United Technologies Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1985

274 N.L.R.B. 1069 (N.L.R.B. 1985)

UNITED TECHNOLOGIES CORP
United Technologies Corporation and International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, District 91
Pratt & Whitney Aircract Division , United Technol-
ogies Corporation and Local Lodge 707 , Inter-
national Association of Machinists and Aero-
space Workers , AFL-CIO. Cases 39-CA-275,
39-CA-308, 39-CA-422, and 39-CA-307,
21 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 December 1981 Administrative Law
Judge Michael 0 Miller issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief,' and the General Counsel filed a
brief in response to the Respondent's exceptions
and brief 2
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,3 and
conclusions only to the extent consistent with this
Decision and Order.
The judge found and we agree that the Respond-
ent violated Section 8(a)(1) by prohibiting its em-
ployees from distributing union literature which de-
scribes nonmembers as scabs and by threatening
' The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The General Counsel did not file exceptions but rather submitted a
brief in response to the Respondent's exceptions which is identical in con-
tent to his brief submitted to the administrative law judge following the
hearing The Respondent filed a motion to strike the General Counsel's
brief on the ground that it does not constitute an "answering brief to ex-
ceptions" within the meaning of Sec 102 46(d)(i) of the Board's Rules
and Regulations , nor does it constitute "cross -exceptions" under Sec
102 46(e) of the Rules and Regulations The Respondent further contends
that the General Counsel's brief fails to comply with the provisions of
Sec 101 11(b) of the Board's Statements of Procedure, which provide,
inter alia, that "whenever any party files exceptions, any other party may
file an answering brief limited to questions raised in the exceptions
and/or may file cross-exceptions relating to any portion of the adminis-
trative law judge's decision " We find the Respondent's contentions lack-
ing in merit Inasmuch as we have considered only those portions of the
General Counsel's brief which pertain to the Respondent's exceptions, the
Respondent has not been prejudiced by its submission Accordingly, the
Respondent's motion to strike is denied
3 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Additionally, we are satisfied that the Respondent's contention that the
judge was biased is without merit There is nothing in the record to sug-
gest that his conduct at the hearing, his credibility resolutions, or the in-
ferences he drew were affected by any bias or prejudice
1069
employees that they could be subject to discipline
if they failed to call in during a strike.4
1. The complaint in Case 39-CA-307 alleges and
the judge found that the Respondent violated Sec-
tion 8(a)(5) by failing to bargain with the Union
over the summer help program and by refusing to
provide information concerning that program
which had been requested by the Union. The Re-
spondent excepts to these findings and argues that,
because the individuals hired under the program
were not included in the bargaining unit represent-
ed by the Union, the summer help program was
not a mandatory subject of bargaining and that it
was therefore privileged to refuse to provide the
requested information. We find merit in the Re-
spondent's contentions.
As found by the judge, the Respondent has
maintained a program for about 20 years under
which it hires college-aged children of unit and
nonunit employees to perform both unit and non-
unit work on a temporary basis during the summer
months. The Union disclaimed interest in represent-
ing summer help program employees but it none-
theless demanded bargaining over the impact of the
program on unit employees. The Union expressed
concern over assuring equal opportunity for chil-
dren of all unit employees to participate in the pro-
gram and establishing a fair distribution of summer
jobs to children of unit and nonunit employees In
correspondence with the Union and in its responses
to grievances filed over this matter, the Respond-
ent stated its position that it had no obligation to
bargain with the Union over the summer help pro-
gram because the Union did not represent the em-
ployees hired under that program and because
there was no adverse impact on unit employees.
The Respondent assured the Union that no summer
help employees would be hired or retained if to do
so would necessitate the layoff of regular employ-
ees and that no summer help employees would be
permitted to work overtime unless all regular em-
ployees had been offered the opportunity to work
overtime.
4 The judge found that Foreman Steve Stroncek told employees in his
department that they were obligated to call in daily during a strike to
explain their absence and that they could be terminated if they failed to
do so In making this finding the judge credited the testimony of employ-
ees Bigenskt and Hipkin based on, inter alia , "the implications contained
in both Stroncek and Cichaski 's testimony and Stroncek 's failure to deny
the statements attributed to him by Hipkm, as well as Hipkin ' s uncontra-
dicted testimony of his conversations with Marcotte " The judge did not
specify what "implications" he was referring to concerning Cichaski's
and Stroncek 's testimony and we are unable to discern them from his
recitation of their testimony and our independent review of the record
Accordingly , in adopting his 8(a)(1) finding , we do not rely on that por-
tion of the judge 's decision Rather, we rely solely on Hipkm's uncontra-
dicted testimony concerning his conversation with Stroncek and Stron-
cek's failure to deny the statements attributed to him by Hipkin
274 NLRB No. 163
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to the judge, we find that the summer
help program was not a mandatory subject of bar-
gaining and that the Respondent consequently did
not violate Section 8(a)(5) by refusing to bargain
with the Union over the program or by failing to
provide the requested information concerning the
program. Section 8(d) of the Act requires employ-
ers and collective-bargaining representatives "to
confer in good faith with respect to wages, hours,
and other terms and conditions of employment." In
interpreting this statutory language the Supreme
Court defined mandatory subjects of bargaining as
including only those issues that settle an aspect of
the relationship between the employer and employ-
ees.5 While matters affecting individuals outside
the bargaining unit are not automatically excluded
from the scope of mandatory bargaining,6 it is
clear that the touchstone is whether such matters
"vitally affect" the terms and conditions of em-
ployment of unit employees.? An indirect or inci-
dental impact on unit employees is not sufficient to
establish a matter as a mandatory subject. Rather,
mandatory subjects include only those matters that
materially or significantly affect unit employees'
terms and conditions of employment.8 Similarly,
the phrase "terms and conditions of employment"
is to be construed in a limited sense and does not
include all subjects that may merely be of interest
or concern to the parties.9
Applying these principles to the facts of this
case, we find that the summer help program was
not a mandatory subject of bargaining. As indicat-
ed, it is undisputed that summer help employees
are not included in the unit and that the Union has
disclaimed any interest in representing them. Con-
sequently, the program could only be deemed a
mandatory subject if it were found to somehow
"vitally affect" unit employees. We find that it did
not. Thus, there is no claim that any unit employ-
ees were laid off or not recalled from layoff be-
cause of the hiring of summer help program em-
ployees or that unit employees were denied over-
time opportunities. Contrary to the General Coun-
sel, we view the availability of temporary summer
employment at the Respondent's facility as a bene-
fit flowing solely to the nonunit employees hired
5 Chemical Workers v Pittsburgh Glass, 404 U S 157, 178-179 (1971)
8 Teamsters Union v Oliver, 358 U S 283 (1959)
7 Pittsburgh Glass, supra at 179
8 Seattle First National Bank v NLRB, 444 F 2d 30 (9th Cir 1971)
9 Indeed, in its recent decision in Otis Elevator Co, 269 NLRB 891
(1984), the Board embraced the Supreme Court's definition of this phrase
as set forth in Justice Stewart's concurring opinion in Fibreboard Corp v
NLRB, 379 U S 203, 217, 223 (1964) "If, as I think clear, the purpose of
Section 8(d) is to describe a limited area subject to the duty of collective
bargaining , those management decisions which are fundamental to the
basic direction of a corporate enterprise or which impinge only indirectly
upon employment security should be excluded from that area " (Emphasis
added )
under the program, not to their unit and nonunit
employee-parents. Any "benefit" to the latter is at
most indirect and remote.1 ° Moreover, we view
the existence and continued maintenance of the
program as entirely discretionary with the Re-
spondent. Any change in the program or even its
total elimination would be solely within the control
of the Respondent.
In view of the foregoing, we find that the Re-
spondent did not violate Section 8(a)(5) by refusing
to bargain with the Union over the summer help
program. For this reason we also conclude that the
Respondent was not obligated to provide the
Union with the requested information regarding
the program. Accordingly, we shall dismiss these
allegations of the complaint.
2. The complaint in Case 39-CA-308 alleges and
the judge found that the Respondent bypassed the
Union and dealt directly with the employees by
conducting a wage and benefit survey without
notice to or bargaining with the Union, by refusing
to permit the Union to attend the survey interviews
or to see a copy of the questions asked, and by fail-
ing to provide the Union with a copy of the results
of the survey as requested by the Union, all in vio-
lation of Section 8(a)(5). The judge concluded that
these actions by the Respondent tended to erode
the Union's bargaining position in the upcoming
contract reopener negotiations. i i
The record shows that between April and
August 1980, prior to the start of reopener negotia-
tions, the Respondent conducted a survey of 25
percent of the hourly employees hired within the
preceding 2-1/2 years. The Respondent's purpose
in conducting the survey was to determine the em-
ployees' attitudes and opinions towards their work
environment, to determine the extent of employee
awareness of the Respondent's various benefit pro-
grams, and to give employees an opportunity to ex-
press their views with respect to those benefits.
The Respondent directed its personnel managers to
advise those employees selected to participate in
the survey that their participation was voluntary
and that their responses would be kept confidential.
Employees were asked whether they felt they were
properly compensated for their work and whether
they were aware of how their retirement benefits
were calculated. They were also asked to rate on a
scale of poor to excellent the Respondent's various
10 Seattle First National Bank, supra
" As set forth in greater detail below and in the judge's decision, the
collective-bargaining agreement in effect at all times material herein con-
tained a reopener clause authorizing either party to reopen the contract
solely with respect to base hourly wage rates and cost-of-living adjust-
ments (COLA ) for the fourth and fifth years of the contract The con-
tract was effective from November 1977 through November 1982
UNITED TECHNOLOGIES CORP 1071
benefit programs such as holidays, vacations, sick
leave, bereavement pay, and performance awards.
Finally, employees were given an opportunity to
express any general comments or suggestions.
In three of the interviews the discussion touched
briefly on issues which were to be raised in the up-
coming reopener negotiations. Thus, in responding
to the question regarding compensation, employee
Breault stated that he heard "we would be getting
a nice raise in November . . . about $1.20 more."
Breault testified that the interviewer responded,
"you will be lucky if you get 50 cents." Employee
Burn, an auditor for the Union and a union stew-
ard, was asked by his interviewer what the Union
would be seeking in terms of wages in the upcom-
ing reopener negotiations. Burn responded that it
would be about $1.25 an hour but that it would be
strictly up to the negotiating committee. Employee
Wright was asked how much of a cost-of-living al-
lowance she thought the employees were going to
get. Wright responded that the employees were ex-
pecting an 18-cent uncapped COLA.
In July 1980, on learning that the interviews
were being conducted, Wayne Gilbert, president of
Lodge 707, asked the Respondent whether any of
the questions related to contract benefits. Gilbert
also asked for, inter alia, a copy of the questions
and for an opportunity to participate in the inter-
views or to be interviewed himself. The Respond-
ent denied Gilbert's request.
The judge found that the Respondent's conduct
with respect to the wage survey constituted direct
dealing which tended to erode the Union's bargain-
ing position. Relying primarily on Obie Pacific,
Inc., 196 NLRB 458 (1972), the judge concluded
that the Respondent sought to determine the extent
of employee satisfaction or dissatisfaction with con-
tractual benefits and that this information "would
arm Respondent for the upcoming negotiations [by]
permitting Respondent to know how far it need go
or how little it would have to offer to appease a
substantial segment of the employee complement."
Contrary to the judge, we find that the Respond-
ent did not violate Section 8(a)(5) and (1) of the
Act by failing to notify and bargain with the Union
about conducting the wage and benefit survey.
Obie Pac fc, Inc., supra, and the other cases cited
by the judge in support of finding a violation here
involved surveys conducted during or immediately
preceding negotiations in which employees were
questioned about specific contract proposals to be
raised during negotiations . In those cases , the em-
ployers violated their obligation to bargain with
their employees' exclusive bargaining representa-
tive because they sought to determine for them-
selves the extent of employee support for positions
espoused by the union. Here, the evidence shows
that the Respondent's purpose in conducting the
survey was merely to determine whether its per-
sonnel policies and benefit programs were being
properly communicated to its most recently hired
employees. Careful scrutiny of the survey's ques-
tions confirms that this was the objective. For ex-
ample, employees were asked, inter alia, whether
they were "aware of how retirement benefits are
calculated" (emphasis added) and whether they felt
they were "properly compensated for the duties
performed." Another question asked employees to
rate from poor to excellent various nonbase wage
rate benefits. On the whole, these questions solicit-
ed employee sentiment with respect to contractual
benefits which were clearly outside the scope of
the upcoming reopener negotiations. Hence, con-
trary to the judge, it cannot be said that, by con-
ducting the survey, the Respondent sought to "arm
itself for the upcoming negotiations." Instead, we
find that these questions did not tend to interfere
with, restrain, or coerce employees as did the
survey in Obie Pacific, supra, because the questions
were addresed to the employees' understanding of
their benefits and were not phrased in a manner
that, for example, sought to elicit complaints from
employees which the Respondent impliedly prom-
ised to remedy. 12
3. We agree, however, with the judge that the
Respondent violated Section 8(a)(5) and (1) of the
Act by failing to furnish the Union upon request
with a copy of the results of the survey. It is well
established that wages, fringe benefits, and employ-
ment data concerning bargaining unit employees
are presumptively relevant for the purposes of col-
lective bargaining and must be provided upon re-
quest to the employees' bargaining representa-
tive.13 Furthermore, a union is not required to
demonstrate the exact relevance of such informa-
tion unless the employer has submitted evidence
sufficient to rebut the presumption of relevance.14
The Respondent has not attempted to rebut by
proffer of proof the relevance of the information
requested by the Union. Rather, the Respondent
summarily denied the Union's request without of-
fering any explanation for its denial and in its ex-
ceptions argues that the information is not relevant
12 Moreover , we find that the casual , peripheral references to the up-
coming negotiations at the three interviews were insufficient to turn the
entire survey into direct dealing and an 8(a )(5) violation The thrust of
these interviews was not directed at the contract reopener negotiations
but rather the references to those matters were offhanded and incidental
to the purpose of the interview Moreover, according to employee testi-
mony, it was at only one of these interviews that a representative of the
Respondent initiated any direct reference to such negotiations
12 NLRB v Acme Industrial Co, 385 U S 432 (1967), Western Massa-
chusetts Electric Co, 234 NLRB 118 (1978)
14 Grand Islander Health Care Center, 256 NLRB 1255 (1981)
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or useful to the Union because the survey was lim-
ited to unit employees with less than 5 years of
service.
