
legally sound.8
My colleagues, in deciding to remand the effects-
bargaining allegations to the judge, do not dispute
the factual or legal underpinnings of these findings.
Indeed, the principle that an employer must bar-
gain with the union over the effects of a work relo-
cation decision even though the decision itself may
be a nonmandatory subject of bargaining is beyond
question. First National Maintenance, 452 U.S. at
677 fn. 15. Rather, they base the remand on the
cryptic statement that the Board, in finding the ef-
fects-related violations, "relied substantially on its
holdings that Respondent unlawfully refused to
bargain over its consolidation decision and unlaw-
fully withheld information from the Union." As
both the Board and the judge set forth a factual
and legal analysis for the effects-related violations
separate and distinct from their analysis of the deci-
sion-related violations, a remand is wholly inappro-
priate in my view. A reversal by the Board of one
finding of a judge, or a reversal by a court of one
finding of the Board, does not invalidate or necessi-
tate a reexamination of the other independent find-
ings. Moreover, to remand this case for a further
hearing approximately 6-1/2 years after the transfer
decision was made is lamentable. The events in
question must now be but dim recollections to the
witnesses and the judge. Accordingly, I dissent
from my colleagues' remand of the effects-bargain-
ing allegations for further hearing.
I further dissent from my colleagues' reversal of
the Board's finding that the withheld information,
i.e., the Booz-Allen and Cole reports, was relevant
to effects bargaining and their apparent intention to
foreclose the General Counsel and the Union from
asserting on remand that the information was rele-
vant to effects bargaining. My colleagues do not
find these reports irrelevant to effects bargaining.
Indeed, such a finding would be at odds with the
record which reveals that the Respondent admit-
tedly referred to and discussed the reports, and
even read from the Booz-Allen report, in its meet-
ings with the Union over the effects of its transfer
decision. My colleagues' position, which was not
advanced by the Respondent, is that since the com-
plaint did not allege a separate allegation that the
information was relevant to effects bargaining as
I For purposes of this decision and in light of my finding that the Re-
spondent had no bargaining obligation over the transfer decision, I do not
rely on the discussion by the Board and the judge of Ozark Trailers, 161
NLRB 561 (1966).
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well as to decision bargaining, no violation can lie.
Given the fact that the record fully supports this
finding of both the judge and the Board, and that
the finding is sufficiently related to the complaint
allegations, I find my colleagues' position without
merit. See Baytown Sun, 255 NLRB 154 (1981).
902