Otis Elevator Co.

National Labor Relations Board - Board Decisions

Mar 13, 1987

283 N.L.R.B. 223 (N.L.R.B. 1987)

OTIS ELEVATOR CO. 223
Otis Elevator Company , a wholly owned subsidiary
of United Technologies and Local 989,- United
Automobile , Aerospace & Agricultural Imple-
ment Workers of America . Case 22-CA-8507
13 March 1987
SECOND SUPPLEMENTAL DECISION
AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 25 March 1981 the National Labor Relations
Board issued a Decision and Order' in this pro-
ceeding (Otis Elevator 1) finding the Respondent
violated Section 8(a)(5) and (1) of the National
Labor Relations Act by: (1) refusing to bargain
with the Union over the Respondent's decision to
transfer and consolidate certain unit work from its
Mahwah, New Jersey facility to other facilities in
East Hartford, Connecticut; (2) refusing to provide
the Union with information relevant to the Re-
spondent's decision; and (3) refusing to bargain
with the Union over the effects of the Respond-
ent'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 the case to the Board for reconsideration in
light of the Supreme Court's decision in First Na-
tional Maintenance v. NLRB, 452 U.S. 666 (1981).
On 6 April 1984 the Board issued a Supplemen-
tal Decision and Order2 (Otis Elevator fl) finding,
contrary to its original Decision and Order, that
the Respondent did not violate Section 8(a)(5) and
(1) by refusing to, bargain with the Union over its
decision to transfer and consolidate unit work, or
by failing to provide the Union with certain infor-
mation. The Board in Otis Elevator II found that
the earlier Board relied substantially on its conclu-
sion that the Respondent unlawfully refused to bar-
gain over its decision to transfer and consolidate
unit work to, find it also unlawfully refused to bar-
gain about ' the effects of that decision. In light of
its conclusion that the Respondent did not unlaw-
fully refuse to bargain over the decision, the Board
in Otis Elevator II remanded the effects-bargaining
allegations of the complaint to the administrative
law judge for further consideration.
On 31 January 1986 Administrative Law Judge
Irwin Kaplan issued the attached supplemental de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
decision and to adopt the recommended Order.
Contrary to the judge, we find the Respondent
did not violate Section 8(a)(5) and (1) of the Act
by failing to bargain in good faith with the Union
over a relocation package for those employees the
Respondent chose to transfer, from its Mahwah,
New Jersey facility to its facilities in East Hartford,
Connecticut.
The facts are largely set forth in Otis Elevator P
and Otis Elevator 114 as well as in the judge's sup-
plemental decision. The Union discussed or wished
to discuss with the Respondent two general trans-
fer effects issues-the relocation package to be of-
fered to the transferred employees and the selec-
tion criteria the Respondent would use to invite
employees to transfer. We agree with the judge
that the Respondent unlawfully refused to bargain
with the Union about transfer selection criteria and
unlawfully dealt directly with those employees
whom it selected. Accordingly, we shall repeat
here only those facts relevant' to the parties' bar-
gaining over a relocation package. Any additional
facts we have added are based on uncontradicted
record evidence.
United Technologies acquired Otis Elevator
Company in 1975. Dr. William M. Foley thereafter
conducted a study for the Respondent concluded
that much of Otis' engineering activity, was diffuse
and duplicative. The Respondent's management be-
lieved Otis' engineering effort would be strength-
ened if research and development were conducted
closer to Otis' research already conducted in Con-
necticut; and to other United Technologies devel-
opment groups. The Respondent also concluded its
Mahwah, New Jersey facility was outdated and in-
adequate. For these reasons,, it decided to transfer
its Mahwah product improvement group to Con-
necticut immediately and consolidate it with similar
efforts already there'. It also decided it would move
its entire research and development, engineering,
and cost-reduction efforts to Connecticut by mid-
1979.
On 2 December 1977 Dr. Foley told the Union
of the Respondent's plans. He stated certain
1 255 NLRB 235
2 269 NLRB 891.
8 Supra, 255 NLRB 235.
4 Supra, 269 NLRB 891
283 NLRB No. 40
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
changes were effective immediately "organization-
ally," but that "the physical change will be much
more prolonged." He further stated 15 employees
would be transferred from Mahwah to Connecticut
within the next 5 months and that those chosen
would be notified within the next 8 weeks.
On 17 January 19785 the Union gave Respond-
ent Industrial Relations Manager J. J. Cronin a
letter demanding that employees be contacted
through the Union about "possible job opportuni-
ties at locations other than Mahwah." The Re-
spondent rejected the Union's demand and on 25
January offered 13 unit engineers jobs in East Hart-
ford, Connecticut.6
The parties thereafter met on several occasions
in February and early April during which the
Union demanded the Respondent negotiate its deci-
sion to transfer work, the effects of that decision,
and recognition at the Connecticut facility. The
parties did not substantially discuss at any of these
meetings whether the Respondent would pay the
employees' relocation expenses, give the employees
time off to look for housing in Connecticut, or
other issues associated with physically relocating
from New. Jersey to Connecticut. Although the
Union on 27 April asked for certain reports that
had an impact on the Respondent's decision to
move, for information about the inducements that
the Respondent offered to encourage employees to
accept `the Connecticut job offer, and for informa-
tion on working conditions in Connecticut, it did
not request information at any of these meetings
specifically bearing on physically relocating to
Connecticut.
On 27 April the Respondent also gave the Union
a booklet detailing a relocation package "handled
by an outside group called `Trels."' It offered this
package to those employees it invited to transfer to
Connecticut in January. Although the package was
not made part of the'record, certain facts about the
package are known. Thus, the package provides,
inter alia, that the Respondent will pay for two
home-finding trips from Mahwah to Connecticut
that may last a total of 6 days and 7 nights. An-
other provision states that the Respondent will pay
for meals and lodging for relocating employees for
up to 90 days, and for up to 30 additional days for
their families. The Respondent also offered to pay
one-half to 1 month's salary for miscellaneous ex-
penses.
Although the Respondent stated in December
1977 there would be only two "waves" of engi-
neers from Mahwah to Connecticut-immediately
All dates are 1978 unless otherwise indicated
Eleven accepted, including one who accepted a transfer to a supervi-
sory position
and again in mid-1979-the Respondent on 24 May
announced for the first time an -additional 15 engi-
neers would-be invited to transfer within the next 2
days.
The parties next met 29 June. The Union asked if
the Respondent planned a "third wave." The Re-
spondent's representative stated, "[W]hile that was
our original plan, it's still being reviewed . . . . As
soon as a definite answer is reached, we will be
talking to you ...." The Respondent also stated
it would not transfer any technicians.
On 4 August the Respondent offered a Mahwah
technician a position in Connecticut. On 9 August
it met with the Union to notify it that it had made
the offer. The Union stated, "We're finding it very
difficult to structure our demands the Company
keeps changing position."