We conclude that the results of the wage and
benefit survey are presumptively relevant for col-
lective bargaining and that the Respondent has not
rebutted that presumption. We therefore affirm the
judge's finding.
4 The complaint in Case 39-CA-422 alleges and
the judge found, inter alia, that the Respondent en-
gaged in unlawful direct dealing and bypassing of
the Union when it communicated with its employ-
ees concerning the contract reopener negotiations
with the Union. The Respondent excepts to this
finding and argues that its communications with
employees were privileged under Section 8(c). For
the reasons set forth here and in United Technol-
ogies Corp., 274 NLRB 609 (1985), we agree.
As noted above, the collective-bargaining agree-
ment, which was effective from November 1978
through November 1982, contained a reopener
clause which permitted either party to reopen the
contract with respect to wages and COLA for the
final 2 years of the agreement. The reopener nego-
tiations at issue here were conducted in November
1980. Prior to the start of negotiations the Union
distributed to the employees several flyers which
stated the Union's intent to seek an uncapped
COLA and a sizeable wage increase to bring the
Respondent's wages in line with those of various
west coast, midwest, and southern aerospace firms.
On 1 November 198015 the Respondent responded
by sending a letter to each bargaining unit employ-
ee which compared the wages and benefits of unit
employees with those of employees at local aero-
space firms including the Respondent's competi-
tors, General Electric and Rolls Royce. The letter
referred to the Union's flyers and criticized the
Union for attempting to put the parties on a "colli-
sion course" prior to the start of negotiations. The
letter called for -"common sense and good faith on
both sides."
At the first negotiating session on 3 November,
the Union presented its initial proposals which
called for a 14-percent increase in the base wage
rate over 2 years as well as an unlimited or un-
capped COLA. The Respondent termed the de-
mands "pie in the sky" and stated that it would be
"suicidal" for it to agree to them. The Respondent
also proposed that the parties agree to refrain from
publicizing the course of negotiations. Morse, the
Respondent's chief negotiator, told Sawyer, the
Union's chief representative, that if the Union did
not agree to this proposal the Company would feel
i 5 All dates are in 1980 unless otherwise indicated
free to communicate its view of the course of bar-
gaining as it saw fit because, in Morse's view, the
flow of information was a "two-way street."
At the second bargaining session on 11 Novem-
ber Sawyer rejected Morse's proposed publicity
ban, terming it a "gag rule." Morse reiterated the
Company's intention to keep its employees apprised
of the course of bargaining. Morse also rejected the
Union's initial proposal in light of various informa-
tion it presented. Morse suggested that the Union
consider calling in Federal mediators. The Re-
spondent did not make an offer at that meeting.
Later that day the Respondent issued a personnel
bulletin to all employees, the substance of which
had been shown to the Union at the bargaining ses-
sion. The bulletin criticized the Union's initial bar-
gaining demands and characterized the Union's
preparation for the negotiations as "thoughtless and
irresponsible."
Between 4 and 10 November the Union distribut-
ed at least six flyers to the employees urging sup-
port for the Union's bargaining position and de-
scribing strike plans and benefits. The literature
also requested employees to attend a meeting on 12
November for a preliminary strike vote and sought
volunteers for various strike assignments.
The third bargaining session was held on 14 No-
vember and was concerned largely with the
Union's request for information. The Respondent
did not present an offer or a counterproposal at
that meeting. On 16 November employees repre-
sented by the Teamsters at the Respondent's Sikor-
sky plant accepted a new 3-year agreement to re-
place the final 2 years of their contract pursuant to
early reopener negotiations. On 17 November, the
Respondent issued a personnel bulletin addressed to
supervisors which outlined the key elements of the
Sikorsky agreement including a cash bonus for
each employee and an early wage increase.16 The
bulletin stated that the Union rejected a similar
early settlement opportunity.17 At the next meet-
ing on 18 November the Union asked for the Re-
spondent's counterproposal. The Respondent re-
fused and instead urged the Union to call in media-
tors. During this meeting, the Respondent told the
Union that its offer would be similar to the Sikor-
sky settlement, i.e., a 3-year offer. The Union re-
sponded that it only wished to negotiate a 2-year
wage and COLA agreement consistent with the
terms of the reopener clause.
i ° The judge found, and we agree, that the Respondent intended this
bulletin to be seen by unit employees
" The bulletin did not state that the early settlement was conditioned
upon the Union being willing to engage in negotiations outside the pres-
ence of its full bargaining committee , an arrangement which was not ac-
ceptable to the Union
UNITED TECHNOLOGIES CORP
On 19 November, the Respondent issued another
personnel bulletin to supervisors which was distrib-
uted and posted so as to be seen by unit employees.
That bulletin outlined certain details of the Sikor-
sky agreement, characterized the Union's demands
as "unrealistic" and providing "no basis for a rea-
sonable settlement," stated that the Union twice re-
jected the Respondent's suggestion that mediators
be called in, and further stated that the Union,
unlike the Teamsters at Sikorsky, declined the Re-
spondent's offer to engage in early negotiations
Contemporaneous with the Respondent's bulle-
tins, the Union distributed its own literature to unit
employees which reported that a preliminary strike
vote had been taken which showed strong support
for a strike. The distributions also dealt with the
course of negotiations and stated the Union's posi-
tion that only an uncapped COLA would be ac-
ceptable. On 16 November Lodge 700 disseminated
information concerning constitutional provisions
about crossing a picket line and resigning from the
Union before a strike. Other similar notices were
distributed by the Union on 19 and 20 November.
On 20 November the Respondent issued a "Gener-
al Notice" responding to the Union's literature
which discussed fines to be levied against members
who did not support a strike. The next meeting
took place on 24 November in the presence of me-
diators. The Respondent made its first offer which
was essentially for a new 3-year agreement similar
to the one offered and accepted at Sikorsky. The
offer included proposals for items outside the scope
of the reopener clause, such as a savings plan, in-
surance, disability benefits, and pension plans. The
Union rejected the Respondent's offer, told the Re-
spondent it was interested only in negotiating a 2-
year wage and COLA agreement within the terms
of the reopener clause, and asked the Respondent
for such an offer. On 24 November the Respondent
issued a personnel bulletin to all employees which
described the "economic sacrifice" of a strike. On
25 November the Respondent distributed another
notice to employees describing all aspects of its 3-
year proposal and stating that the Union had re-
jected it "out of hand." The notice also discussed
the Respondent's offer of a savings plan but failed
to state that the tradeoff was the elimination of the
Christmas bonus program. The notice again charac-
terized the Union's bargaining demands as "totally
unrealistic."
At the 26 November bargaining session the Re-
spondent orally presented its first 2-year wage and
COLA proposal. On 29 November the Respondent
orally presented its final proposal. The Respondent
rejected the Union's request that it adjust its offer
by moving the cost of the savings plan to the
1073
COLA The Union told the Respondent that it
would recommend rejection of the Respondent's
offer at the ratification meeting scheduled for the
following day. The Respondent issued a press re-
lease in the afternoon of 29 November describing
its "final offer " The Union received a written
copy of the offer later that evening. On 30 Novem-
ber the Respondent ran two full-page advertise-
ments in local newspapers. One of these, addressed
to unit employees, described in detail the Respond-
ent's offer and urged employees to "weigh the
company's final offer against the alternative of a
strike." The advertisement also discussed the sav-
ings plan but did not mention the loss of the
Christmas bonus as a tradeoff for the plan
The second advertisement was a reprint of an
editorial urging the Union not to call a strike and
stating that the employees had three options. to
stop working, to accept the Respondent's offer, or
to continue working during additional negotiations.
The third option actually did not exist because the
Respondent had made its final offer and the Union
had indicated that it would not extend bargaining
beyond the expiration date.
At the 30 November ratification meeting a ma-
jority of the employees voted to reject the contract
offer. However, the vote for rejection was less
than the two-thirds majority required to call a
strike. Accordingly, pursuant to the International's
constitution, since the employees would not strike
to support the Union's demands, the Respondent's
offer was automatically accepted.
Contrary to the judge, we do not find that these
facts establish that the Respondent engaged in un-
lawful direct dealing with the employees. Nor, in
our view, were the communications intended to
undermine the Union's representative status. As set
forth above, the Respondent and the Union en-
gaged in very hard and intense bargaining pursuant
to the reopener clause of their contract. The stage
and the tone for these negotiations were set by the
Union even prior to the start of formal bargaining
when the Union distributed to unit employees
flyers which raised expectations in employees'
minds and misrepresented the Respondent's wage
structure to make it appear that the Respondent's
compensation package was grossly out of line with
that of competitor firms. The Respondent's 1 No-
vember letter merely responded to this material by
presenting a more balanced picture of its wage
rates. At the first bargaining session 2 days later
the Respondent proposed an informal agreement
between the parties to refrain from publicity con-
cerning the negotiations. The Union rejected this
idea and proceeded to embark on a publicity cam-
paign which included information about strike
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plans, strike benefits, and an exhortation to employ-
ees to attend a meeting for the purpose of taking a
strike vote. As of the date of these union publica-
tions the parties had met only once at the bargain-
ing table and the Respondent had not yet intro-
duced its proposals. Thus, the Union engaged in a
fair degree of saber rattling at a time when it was
unknown what the Respondent's bargaining posi-
tion would be. Thereafter, the Respondent issued
various bulletins to employees and supervisors es-
sentiallly criticizing the Union's demands and tac-
tics and setting forth its own version of the
progress of negotiations. In no instance did the Re-
spondent's material contain proposals or ideas
which were not first submitted to the Union at the
bargaining table.
In our view, an employer has a fundamental
right, protected by Section 8(c) of the Act, 18 to
communicate with its employees concerning its po-
sition in collective-bargaining negotiations and the
course of those negotiations. i 9 An employer is not
required to watch passively as a union conducts
"public" negotiations through one-sided distribu-
tions which denigrate the employer, raise expecta-
tions, and engender fear that the employer's posi-
tion is sinister or unfair. Furthermore, we believe
that free and open discussion by all parties to the
collective-bargaining process affords the best
chance for successful conclusion of negotiations
and creates the most favorable climate for success-
ful bargaining. Indeed, employees ought to be fully
informed as to all issues relevant to collective-bar-
gaining negotiations and the parties' positions as to
those issues. We believe employees are fully capa-
ble of evaluating the relative merits of those posi-
tions for themselves. As in United Technologies,
supra, there is nothing in the Respondent's commu-
nications here which indicates an effort by the Re-
spondent to bargain directly with the employees or
an invitation to them to abandon their representa-
tive to achieve better terms directly from the Re-
spondent. Indeed, all the Respondent's substantive
proposals were submitted to the Union prior to
their disclosure to the employees.20 Moreover, the
Respondent acknowledged the Union's rightful role
as the statutory representative by urging the em-
ployees to discuss the course of negotiations with
their union representatives and to attend and par-
ticipate in the ratification vote.
18 Sec 8 (c) states "The expressing of any views , argument , or opin-
ion, or the dissemination thereof, whether in written , printed, graphic, or
visual form , shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act , if such expression contains no
threat of reprisal or force or promise of benefit "
19 United Technologies Corp, 274 NLRB 609 (1985 ), Procter & Gamble
Mfg Co, 160 NLRB 334 ( 1966) See also Endo Laboratories , 239 NLRB
1074 (1978)
20 See , e g, Adolph Coors Co, 235 NLRB 271, 277 (1978)
Accordingly, we find that the Respondent did
not engage in direct dealing or bypass the Union
through its communications to employees and we
shall dismiss this allegation of the complaint.
5. The judge further found that the Respondent
engaged in surface bargaining. We find merit in the
Respondent's exceptions to this finding for the fol-
lowing reasons. The judge relied, inter alia, on the
Respondent's conducting of the wage survey, its
communications with employees which the judge
found constituted direct dealing, its conditioning of
its offer of early negotiations on the Union's being
willing to meet outside the presence of its full bar-
gaining committee, its delay in submitting counter-
proposals, the inclusion of a savings plan in its
counterproposals, and its prohibiting the employ-
ees' distribution of prounion antiscab literature.
