United Aircraft Corp.

National Labor Relations Board - Board Decisions

Feb 13, 1980

247 N.L.R.B. 1042 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Aircraft Corporation (Pratt and Whitney
Division) and Lodge # 1746, International Associa-
tion of Machinists, AFL-CIO
United Aircraft Corporation (Pratt and Whitney
Division) and Edward F. Rabowski
United Aircraft Corporation (Pratt and Whitney
Division-Connecticut Advanced Nuclear Engi-
neering Laboratory) and Lodge #700, Internation-
al Association of Machinists, AFL-CIO
United Aircraft Corporation (Hamilton Standard
Division) and Lodge #743, International Associa-
tion of Machinists, AFL-CIO
United Aircraft Corporation (Hamilton Standard
Division) and Francis J. Karcz and William A.
Grant. Cases -CA-3355 (1-3), 1-CA-3357, -CA-
3359, 1-CA-3528, 1-CA-3532, 1-CA-4201, 1-
CA-4492, 1-CA-3396, 1-CA-4802, I-CA-3358,
I-CA-3372, 1-CA-3435, 1-CA-3455, I-CA-3571,
I-CA-3634, -CA-4202, -CA-4491, I-CA-3434,
and -CA-3900
February 13, 1980
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On July 30, 1971, the National Labor Relations
Board issued a Decision and Order in this case.' The
Board found, inter alia, that Respondent did not
violate Section 8(a)(3) and (1) of the Act when it
terminated the employment preference rights of eco-
nomic strikers upon the expiration of the parties'
Strike Settlement Agreements (SSA), but that Respon-
dent did violate Section 8(a)(3) and (1) in certain
instances when-during the term of the SSA-it
promoted or transferred junior active employees into
jobs for which senior strikers were awaiting recall. The
Board also found that Respondent did not otherwise
discriminate against strikers in its administration of
the striker-recall provisions of the SSA, and that it did
not depress its employee complement during the post-
' 192 NLRB 382. Members Penello and Truesdale were not on the Board at
the time and, therefore. did not participate in that Decision. Then Member
Fanning and Member Brown filed a partial dissent to that decision, but their
dissenting views pertained only to issues no longer before the Board in this
Supplemental Decision.
' Lodge 743 and 1746. International Association ofMachinists and Aerospace
Workers, AFL-CIO v. United Aircraft Corporation. 534 F.2d 422.
' In addition, the court sustained the Board's finding that Respondent did
not violate Sec. 8(a)(5) of the Act when it conditioned its agreement to
provide the Unions with certain company records upon the Union's payment
of the costs incurred in supplying the requested documents. However, in
disagreement with the Board, the court held that Respondent must bear the
portion of such costs which is attributable to the deletion from these records
of irrelevant nonbargaining unit information. As the record before the court
247 NLRB No. 174
strike period in order to undermine the Union.
However, the Board did find that Respondent violated
Section 8(a)(1) of the Act by the activities of certain of
its supervisors, which included threats of economic
reprisal, creating the impression of surveillance of
employee union activity, and offering benefits condi-
tioned upon abandonment of the strike. The Board
ordered Respondent to cease and desist from the
unfair labor practices found and take certain affirma-
tive actions to remedy such practices.
On September 9, 1975, the United States Court of
Appeals for the Second Circuit issued its decision' in
this case. The court: (1) sustained the Board's finding-
although on a different theory-that Respondent,
under the circumstances, did not act unlawfully when
it terminated the employment preference rights of
economic strikers upon the SSA's expiration; (2)
enforced the Board's Order remedying the 8(a)(l)
violations committed by Respondent's supervisors;
and (3) granted the Unions' petition for review of the
issues raised by the promotion and transfer of certain
junior active employees and the reinstatement of
nonstriking absentee employees-during the term of
the SSA-into jobs for which strikers were awaiting
recall. The court remanded the case to the Board for
further consideration of the last issue in light of the
court's opinion.' The Charging Parties filed a petition
for a writ of certiorari in the Supreme Court of the
United States which was denied on October 4, 1976.4
Thereafter, the Board accepted the remand and
invited the parties to submit statements of position
concerning the issues raised by the remand. Such
statements were filed by the General Counsel, Respon-
dent, and the Charging Parties and a reply brief was
filed by the Charging Parties.'
The Board having accepted the remand, the court's
opinion is binding upon the Board for the purpose of
deciding this case. Having duly considered the court's
decision, and the statements of position, briefs, and
memorandums filed by the parties, we make the
following supplementary findings.