On 15 September the Union presented a "Partial
List of Demands."7 The Union demanded, inter
7 Partial List of Demands
1) Update Trels Report to reflect current conditions.
2) Employee's relocation policy guide to be offered to all employ-
ees who relocate. This policy to be modified to include all demands
put forth by Local 989, U.A W
3) Relocation package to be available for up to two (2) years after
man starts work in Connecticut.
4) Pay any security and finders fees required on rentals
5) Pay all temporary housing costs as required in both Connecticut
and New York metro. area.
6) Pay entire cost of motel and associated costs including meals
for employees who choose to reside in motels during the week and
commute home on weekends.
7) Provide adequate time off for employees relocating to permit
finding and purchasing the new residence as well as time off for the
move
8) Pay all moving costs.
9) Assist employee in obtaining nortgages
10) Provide compensation payment for increased mortgage rate
(use formula Government uses for condemnation proceedings) and
increased cost for housing.
11) Make lump sum payment to apartment dwellers equal to first
two years difference in rent
12) Each employee who moves shall receive two months salary to
cover misc . expenses.
13) Company shall pay all transportation cost in excess of employ-
ee's cost to new location for'one (1) year, after -which it will be in-
cluded in employee's salary. Transportation cost shall include the
following items: -
A) 20 [cents]/mile and all tolls for those who -drive to new loca-
tion.
B) All fare cost for those who use public transportation.
C) Equal time off or payment for additional time used to com-
mute to new location
D) Cost to garage additional automobile used for transportation
to new location.
E) Increased cost of automobile insurance.
F) Cost of renting a car while your car is in for repairs
14) Due to the higher risk of accident and the greater traveling
time required to commute to the new facility, the Company shall:
A) Increase medical coverage
B) Increase accident and sickness benefits.
C) Provide life insurance covering employees while traveling to
and from work similar to that provided for employees while trav-
eling on company business.
D) Pay cost of L.T D plan.
Continued
OTIS ELEVATOR CO. 225
alia, reimbursement for certain costs associated
with finding housing in Connecticut, compensation
for added living and travel expenses, helicopter or
airplane service to Connecticut, and a 20-percent
salary increase for those transferred. It also de-
manded that senior employees be given the first
opportunity to transfer, and that the Respondent
accept all requests for voluntary layoff. The Re-
spondent asked the Union to clarify certain de-
mands, but made no counterproposals at this meet-
ing.
The Respondent responded to the Union's de-
mands at a meeting held 6 October. The Respond-
ent's representative began by stating:
I have reviewed the demands and in all fair-
ness I would like to say I was disappointed in
what was presented. I expected you to put to-
gether something more allied to something we
hopefully could reach agreement upon. L said
at the last meeting that I would probably have
negative responses to several of your demands
and I feel it's only fair to tell you that a
number of your proposals will receive no an-
swers.
Despite its statement to the contrary, the Respond-
ent answered every demand, rejecting all but two.
In response to the Union's demand that it accept all
requests for voluntary layoffs, the Respondent said
it would agree, subject to "procedural clarifica-
tion." In response to the Union's demand that the
Respondent reimburse employees for certain trans-
portation costs, the Respondent offered $60 per
15) All salary offers made to employees who were offered jobs in
Conn. will be given to them whether or not they go to Connecticut.
Those employees who go shall get an additional 20% salary increase
16) The most senior employees will be given the first option on
jobs in Connecticut.
17) The Company will supply free helicopter or airplane service
from central locations to Connecticut.
18) Severance pay for those laid off shall be four weeks pay for
each year of service. Those employees eligible for an unreduced pen-
sion shall also be eligible for severance pay.
19) Special early retirement shall be offered to all employees age
55, and over.
20) Employment in other divisions of Otis and U T C. (length of
service and benefits to be maintained)
21) Company will help find other employment outside of U T.C.
by use of a consulting firm
22) Adequate time off will be given to find other jobs.
23) Tuition refund plan to be expanded to cover any type of train-
ing and reimbursement to be 100%.
24) Accept all requests for voluntary layoff. These employees to
receive severance pay and retain their recall rights
25) Employees forced on layoff will receive a salary supplement
for five years equal to the difference between their new jobs, salary
and their present jobs salary if their new jobs salary is lower This
supplement will be revised annually to reflect inflation.
26) Company shall supply the Union in writing, a 10 year guaran-
tee that Mahwah will remain open and will specify in detail the tyep
of work to be performed.
The Union reserves the right to add to, subtract from or otherwise
modify these proposals as the occasion demands.
month for a year for those employees who would
have to commute for more than 1-1/2 hours to the
new location. The Respondent also stated:
We are unwilling to modify the [Trels] pack-
age, but . . . in individual cases we would
consider time extensions and ' minor adjust-
ments and modifications, but we will not
modify the entire policy.
The Union modified some of its demands at a
meeting held 31 October, dropping its demands
that the Respondent reimburse employees for ga-
raging an additional automobile used for transpor-
tation to the Connecticut facility, pay increased
automobile insurance costs, and pay rental costs
while an employee's car is being, repaired. The
Union also stated it would accept bus service in
lieu of helicopter service. The Respondent rejected
the Union's demands as modified, but proposed
procedures for accepting requests for voluntary
layoff from the Mahwah facility. The, Respondent
also stated it had no information whether there
would be a "third wave" of engineers to Connecti-
cut.
The Union again modified its proposal 1 Decem-
ber, this time dropping its demand for "L.T.D.
PLAN" reimbursement, and its demand for air-
plane service to Connecticut.
The parties last met on 30 and 31 January 1979.
The Respondent then announced that within the
next 2 days it would offer transfers to 20 engineers
to fill 16 positions. If all 20 accepted, all would, be
permitted to transfer. If none accepted, it stated it
would lay off 16 engineers from the Mahwah facili-
ty. The parties did not bargain over a relocation
package at these meetings.
We conclude the Respondent violated Section
8(a)(5) and (1) by offering the Trels package direct-
ly to employees offered transfers in the first and
second "waves." We regard that conclusion as en-
compassed within our finding that the Respondent
unlawfully dealt directly with unit employees. We
do not agree with the judge, however, that the Re-
spondent failed to bargain about the relocation
package it would offer those engineers who were
to transfer to Connecticut in January 1979.
In finding a violation, the judge relied on his
findings that the, Respondent offered the Trels
package on a "take-it-or-leave-it" basis, made no
formal counterproposals, and rejected outright
almost all the Union's demands. The judge also
relied on the fact that the Respondent failed to
timely provide meaningful information.
Hard bargaining alone, however, does not vio-
late the Act. "A party . . . is, entitled to stand firm
on a position if he reasonably believes that it is fair
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and proper or that he .has sufficient bargaining
strength to force agreement by the other party."8
The question is whether the totality of the Re-
spondent's conduct demonstrates it unlawfully frus-
trated the possibility, of arriving at any agreement
rather than its having lawfully engaged in hard
bargaining.9
We recognize that the Respondent unlawfully of-
fered the Trels package directly to the first wave
of engineers offered transfers in January 1978 and
to the second wave in May. We also recognize that
the Respondent failed to apprise the Union in a
more timely fashion of each of its decisions to
transfer employees. ` We do not, however, find the
Respondent thus intended to frustrate, or in fact
frustrated, bargaining from September through Jan-
uary 1979 over a relocation package.