The judge found, and we agree, that the Respond-
ent did not violate Section 8(a)(5) by its delay in
submitting counterproposals to the Union. There-
fore, this conduct carries little weight in determin-
ing whether the Respondent engaged in surface
bargaining. Similarly, the Respondent's attempt to
impose a condition on early negotiations was not
alleged as a separate 8(a)(5) violation and the Re-
spondent did not in any event insist to impasse on
this issue. Finally, the inclusion of the savings plan,
while outside the scope of the reopener negotia-
tions, does not evidence bad faith by the Respond-
ent because it did not insist to impasse on this sub-
ject and the matter was dropped when the Union
rejected it. As set forth above, we have reversed
the judge and found that the Respondent did not
violate the Act by conducting the wage survey
without bargaining with the Union or by engaging
in direct dealing or bypassing of the Union. The
findings with respect to the Respondent's unlawful
conduct which we have adopted, i.e., the unlawful
restrictions on the employees' distribution of the
Union's antiscab literature and the refusal to pro-
vide information regarding the wage survey, pro-
vide an insufficient basis to sustain a finding of sur-
face bargaining. In this regard, we note that the
Respondent's conduct at the bargaining table evi-
denced an intent to reach a mutually satisfactory
basis for agreement. The Respondent did not
engage in any of the tactics traditionally associated
with the term "surface bargaining." On the con-
trary, the totality of the Respondent's conduct con-
cerning the reopener negotiations both at and away
from the bargaining table conforms to the require-
ments of the Act. Therefore, we do not agree with
the judge's conclusion that the Respondent did not
seek to reach agreement with the Union on
common ground through compromise. Rather, we
find that the Respondent's conduct throughout the
UNITED TECHNOLOGIES CORP
negotiations evidenced no more than hard bargain-
ing permitted by the Act. Accordingly, we shall
dismiss this allegation of the complaint.
AMENDED CONCLUSIONS OF LAW
Substitute the following Conclusion of Law 6 for
that of the administrative law judge.
"6. Since on or about 7 July 1980 and continuing
to date, the Respondent has refused to bargain col-
lectively in good faith concerning rates of pay,
hours of employment , and other terms and condi-
tions of employment with Lodges 707, 1746A,
1746, and 700 (collectively referred to as the
Union) as the exclusive representative of its em-
ployees in the foresaid units by failing and refusing
to provide the Union upon request with the results
of its wage and benefit survey of unit employees in
violation of Section 8(a)(5) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Pratt & Whitney Aircraft Division,
United Technologies Corporation, Hartford, Con-
necticut, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(b).
"(b) Refusing to bargain in good faith with
Lodges 707, 1746A, 1746, and 700 (collectively re-
ferred to as the Union) as the certified collective-
bargaining representative of the employees in the
appropriate collective-bargaining units described in
the section of this decision entitled "Additional
Conclusions of Law" by failing and refusing to fur-
nish the Union, on request, with information con-
cerning the wage and benefit survey.
2. Substitute the following for paragraph 2(b).
"(b) On request, bargain collectively with the
Union by furnishing it, on request, with the infor-
mation concerning the wage and benefit survey."
3. Delete paragraph 2(c) and reletter the follow-
ing paragraphs accordingly.
4. Substitute the attached notice for that of the
administrative law judge
MEMBER DENNIS, dissenting in part.
Contrary to the majority, I agree with the judge
that the Respondent violated Section 8(a)(5) by
failing to provide the Union with information it
sought concerning the summer help program. As
the judge found, the Union established the probable
or potential relevance of the data it requested. Spe-
cifically, the Union has shown that it had reason to
believe that the program was not being adminis-
1075
tered fairly between unit and nonunit employees,
and that the presence of summer employees could
possibly diminish the overtime, training, or transfer
opportunities of unit employees.
Furthermore, particularly in light of the failure
to provide the information, I also agree with the
judge that the Respondent violated Section 8(a)(5)
by failing to bargain with the Union over the
impact of the summer help program on the bar-
gaining unit.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten employees with dis-
charge or other discipline if they fail to call in
daily while engaged in a strike.
WE WILL NOT prohibit employees from in-plant
distribution of union literature which refers to non-
members as scabs or by other similar terms.
WE WILL NOT refuse to furnish the Union with
information necessary to the fulfillment of its role
as collective-bargaining representative of the em-
ployees in the appropriate collective-bargaining
units.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL bargain in good faith with the Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, North Haven Aircraft Lodge
707, Industrial Aircraft Lodge 1746, Industrial Air-
craft Lodge 1746-A and Cartel Lodge 700. The ap-
propriate collective-bargaining units are:
All production and maintenance employees of
the United Technologies Corporation, Pratt &
Whitney Aircraft Group, Manufacturing Divi-
sion at its North Haven, Connecticut plant, in-
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding inspectors, crib attendants, material
handlers, factory clerks and working leaders,
but excluding timekeepers, engineering and
technical employees, laboratory technicians,
foremen's clerks, salaried office and clerical
employees, medical department employees,
first-aid employees, plant protection employ-
ees, executives, plant superintendents, division
superintendents, general foremen, foremen, as-
sistant foremen, group supervisors, watch engi-
neers, and all other supervisory employees
with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the
status of employees, or effectively recommend
such action.
All production and maintenance employees of
the United Technologies Corporation, Pratt &
Whitney Aircraft Group (Commercial Prod-
ucts Division and Manufacturing Division), at
its Southington, Connecticut plant, including
inspectors, crib attendants, material handlers,
factory clerks and working leaders, but exclud-
ing timekeepers, engineering and technical em-
ployees, apprentices, trainees, laboratory tech-
nicians, foremen's clerks, salaried office and
clerical employees, medical department em-
ployees, first-aid employees, plant protection
employees, executives, plant superintendents,
division superintendents, general foremen,
foremen, assistant foremen, group supervisors,
watch engineers, and all other supervisory em-
ployees with authority to hire, promote, dis-
charge, discipline or otherwise effect changes
in the status of employees, or effectively rec-
ommend such action.
All production and maintenance employees of
the United Technologies Corporation, Pratt &
Whitney Aircraft Group (Commercial Prod-
ucts Division and Manufacturing Division) at
their facilities in and around East Hartford,
Connecticut (including the DE Lab, the Will-
goos Lab, and facilities located at Manchester,
Rocky Hill, and Bradley Field), and Power
Systems Division at its facility located at
South Windsor, Connecticut, including inspec-
tors, crib attendants, material handlers, factory
clerks and working leaders, but excluding
timekeepers, engineering and technical em-
ployees, laboratory technicians, foremen's
clerks, salaried office and clerical employees,
medical department employees, first-aid em-
ployees, plant protection employees, execu-
tives, plant superintendents, division superin-
tendents, general foremen, foremen , assistant
foremen, group supervisors, watch engineers,
and all other supervisory employees with au-
thority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of
employees, or effectively recommend such
action.
All production and maintenance employees of
the United Technologies Corporation, Pratt &
Whitney Aircraft Group (Commercial Prod-
ucts Division and Manufacturing Division) at
its Middletown, Connecticut plant, including
inspectors, crib attendants, material handlers,
and working leaders, but excluding all time-
keepers, engineering and technical employees,
professional employees, laboratory technicians,
foremen's clerks, salaried office and salaried
clerical employees, medical employees, first-
aid employees, plant protection employees, ex-
ecutives, plant superintendents, division super-
intendents, general foremen, foremen , assistant
foremen, group supervisors, watch engineers,
and all other supervisory employees with au-
thority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of
employees, or effectively recommend such
action.
WE WILL, on request, bargain collectively with
the Union by furnishing it, on request, with the in-
formation concerning the wage and benefit survey.
PRATT & WHITNEY AIRCRAFT DIVI-
SION UNITED TECHNOLOGIES CORPO-
RATION
DECISION
STATENENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge
These cases were heard in Hartford, Connecticut, on
May 18, 19, 20, and 21 and June 8, 9, and 10, 1981 1 The
complaints allege that Pratt & Whitney Aircraft Divi-
sion , United Technologies Corporation (P&WA or Re-
spondent), violated Section 8(a)(1) and (5) of the Nation-
al Labor Relations Act. Respondent filed timely answers
denying the substantive allegations of the complaints
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses , and to argue
I The charge in Case 39-CA-275 was filed by District 91, internation-
al Association of Machinists and Aerospace Workers, AFL-CIO (District
91) on June 27, 1980, and was amended on July 23, 1980 Complaint in
that case was issued by the Officer-in-Charge of Region 39 of the Nation-
al Labor Relations Board (the Board) on July 30, 1980 The charge in
Case 39-CA-307 was filed by Lodge 707, International Association of
Machinists and Aerospace Workers, AFL-CIO (Lodge 707) on August
14, 1980, and resulted in the issuance of a complaint on September 26,
1980 The charge in Case 39-CA-308 was filed by District 91 on August
15, 1980, and was amended on January 16, 1981, the complaint issued on
January 23, 1981 The charge in Case 39-CA-422 was filed by District 91
on November 17, 1980, and was amended on December 22, 1980, and
February 24, 1981 That complaint issued on February 27, 1981 The
complaints were consoldiated for hearing
UNITED TECHNOLOGIES CORP
orally The General Counsel, Respondent, and the
Charging Parties have all filed briefs which have been
carefully considered
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS AND THE UNIONS' LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is a Delaware corporation with its main
office in Hartford Connecticut, and places of business in
North Haven, Southington, East Hartford, and Middle-
town, Connecticut, and elsewhere, where it is engaged in
manufacture and nonretail sale and distribution of air-
craft engines and related parts. Jurisdiction is not in dis-
pute. The complaint alleges, Respondent admits, and I
find and conclude that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
The complaint alleges, Respondent admits, and I find
and conclude that International Association of Machin-
ists and Aerospace Workers, AFL-CIO, North Haven
Aircraft Lodge 707, Industrial Aircraft Lodge 1746, In-
dustrial Aircraft Lodge 1746-A, Canel Lodge 700 and
District No. 91,2 herein collectively called the Union,
are all labor organizations within the meaning of Section
2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Union's lodges have represented Respondent's
production and maintenance employees3 and have had
collective-bargaining relationships with Respondent for
many years Thus, Lodge 1746 has represented Respond-
ent's employees at the East Hartford, Connecticut facili-
ty since 1945, Lodge 1746-A has represented Respond-
ent's Southington, Connecticut employees since 1950,
Lodge 700 has represented Respondent's Middletown,
Connecticut employees since 1958; and Lodge 707 has
represented Respondent's North Haven, Connecticut em-
ployees since 1974.4 There are a total of approximately
20,000 employees in the four units.
Respondent entered into separate collective-bargaining
agreements with each lodge for a term running from No-
vember 28, 1977,5 through November 28, 1982. Each
contains the following provision relative to contract re-
opening.
It is understood and agreed that either party
may reopen this agreement one time for the sole
purpose of negotiating for the 4th and 5th year of
2 District 91 coordinates the activities of the local lodges
a The admittedly appropriate units are fully described in the Conclu-
sions of Law, infra
4 In addition, the Union's Lodge 743 represents Respondent's Hamilton
Standard Division employees in Windsor Locks, Connecticut
5 Except at North Haven where the contract with Lodge 707 became
effective on May 15, 1978
1077
this agreement, a change in the base hourly wage
rates and cost-of-living allowance provided for
herein by giving notice to the other party of its
intent to do so not less than sixty (60) days nor
more than seventy (70) days prior to November 30,
1980; and that in the event that the parties are
unable to reach agreement during such reopening
period with respect to base hourly wage rates or
cost-of-living allowance, the obligations of either
party to the other contained in Articles V [check-
off] or XXIV [no strike or lockout] of this agree-
ment shall become null and void and unenforceable
The contracts include voluntary dues checkoff but do
not otherwise provide for union security.
It is in the context of these collective -bargaining agree-
ments and the wage and COLA reopener negotiations
that the four complaints arose.
B Case 39-CA-275-The Scab Literature
Not having a union-security clause in its collective-
bargaining agreements, Lodge 1746-A commenced (or
continued) a campaign to encourage nonmember employ-
ees to join and support the Union Some of the campaign
literature included references to specific nonmember em-
ployees as "scabs", it is the Employer's prohibition of
such literature which gives rise to this case.
Lodge 1746's campaign began, so far as this record is
concerned, with the distribution of a flyer about Febru-
ary 26,-1980 6 That first flyer referred to nonmembers by
several names, "dropout," "freebie," and "scab," but did
not name any of the individuals so labeled. It urged sup-
port for the Union and published both a definition of
scab? and the description of a scab traditionally attrib-
uted to author Jack London.8 On April 16, Lodge 1746-
A republished the Jack London definition and stated that
it intended to publish a complete list of "Southington's
scabs" before the month was out. It urged union mem-
bers to drop the nonmembers from their carpools and to
deny them the loan of their tools. On May 7, the Lodge
published a list of all third-shift employees who had not
joined the Union, without labeling them as scabs, and
urged its members to solicit their membership and sup-
port Finally, on May 13 and 20, Lodge 1746-A distrib-
uted flyers at the Southington plant which named the
employees on the first and second shifts who were not
members of the Union and referred to them specifically
as scabs. The May 13 flyer stated that those listed "give
encouragement to the corporate negotiators who will
face our bargaining team at the wage reopener." It urged
them "to get 'born again'-to ride the Union train and
pay the Union fare."