The facts are fully set out in our original Decision
and in the opinion of the circuit court, and need not be
reiterated here in detail." At the conclusion of a 9-
week economic strike in 1960, Respondent and the
was not sufficient to apportion such expenses, the court remanded this issue to
the Board for determination during the compliance stage of this proceeding.
'429 U.S. 825.
'On January 23 and February 2, 1979, respectively, the Charging Parties
and the General Counsel filed supplemental memorandums, together with
motions for leave to file them. In the absence of opposition thereto, those
motions are granted and the memorandums are accepted.
Most of the issues litigated at various stages in this proceeding were finally
determined by either the aforementioned decision of the Second Circuit or by
the parties' acquiescence in determinations previously rendered by the Board
in this case or by the United States District Court for the District of
Connecticut in a related case, cited and discussed infra. Accordingly, the
discussion and citation of facts set forth hereinafter will largely be confined to
1042
UNITED AIRCRAFT CORPORATION
Unions executed a new collective-bargaining agree-
ment and the SSA-the terms of which set forth
procedures for the recall of strikers. Those strikers
who wished to be recalled to work were to register
during a 3-day period and thereafter were to be
returned to work as follows: (1) if a striker's prestrike
job were available, he would be returned to that job;
(2) if that job were not available, then, consistent with
seniority and other factors not relevant to a determi-
nation of the issues herein, the striker would be
recalled to certain other jobs that were available; and
(3) strikers for whom no jobs were available under the
first or second possibility would be placed on a
preferential hiring list and placed in jobs which
became available before the SSA expired on December
31, 1960.
Thereafter, the Unions became dissatisfied with
Respondent's administration of the SSA and filed a
suit under Section 301 of the Labor Management
Relations Act in the United States District Court for
the District of Connecticut alleging Respondent's
breach of the SSA and seeking specific performance
and monetary damages. They also filed unfair labor
practice charges before the Board, alleging, inter alia,
that Respondent violated Section 8(a)(3) and (1) of the
Act by discriminating against registered strikers seek-
ing recall. In support of the unfair labor practice
charge alleging that Respondent discriminated against
strikers during the term of the SSA, the General
Counsel and the Charging Parties both relied on
evidence identical to that offered by the Unions to
show breach of the SSA in the Section 301 suit before
the district court.7
In its decision in the Section 301 suit, the district
court' found, inter alia, that Respondent had adminis-
tered the SSA in good faith, but that the SSA had been
breached in certain very limited instances involving
the promotion or transfer of junior active employees
into jobs for which senior strikers were awaiting recall.
As indicated previously, the Board concluded in its
Decision and Order that, in general, Respondent's
actions were lawful and taken in good faith. However,
the Board found violations of Section 8(a)(3) and (1)
those matters which directly relate to the issues that are the subject of the
Second Circuit's remand.
'In response to motions filed by the General Counsel and the Charging
Parties, the entire record in the district court case was received into evidence
and made part of the record herein.
' Lodges 743 and 1746. International Association ofMachinists. AFL-CIO v.
United Aircraft Corporation. 299 F.Supp. 877 (D.C. Conn. 1969).
The separate proceedings before the district court and the Board were
consolidated for purposes of review by the Second Circuit and a single opinion
covering both cases was issued.
"' The record shows that, prior to the strike which gave rise to this
litigation. Respondent's normal personnel policy was to promote and transfer
active employees into jobs which became available before offering such
positions to employees in layoff status. The Second Circuit held that it would
constitute a breach of the SSA recall provisions if Respondent's reason for
of the Act in those limited instances where the district
court held that Respondent breached the SSA by
promoting or transferring junior active employees into
jobs which senior strikers were entitled to fill.
The Second Circuit's opinion dealt with both the
Section 301 proceeding and the unfair labor practice
proceeding.' The circuit court, in remanding, directed
both the district court and the Board to reexamine
Respondent's conduct in promoting and transferring
junior active employees during the term of the SSA. In
the Section 301 proceeding, the district court was
directed to inquire into Respondent's reasons for
effectuating the disputed promotions and transfers. In
the Second Circuit's view, when the promotions and
transfers were undertaken to correct post-strike pro-
duction imbalances and to avoid the layoff of junior
active employees, there was no breach of the terms of
the SSA even though the junior active employees
involved were thereby given jobs which would other-
wise have been made available to unreinstated regis-
tered strikers. However, the SSA was breached when
such personnel adjustments were made for other
reasons '° and had the effect of blocking the reinstate-
ment of a striker or causing a striker to be reinstated
to a lower rated position.