When the Respondent offered its Trels package
directly to those employees whom it chose to
transfer to Connecticut in January and May, the
Union had not yet provided its demands. Thus, its
direct dealing- at that time, while separately violat-
ing Section 8(a)(5) and (1), did not indicate that the
Respondent would fail to negotiate with the Union
once the Union had presented its demands.
The fact that the Respondent did not timely
notify the Union of its decision to transfer employ-
ees also did not frustrate bargaining over a reloca-
tion package from September through January
1979. Although the Respondent's failure to notify
the Union excused the Union's substantial delay in
coming forward with proposals, the Union ulti-
mately formulated its demands and the Respondent
bargained with the Union once the Union present-
ed them.
There are no other indications the Respondent
lacked good faith. The Respondent met with the
'Union several times after the Union presented its
demands in September, the Respondent answered
each demand and agreed in principle with one of
them, and made a limited financial offer in re-
sponse. Although the Respondent remained stead-
fast in its insistence that the' Union otherwise agree
to' its Trels relocation package, this alone cannot
support a finding that the Respondent failed to bar-
gain in good faith.
Accordingly, we 'find the Respondent did not
violate Section 8(a)(5) and '(1) by failing to bargain
in good faith with the Union over a relocation
9 NLRB v. Advanced Business Forms Corp, 474 F 2d 457, 467 (2d Cir.
1973) Sec. 8(d) of the Act states that the duty to bargain "does not
compel either party to agree to a proposal or require the making of a
concession " See also H. K. Porter Co. v NLRB, 397 U S 99 (1970)
9 NLRB v. Advanced Business Forms, supra, 474 F.2d at 467; see Sun-
beam Plastics Corp., 144 NLRB 1010, 1013 (1963).
package for those employees the Respondent chose
to transfer to Connecticut in January 1979.10
AMENDED CONCLUSION OF LAW
Delete paragraph (a) of Conclusion of Law 5
and reletter the subsequent paragraphs.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Otis Eleva-
tor Company, a wholly owned subsidiary of United
Technologies, Mahwah, New Jersey, and East
Hartford, Connecticut, its officers, agents,' succes-
sors, and assigns, shall take the action set forth in
the Order.
CHAIRMAN DoTSoN, dissenting.
Contrary to my colleagues, I find the Respond-
ent did not violate Section 8(a)(5) and (1) by failing
to bargain with the Union about the effects of its
decision to transfer unit work from its Mahwah,
New Jersey facility to facilities in East Hartford,
Connecticut, because I find the Union waived its
right to bargain in its collective-bargaining agree-
ment with the Respondent.
The parties' contract, which was effective I
April 1977 through 31 March 1980, reserved for
the Respondent the rights to "transfer"; "to sched-
ule and assign the work' ; "to assign employees
among departments, offices or plants"; and "to de-
termine the location of all Company offices."' Ac-
10 Unlike our dissenting colleague, we do not find the Union waived
its right to bargain over the effects of the Respondent's decision
The parties' collective-bargaining agreement, on which our dis-
senting colleague relies, reserved for the Respondent the rights to
"transfer"; "to schedule and assign the work"; "to assign employees
among departments, offices or plants", and "to determine the loca-
tion of all Company offices." While the contract may or may not
waive the Union's right to bargain about the Respondent's decision,
it in no way "clearly, and unmistakably," Timken Roller Bearing Co.
v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963), waived the Union's right
to bargain about all of the effects of the Respondent' s decision.
Westinghouse Electric Corp., 206 NLRB 812 (1973), which the dis-
sent cites, does not support finding waiver here In that case, the
Board found the employer's contractual right to "direct employees
in the available work" waived the union's right to bargain over the
identity of those employees the employer would select for transfers
to a new facility within the same unit That case does not suggest, as
the dissent's analysis implicitly assumes, that the reserved right to
"direct employees in the available work" waives the union's right to
bargain over every effect of that decision and not just the identity of
those to be chosen. Further, that case involved an mtraunit transfer,
not a transfer, like the one here, to jobs outside the unit and which
will necessarily result in a loss of unit jobs
i Management Clause
Except as specifically limited by any provision of this Agreement,
it is agreed that the management of the Compan y's business is the
sole and exclusive right and responsibility of the Company and that
this management right includes but is not limited to the right to
employ, promote, demote, transfer, retire in accordance with the
Company's established retirement plan' to discharge or discipline for
Continued
OTIS ELEVATOR CO.
cordingly, I find the Respondent was clearly privi-
leged to transfer unit work without bargaining with
the Union.
Despite the contract's clear language, my col-
leagues find the Respondent had a duty to bargain
with the Union about the relocation package the
Respondent would offer to employees chosen to
transfer, the baiss on which employees are to be
given the opportunity to transfer, and the identity
of those employees. They argue that the contract's
language, regardless of whether it would waive the
Union's right to bargain abot the decision to trans-
fer unit work, did not waive the Union's- right to
bargain about the effects of that decision.
I find, however, tha the parties' clause clearly
contemplated that the Respondent could "transfer"
work unhindered by bargaining with the Union. To
read the clause as pertaining only to the decision
itself, and not the decision 's effects, is to hold that
the Respondent may not freely transfer work.
Not only must the Respondent bargain with the
Union under my colleagues' analysis, current Board
law demonstrates that the Respondent must neces-
sarily do so before it effects the transfer.2 Thus,
pursuant to the majority opinion, the Respondent is
subject to a substantial bargaining obligation de-
spite the fact that it reserved for itself the -right to
"transfer" work.
The principle I suggest is not a new or novel
one. Thus, in Westinghouse Electric Corp.,3 the
Board in 1973 held that the employer's contractual
right to "direct employees in the available work"
waived the union's right to bargain over the identi-
ty of employees the employer would transfer to a
new facility.4 The facts in Westinghouse are stun-
ningly similar to those in, this case and Westing-
house should therefore control the result here.5
cause, to maintain discipline and efficiency of employees ; to lay off
or recall employees in connection with a reduction or increase in the
necessary working force , to schedule and assign the work; to assign
employees among departments , offices or plants; to determine the lo-
cation of all Company offices, the control and regulation of use of all
equipment and other property of the Company; to increase or reduce
working hours and workweek and to determine and establish any
Company policy.