All dates hereinafter are 1980 unless otherwise specified
the Union's definition, taken from Webster, was "(1) anyone who
refuses to join a union, (2) a member of a union who returns to work
before a strike has ended, (3) a worker who accepts employment or re-
places a union worker during a strike, and (4) one who works for lower
wages than or under conditions contrary to those prescribed by a union "
s This definition places the scab lower on the evolutionary scale than
the rattlesnake, toad, and vampire and compares the scab unfavorably
against Judas Iscariot, Esau, and Benedict Arnold The definition may be
found in its entirety in Lettercarriers v Austin, 418 U S 264, 268 (1974)
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 30, T E Willhide, Respondent's vice presi-
dent of personnel and industrial relations, wrote Gordon
Sawyer, District 91's directing business representative, in
regard to the scab publications. He quoted from the col-
lective-bargaining agreements' provisions regarding the
employees' rights to loin the Union or not without being
subject to company or union restraint or coercion and
asserted that the Union, by calling these employees
scabs, had subjected them to restraint and coercion. He
relied further on an arbitrator's decision upholding the
Employer's prohibition of the use of the perjorative ap-
pellation at its Hamilton Standard Division and went on
to state as follows.
In any event, the Company will not permit em-
ployees or other persons to distribute on its prem-
ises union flyers or other documents which refer to
other employees as "scabs" or by similar scurrilous
terms, and any future distribution of such literature
by employees on Company premises will result in
such distributors being disciplined.
I address this letter to you in the hope that you
will use your office to insure that such union flyers
are not prepared and distributed at all, and in par-
ticular, to insure that your union distributors not at-
tempt to distribute such flyers on Company prem-
ises
A copy of Willhide's letter to Sawyer was distributed
to Respondent's supervision in all four plants With it
was a memorandum informing the supervisors that
Sawyer had been told "that distribution of flyers of this
nature on Company property is unacceptable and that
those who persist in doing so will receive appropriate
disciplinary action "
Sawyer, by letter dated June 19, disputed Respond-
ent's right to prohibit distribution of the scab literature
In turn , on June 30, Willhide reiterated the Company's
position. Notwithstanding the Union's disagreement with
Respondent's position, Sawyer discussed Willhide's let-
ters with his staff and asked that they inform the employ-
ees of them at the various locations and during the stew-
ards' weekly classes
Analysis and Conclusions
Respondent contends that it was privileged to prohibit
the distribution of the scab literature on its premises be-
cause such distributions threaten to bring about confron-
tations and altercations within the plant which would
violate Respondent's rules prohibiting fighting and other
conduct "contrary to common decency or morality." In
support of that position, Respondent points to an arbitra-
tion proceeding between Lodge 743 and the Employer at
its Hamilton Standard Division wherein the questions of
whether the Company violated its contract and Section
8(a)(3) and (1) of the Act by disciplining employees for
calling other employees scabs in the plant were consid-
ered. The conduct underlying that arbitration proceeding
involved direct verbal confrontations between union sup-
porters and nonmembers wherein the nonmembers were
called "scab" or "fucking scab" as well as other uncom-
plimentary epithets . The incidents, in at least several of
those situations, were loud and repeated The Company
then prohibited the use of "badgering, threatening, offen-
sive language . . . including the use of the word scab"
and other insulting adjectives The arbitrator concluded
that the Company's verbal warnings resulted from the
total harassment activities, including the use of the word
scab, and held that in the circumstances of those in-
stances and in this particular shop, the employer could
restrain employees from verbally calling one another
"scab " The arbitrator further found, and Respondent
contends herein, that employees are not engaged in a
protected activity when they call another employee
"scab " The General Counsel and the Union contend
that the Board and the Supreme Court have specifically
recognized that the use of the scab epithet in the context
of an effort to encourage employees to join a union is a
protected concerted activity. I must agree with these
latter contentions
The factual pattern in Lettercarriers v. Austin, 418 U.S.
264 (1974), is much like that of the instant case. Therein
the local union, as part of an ongoing effort to organize
the remainder of the employees in a collective-bargaining
unit wherein it already had representation rights, pub-
lished the names of those who had not yet joined the
union under the heading "List of Scabs" in its monthly
newsletters In one of those newsletters it also published
what the Supreme Court referred to as "a well-known
piece of trade union literaure, generally attributed to
author Jack London," defining "the scab." Several of the
employees so-labeled filed defamation actions against the
union and ultimately the Supreme Court was called upon
to determine "the extent to which state libel laws may be
applied to penalize statements made in the course of a
labor dispute without undermining the freedom of speech
which has long been a basic tenet of federal labor
policy." The Court, relying heavily on its earlier deci-
sion in William C. Linn v. United Plant Guard Workers
Local 114, 383 U.S. 53 (1966), pointed out that the "free-
wheeling use of the written and spoken word . has
been expressly fostered by Congress and approved by
the NLRB." It held that the union's "vigorous exercise"
of its right "to persuade other employees to join" must
not be stifled by the threat of liability for overly enthusi-
astic use of rhetoric" and quoted the following language
from Linn (at 383 U S. 60 and 61).
Likewise, in a number of cases, the [National Labor
Relations] Board has concluded that epithets such
as "scab," "unfair," and "liar" are commonplace in
these struggles and not so indefensible as to remove
them from the protection of §7, even though the
statements are erroneous and defame one of the par-
ties to the dispute.
The Court also cited Cambria Clay Products Co., 106
NLRB 267 (1953), with approval There, the Board has
referred to the Jack London definition as "rhetorical hy-
perbole," and as a "familiar piece of trade union litera-
ture," and held its use permissible under the Act The
Supreme Court concluded that state libel judgments
based on the publication of this piece of literature would
UNITED TECHNOLOGIES CORP
be "plainly inconsistent with the Union's justifiable reli-
ance on the protection of Federal laws."
The foregoing discussion leaves no question in my
mind but that the Union 's use of the term "scab," and its
publication of an accepted , albeit , highly unflattering,
definition of "scab," in the context of efforts to increase
its membership and at least in the absence of face-to-face
confrontations and other conduct which might be
deemed threatening or harassing , is a protected concert-
ed activity which may not be prohibited by an employ-
er s
C. Case 39-CA-307-The Summer Help Program
1. Facts
For about 20 years Respondent has maintained, but
not publicized , a program wherein it hires the college-
age children of its bargaining unit and nonbargaining unit
employees as summer employees for jobs both within
and without the bargaining unit The summer-help pro-
gram became a subject of controversy in 1978 when the
Union filed a grievance complaining that a number of
employees who had been hired in June of that year were
not receiving contractual wage rates and benefits consist-
ent with the labor grades and job code assignments
wherein they were working Respondent rejected the
Union 's contention and the grievance did not advance
beyond step three Lodge 707 filed a new grievance in
1979, again protesting that the summer-help program
violated the collective-bargaining agreement . At that
time, the Union sought company recognition that the
summer-help employees who were performing bargain-
ing unit work were part of that unit and were entitled to
the appropriate benefits and wages . Management re-
sponded by stating that it was reviewing the program
"with respect to whether it shall be continued at this fa-
cility in future years." Lodge 707 pursued that grievance
no further
In May 1980, Wayne Gilbert, president of Lodge 707,
and Alta Moran, the shop committee chairman, were in-
formed by Donald Telesca, the North Haven plant's per-
sonnel manager , that there would be a summer -help pro-
gram in 1980 wherein some 40 to 50 students would
work on the shop floor. These summer-help employees,
he said, would be entitled to join the Union, execute
checkoff cards, file grievances, and receive virtually all
9 The cases cited in support of Respondents' assertion that "calling em-
ployees 'scabs ' is not a protected activity " are inapposite Thus, in Procter
& Gamble, 160 NLRB 334, 391 (1966), the employer had a rule specifical-
ly prohibiting the use of abusive and threatening language and the union's
literature had led directly to a physical confrontion Similarly, in Trail-
ways of New England, 160 NLRB 509 (1966), the scab reference was
verbal and was accompanied by other language of an obscene and insult-
ing nature Moreover , in the light of the Supreme Court 's language in
both Linn and Lettercarriers. Procter & Gamble and Trailways would seem
to be of questionable authority Respondent also cited NLRB Y Bluebell,
219 F 2d 796 (5th Cir 1955), denying enf to 107 NLRB 514 (1953), and
Maryland Drydock Co v NLRB, 183 F 2d 538 (4th Cir 1950), denying
enf to 88 NLRB 1305 (1950) Both of those cases involved employee ref-
erences to supervisors and employer officers rather than (or in addition)
to employees They are thus distinguishable from employee efforts to or-
ganize other employees by the use of "scab " and similar language More-
over, I am obliged to follow the Board's precedent which is contrary to
that of the circuit court opinions cited by Respondent
1079
of the contractual benefits Gilbert and Moran requested
a list of all those who were hired in, with a description
of their relationship to other P&WA employees, and ex-
pressed a concern that those hired be a fair representa-
tion of the various populations in the shop The request-
ed list was never forthcoming 10
On May 6, Gilbert wrote Telesca and insisted that all
those hired be covered under the collective-bargaining
agreement for all purposes. Respondent's May 15 reply
to Gilbert's letter came from Willhide, vice president for
personnel and industrial relations Willhide made no
mention of Gilbert's reference to Telesca's concession
that these summer -help employees would be within the
Union's bargaining unit; rather , he referred to them as
"temporary employees traditionally hired by the Compa-
ny during the summer months ." He went on to described
the program , stating:
For many years Pratt & Whitney has hired tempo-
rary employees during the summer months. Primari-
ly, the persons so hired have been the sons and
daughters of our regular full-time employees who,
during the winter months, are students who benefit
by receiving some income for summer work. For
example, in the summer of 1979, the Company em-
ployed 58 such temporary employees at North
Haven, of whom about half were the sons or daugh-
ters of regular full-time employees who are a part
of the bargaining unit represented by Lodge 707
Willhide's letter stated the Company ' s position in that
the program was intended to benefit the full-time em-
ployees by permitting family incomes to be augmented in
order to provide funds for college education He asserted
that the program was small "and therefore has no appre-
ciable effect on the thousands of our regular full-time
employees." He also pointed out that many of the full-
time employees were on vacation while the summer-help
employees worked. In light of this, he stated, he could
not perceive any "rational basis upon which your union
could object to the program-particularly at a time
when all of your constituents are fully employed and
none are on layoff" Willhide further pointed out that, in
the past, temporary help had been hired at pay rates de-
termined by the Company to be reasonable and given
some but not all of the benefits afforded to regular full-
time employees. He described them as temporary or
casual employees traditionally excluded by the Board
from bargaining units and outside the contemplation of
the collective-bargaining agreement. Finally, he denied
that these temporary employees were part of the bar-
gaining unit and stated that he did not know whether the
Company would defend itself in litigation raised by the
Union over these employees or would "simply discontin-
ue the program " He asked that the Union reconsider the
position asserted in its May 6 letter.
Lodge 707 maintained its position in a letter to Will-
hide dated May 22 and simultaneously filed a third-step
10 The mutually corroborative testimony of Gilbert and Moran is un-
contradicted
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance contending that the Company's implementa-
tion of its summer-help program violated the contract.
Respondent denied that the summer-help employees
were covered by the contract and filed a unit clarifica-
tion petition with the Board seeking a determination on
their inclusion in the unit Both the grievance and the
issues raised by the Company's petition were then re-
solved by the Union's disclaimer of any interest in repre-
senting the summer-help employees. In his letter of dis-
claimer, dated June 16, union counsel stated-
The Union does have a substantial interest in differ-
ent facets of the summer help program to the extent
that it impacts on our present bargaining unit and
will promptly and formally request bargaining over
such matters.
Shortly thereafter, Gilbert wrote Telesca, reiterating the
Union's disclaimer but demanding bargaining over the
impact of the summer-help program on bargaining unit
employees. The Union's concerns, he said, were in the
possible adverse impact on bargaining unit employees of
the assignment of summer employees to bargaining unit
work, the establishment of qualifications and criteria for
their selection so as "to establish equal opportunity for
the children of all bargaining unit employees" and the es-
tablishment of a "fair distribution of summer help em-
ployees between bargaining unit and nonbargaining unit
parents " He repeated his request for a list of the
summer-help employees presently employed and their re-
lationships to full-time company personnel.
On June 30, James E. Vandervoort, Respondent's di-
rector of labor relations, met in a fourth-step grievance
meeting with the business representative assigned to
Lodge 707, William Nellis, and Moran. Although the
summer-help issue was not on the agenda, Vandervoort
brought up the issues raised by Gilbert's June 20 letter.