In the unfair labor practice proceeding, the Second
Circuit directed that the Board make an independent
legal assessment of whether the promotions and
transfers violated the Act. To the extent that the
Board's findings of unfair labor practices were pinned
directly to the existence of SSA violations, the court's
remand gave the Board the opportunity to reconsider
its unfair labor practice findings in light of the circuit
court's analysis of the SSA and of its impact upon
Respondent's right to effectuate such promotions and
transfers.
On December 13, 1978, the district court issued its
decision on the remanded issues in the Section 301
suit." Applying the criteria set forth by the Second
Circuit, the district court held that the Unions had
made out a prima facie case that the SSA was
breached once they established that junior active
employees were promoted at a time when senior
effectuating the promotion or transfer of a junior active employee was
application of that past practice respecting laid-off employees to senior
registered strikers who possessed a superior entitlement to recall under the
SSA
"100 LRRM 2446, 85 LC ¶ 1,1075 (D.C. Conn. 1978).
': The parties agreed, after review of the facts, that there were no violations
of the SSA with respect to the "transfer" category which was remanded for
reconsideration by the Second Circuit. It should be noted, however, that there
were four other types of transfers-disadvantaging approximately 27 strik-
ers-which were found violative of the SSA in the district court's initial
decision, and which Respondent did not appeal. Accordingly, such findings of
SSA violations are final and Respondent asserts that it has satisfied the district
court's judgment in that regard.
The above-noted SSA violations were found with respect to the following
categories of personnel adjustments: (1) transfers of junior active employees
(Continued)
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers were awaiting recall to such positions. The
district court also held that United Aircraft failed to
meet its burden of substantiating with tangible record
proof its contention that such promotions were made
solely to deal with production imbalances and to keep
active employees at work. Accordingly, the district
court found that United Aircraft's conduct violated
the SSA because the challenged promotions were
primarily attributable to its normal personnel policies
and were not an effort to correct an imbalance in
production. Thereafter, on July 26, 1979, the Second
Circuit" affirmed the district court's judgment on
remand.
As recounted by the Second Circuit in its decision
remanding this proceeding, the Trial Examiner (now
Administrative Law Judge) issued his recommended
Decision in 1969, shortly after the district court
handed down its opinion finding that United Aircraft
had not breached the SSA except in certain limited
respects. The Trial Examiner, like the district court,
found United Aircraft generally acted in good faith in
its administration of the SSA between the end of the
strike and the December 31, 1960, expiration date of
the SSA's recall provisions. The Trial Examiner
further found, however, that United Aircraft had
violated Section 8(a)(3) of the Act by ending the
preferential hiring rights of strikers on December 31,
1960, as provided for by the SSA. In so doing, the
Trial Examiner concluded that unrecalled former
strikers were entitled to preferential hiring through
April 1961, at which time all plants were back to full
complements. The Trial Examiner found support for
this conclusion in The Laidlaw Corporation, 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969),
cert. denied 397 U.S. 920 (1970). There, the Board,
with court approval, held that permanently replaced
strikers whose jobs subsequently became vacant be-
cause their replacements departed were entitled to
reinstatement unless they had secured substantially
equivalent employment elsewhere.
The Board adopted, with some modifications, most
of the Trial Examiner's findings and recommenda-
tions. However, the Board reversed the Trial Examin-
er's finding that United Aircraft violated Section
8(a)(3) by cutting off the preferential hiring of strikers
after December 31, 1960. In so doing, the Board, in
effect if not explicitly, reasoned that the Unions had
bargained away the employees' Laidlaw rights.
In passing upon this aspect of the case the Second
Circuit observed:
into jobs vacated by temporary "summer" hires; (2) transfers of certain
"trainees" into seniority areas where senior registered strikers were awaiting
recall; (3) transfers across seniority area lines by junior active employees; and
(4) transfers of junior active employees into jobs for which registered strikers
were awaiting recall after having waived their rights to other jobs.
' 604 F.2d 4, cert. denied 50 L. Ed. 87.
[T]he issue of waiver by a union need not be
decided in this case. In our view it is inaccurate to
speak of statutory reinstatement rights having
been waived here. The Supreme Court did not
decide Fleetwood until 1967; the Board's decision
in Laidlaw was not issued until 1968. We are at a
loss to explain how the Union could make a
knowing and voluntary waiver of the rights
created by those cases when it had no way of
knowing what those rights were. As matters
stood in 1960, it was clear that strikers whose
positions had been filled by permanent replace-
ments or whose jobs had been abolished on the
date they applied for reinstatement were not
entitled to preferential employment treatment at
that or any future time.... The employer's
duty was simply not to discriminate against
former strikers in hiring new employees. [534
F.2d at 451.]