2 See Metropolitan Teletronics Corp, 279 NLRB 957 (1986) I dissented
in Metropolitan Teletrontcs. I would not hold that an employer's failure to
give notice before it makes the change necessarily violates Sec 8(a)(5)
and (1).
a 206 NLRB 812 (1973)
4 Id at 812 fn 1.
s My colleagues unpersuasively attempt to distinguish Westinghouse on
the ground that Westinghouse involved an intraunit transfer and not, like
here, a transfer outside the unit Neither the contract in Westinghouse, nor
the contract here, made such a distinction Instead, in both cases the con-
tracts broadly reserved for the employers the rights to "direct employees
in the available work" or the rights to "transfer," "schedule and assign,"
and to "assign employees amont . plants "
My colleagues ' decision to read into the contract a distinction between
intraumt transfers and other transfers is inconsistent with the contractual
analysis in Indianapolis Power Co, 273 NLRB 1715 (1985), remanded sub
nom Electrical Workers IBEW Local 1395 v NLRB, 797 F.2d 1027 (D C.
I would dismiss the complaint.6
227
Cir 1986), in which the Board refused to assume that a broad no-strike
clause did not encompass sympathy strikes . See also Milwaukee Spring Di-
vision, 268 NLRB 601 (1984) (refusing to imply a work-preservation
clause in a contract silent on the issue).
6 I agree, for the reasons cited in the majority opinion, that the Re-
spondent did not in any event violate Sec 8(a)(5) and ( 1) by failing to
bargain in good faith with the Union over a relocation package for those
employees the Respondent chose to transfer to Connecticut in January
1979.
J. Michael Lightner, Esq. and Thomas W. Cestare, Esq.,
for the General Counsel.
Edward J. Dempsey, Esq., of Washington, D.C., for the
Respondent.
Mr. Robert Kushnir, president, of Yonkers, New York,
for the Union.
SUPPLEMENTAL DECISION ON REMAND
DECISIONAL BACKDROP
IRwIN KAPLAN, Administrative Law Judge. On 29
November 1979 I issued my initial decision upholding
the allegations in the amended complaint (JI)-823-79).
In essence, I found that the Respondent (Otis Elevator
Company, a wholly owned subsidiary of United Tech-
nologies) violated Section 8(a)(5) and (1) of the Act, by
failing to bargain with the Union (Local 989, United
Automobile, Aerospace & Agricultural Workers of
America), over its decision to discontinue its research
and `development activities in Mahwah, New Jersey, and
to consolidate them with its operation in East Hartford
Connecticut; by refusing to furnish the Union with the
"Booz-Allen and Cole reports;" admittedly relevant to
Respondent's decision; and by failing and refusing to bar-
gain over the "effects" of its decision on unit employees.
In connection with the "effects bargaining" allegations
(the subject of this supplemental decision), I found initial-
ly, that Respondent not only failed to bargain in any
meaningful fashion, but also that Respondent unlawfully
bypassed the Union by unilaterally determining both the
criteria for selecting employees for transfer to Connecti-
cut and the employees who were offered such Job oppor-
tunities. In this latter regard, I further foundl that Re-
spondent unlawfully denied the Union a presence at
these transfer- interviews. On 25 March 1981 the afore-
noted findings were affirmed by the Board in Otis Eleva-
tor Co., 255 NLRB 235 (1981) (Otis 1).
Shortly, after Otis I issued, the Supreme Court decided
First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981). There the Court held that an economically moti-
vated decision to shut down part of a business is not en-
compassed by terms and conditions of employment under
Section 8(d) and , as such , it (the "decision") is not
deemed to be a mandatory subject for bargaining pur-
poses. On 6 April 1984 the Board, in light of the princi-
ples set forth in First National Maintenance, on reconsid-
eration, issued a Supplemental Decision and Order re-
versing, in part, its earlier decision (Otis '1), and finding,
inter alia, that the Respondent was not obligated to bar-
gain over its "decision" to discontinue certain functions
in Mahwah, New Jersey, and to transfer those functions
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to its facility in East Hartford, Connecticut. Otis Elevator
Co (Otis II), 269 NLRB 891 (1984).'
Further, the Board, having determined that Respond-
ent was not required to bargain over its decision, con-
cluded, a fortiori, that Respondent was not required to
furnish the Union the Booz-Allen and Cole reports. Id.
at 984. Still to be disposed of were the- effects bargaining
allegations, which had been upheld by the Board in Otis
I. These allegations were remanded to me and form the
subject of the instant supplemental decision.
In Otis II, the Board noted that the earlier Board
"relied substantially on its holdings that the Respondent
unlawfully refused to bargain over its consolidation deci-
sion and unlawfully withheld information from the
Union."2 As those holdings were subsequently reversed,
the Board remanded the outstanding effects-bargaining
allegations for my further consideration in light of the
decision in Otis IL
For my reconsideration and preparation of this supple-
mental decision, I have reexamined the entire original
record as well as the postremand supplemental briefs.3
Having done so, I reaffirm my initial credibility resolu-
tions. In my original decision, I rejected certain represen-
tations mady by Respondent's chief witness, Dr. Foley,
as conclusionary and not supported by documentary or
other corroborative evidence. (See, eg., 255 NLRB at
246.), I was also otherwise unimpressed with Dr. Foley
as a witness . The record disclosed that at times he was
evasive and equivocal and less than responsive or forth-
right. For example, Dr. Foley, when asked on cross-ex-
amination whether he knew at the 24 May bargaining
session, the identities of the new group of engineers to be
invited to transfer, he responded, "Not exactly. Earlier
we [the Company] had a group, but we had an additional
group we were going to ask." However, Dr. Foley,
when asked the next question, admitted that in fact he
i While First National Maintenance dealt basically with a partial,clos-
ing, the Board in Otis If decided to take a lead from the Court's overall
discussion to exclude from coverage under Sec. 8(d) those decisions
which "affect the scope, direction or nature of the business" (269 NLRB
at 893) On reconsideration, the Board found that the "essence of the de-
cision" turned on a fundamental change in the nature and direction of the
business, and thus (unlike "labor costs"), was not amenable to bargaining.
(Otis II, 269 NLRB at 892-893) In short, the "decision" was not a man-
datory subject
2 The composition of the Board in Otis II with the exception of
Member Zimmerman had changed Although Member Zimmerman
joined the Board majority in Otis I, he concurred in the result with the
Board plaurality in Otis II vis-a-vis the decision. On the other hand,
Member Zimmerman would have affirmed the effects-bargaining holdings
of Otis I and therefore dissented with regard to the remand.
3 The Board's Order remanding this proceeding provided, inter alia,
"any party . . . the opportunity to adduce further evidence on [effects-
bargaining] allegations." Thereafter, I conducted an all-party telephone
conference and'all parties agreed that the record in Otis I was sufficient
to decide the remand allegations without the need to reopen the hearing
for the production of further evidence In a position paper dated 2 May
1985 counsel for the General Counsel moved to amend the outstanding
effects-bargaining allegations of the instant case with later-filed unfair
labor practice charges The motion was opposed by Respondent. I denied
the motion noting, inter alia, that the later-filed' unfair labor practice
charges covered events subsequent to my original decision and, in part,
related to matters not cognizable under the scope of the remand order.