Summarizing Gilbert's request, Vandervoort stated that
the Company had no interest in discussing the summer-
help issue with the Union as the Union did not represent
those employees He denied that there was any adverse
impact on the bargaining unit employees and suggested
that Gilbert, who was not present, inform the Company
of what adverse impact was. Vandervoort further sug-
gested that the Union stop wasting the Company's time
with this issue When Nellis told him that the Union
wanted to know the criteria, method, and procedures for
the selection of children whose parents worked for the
Company because the Union represented those parents,
Vandervoort stated that the issue had previously been
discussed a number of times and "he was tired of discuss-
ing the same thing "11 Vandervoort told the Union that
it was not in a position to demand participation in the
decision as to whose children would be hired, repeated
his request that Gilbert notify the Company in writing,
of any specific adverse impact on bargaining unit em-
ployees, and told Nellis and Moran that Gilbert would
receive no response to his June 20 letter. Specific com-
plaints from Gilbert, he said, would be looked into 12
Subsequent to the June 30 meeting, Vandervoort's re-
sponse was relayed to Gilbert Gilbert then called
Telesca to ask for a response to his letter Telesca reiter-
ated Vandervoort's position that the Company would not
further respond, would not bargain on the overall impact
of the summer program, would not supply the Union
with the requested lists, but would respond to individual
complaints On July 24, Gilbert wrote Telesca, request-
ing reconsideration of the Company's refusal to bargain
over the impact of the summer-help program on the unit
employees. Telesca's August 1 response reiterated Re-
spondent 's position that it was only willing to discuss
specific instances where bargaining unit employees had
suffered or were suffering an adverse impact That posi-
tion was set forth, once again, in a September 3 letter
The Union never received the requested information.
In 1979, during the fourth-step grievance meeting con-
cerning the summer-help employees, the question of ad-
verse impact had been discussed. According to Vander-
voort, the only specific items of potential impact that
had ever been raised were the questions of overtime and
layoff. The Union was assured that no summer employ-
ees would be hired or retained if it was necessary to lay
off regular employees and no summer-help employees
would be permitted to work overtime unless all of the
regular employees in the department were working or
had been offered the opportunity to work the overtime
hours. Respondent denied that there was any adverse
impact to the unit employees in its summer-help program
and repeatedly asked the Union to give it specific exam-
ples of adverse impact.
The Union, at hearing, described several areas where
it felt that the summer-help program had or could have
adversely impacted upon the employees it represented It
pointed out that while Respondent maintained that the
program was intended in part as a benefit to its employ-
ees, the Union could not determine whether that pro-
gram was being fairly administered vis-a-vis the unit em-
ployees. Thus, for example, while there were approxi-
mately 3100 employees in the North Haven bargaining
unit and between 500 and 1000 salaried personnel, Will-
hide's May 15 letter had indicated that the 1979 summer
help had been drawn from unit and nonunit families in
about equal proportions This was a matter of particular
concern to the Union because the summer-help program
was not officially publicized by the Company, it was
known of only by word of mouth The Union additional-
ly described situations where the presence of a summer-
help worker on a particular job or shift could possibly
impede a regular employee's opportunity to secure train-
ing in order to progress to a higher labor grade or to
obtain a permanent or temporary transfer to another
shift In regard to the overtime question, the Union
pointed out that the plant practice was to offer overtime
to employees in adjacent departments when there were
insufficient departmental employees available. Thus, the
li Similarly, Vandervoort testified that Respondent had considered 12 The foregoing is drawn from Respondent's notes of the June 30
eliminating the summer help program in 1980 because the Union's insist- meeting as corroborated by the testimony of both Vandervoort and
ence upon arguing about it had become "a nuisance " Moran
UNITED TECHNOLOGIES CORP
offering of overtime to summer employees even when all
of the departmental employees had been offered or were
working overtime could deny overtime opportunities to
unit employees in other departments.
2 Analysis and conclusions
The General Counsel's complaint in Case 39-CA-307
presents two issues: whether Respondent was obligated
to provide the Union with the information it sought con-
cerning the summer-help employees and whether it failed
and refused to bargain with the Union over the impact of
the summer help program upon its bargaining unit.
In NLRB v. Acme Industrial Co., 385 U.S. 432, 435-
436 (1967), the Supreme Court stated as a basic principle
that it is the "general obligation of an employer to pro-
vide information that is needed by the bargaining repre-
sentative for the proper performance of its duties." This
is a discovery-type standard and requires only the proba-
bility that the desired information would be relevant and
useful to the Union in the performance of its duties.'3
Respondent's obligation to furnish such information, if
there is a probability of its relevance, is not negated by
the fact that the information sought pertains to individ-
uals who are outside of the bargaining unit. In Curtiss-
Wright, supra, the Union sought information dealing with
the job classifications, titles, duties, and rates of pay of
confidential and administrative employees who were not
included within the unit because of questions it had con-
cerning the appropriate inclusion or exclusion of individ-
uals and the close relationship between the work of the
excluded and included employees. The Board and the
court both noted the employer's general obligation to
furnish relevant and necessary information, as stated
above, and the court stated (347 F 2d 70 and 71):
While it is true, as the Employer contends, that
bargaining as to employees classified as administra-
tive is not mandatory, for they are not in the bar-
gaining unit, it does not follow that the Employer is
not required to divulge information with respect to
such employees Because such information was
shown to be relevant to the determination of the
status of employees as unit employees and thus to a
mandatory subject of bargaining, the Employer's
position is of no merit.
Similarly, in General Electric Co., 199 NLRB 286 (1972),
the Union had sought information pertaining to nonunit
employees because of complaints it had received from
unit employees concerning the erosion of unit work
through the transfer of job functions to those nonunit
employees The Board found the requested information
to be potentially or probably relevant and required that
it be furnished.
In the instant case I am convinced that the Union has
established the probable or potential relevance of the
data it requested. Thus, it had some evidence, provided
by Willhide's May 15 letter, which indicated that only
'3 See also Curtiss- Wright Corp v NLRB, 347 F 2d 61 (3d Cir 1965),
enfg 145 NLRB 153 (1953), and Western Massachusetts Electric Co. 234
NLRB 118 (1978)
1081
half of the summer employees came from bargaining unit
families notwithstanding that there were more than three
times as many unit as nonunit employees. The Union,
therefore, had reason to suspect that the children of unit
employees were not receiving what might be considered
their fair proportion of those job opportunities which
Respondent deemed to be a benefit to the families of the
young people hired Additionally, the Union has shown
that the presence of summer hire employees could possi-
bly diminish the overtime, training, or transfer opportu-
nities of unit employees The extent of which this might
actually occur could not be determined by the Union
without examination of some information concerning the
presence, job, and shift of these nonunit employees who
were clearly performing unit work.
Accordingly, I find that the Union has established the
necessary probable or potential relevance to the informa-
tion it has sought and conclude that by refusing to fur-
nish that information pursuant to the Union's request the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
Respondent did not unconditionally refuse to bargain
with the Union concerning the summer-help program,
rather, it conditioned bargaining on the Union first pro-
viding it with "specific instances" wherein members of
the bargaining unit had suffered an adverse impact from
that program I must conclude that by so conditioning
bargaining Respondent has unlawfully refused to bargain
in good faith with the Union As noted, Respondent put
forth that the summer-help program "was designed to be
beneficial to our regular full-time employees," enabling
the sons and daughters of those employees to augment
the family income and so to reduce the family's cost of
education This stated purpose, particularly when consid-
ered in conjunction with Willhide's admission that the
unit employees' families had not participated on pro rata
basis with those of the nonunit employees during 1979,
certainly establishes the essential nexus to the Union's
bargaining rights and obligations vis-a-vis its own unit.
Moreover, I deem Respondent's insistence upon "specific
instances" of adverse impact to be a particularly unrea-
sonable impediment where, as here, Respondent had re-
fused to furnish the basic information from which the
Union would be able to ascertain such specifics. Not
knowing who the summer-help employees are or where
and when they were working, the Union could not read-
ily ascertain whether there were any "specific instances"
of adverse impact in regard to training, transfer, or over-
time opportunities.
Respondent analogizes this issue to that posed in such
subcontracting cases as General Electric Co., 240 NLRB
703 (1979), and argues that it would have no obligation
to bargain with the Union unless the summer-help pro-
gram had a "demonstrable adverse impact on the unit
employees." This case does not involve subcontracting;
rather it involves Respondent's employment of its own
temporary employees to perform unit work side by side
with unit employees The analogy to subcontracting, I
find, does not fit the instant situation Moreover, even if
I were to conclude that the subcontracting tests are ap-
plicable, I would find bargaining still mandated. Re-
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's summer-help program had a potentially sub-
stantial impact upon unit employees in all of the ways
described above. Additionally, one of the criteria for de-
termining if bargaining is required in a subcontracting sit-
uation is whether "the Union had the opportunity to bar-
gain about changes in existing subcontracting practices at
general negotiating meetings." Westinghouse Electric
Corp. (Mansfield Plant), 150 NLRB 1574, 1577 (1964).
Here , as Willhide wrote on May 15, the "temporary em-
ployees have never been the subject of contract negotia-
tions between the Company and your Union or any of its
sister locals and neither our current labor agreements or
any past agreements have even referred to them."
Finally, must the Union wait until someone has been
injured by Respondent's summer-help program before it
has a right to discuss that program with Respondent. I
think not. Good-faith collective bargaining between
mature parties should serve to prevent the dislocations
which give rise to lowered morale, impaired productivi-
ty, grievances, work interruptions, and other undesirable
effects upon both the employer and the employees. That
kind of good-faith bargaining does not exist where one
party unreasonable refuses to provide information neces-
sary for bargaining or imposes unreasonably impediments
to bargaining.
Accordingly, I conclude that by failing and refusing to
bargain with the Union concerning the summer-help pro-
gram Respondent has violated Section 8(a)(5) and (1) of
the Act
D. Case 39-CA-308-The Wage Surveys
1. The facts14
Between April 1 and August 1, 1980, Respondent con-
ducted a survey of employees hired since November 30,
1977, at each of the four plants involved herein. The im-
plementing memorandum described the survey as fol-
lows:
In an effort to determine and evaluate the atti-
tudes and opinions toward the work environment, a
survey of employees who were hired after Novem-
ber 30, 1977 will be conducted. The intent of the
survey is to provide a vehicle for hourly employees
to express their thoughts and ideas about various
Company policies and benefits. Although the
survey, for the most part, is structured to measure
specific items of concern it does provide the oppor-
tunity to allow individuals to express opinions on
items which are of particular interest to them.
Employees selected to participate in the survey
will be called to the Personnel Office and informed
of the purpose of the survey The administrator will
advise the employee participation is strictly volun-
tary and the responses will be kept confidential
Employees electing not to proceed with the survey
should be thanked for their time and given the ad-
ministrator ' s business card in the event they change
their mind and wish to participate at a later date
14 The facts in regard to Case 39-CA -308 are not in dispute
The interviews were conducted by Respondent's per-
sonnel advisors and essentially followed the format set
forth above In most, although not all, of the interviews
described by employees there was an unsolicited offer of
confidentiality 15 While the survey forms utilized by the
interviewers did not call for any record to be made of
the names of the employees interviewed, they did record
the interviewed employee's age, labor grade, race, and
sex.
The interviewed employees were asked whether they
felt that they were "properly compensated for the duties
performed" and were asked to rate, on a scale of poor to
excellent, their various benefits, including holidays, vaca-
tions, sick leave, bereavement pay, jury duty, military
leave, automatic progression, incentive vacation, per-
formance awards, and group insurance They were also
questioned as to their awareness of how the retirement
benefits were calculated. Finally, each employee was
asked for his or her suggestions in regard to each of the
specific areas of wages and benefits and for any general
comments or suggestions which the employee might
wish to offer.
In at least two of the interviews16 the discussion
touched, at least peripherally, on the upcoming contract
negotiations. Thus, when Albert Breault was asked for
his opinion concerning his wages, he stated that he had
heard that the employees "would be getting a nice raise
in November." His interviewer asked what kind of raise
he expected and Breault replied that he had heard that
the raise would be approximately $1 20 per hour. The
interviewer told him, "You would be lucky if you get 50
cents." Similarly, when William Burn, a union stew-
ard, 17 was interviewed, the personnel advisor asked him
what he thought the Union would be seeking in money
in the upcoming negotiations. Burn told the interviewer
that he expected the Union to seek about $1.25 per hour.
Respondent analyzed the results of the survey. The
report so compiled indicated how the employees general-
ly felt about their wages and listed, by percentages, how
the employees rated each of the benefits For example, in
one plant only 1 percent of the employees rated the holi-
day benefits as poor while 10 percent rated them fair, 74
percent rated them good, and 15 percent rated them ex-
cellent. Similar breakdowns were given for each of the
other fringe benefits. Additionally, the report repeated
suggestions voiced by the employees, such as one that
Respondent completely pay for schooling and another
that Respondent provide air conditioning during the
summer months Other general comments by the employ-
ees were also listed Included among these were requests
for additional vacation, a shorter workweek, employer
contributions to the cost of safety shoes, increased incen-
tive, decreased overtime, improved insurance claim proc-
essing , extended bereavement pay, substitution of a merit
35 Several witnesses had no recollection of any mention of confiden-
tiality One, William Burn, credibly testified that had such an assurance
been made to him, he would likely have remembered it
'S The General Counsel offered the testimony of seven employees who
had been interviewed in the North Haven and Southington plants
i7 Three of the seven employees who testified concerning these inter-
views were union stewards
UNITED TECHNOLOGIES CORP
system for the seniority systems, job posting, and retire-
ment after 30 years' service.