Having determined that the Unions cold not have
knowingly waived the not-yet-in-existence Laidlaw
and Fleetwood" rights, the court went on to consider
whether Laidlaw and Fleetwood should be applied
retroactively to 1960, a question which the court
answered in the negative. In this connection, the court
pointed out that Laidlaw and, to a somewhat lesser
extent, Fleetwood were a sharp break with existing
precedent in 1960. Given this, and in light of the
finding by both the Board (in the unfair labor practice
case) and district court (in the Section 301 case) that
the Company had not sought in bad faith to discrimi-
nate against strikers, the circuit court refused to
impose liability upon Respondent by the retroactive
application of cases decided years after the events in
issue.
In view of our acceptance of the remand, our
resolution of the remanded issues will be made on the
basis of the law as it stood before Fleetwood and
Laidlaw issued.
At the outset, we agree with the Second Circuit that
a fair reading of case law prior to Fleetwood and
Laidlaw indicates that those strikers whose jobs were
not available at the end of the strike, whether because
permanent replacements had been hired or because of
strike-caused production dislocations, had no further
statutory right to reinstatement other than the right
not to be discriminated against in favor of new job
applicants. Respondent contends that since strikers
had no statutory right to be placed on a preferential
hiring list, hut only contractual rights accorded them
4 N.LR.B. v. Fleetwood Trailer Co.. Inc., 389 U.S. 375 (1967). There the
Supreme Court held that economic strikers whose jobs were temporarily
unavailable when they applied for reinstatement were entitled to an offer of
reemployment in the event that jobs for which the strikers were qualified
became available.
1044
UNITED AIRCRAFT CORPORATION
under the SSA, violations of the SSA are not unfair
labor practices. We disagree.
In several recent cases, albeit in a context different
from that found here, we have had occasion to
underline our conviction that by encouraging adher-
ence to the provisions of collective-bargaining agree-
ments we further "the express and fundamental policy
of the Act to encourage the practice and procedure of
collective bargaining as an important means for
achieving industrial peace and stability."' Thus, we
have specifically recognized that the breach of the
provisions of a strike settlement agreement "runs
counter to the basic policy of the Act to encourage the
peaceful settlement of labor disputes through the
practice and procedure of collective bargaining.""
On the other hand, when presented with a situation
in which an employer has manipulated the terms of a
strike settlement to achieve a discriminatory end, the
Board has found a violation of Section 8(a)(3) by
reason of the discriminatory application of the settle-
ment agreement without regard to whether the agree-
ment itself was discriminatory. See, generally, MCC
Pacific Valves, 244 NLRB 939 (1979). Thus, in Laher
Spring & Electric Car Corp., 192 NLRB 464, 466
(1971)," the Board declined to "accord the literal
terms of the agreement final and determinative
weight." Further, the Board observed: "The policies of
the Act would hardly be effectuated by our deferring
to an agreement, the terms of which have been utilized
by [the employer] in a manner [so] as to cloak
discrimination against strikers."
Applying these principles to the instant case, and in
light of the circuit court's remand and the record as a
whole, we reaffirm the finding in our original Decision
and Order in this proceeding that Respondent's
overall administration of the SSA was lawful. As
found by the circuit court, the SSA granted these
strikers greater reinstatement rights than the rights
ordinarily accorded strikers under then-existing and
applicable labor law. Hence, to the extent Respondent
complied with the terms of the SSA, its conduct was
lawful under the requirements of the National Labor
Relations Act. In this connection, we also reject any
contention that the SSA itself, or any express term
thereof, was "discriminatory" within the meaning of
the Act."' Indeed, this follows generally from the
finding that the SSA granted greater reinstatement
rights to former strikers than the rights they would
have had under then-applicable law. Moreover, we
have examined the SSA and find nothing to indicate
that any term of the agreement "discriminatorily"
' Stationary Engineers. Local 39 International L'nion of Operating
Engineers, AFL-CIO (The Son Jose Hospital and Health Center. Inc.). 240
NLRB 1122, 1124 (1979). See also Retail Clerks Union Local 1364. Retail
Clerks' International Association. AFL-CIO. et a. (Food Employers Council.
240) NLRB 1127(1979).
affected one group or classification of former strikers
as opposed to any other strikers or to nonstriking
employees.