The order setting time' for supplemental briefs and denying motion to
amend complaint and consolidate cases is marked ALJ 'Exh I and the
positions papers submitted by the parties in connection therewith (attach-
ments A, B, and C) are made part of the record
had a list of names at that meeting. According to Dr.
Foley, his memory was refreshed by counsel for the
General Counsel. However, based on my observation of
Dr. Foley, I find it more likely that it represented an
_ effort by him to be less than candid or responsive. Simi-
larly, I found Jack Williams, Respondent's other witness,
to be conclusionary and unreliable.
On the other hand, I was impressed with Allan
Newell, the Union's chief witness, as responsive, consist-
ent, and forthright. In this latter regard, it is noted, inter
alia, that Newell readily acknowledged that Respondent
"discussed" all the Union's proposals (although for rea-
sons explained, infra, this does not mean Respondent
"negotiated"). I also note that New testimony was
substantially corroborated by Respondent's minutes.
(G.C. Exh. 2.) In sum, on reconsideration, after carefully
reviewing the entire transcript and the record as a
whole, I credit Newell over Dr. Foley and Williams in
all material respects. -
A. Overall Effects-Bargaining
In finding in my original decision that Respondent
failed to fulfill its bargaining 'obligations over the "ef-
fects" of its decision to transfer certain engineers (prod-
uct improvement group) from Mahwah, New Jersey, to
the Hartford, Connecticut area, I relied, inter alia, on the
'Board's retionale in Ozark Trailers.4 There, I found in-
structive that the Board recognized situations in, which
"the effects are so inextricably interwoven with the deci-
sion itself that bargaining limited to effects will not be
meaningful if it -must be carried on within, a framework
of a decision which cannot be revised." Id. at 570. How-
ever valid this proposition may be, the Board. in Otis II
determined that the "decision" was not a mandatory sub-
ject within the meaning of Section 8(d)5 and, as such,
Respondent was not obligated to bargain thereon. This
left open whether, in the circumstances of Otis, "mean-
ingful" negotiations over "effects" were possible and, if
so, whether Respondent met its "effects" bargaining obli-
gations. With regard to the former, I find a plethora of
valid reasons, supported by the record, justifying a re-
sponse in the affirmative.
It is nnidsputed, the record supports, and I find that
the decision clearly impacted on unit employees. Not
only were unit employees to be permanently transferred,
but their jobs (product improvement group) would even-
tually - be lost. As for the employees remaining in
Mahwah , inter alia , an indeterminate number of them
faced "possible" layoffs. As pointed out by 'Dr,. Foley in
his speech on 2 December 1977, "as the development ac-
4 161 NLRB 561 (1966).
5 The duty to bargain as defined by Sec. 8(d) of the Act in relevant
part is as follows-
[T]o bargain collectively is the performance of the mutual obligation
of the employer and the representative of the employees to meet at
reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negoti-
ation of an agreement or any question arising thereunder, and the
execution of a written contract incorporating any agreement reached
if, requested by either party, .but such obligation does not compel
either party to agree to a proposal or require the making of a con-
cession .
OTIS ELEVATOR CO.
tivity moves to Hartford, the test effort will also shift
there leaving us with a possible excess of technicians and
clerical personnel in Mahwah." (G.C. Exh. 2, p. 8, em-
phasis added.)
Noting that the "decision" impacted on unit employ-
ees, I find that matters, involving, inter alia, the order of
layoffs, recall, severance pay, input in the selection proc-
ess, the transfer package, i.e., moving expenses, and a
host of related considerations, particularly meaningful to
the Union and the unit employees affected. This is so,
and these matters are amenable to the bargaining process
exclusive of the Union's power or right to reverse Re-
spondent's "decision." The Supreme Court in First Na-
tional Maintenance treated a decision involving a change
in the scope and direction of the enterprise (as found
herein in Otis II), as a nonmandatory subject. However,
the Court also noted that "[a]t the same time, the decision
touches on a matter of central and pressing concern to the
Union and its member employees." (452 U.S. at 677, em-
phasis added.) It is now beyond dispute that the Re-
spondent is under a duty to address these concerns by
bargaining over the results or effects of such decision. Id.
at fn. 15.
Having determined that the circumstances were con-
ducive to meaningful bargaining over "effects" (exclu-
sive of the "decision"), the case now turns on whether
Respondent fulfilled its obligations. The Respondent, in
its opening statement "readily concede[d]" its obligation
to bargain over the impact of its decision but asserted
that such obligation was fulfilled. Whether the Respond-
ent engaged in "hard bargaining," but in "good faith" on
one hand or "bad faith" or "surface bargaining" on the
other, is determined on a case-by-case basis from an ex-
amination of the totality, of the circumstances. See Chev-
ron Chemical' Co., 261 NLRB 44, 45,(1982); NLRB v. Pa-
cific Grinding Wheel Co., 572 F.2d 1343, 1348 (9th Cir.
1978).
It has long been noted that a take-it-or-leave-it posture
constitutes evidence of bad faith. See NLRB v Insurance
Agents, 361 U.S. 477, 485 (1960); General Athletic Prod-
ucts Co., 227 NLRB 1565, 1574 (1977). Although the
Board in Otis I agreed with my rationale and reliance on
Ozark Trailers, supra, concerning Respondent's failure to
bargain over "effects," it-also went further, characteriz-
ing Respondent's overall conduct as "a kind of `take it or
leave it' bargaining." In support thereof, the Board, in
pertinent part, noted as follows:
Thus, the Union sitting at "the bargaining table"
was never certain about what actions Respondent
was taking in effecting its reorganization; nor would
Respondent commit itself to a timetable for antici-
pated changes in the bargaining unit. As a result of
its uncertainty concerning what changes would
occur, and when any changes would take place, the
Union submitted its "Partial List of Demands" some
9 months after' Respondent's announcement of its
plans. Respondent made no formal counterpropos-
als, and, in fact, rejected outright almost all of the
Union's demands. Indeed, Respondent's answer to
the Union's demands was that it was disappointed
with what the Union presented, and that it had
229
hoped that the Union would have submitted a re-
quest more closely aligned with what Respondent
wished to accomplish. It thus becomes clear that
Respondent engaged in a kind of "take it or leave
it" bargaining, whereby Respondent would agree to
clarify its actions "after the fact," but where mean-
ingful bargaining seemed to have no place in Re-
spondent's grand design.
255 NLRB at 237.
On reconsideration , after carefully reviewing the entire
record, I find myself in total agreement with the Board's
remarks describing the Respondent 's failure to engage in
"meaningful bargaining." Clearly; the Board was justified
in ascribing , the Union's delay in presenting its "Partial
List of Demands" to the confusion, uncertainty , and fail-
ure of Respondent to timely provide meaningful informa-
tion,
Thus, in addition to the reasons cited by the Board, it
is also noted that at the time Respondent announced its
decision to move to Hartford , "many of the details and
background . . . were not covered ." (G.C; Exh. 2B, p.