Around July 7, when Wayne Gilbert, president of
Lodge 707, learned from his fellow employees and shop
stewards of a survey being conducted among the unit
employees in the North Haven plant, he called Donald
Telesca, the personnel manager at that plant. He asked
what was going on and whether the personnel depart-
ment was conducting interviews. Telesca told him that
interviews were being conducted by a guidance counsel-
or from one of the local high schools and that they were
directed toward improving the preparation of the stu-
dents from the school for employment at P&WA. Gilbert
asked Telesca what questions were being asked and
whether they related to contract benefits. Telesca told
Gilbert that the interviews were brief and related to the
employees' knowledge of the benefits that they received
and the conditions under which they worked. Gilbert
asked Telesca for a copy of the questions and for an op-
portunity to participate in the interviews or to be inter-
viewed himself along with his shop chairman, Jean
Moran Telesca told Gilbert that the only people being
interviewed were those of not more than 5 years' seniori-
ty and that both he and Moran had greater seniority than
that. Gilbert repeated his request, notwithstanding his se-
niority, to sit in and "find out what the content of this
is." He also asked Telesca what was going to be done
with the results of the interviews and was told that a
report would be put together for the use of Telesca's de-
partment and the high school Gilbert asked for a copy
of that report One or two days later, Telesca told Gil-
bert that his requests had been denied 18
The Union was never furnished with a copy of either
the survey or the resultant report
2. Analysis and conclusions
The General Counsel and the Union contend that Re-
spondent's conduct in regard to the wage survey, includ-
ing its failure to notify the Union in advance that the
interviews were being conducted, its refusal to permit
the presence of a union representative during the inter-
views, and its refusal to furnish the Union with a copy of
the survey and its results, violated Section 8(a)(5) and (1)
of the Act 19 Respondent contends that the interviews
were not "directly" related to the upcoming negotia-
tions20 and argues that there can be no violations found
since there were no promises to remedy grievances and
no express evidence that Respondent sought to bargain
directly with the interviewed employees or to erode
their support for the Union. In regard to the General
Counsel's allegation concerning Respondent's refusal to
furnish the Union a copy of the report, Respondent
18 Moran had an essentially similar conversation with Telesca She too
was told that the interviewing was being conducted by someone from the
area high schools and that it was intended to determine whether Re-
spondent's communication program was getting across to the employees
When she offered to be interviewed, Telesca responded that he did not
think that Respondent would be interested in her opinions
18 The Union further argues that the survey constituted the unlawful
solicitation of grievances and interrogation These allegations, however,
are outside the ambit of the General Counsel's complaint
20 In so arguing , Respondent implicitly acknowledges the indirect rela-
tionship
1083
argues only that the General Counsel 's allegation "is
simply incomprehensible .". In so arguing , Respondent`
misapprehends its statutory obligations.
In Obte Pacific, Inc, 196 NLRB , 458 (1972), the em-
ployer solicited "employee sentiment as to a provision in
an existing collective-bargaining 'agreement with the in-
tention of using that information" to persuade the union
to agree to modify it . The Board , finding a violation of
Section 8(a)(5) and ( 1) of the Act, noted that the issue
was not whether Respondent intended to rid itself of the
Union or to obtain agreements from individual employ-'
ees. "Rather ," the Board said, "the question is whether
an employer may attempt to erode a union's bargaining
positions by engaging in a direct effort to determine em-
ployee sentiment rather than to leave such matters to the
agent of the employees ." The Board went on (196
NLRB 459 ) to say:
Respondent's obligation to bargain with the em-
ployees' exclusive agent demands that he accept and
respect the exclusivity of that agency. While, under
appropriate circumstances, an employer may com-
municate to employees the reason for his actions
and even for his bargaining objective, he may not
seek to determine for himself the degree of support,
or lack thereof, which exists for the stated position
of the employees' bargaining agent. If we were to
sanction such efforts, we would impede effective
bargaining.
Part of the task facing a negotiator for either a
union or a company is effectively to coalesce an ad-
mixture of views of various segments of his con-
stituency, and to determine, in the light of that
knowledge, which issues can be compromised and
to what degree. A systematic effort by the other
party to interfere with this process by either surrep-
titious espionage or open interrogation constitutes
clear undercutting of this vital and necessarily con-
fidential function of the negotiator It is indeed de-
signed to undermine the exclusive agency relation-
ship between the agent and its collective principals.
The instant case falls squarely within the principals of
Obie Pacific . Respondent interviewed employees hired
since the negotiation of the last collective-bargaining
agreement to determine the extent of satisfaction or dis-
satisfaction with the benefits employees were receiving
pursuant to that agreement . Such information clearly
would arm Respondent for the upcoming negotiations,
permitting Respondent to know how far it need go or
how little it would have to offer to appease a substantial
segment of the employee complement As the Board held
in Obie Pacific, if Respondent wanted to know that infor-
mation its obligation was to seek it from the Union, not
from individual employees.21
Respondent relies principally upon Leland Stanford Jr.
University , 240 NLRB 1138 ( 1979), to support its conten-
tion that its survey , not being taken for the purpose of
21 See also M A Harrison Mfg Co, 253 NLRB 675 (1980), North
Kingstown Nursing Care Center, 244 NLRB 54, 65 (1979 ), and Shenango
Steel Buildings, 232 NLRB 586 (1977)
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eroding employee support for the union or to bargain di-
rectly with the interviewed employees, would not violate
the Act. Leland Stanford Jr. University is distinguishable
from the facts of the instant case. Therein the Board spe-
cifically noted that shortly after administering the survey
Respondent assured the unit employees that it did not
intend to bargain directly with them and that it specifi-
cally recognized the Union's rights as exclusive collec-
tive-bargaining representative. Here, no such assurance
was given. Indeed, rather than providing such assur-
ances, Respondent's agent misled the Union as to the
purpose of the survey and as to the identity of those who
were conducting it.
I find that Respondent's failure to notify the Union of
its intention to take this survey, its refusal to permit the
Union to either sit in on the interviews or see a copy of
the questions being asked, and its refusal to furnish the
Union with a copy of the results of that survey constitut-
ed additional aspects of Respondent's refusal to bargain
in good faith with the Union As the Board's decisions
reveal, that obligation requires the employer to recognize
and respect the exclusivity of the union's agency status.
Implicit in such recognition is that an employer not keep
his employees' bargaining agent in the dark in regard to
communications between the employer and the employ-
ees, particularly communications which, as here, tend to
erode the union's bargaining position.22
Accordingly, for all of the foregoing reasons I find
that Respondent has violated Section 8(a)(5) and (1) of
the Act by its conduct in regard to the employee wage
surveys conducted between April and August 1980.
E Case 39-CA-422-The Bad-Faith Bargaining Case
I The facts
As noted earlier, Respondent's collective-bargaining
agreements with Lodges 700, 707, 1746, and 1746-A rat.
generally for a term beginning on November 28, 1977,
through November 28, 1982. Each, however, provided
that it could be reopened solely for negotiating new
fourth and fifth year base hourly wage rates and cost-of-
living allowances (COLA). The complaint in Case 39-
CA-422 deals with the negotiations pursuant to those re-
openers
Some months prior to the reopening of the negotia-
tions, the four local lodges plus Lodge 743 (at Hamilton
Standard) each elected six representatives to a bargaining
committee to prepare the Union's demands and ultimate-
ly to bargain with Respondent. The bargaining commit-
tee was broken down into subcommittees, one of which
was responsible for securing information which it
deemed necessary for the negotiations. That committee
prepared a request for information which Gordon
22 I do not deem the inclusion of several union stewards among the
employees to be interviewed to be sufficient to meet the employer's obli-
gation to give notice and provide adequate information to the collective-
bargaining representative The Union's stewards were included as em-
ployees and not as stewards and may not have been in a position to ade-
quately evaluate the impact of the survey or to protect the rights of the
Union, other employees, or themselves Moreover, I note that inclusion
of the union stewards among those to be interviewed would not satisfy
the employer's obligation to respond to the Union's request for the results
of its survey
Sawyer, directing business agent, mailed to N. D. Morse,
Respondent's vice president for industrial relations, on
August 20. It sought the following:
1. Five individual breakdowns for aggregate total
employment cost for each bargaining unit (including
the employees represented by IAM Lodge 743) for
the most recent annual period prior to the wage re-
opener for which data is available, as well as the
most recent 26-week period, showing
(A) Straight time pay
(B) Any differentials (i e , evening and night, by
shift: overtime premium, broken down by premium
rate paid, if possible)
If possible, this data should be provided both on
the aggregate annual and quarterly basis and on an
average weekly basis, and on a per hour actually
worked basis.
2. Hours information by individual locations is
also needed to reflect the following-
(A) Aggregate hours worked
(B) Aggregate hours paid
(C) Aggregate overtime hours
(D) Average weekly hours paid for
(E) Average weekly overtime hours (broken
down by premium rate paid; i.e., time and one-half,
double time, etc )
(F) Average weekly hours paid for but not
worked
(G) Average weekly hours worked.
Morse received Sawyer's letter on August 22 and dis-
cussed it with members of his staff and with Respond-
ent's counsel According to Morse, there was some diffi-
culty in understanding what the Union wanted. He spe-
cifically testified that he did not understand what the
Union meant by aggregate hours worked, aggregate
hours paid, or aggregate overtime hours. In addition, he
believed that at least some of the information, that deal-
ing with the gross cost of various benefits to the employ-
ees, would be proprietary, i.e., potentially injurious to
the Company's competitive position if made public
Company counsel confirmed Morse's position that the
contract barred the Union from making any such re-
quest.23
23 The contracts between the various lodges and Respondent each
have appended to them a letter specifically providing for Respondent to
regularly furnish the Union with information concerning the employees
and their employment status The information includes the names, ad-
dresses, and employee service, put-on, and change status records The
Union pays Respondent for furnishing this information The letters fur-
ther provide
(3) In consideration of the above, it is understood and agreed that,
except as otherwise provided for in the aforesaid agreement, the
Union shall not request nor receive during the life of that said agree-
ment any other information, data, or listings related to the wages,
hours, or working conditions of employees covered by this agree-
ment This waiver, however, shall not affect any right the Union
may have with respect to information concerning pensions or insur-
ance necessary to bargaining for agreements in the future
This agreement and waiver grew out of a long course of litigation be-
tween the parties
UNITED TECHNOLOGIES, CORP
Rather than responding in writing to Sawyer 's request,
Morse met with him on August 29 . At that meeting,
Morse told Sawyer that he considered the information
request improper under the contract . He said, however,
that he would not impose technicalities ant' would
supply the information if the Union would tell him what
it really needed He told Sawyer that the Company did
not maintain its payroll information segregated by bar-
gaining units , rather the information was contained in the
computer for all hourly employees This, he said, would
make retrieval of the information in the format requested
by the Union time consuming and expensive He attempt-
ed to clarify dust what information it was that the Union
wanted and told Saywer that while he did not know
what the Union 's objective was, if it would inform him
why they needed the information or would accept data
for all of the hourly employees , he would provide what
information was available 24 Morse refused to provide
the Union with the information requested in regard to
Local 743's unit
In the course of the August 29 meeting, Sawyer raised
a question concerning the participation of unit employees
in an area health maintenance organization (HMO), stat-
ing that he believed that an agreement had been reached
in 1977 to permit such participation once an HMO was
certified in the geographical area Morse did not agree
that the 1977 negotiations had so provided . He also ques-
tioned whether the current reopener provided a
"window" for negotiating an HMO
During the August 29 discussions , Morse broached the
subject of an early reopener with informal meetings to be
held between the chief negotiators of the Company and
the Union. He told Sawyer that Respondent was moving
in the direction of early contract reopenings at a number
of its facilities and might be amenable to discussions in
regard to an HMO, a savings plan, and an early settle-
ment bonus Sawyer told Morse that he might have a
problem meeting with Respondent without the entire ne-
gotiating committee (approximately 35 people) Morse
clarified his proposal, indicating that what he was sug-
gesting was early exploratory meetings with small
groups, not full negotiations Sawyer said that he would
need the approval of the negotiating committee in order
to meet under those conditions
Since at least the spring of 1980, the Union had been
distributing flyers to the employees in each of the plants
urging greater support for the Union The literature
argued that the employees needed unlimited (or un-
capped ) COLA and substantial wage increases , both of
which the Union would seek in the reopener negotia-
tions. Included in this literature were comparisons of the
unit employees ' earnings with those of similar employees
at aerospace firms in Georgia , California, Washington,
Kansas, Missouri, Texas, and Florida , which purported
to show that the P&WA employees here were earning
24 The foregoing is taken from Morse's credible description of the
meeting, which was considerably more specific than Sawyer's Sawyer
recalled Morse suggesting another meeting to be held for the purpose of
discussing the information request and placing greater reliance on the
proprietary nature of the information sought as the reason for refusing it
According to Sawyer, Morse was asked to send whatever information it
was that he considered not to be proprietary and sent nothing
1085
less per week on the average than those at the other
sites Morse expressed a concern during the August 29
meeting that these publications were creating expecta-
tions in the employees which the Union would not be
able to satisfy in negotiations. He told Sawyer that Re-
spondent was going to settle on the basis of wages paid
in the area, and particularly those paid by the aerospace
employers whom Respondent deemed to be its competi-
tion, General Electric and Rolls Royce Moreover, the
Company, he said, was not going to agree to an un-
capped COLA
There was no further communication between the par-
ties in regard to negotiations until about October 2, when
Sawyer wrote Morse that the Union was prepared to
meet "at any time for the purpose of negotiating the
issues under the reopener clause." He suggested an early
meeting in order to conclude negotiations, which he de-
scribed as involving only limited number of issues, with-
out a last minute rush On the same date, the presidents
of the four local lodges wrote Respondent, each advising
Respondent as to the composition of their negotiating
committees Those committees each included a total of
30 employees from the five lodges (including Lodge 743)
plus business representatives, grand lodge representa-
tives, and other professional union staff. The lodge presi-
dents' letters included the statement "As in past negotia-
tions, the Union will record the proceedings by court re-
porter "
On October 7, Morse asked Sawyer whether he and
other staff business representatives would be interested in
meeting with Respondent on an informal basis to discuss
issues pertinent to the coming negotiations He proposed
meeting as early as the following week and indicated the
possibility of increased benefits if an early agreement
could be negotiated Sawyer informed Morse that the
Union's staff would not meet informally without the con-
sent of the negotiating committee Morse asked him to
seek such authority To Sawyer's question as to the earli-
est date that Respondent would meet with the full com-
mittee if that committee refused to agree to informal
meetings, Morse replied that late October or early No-
vember would be appropriate in light of the limited
issues to be resolved Subsequently, Sawyer polled the
committee members and they refused to authorize meet-
ings in their absence Sawyer so informed Vandervoort,
Respondent's director of industrial relations, about Octo-
ber 14
About October 15, Sawyer called Vandervoort to re-
quest that negotiations between the Company and the
Union's negotiating committee commence Vandervoort
responded on October 17, reiterating Morse's statement
that the issues for negotiation were limited and should
not require a great number of meetings He suggested
meeting on either November 3 or November 6. On Octo-
ber 23, Vandervoort wrote Sawyer, confirming Novem-
ber 3 for the first negotiation session In both the letter
and the conversation which it confirmed, Vandervoort
stated Respondent's position that it would not agree to
the presence of a court reporter in negotiations In as-
serting this position, Vandervoort relied on recent Board
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and court precedent25 establishing that "the presence of
a court reporter during negotiations as a device to
record those negotiations is not a mandatory subject of
bargaining" and could not be insisted upon to impasse.