With respect to breaches of the SSA by Respondent,
we conclude that violations of the agreement were
violations of the statute as well. As we have pointed
out previously, it is an express and fundamental policy
of the Act to encourage the peaceful resolution of
labor disputes through the practice and procedures of
collective bargaining. The negotiation of the SSA by
the parties was instrumental in ending a long and
bitter strike. In those instances when Respondent
acted in derogation of the SSA, of necessity its
conduct adversely affected the employees' bargained-
for rights to reinstatement and ran counter to the
overriding national policy that encourages the peace-
ful resolution of labor disputes through collective
bargaining. Thus, contrary to Respondent's conten-
tion that any breaches by it of the SSA were nothing
more than violations of the Union's private contract
rights, we conclude that such breaches of a strike
settlement agreement are within the cognizance of the
National Labor Relations Board and that, consistent
with our obligations under the statute, such breaches
when properly brought to our attention must be found
and remedied by us in the public interest. According-
ly, since Respondent's violations of the SSA in effect
denied reinstatement of individuals who had done no
more than exercise their statutory right to engage in
protected concerted activity in support of the Charg-
ing Parties, we find that such individuals have been
discriminated against within the meaning of Section
8(a)(3) and (1) of the Act.
As indicated previously, in its decision on remand,
as subsequently affirmed by the circuit court, the
district court concluded that Respondent breached the
terms of the SSA: () when it promoted certain junior
active employees when senior former strikers were
awaiting reinstatement to those jobs; and (2) with
respect to four categories of "transfers" (detailed
herein at fn. 12, supra). For the reasons expressed
earlier, we find that these breaches of the SSA were
also violative of Section 8(a)(3) and (1) of the Act.
As for Respondent's reinstatement of nonstriking
employees who were absent from work during part or
all of the strike period, we conclude from all the
surrounding facts and circumstances that Respon-
dent's conduct in this regard was lawful. In so
concluding, we rely particularly on the evidence that
reinstatement was offered only to those individuals
who supplied satisfactory proof that their absence was
'^ Food Employers Council. supra at II1128 2
" That case is discussed in some detail b) the Board in MCC Pacific 'alves
supra at fn. 16.
'' Nor has there been a showing on this record that Respondent entered into
the SSA with any discriminatory purpose
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
due to factors which would have been acceptable to
Respondent prior to the strike. Hence, there is no
evidence that Respondent extended an unlawful pref-
erence to individuals in the group as compared to
strikers. In this connection, we also agree with the
observation of the circuit court that, in the circum-
stances of this case, and particularly since prior to the
strike those absent for valid personal reasons did not
run the risk of losing their jobs, "[i]t would have been
manifestly unjust to expose them to the same risks as
strikers merely because of the fortuity that the cause of
their absence occurred during a strike." (534 F.2d at
445.) In sum, we conclude that the jobs of such
absentees were not "available" at the end of the strike.
Hence, Respondent's failure to offer such jobs to
registered strikers awaiting reinstatement was not
"discrimination" within the meaning of the Act.
Finally, with respect to the remanded issue relating
to Respondent's obligation to provide the Unions with
information relevant and necessary for intelligent
bargaining and contract administration, we reaffirm
our previous findings, except that the costs of deleting
nonbargaining unit data be borne by Respondent.
Accordingly, unless the parties can agree on a
breakdown between reproduction costs and deletions
costs, the amount owed by the Unions shall be
determined during the compliance stage of this pro-
ceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby reaffirms its prior Decision
and Order in this proceeding (reported at 192 NLRB
382), as modified below, and hereby orders that the
Respondent, United Aircraft Corporation, East Hart-
ford, Connecticut, its officers, agents, successors, and
assigns, shall take the action set forth in said prior
Order, as modified herein:
1. Add the following as paragraph (c) and reletter
paragraph (c) as (d):
"(c) Discriminating against employees by denying
them reinstatement as a result of violations of the
Strike Settlement Agreement."
2. Delete paragraph 2(c) and reletter the remaining
paragraphs accordingly.
3. Substitute the attached notice for the original
notice attached to the Board's prior Decision and
Order.
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, after
a hearing, that we violated Federal law by certain
conduct, and has ordered us to post this notice. We
hereby notify our employees that:
WE WILL NOT threaten our employees with
reprisals because they engage in union activities.
WE WILL NOT question our employees about
their union activities so as to create the impres-
sion that we are unlawfully watching those
activities.
WE WILL NOT promise benefits to our employ-
ees in order to discourage them from engaging in
union activities.
WE WILL NOT discourage membership in
Lodge #1746, Lodge #743, and Lodge #700,
International Association of Machinists, AFL-
CIO, or any other labor organization of our
employees, by transferring or promoting them to
positions in violation of the Strike Settlement
Agreements.
WE WILL NOT discriminate against our em-
ployees by denying them reinstatement as a result
of violations of the Strike Settlement Agreements.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them
under Section 7 of the Act.
WE WILL reinstate and give backpay to those
of our employees who were not reinstated to their
positions after the 1960 strike in violation of the
Strike Settlement Agreements.
UNITED AIRCRAFT CORPORATION
1046