3.) Thereafter, the Union's efforts to learn more about
Respondent's plans in order to structure its demands
were continually frustrated by Respondent 's unwilling-
ness or inability to provide concrete or reliable answers.
For example, at the 3 April bargaining session , the Com-
pany was asked by the Union whether lab mechanics and
technicians would be leaving Mahwah and was told,
"We do not know what is going to happen but we are in
the process of analyzing and formulating plans." (G.C.
Exh. 2A , p. 6.) Although at a subsequent session the Re-
spondent informed ' the Union that technicians were not
going to be, transferred (G.C. Exh. 2E; p. 15), approxi-
mately a month later, ` Respondent decided to invite Wil-
liam Altridge , a technician , to relocate to the Respond-
ent's research center in Hartford . (G.C. Exh. 2F.)
The Union expressed surprise at the offer to Altridge
and questioned the Company regarding its intentions to
invite other technicians and also engineers .6 In response
thereto, the Respondent's manager of industrial relations,
J. J. Cronin, stated, "I don't know at this point if the
Company has plans in either case." (G.C. Exh. 2G, p. 5.)
Cronin's response was the same when questioned about
draftsman and designers. (Id.) In circumstances when, as
here, the Respondent provides little or no information on
critical subjects , while at the same time undergoing
changes in those areas regarding its originally announced
plans, I find , in agreement with the Board, that the Re-
spondent was at fault for any union delay `in submitting
6 Regarding' engineers, the Respondent had initially advised the Union
that it would physically transfer the product improvement group in the
middle of 1979 This was to be accomplished in two stages- The first
group of engineers was going to be invited to transfer to the Hartford
area by late January 1978; the second group in January 1979 (G.C. Exh.
2A, pp. 5-8.) However, at the 24 May 1978 meeting, the Union was noti-
fied that still another group of approximately 15 engineers would be
asked to transfer within a few days: (G C Exh 2C) As for the engineers
who were supposed to be asked to transfer in January 1979 ("third
wave"), little or no information was provided, although the Union con-
tinued to press the Respondent to state its intentions (See, e g , G C
Exh 2M, p. 1 )
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its demands . Further, I find that such conduct tends to
reflect adversely on Respondent 's good faith.
I reject Respondent 's notion that the Act requires
merely that a company "discuss the impact of its deci-
sion to satisfy its bargaining obligations." (Supp . Br. 19-
20.) Thus, I do not find it overly significant , contrary to
Respondent , that I had concluded in my original decision
that "Respondent discussed all these items ('Partial List of
Demands') with the Union although only marginal agree-
ment was achieved ." (Otis I, supra at 248, emphasis
added.) Rather , it is of greater significance , that I found
there, and I now reaffirm that Respondent failed to ne-
gotiate' in any meaningful fashion . The term "discuss,"
unless used in an agreed on context , does not, without
more, mean "negotiate" as contemplated by the Act.7
Compare National Metalcrafters, 276 NLRB 90 (1985).
Although the Act does not compel the parties to make
concessions , it does mandate that they bargain in "good
faith" for the ultimate purpose of reaching an agreement.
See NLRB v. American National Insurance Co., 343 U.S.
395, 403-404 (1952); NLRB 1. Insurance Agents, supra at
485.
In the circumstances of this case , I join in the Board's
assessment that "meaningful bargaining seemed to have
no place in Respondent 's grand design." (Otis I, supra at
237.) As the Board noted , inter alia, "Respondent made
no formal counterproposals , and, in fact, rejected out-
right almost all of the Union 's demands." Id.; compare
Mack Trucks, 277 NLRB 711 (1985). The Union, for its
part, as noted in my original decision, modified or elimi-
nated many of its demands and conveyed a willingness to
discuss and bargain over its entire package . As such, and
on the total state of this record , I find that Respondent
failed to make any reasonable or genuine effort to reach
common ground on the outstanding proposals.
In short, I find that the record clearly established Re-
spondent's bad faith with regard to overall effects-bar-
gaining in violation of Section 8(a)(5) as alleged.
B. Selection Criteria Bypassing the Union and Dealing
Directly with Employees
It is undisputed that Respondent unilaterally deter-
mined the selection criteria for the employees invited to
transfer. Although the 'Respondent eventually informed
the Union of certain factors comprising the selection
process (longevity was not a consideration), this was ex-
pressed in the most general terms some 3 months after
the first wave of engineers had already been selected for
transfer and interviewed . (See generally G.C. Exh. 2B;
G.C. Exh. 6.) It is also noted , as to this group of engi-
neers, that the Union did not know their identities until
long after the interviews had been conducted . 8 Further,
7 Clearly, the Respondent did not treat the terms synonymously at the
bargaining table While Respondent earned on discussions , it dodged the
Union's inquiry regarding its "intent to reach an agreement" from these
discussions . Thus, Thomas Bouchard , Respondent 's vice president of per-
sonnel and industrial relations , responded , "They [the discussions] could,
but it is too early for a yes or no to that question ." Bouchard , in differen-
tiating the term negotiate from discussion , opined, ",For me, negotiations
implies an adversary climate ." (G C. Exh 2A, pp 10-11.)
8 Respondent 's reliance on Westinghouse Electric Corp., 174 NLRB 636
(1969), ignores some material differences . For example , there, unlike the
situation with the first wave of engineers in the instant case , the employ-
Respondent concedes that concerning this group of engi-
neers, it did not advise any of them of a right to have
union representation at the interviews . However, Re-
spondent asserted (and not controverted by the record),
that the engineers selected for interviews in June 1978
("second wave") were asked whether they wanted union
representation but all of them declined. In any event, it is
undisputed that the Union 's insistence that it be `permit-
ted to attend all transfer interviews was refused by Re-
spondent.
The Respondent defended its position mainly on the
basis that the transfers involved employment at a differ-
ent company location , in nonbargaining unit jobs. For
reasons noted in my original decision and affirmed by
the Board in Otis I, I found there, and on reconsideration
reaffirm, that the Respondent unlawfully foreclosed the
Union from effectively representing the bargaining unit
as a whole in violation of Section 8(a)(5) as alleged. In
rejecting Respondent's position insofar as denying the
Union any input in the selection process, I relied in part
on considerations assessed by the Court of Appeals for
the Second Circuit in Cooper Thermometer Co. v.