Sawyer responded on October 29, disputing the applica-
bility of the cases relied on by Respondent and indicating
a willingness to find a mutually agreeable form of
making a verbatim transcription of the negotiations. His
letter reasserted the Union's position concerning exten-
sion of HMO coverage to unit employees and its position
that the Union would only negotiate in the presence of
the full committee That, Sawyer said, was the only
reason why he declined the Company's invitation to hold
exploratory meetings.
On November 1, Respondent sent each employee in
the four bargaining units a lengthy letter comparing the
wages and benefits received by the unit employees with
those of other employees in the Connecticut area, includ-
ing some represented by the IAM Respondent pointed
out that the Union's earlier literature had made specific
comparisons between P&WA and both Boeing and
Lockheed, it disputed the contention that these were
P&WA's competitors and contended that the Union was
ignoring its real competition, General Electric and Rolls
Royce. In regard to the Union's publicity, the November
1 distribution stated: "By beginning the negotiations
through press releases and flyers, the Union appears
intent on putting the parties to the negotiations on a col-
lision course before they ever begin." It concluded:
"With common sense and good faith on both sides of the
negotiation table, we can achieve a peaceful and profita-
ble settlement for all employees. That's a lot better than
a head-on collision before the Xmas holiday-or any-
time, for that matter. Read the booklet Compare for
yourself Then think about it."
The parties met for the first bargaining session on the
morning of November 3. Present were approximately 35
union committeemen and representatives and approxi-
mately 20 employer representatives. The chief represent-
atives and spokesmen, however, were Morse and
Sawyer At the outset, Morse noted that the Union had a
court reporter present and restated the Company's objec-
tions When Sawyer said that the Union was, indeed, in-
sisting on the presence of the reporter, Morse led the
management contingent out, stating that an unfair labor
practice charge would be filed and that negotiations
would reconvene when the issue was resolved by the
Board. He gave the Union 15 minutes to decide whether
it wished to begin negotiations without the reporter. Fol-
lowing a caucus, the Union dropped its insistence on the
reporter. Respondent was notified and negotiations re-
sumed. When the parties reconvened it was made clear
that while Respondent's objection was to any form of
verbatim transcript, it had no objection to either party
taking detailed notes. In fact, both Respondent and the
Union took extensive notes of the meetings.
After disposing of certain housekeeping matters,
Sawyer proposed that the parties agree to future dates
for bargaining According to Sawyer's recollection,
Morse suggested the possibility of meeting on November
11 or 14 and indicated that certain other dates were also
open. However, he would not confirm any of those
other dates and told the Union that the progress made in
the negotiations would dictate the frequency of meet-
ings 26 Sawyer confirmed that the Union had already re-
served the Hartford Civic Center, at 7 p.m. on Novem-
ber 30, for its ratification meeting. He repeated his desire
to reach an agreement early and to avoid bargaining to
the 11th hour.
Morse suggested that the parties agree, as they had in
prior negotiations, to refrain from publicizing the course
of the negotiations , i.e., that the negotiations be kept pri-
vate until one side or the other gave a 24-hour notice of
its intention to go public. Morse told the Union that if it
did not agree, the flow of information would be along "a
two-way street," that Respondent would feel free to
communicate its view of the negotiations to the employ-
ees whenever it saw fit. He reiterated that he did not be-
lieve that such communications aided collective bargain-
ing. Sawyer agreed to respond following the lunchbreak
but subsequently told Morse that he was unable to re-
spond that day.
Prior to breaking for lunch, the Union presented its
initial proposals, in writing. Those proposals called for
uncapped COLA, a 14-percent base wage rate increase
in each of the 2 years, monetary adjustments to certain
transferred employees (section 15), the inversion of the
labor grade so that the highest wage rates would be as-
signed to highest labor grade numbers rather than the re-
verse as existed at that time (schedule E) and an adjust-
ment in the hourly rate for all those employees who had
reached the maximum for their labor grade. According
to Morse, these proposals were essentially what the
Union had earlier advised the employees it would be
seeking; Respondent had calculated their cost about 85
percent (over 2 years). Referring to such demands as
"pie in the sky," Morse said that it would be difficult to
reach agreement with the Union starting at such a
point.2 7
When the parties resumed their November 3 meeting,
Morse objected on technical grounds to the Union's title
page listing of all of the local lodges as cosubmitters of
the proposal. The Union agreed to supply separate
copies of their proposal for each lodge, with appropriate
changes. Respondent also objected to the inclusion of
Lodge 743 in the proposal Sawyer agreed to strike it. In
regard to Sawyer's request for additional meeting dates,
Morse said that the only date he would confirm was No-
vember 11 He rejected Sawyer's contention that the
Company had indicated an availability on both Novem-
ber 3 and 6, stating that those dates had been suggested
in the alternative. November 11 was agreed to with sub-
sequent dates to be considered
According to Sawyer's uncontradicted testimony,
Morse stated at this meeting that it would be suicidal for
Respondent to agree to the Union's proposals. Morse
25 Bartlett-Collins Co, 237 NLRB 770, 772 ( 1978), and Latrobe Steel 26 Sawyer 's testimony is essentially corroborated by Respondent's bar-
Co, 244 NLRB 528 (1977), enfd as modified on other grounds 630 F 2d gaining notes
171 (3d Cir 1980) zP Morse 's testimony, as corroborated by Respondent 's minutes
UNITED TECHNOLOGIES CORP
also objected to section 15 and schedule E of the Union's
proposal as not properly being raised under the terms of
the reopener clause.28
The second bargaining session was held on November
11. At that time, the Union presented a revised schedule
E, eliminating the inversion of the labor grades, and
dropped the sections to which Morse had objected as
being outside of the scope of reopener clause.29
Sawyer then rejected Morse's proposal on publicity,
which he labeled a "gag rule," and told Morse that the
Union believed it had the right and the obligation to
communicate with its membership . Morse reiterated that
the flow of information was a "two-way street " Accord-
ing to Respondent ' s minutes , the Union objected to Re-
spondent communicating with the employees concerning
the negotiations , stating that the Union expected the
Company to bargain with the committee , not with the
employees . Morse told Sawyer that the Company would
not violate its bargaining obligation by going over the
heads of the committee but intended it to keep its em-
ployees informed . The people involved, he said , are com-
pany employees, although represented by the Union.
On November 11, Sawyer presented a new request for
information , revised according to the Union so as to
"overcome the obstacles [Morse] raised concerning pro-
prietary unit labor cost information ." The request sought
the following information , to be furnished on or before
the next scheduled meeting day:
1. Five separate semi -annual totals for the IAM-
represented bargaining units covering the most
recent six-month period prior to the wage opener,
listing.
(a) straight -time base pay,
(b) cost -of-living adjustments;
(c) overtime;
(d) shift premiums, and
(e) pay for time not worked.
2 Five separate hourly totals for the same five
units during the same six-month period , listing.
(a) total hours worked;
(b) total hours overtime worked;
(c) total hours paid;
(d) total hours paid but not worked;
(e) average weekly hours worked;
(f) average weekly overtime hours worked, and
(g) average weekly hours paid for but not
worked.
On the issues , Morse described the differences between
the parties asgreat and urged the Union to make a major
move; the Company, he said, wouldnot respond to the
Union 's present proposals . He reiterated his conten-
28 While Sawyer 's recollection is that Morse refused to discuss any
matters other than those directly related to wages and cost of living,
Morse's recollection, as corroborated by Respondent ' s notes , is that he
asserted that those matters had not properly been raised under the re-
opener , requested that they be put aside and said that they might discuss
them later
29 That the Union dropped these matters rather than merely deferring
them convinces me that Sawyer 's testimony regarding Morse 's November
3 objections to matters beyond the scope of the reopener is more accu-
rate than was Morse's
1087
tionthat the Union was drawing its comparisons with the
wrong companies , those which built airplane frames on
the West Coast rather than those, such as GE, which
built engines on the East Coast Morse then presented a
slide show comparing , inter alia, the wages and benefits
earned by the employees represented by Lodge 1746
with those of the employees at GE's Evandale plant,
which manufactures large jet engines He urged the
Union to consider the information it had been shown and
to come back with a more realistic proposal. In the alter-
native, he suggested that the Union contact the Federal
Mediation and Conciliation Service because, as he
phrased it, unless the Union "came back East" an agree-
ment would not be reached at the bargaining table.
Sawyer repeatedly asked Morse to make the Union an
offer Morse refused, indicating that Respondent would
not make an offer as ridiculously low as the Union's was
ridiculously high He stated that Respondent would
make an offer at an appropriate time and urged the
Union to look realistically at the information the Compa-
ny had provided 30 The next meeting was set for No-
vember 14.
Between November 4 and 10, the Union distributed at
least six flyers to the employees The literature included
a detailed report on the November 3 negotiations, re-
ports from and about the strike conmittee , urgings to
attend a meeting on November 12 for a preliminary
strike vote, urgings that the employees indicate by their
votes their willingness to go on strike, descriptions of
strike benefits, and requests for volunteers for various
strike assignments . The Union's November 10 distribu-
tion referred back to Respondent 's November 1 literature
and argued that Respondent was making inappropriate
comparisons between the P&WA employees and those
who worked in much less skilled jobs 31
On November 11, about the time the morning meeting
of the parties was breaking up, Respondent distributed a
personnel bulletin to all of its employees . That flyer con-
tained the chart, shown to the Union in the November
11 morning meeting, comparing the average wage and
COLA demands in Lodge 1746's proposal with the aver-
age wages and COLA actually paid to GE's Evandale
employees through June 1, 1982. The comparison indi-
cated that the P&WA employees would , under the
Union's proposal , enjoy an advantage ranging from 32 to
57 percent or more over the GE's employees The cover
letter refers to the Union as having "carefully avoided
any reference to GE-our principal competitor" and
states-
30 According to Respondent ' s minutes of the November 11 meetings,
Morse said that Respondent would eventually make a generous contract
offer and that he believed that an agreement would be reached He also
stated that if the Union insisted on securing the "West Coast wages" as
the price of not striking , Respondent would take a strike rather then
commit "economical suicide" and was prepared to do whatever it takes
to break a strike
31 The Union also pointed out that the price of Respondent ' s products
had increased substantially more between 1977 and 1980 then had the em-
ployees ' wages and that Respondent had already programmed in addition
substantial increases for 1981
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While everyone knows a union's initial demands are
always very large, we think you will agree, when
you examine the enclosed chart, how thoughtless
and irresponsible was the Union's preparation for
these negotiations
The November 14 meeting began with Sawyer asking
whether Respondent had made a contract offer to the
Teamsters Union at United Technologies' Sikorsky divi-
sion. Morse reminded Sawyer of their August 29 discus-
sion concerning early reopeners and of the Union's op-
portunity to meet informally at that time Sawyer reiter-
ated the union committee's insistence that it participate in
all negotiations. He objected the pattern being set by one
of the smaller plants rather than these four and said that
if an offer was made to Sikorsky, one should be made to
these lodges.
Morse and Sawyer then engaged in an extended dis-
cussion of the Union's most recent information request.