NLRB.9 There the court dealt with this matter in perti-
nent part as follows:
[T]he Board may reasonably interpret § 8(a)(5), as
explicated in § 8(d), as requiring an employer relo-
cating his plant not merely to give reasonable notice
to a recognized union . . . but also to discuss with it
the basis on which employees may transfer and, in that
connection, to give information as to jobs in the new
plant essential to the intelligent formulation of the
union 's requests . The most improtant interest of
workers is in working ; the Board may reasonably
consider that an employer does not fulfill its obliga-
tion under § 8(a)(5) if he refuses even to discuss
with employees ' representatives on what basis they
may continue to be employed . . . . While Cooper
was not bound to agree to the Union's demand that
the Pequabuck employees "be taken" to Middlefield
with everything unchanged or even to less burden-
some proposals , the Board could properly fault it for
an attitude which, in effect, ousted the Union from
any role in negotiating what might be offered-to em-
ployees desiring to transfer. [Emphasis added]
Here, too, the Union was wrongfully foreclosed from
any role in the selection process and denied a presence at
the transfer interviews . At the time Respondent com-
menced these interviews , the Union was the "exclusive"
bargaining agent for the unit employees at Mahwah and
had been for over 30 years. The transferees, as well as
those employees not invited to transfer , were then still
members of that unit. The Union' s responsibilities ex-
ees who transferred did so with the knowledge and consent of the union
Moreover, in Westinghouse, the changes did not "affect either the conti-
nuity of its operations or the employment of its employees " (Id. at 638 )
In Otis, it is noted, inter aha, that in January 1979 respondent threatened
to lay off some 16 engineers if a sufficient number of them failed to vol-
untarily transfer (Tr. 36-37 .) Some employees had already been laid off
See G C Exh 15
9 376 F 2d 684, 688 (2d Cir. 1967)
OTIS ELEVATOR CO. 231
tended to all of them. See also Continental Insurance Co„
204 NLRB 1013, 1014 (1973), enfd. 495 F.2d 44 (2d Cir.
1974). Surely, the Union was vulnerable to failure-to-rep-
resent charges, if it refused to render any assistance re-
quested by the transferees regarding such items as
moving expenses and time off to look for new resi-
dences.' 0 Indeed, subsequently, Respondent apparently
recognized that an offer of prospective nonunit jobs to
still current unit employees does not per se strip the
Union of its bargaining role. Thus, Respondent began to
ask engineers comprising the "second wave" (unlike the
"first wave"), whether they desired to have the Union in
attendance at the transfer interviews.
The Union's exclusivity, however, is predicated on
majority support as defined by Section 9(a) of the Act"
and does not turn on the whim of individual employees.
While the Union's representative standing is limited by
the first proviso to Section 9(a) insofar as permitting unit
employees an option to adjust grievances on their own;
significantly (as noted in my original decision), the
second proviso protects the Union's overall exclusivity
by'providing that it be given "the opportunity to be
present at such adjustment." The Union's presence en-
ables it to monitor direct dealings between management
and individual employees to frustrate "under the table"
arrangements at the expense of other unit employees or
the unit as a whole.12
In sum, on reconsideration, and in the absence of any
waiver (and none found herein to exist),13 I reaffirm my
10 To induce these employees to transfer , Respondent offered them a
relocation package sometimes referred to as the "Trels Package." Trels is
an outside contracting service that publishes a booklet reflecting mone-
tary and benefit inducements in the Greater Hartford area. Under Re-
spondent's agreement with Trels , all employees asked to transfer through
November 1979 were offered the Trels relocation package The Respond-
ent refused to negotiate any modifications thereto, only a willingness to
consider certain "extenuating circumstances " or "hardships" on an indi-
vidual basis (G C Exh. 2L, pp. 3-5, G.C. Exh. 2B, p. 9.)
11 Sec. 9(a) in its entirety reads as follows
Representatives designed or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other condi-
tions of employment . Provided, That any individual employee or a
group of employees shall have the right at any time to present griev-
ances to their employer and to have such grievances adjusted, with-
out the intervention of the bargaining representative , as long as the
adjustment is not inconsistent with the terms of a collective -bargain-
ing contract or agreement then in effect : Provided further, That the
bargaining representative has been given opportunity to be present at
such adjustment.
12 See Valencia Baxt Express, 143 NLRB 211 (1963). See also Westing-
house Electric Corp., 206 NLRB 812 , 822 (1973). While in Westinghouse
the Board found merit in Respondent 's exception to the judge's findings
that Respondent was obligated to notify the Union of the positions in
Manassas and bargain collectively concerning the identity of employees
at Laurel who would be notified of the availability of the positions, it did
so because the Laurel facility constituted an accretion to Manassas and,
therefore, management 's right to select employees for transfer was gov-
erned by contract.
18 During the course of negotiations, Respondent defended its refusal
to bargain with the Union over the transferees because they were to be
employed at a location outside the bargaining unit The Respondent did
not then contend , as at apparently does now , that the Union waived by
contract any role in bargaining over transferees In my original decision,
I noted that "a waiver to be effective would have to be clear and un-
equivocal and the record is devoid of evidence tending to show that this
was done " Otis I, supra, 255 NLRB at 247 fn . 26 Noting that the Re-
original effects-bargaining findings (upheld by the Board
in Otis 1), and consistent with the remand by the Board
in Otis II, I do so for reasons independent of Respond-
ent's refusal to bargain over the "decision."
CONCLUSIONS OF LAW
1. Otis Elevator Company, a wholly owned subsidiary
of United Technologies Corporation is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. Local 989, United Automobile, Aerospace and Agri-
cultural Implement Workers of America is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. All classifications of employees employed in Re-
spondent's Engineering Division located in Mahwah and
Harrison, New Jersey, and Yonkers, New York, in the
classifications described in Appendix A of the collective-
bargaining agreement effective 1 April 1977 to 31 March
1980, but excluding nontechnical, secretarial, clerical em-
ployees not described in Appendix A, maintenance em-
ployees, guards, and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
4. Since sometime prior to 1 June 1950, the above-
named Union has been, and is now, the exclusive repre-
sentative of all the employees in the aforesaid appropri-
ate unit for the purpose of collective bargaining within
the meaning of Section 9(a) of 'the Act.
5. Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act by
(a) Failing and refusing, on request, to engage in any
meaningful good-faith negotiations with the Union con-
cerning the effects of its decision on the employees in the
unit described above in paragraph 3.
(b) Failing and refusing, on request, to permit the
Union an opportunity to bargain about the basis on
which employees were to be given the opportunity to
transfer from its Mahwah, New Jersey facility to other
of its facilities in Connecticut and on the identity of the
employees selected for transfer interviews.
(c) Dealing directly with employees and failing and re-
fusing to permit the Union the opportunity to be present
-at employee interviews that involve the loss of unit work
and the transfer of employees from Respondent's
Mahwah, New Jersey facility to Respondent's unrepre-
sented facilities in Connecticut unless requested by the
employees interviewed.
THE REMEDY
I will recommend that the Respondent be required to
bargain in good faith with the Union over the effects on
unit employees of its decision to transfer and consolidate.
In this connection, I will recommend that Respondent's
obligation include permitting the Union an opportunity
spondent has not proffered additional evidence, but relies solely on the
original record , I reaffirm my original finding. Compare Mack Trucks,
277 NLRB at 711, in which, inter alia , virtually all of the so-called ef-
fects-bargaining subjects were secured within the master shop agreement
and relevant supplements There, the Respondent's outright rejection of
certain union proposals was privileged under Sec 8(d) of the Act.
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to bargain about the basis on which employees are to be
given the opportunity to transfer from its Mahwah, New
Jersey facility to other of its facilities in Connecticut and
on the identity of the employees selected for transfer
interviews. I will also recommend that Respondent cease
and desist from bypassing the Union in derogation of its
exclusive bargaining status by dealing directly with em-
ployees concerning the transfer of unit jobs.
As for backpay,, I find, in the circumstances of this
case, that a traditional bargaining order without a limited
backpay requirement will not effectuate the purposes of
the Act. The record disclosed that some employees were
laid off with others to follow as a result of Respondent's
"decision." 114 Concerning such individuals, the Board has
observed, "meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Union." See Gar Wood-Detroit Truck Equipment, 274
NLRB 113 (1985). I therefore recommend that Respond-
ent be required to compensate the affected laid-off em-
ployees in a manner similar to that required in Gar
Wood. Thus the Respondent should be required to pay
the affected employees backpay at the rate of their
normal wages when last in Respondent's employ from 5
days after the date of the Board's Decision and Order
until the occurrence of the earliest of the following con-
ditions: (1) the date the Respondent bargains to agree-
ment with the Union on those subjects -pertaining to the
effects of its transfer and consolidation decision on its
employees; (2) a bona fide impasse in bargaining; (3) the
failure of the Union to request bargaining within 5 days
of the Board's Decision and Order, or to commence ne-
gotiations within 5 days of the Respondent's notice of its
desire to bargain with the Union; (4) the subsequent fail-
ure of the Union to bargain in good faith; but in no event
shall this sum be less than these employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent's employ.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
14 Respondent's contention in its supplemental brief that the closing of
the Chemical Laboratory and the status of technicians were not encom-
passed by the pleadings or litigated, and therefore are not elements in this
case, is without merit For example Newell's uncontroverted and credited
testimony disclosed that at the 24 May effects-bargaining session, Foley
advised the Union that the Company would probably close down the ma-
chine shop and "probably cause a layoff of a lab mechanic and also some
technicians." Foley also advised that the Chemical Laboratory would
close down with the layoff of chemists (Tr. 30) Further, the record dis-
closed that Foley, in downplaying the impact of Respondent's "decision,"
advised the Union at that 24 May session that "only some thn*gs hke the
Chem lab which did not do engineering support work in the first place
will really be effected " (G.C. Exh 2C, p 6, emphasis added) However,
as noted by the Board in Otis I, the record is not clear whether the classi-
fication of "chemist" is included in the bargaining unit herein I recom-
mend that this, as well as the identities of all unit employees laid off as a
result of Respondent's "decision," be deferred to the compliance stage of
this proceeding (Otis I, 255 NLRB at 238.)
15 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ORDER
The Respondent, Otis Elevator Company, a wholly
owned subsidiary of United Technologies Corporation,
Mahwah, New Jersey,_ its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with, Local 989,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America as the exclusive bargaining
representative of the employees in the unit found appro-
priate herein over the effects on unit employees of its de-
cision to transfer and consolidate certain of its engineer-
ing operations, including unit work from its Mahwah,
New Jersey facility to other facilities in Connecticut.
(b) Failing and refusing, on request, to permit the
Union an opportunity to bargain about the basis on
which employees are to be given the opportunity to
transfer from its Mahwah, New Jersey facility to other
of its facilities in Connecticut and on the identity of the
employees selected for transfer interviews.
(c) Dealing directly with employees and failing and re-
fusing to permit the Union a full opportunity to be
present at employee interviews that involve the loss of
unit work and the transfer of the employees from Re-
spondent's Mahwah, New Jersey facility to its unrepre-
sented facilities in Connecticut.
(d) 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) On the Union's request, bargain collectively with
the Union as the exclusive bargaining representative of
the Respondent's employees in the appropriate unit with
respect to wages, hours, and other terms and conditions
of employment.
(b) On the Union's request, bargain with the Union
concerning the effects on unit employees of its decision
to transfer and consolidate unit work from Mahwah,
New Jersey to other of its facilities in Connecticut.
(c) On the Union's request, bargain with the Union
about the basis on which employees in the appropriate
unit are to be given the opportunity or required to trans-
fer to its facilities in Connecticut and on the identity of
these employees.
(d) Pay the laid-off, employees their normal wages in
the manner set forth in the remedy section of this deci-
sion.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Mahwah, New Jersey facility and those
facilities in Connecticut wherein unit work from
Mahwah has been transferred, copies of the attached
notice marked "Appendix." 16 Copies of the notice, on
16 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 Nation-
Continued
OTIS ELEVATOR CO.
forms provided by the Regional Director for Region 22,
after being signed by the Respondent 's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain collectively in
good faith with Local 989, International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America as the exclusive representative of
our employees in the appropriate unit set forth below
concerning the effects on unit employees of our decision
to transfer and consolidate certain of our engineering op-
erations , including unit work , from our Mahwah, New
Jersey facility to other facilities , including our facilities
in Connecticut. The appropriate unit is:
All classifications of employees employed in our
Engineering Division located in Mahwah and Harri-
son, New Jersey, and Yonkers, New York, in the
classifications described in Appendix A of the col-
233
lective-bargaining agreement effective April 1, 1977,
to March 31, 1980, but excluding non-technical, sec-
retarial, clerical employees not described in Appen-
dix A, maintenance employees , guards and supervi-
sors as defined in the Act.
WE WILL NOT fail and refuse, on request, to permit the
Union an opportunity to bargain about the basis on
which employees are to be given the opportunity to
transfer from its Mahwah, New Jersey facility to other
of its facilities in Connecticut and on the identity of the
employees selected for transfer interviews.
WE WILL NOT bypass the Union as the exclusive bar-
gaining representative of the employees in the unit de-
scribed above, and deal directly with employees con-
cerning their transfer and the transfer of unit work from
our Mahwah , New Jersey facility to our unrepresented
facilities in Connecticut.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on the Union's request, bargain collectively
with the Union as the exclusive bargaining representative
of our employees in the appropriate unit with , respect to
wages , hours , and other terms and conditions of employ-
ment.
WE WILL, on the Union's request, bargain with the
Union concerning the effects on unit employees of our
decision to transfer and consolidate unit work from
Mahwah, New Jersey, to other of our facilities in Con-
necticut.
WE WILL on the Union's request, bargain with the
Union about the basis on which employees in the appro-
priate unit are to be given , the opportunity or required to
transfer to our facilities in Connecticut and on the identi-
ty of these employees.
WE, WILL pay the laid-off employees their normal
wages, as set forth in the Decision and Order.
OTIS ELEVATOR COMPANY, A WHOLLY
OWNED SUBSIDIARY OF UNITED TECHNOL-
OGIES