Morse's testimony and the Respondent's minutes credibly
establish that considerable time was spent trying to un-
derstand what it was that the Union wanted and how
such information could be useful to it At one point in
this discussion, it became clear that one of the bits of in-
formation sought by the Union was the average number
of hours actually worked by employees in the plants
Morse speculated that the employees would average ap-
proximately 41 hours per week. Throughout the discus-
sion Morse insisted that Respondent did not have the in-
formation broken down in the manner sought by the
Union, the Employer's records lumped all of the hourly
employees together, including both unit and nonunit em-
ployees and at least some who worked in other unrepre-
sented facilities Morse told Sawyer that if the Union in-
sisted on the information which it sought, a computer
program could be developed but would be time consum-
ing and expensive He estimated that it would cost
$15,000 to $25,000 and take between 2 and 3 months,
more time than the parties had for bargaining 32 The
Union did not offer to pay for the necessary reprogram-
ming In the course of their discussions, Sawyer argued
that the Company had previously refused to furnish the
information because it was allegedly proprietary. Morse
disagreed, contending that he had maintained all along
that the Company did not have the information in the
form desired by the Union but had offered to provide
the information if the Union had been willing to pay for
it
The November 14 meeting adjourned for lunch at 1
p.m However, at the Union's election, no further meet-
ings were held that day. Notwithstanding Sawyer's re-
peated requests, Morse had declined throughout the
morning meeting to make a counteroffer. According to
Sawyer, it was because Respondent had made no offer
that the Union felt that an additional meeting in the
afternoon of November 14 would be of no value
Respondent offered to meet with the Union on
Sunday, November 16 According to Morse, the Union
22 This information was contrary to the assumption made by Sawyer
and his committee that the information was readily available from the
computer However, the Union did not then dispute the accuracy of
Morse's contention
refused. Sawyer recalled that Respondent had proposed
to meet at 10 a in., that the Union had indicated an un-
availability until the afternoon. and that Respondent de-
cided it was not worth meeting just for the afternoon
No meeting was held on that day
On Sunday, November 16, the members of the Team-
sters Union at Sikorsky accepted a 3-year agreement, ne-
gotiated pursuant to an early reopener, to replace the last
2 years of a 5-year agreement On November 17, Re-
spondent put out a personnel bulletin, addressed to all of
its hourly supervision, setting forth the "key elements of
the Sikorsky agreement " It read as follows
You may have heard, as a result of reaching an
early settlement at Sikorsky, employees there will
receive $125 "early settlement cash bonus" and the
first general wage increase will be effective two
weeks early You should be aware that an early set-
tlement opportunity was explored with the IAM
over 6 weeks ago. The Union was not interested
We hope you will find this information useful in re-
sponding to your employees' question
This bulletin was distributed in such a way that, unlike
other bulletins addressed to supervision, it was observ-
able by unit employees In some cases, the bulletin was
actually handed out to employees by foremen Employ-
ees saw copies of the bulletin posted on company-con-
trolled bulletin boards and foremen questioned employ-
ees about whether they had seen it and what they
thought of it.33
The parties met next on November 18 The meeting
began with Sawyer asking Respondent to agree to set
additional dates for negotiations Morse suggested Thurs-
day, November 20, but would not agree to any specific
dates beyond that, indicating only that they would prob-
ably meet According to Respondent's minutes, the
Union then presented a detailed argument in support of
its COLA and wage increase demands Morse and others
voiced Respondent's objections but made no counterpro-
posal. Morse stated, according to the minutes, that the
Union was not going to secure a quarterly uncapped
COLA even if they struck Sawyer again asked Morse
for the Company's proposal Morse replied that he had
no proposal to make and reiterated his contention that
the Union's proposal was far out of line with reality He
saw no point, he said, in making a counterproposal
which was of the same character as the Union's He
urged the Union to bring its proposals down to what he
deemed more sensible levels and, according to the min-
utes, indicated that if the Union would do so they could
probably reach the Company's "best, last, and final
offer" quickly He suggested again that the Union call in
the Federal or State mediators and said that he would be
willing to do so if the Union would not In the course of
this meeting, Morse told the Union that Respondent's
offer would be similar to the 3-year offer made at Sikor-
sky. Sawyer made very clear the Union's position that it
91 I infer from this that Respondent intended this supervisory bulletin
to be seen by unit employees
UNITED TECHNOLOGIES CORP
was only willing to negotiate a 2-year wage and COLA
agreement . Morse's response was that any offer for less
than 3 years would be considerably less than the 3-year
offer. At the conclusion of the meeting, Morse agreed
that Respondent would call in the mediation services
They further agreed to meet on November 20 with the
mediators.
Some time between November 18 and 20, Sawyer re-
ceived a telephone call from Chief Personnel Representa-
tive James Pretta, who told Sawyer that he had comput-
ed the weekly average of hours worked by each hourly
employee, including those within and without the bar-
gaining unit, for the prior 9 months, at approximately 37
hours. According to Sawyer, this information was of
very little use other then to establish that the Union's
own estimates had been incorrect.
On November 19, Respondent distributed another per-
sonnel bulletin to its supervisors. Like the one of No-
vember 17, this bulletin was distributed and posted in
such a way as to be seen by many unit employees. It
purported to inform the supervisors of a statement issued
to the media on November 18 which had stated that the
Union had refused to modify its "unrealistic" demands
for wage increases exceeding 80 percent over 2 years.
Such demands, it related, provided "no basis for a rea-
sonable settlement " Further, it claimed that the Union
had twice rejected management 's suggestion that it call
in the mediation services and reported that Respondent
was seeking the intervention of the mediators in order to
reach a settlement The bulletin went on to discuss early
settlement and the Sikorsky agreement as follows-
In discussing the negotiations with the media, the
Company pointed out that nearly two months ago,
it had raised the possibility with the Union of ex-
ploratory discussions which could lead to an early
settlement The Union declined.
We noted to the media that at Sikorsky the Compa-
ny had responded favorably to the Teamsters' re-
quest for an early reopener. This led to a three-year
agreement that was ratified by the Teamsters at Si-
korsky by a four to one vote. The Sikorsky agree-
ment provides pay increases totalling approximately
35% over three years
The parties did not meet in face-to-face negotiations
on November 20 Rather, each side met with the media-
tors Sawyer testified that he asked the mediators to
convey certain modifications of the Union's proposal to
management , modifications changing an adjustment date,
reducing the amount of catchup demanded from $1.37 to
70 cents, and lowering the Union's second-year wage in-
crease demand from 14 to 11 percent.
The mediators, according to Sawyer, reported that
they had transmitted these modifications to Respondent
and that Morse had only replied that the movement was
in the right direction but insufficient. It was Morse's tes-
timony that he could recall no such proposal being trans-
mitted He thought it likely that the mediators may have
suggested such modifications to him in terms of some-
thing they could try to get from the Union If they had,
1089
he would have responded that it was movement in the
right direction '
The Union continued to distribute literature to the unit
employees , including reports on the preliminary strike
vote (strongly supporting a strike ), reporting on the
course of the negotiations , and pressing its position for
an uncapped COLA . On November 16, Lodge 700 dis-
tributed a notice to its members at the Middletown plant
describing the International 's constitutional provisions re-
garding the crossing of picket lines by members or those
who resign their membership within 14 days of a strike
or walkout Such persons would be brought up on union
charges and fines would be levied , the notice stated. A
similar statement was made in a distribution to all unit
employees on November 19 and 20. That latter distribu-
tion asserted that "fines collectable in a court of law will
be levied against any offending members." On November
20, Respondent issued a "General Notice" dealing with
the "Union's threat to fine employees ." It labeled the
Union's statements as misleading and reported that under
Board and court law, a union could not fine an individ-
ual who had resigned The procedure for resignation was
described . It went on to state that the plants would be
open in the event of a strike and every employee would
be free to decide whether to work or strike.
The parties met with the mediators on the morning of
November 24. The Union contends that it presented a re-
vised offer for transmission to the Company at that time.
It further contends that there was agreement to meet,
face to face, at 1:30 p in to discuss the Union 's latest
proposals Morse denied that Respondent either learned
of any revised proposals or had agreed to meet at 1 30 34
The parties actually met at about 3:50 p in ., after the
change of shifts at the-four plants . The Union presented
a revised and substantially reduced offer to Respondent.
Among other things, the revised proposal called for a
second-year wage increase of 8 percent . Respondent cal-
culated that the Union's amended proposal, overall,
would raise wages by 45 percent There was then some
discussion of the Union 's proposal and contract language
and the parties agreed to caucus until about 5 o'clock
Either at the time that Sawyer presented the Union's
proposal (according to Sawyer) or when they resumed
after 5 p . m (according to Respondent's minutes) Morse
stated that the Union's revised proposal showed progress
in the right direction but was still unacceptable , unrealis-
tic, and unreasonable. Respondent then made its first
contract offer The offer, made orally , was for a 3-year,
essentially all inclusive, collective-bargaining agreement.
It included proposals in regard to life insurance, disabil-
ity benefits , pensions, and health insurance It also in-
cluded a savings plan whereby employee contributions
would be matched , to a certain extent , by employer con-
tributions . In exchange , the employees would forgo
Christmas bonuses The savings plan was similar to a
proposal which the Union had been making, and the
company rejecting, in each of the negotiations since
1968. Respondent 's offer was essentially identical to that
'4 My resolution of the allegation concerning Respondent's failure to
timely appear for collective-bargaining meetings makes unnecessary any
finding on credibility as to this difference
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which had been accepted by the Teamsters bargaining
unit at Sikorsky Morse told the Union, when presenting
the 3-year offer, that he recognized that this was not a
proposal on which bargaining was mandatory. He ex-
plained that it was responsive to Sawyer's earlier state-
ments concerning the connection between Sikorsky and
P&WA and Respondent's obligation to make the Sikor-
sky offer to the IAM Sawyer rejected Respondent's
offer, insisting that the Union was only interested in a 2-
year wage and COLA agreement, and asked Morse for
such an offer Morse said that he had evaluated the 3-
year offer as amounting to a total wage increase of 34.5
percent, plus certain increases in pension benefits. He re-
iterated that the 2-year offer would be substantially less
than the first 2 years of its 3-year offer. Sawyer repeated
his objections to the Company's refusal to make a 2-year
offer and Morse responded that the Company would
make such an offer at an appropriate time.35 The meet-
ing adjourned.
About that same date, Respondent put out a personnel
bulletin to all unit employees which described the possi-
bility of a strike and detailed "the potential economic
sacrifice" facing the employees. A detailed breakdown of
what it would cost an employee to be on strike for only
the month of December was given (estimated at nearly
$2000) and a worksheet was provided so that the em-
ployees could determine specifically how much they
would lose. A chart was also provided showing how
long it would take the employees to make up for the lost
earnings in the event that they finally accepted the Com-
pany's offer. With this information, the employees were
urged to "think seriously about the personal impact a
strike would have on you and your family "
On Novembr 25, a day on which the parties met only
with the mediators and not face to face, Respondent dis-
tributed a general notice to the unit employees headed,
"Company Offers $2 79 in Wages and Cola Over Three
Years-Union Rejects 34.5 Percent Proposal." The
notice described Respondent's 3-year agreement proposal
and the Union's rejection of that offer "out of hand " All
aspects of the Employer's 3-year offer were described,
including the savings plan except that no mention was
made of the trade-off of the Christmas bonuses for the
savings plan. Additionally, the notice stated that the
Union had given Respondent "a so-called modified pro-
posal that would increase pay by more than 45% in just
two years " Morse was quoted as describing the Union's
modified demands as "totally unrealistic . . [providing]
no valid basis for agreement." Respondent acknowledged
that this general notice was posted on all bulletin boards
and was intended to be communicated to all employees.
Pursuant to arrangents made by the mediators, a face-
to-face bargaining session was made on November 26.
According to Sawyer, the meeting was supposed to com-
mence at 1 p m. The parties, however, did not actually
meet until that evening. When they met, Morse orally
presented the company's initial 2-year wage and COLA
proposal. It provided for wage increases by labor grade
as Respondent's notes indicate that Morse again "questioned why the
Company should make a counteroffer which is equally as ludicrous as the
Union proposal "
over the 2-year period and semiannual cost-of-living ad-
justments with a 30-cent cap on those adjustments Re-
spondent estimated that its proposal called for a 20.3-per-
cent increase over the 2 years Morse told the Union that
the money could be "rearranged" from wages to COLA
if that was what the Union preferred Sawyer asked for
copies of the proposal for the committee to follow along
as it was presented, Morse replied that he only had his
rough notes. He testified that the proposal was so brief
and simple that it did not occur to him to provide copies
and that the practice of the parties did not call for copies
to be provided The meeting which was very brief, re-
cessed for the Union to consider Respondent's proposal.
According to Sawyer, the mediator suggested that the
parties reflect on their positions over the Thanksgiving
holiday and schedule a meeting for midday on Novem-
ber 28. However, no meeting was held on that day be-
cause of the presence of a new mediator
On what would appear to have been the evening shift
of Wednesday, November 26, Steve Stroncek, a foreman
in the East Hartford plant, called the employees of his
department together, ostensibly to answer at one time
the similar questions employees had been raising about
the possibility of a strike. In the course of this meeting,
according to employee Arleen Bigenski, Stroncek told
his workers that a strike on the following Monday was
possible and he wanted them to know their rights. As
she recalled the statements he made, Stroncek told them
that they were expected to come to work if there was a
strike and if they felt they were not going to be able to
come to work they had to call in and give a reason,
something to the effect that the fear of violence preclud-
ed their crossing the line She recalled him telling the
employees that they would have to call in every day in
order to avoid discipline and replying affirmatively when
questioned as to whether that meant they could be fired
He denied telling employees that they would be dis-
charged if they did not call in but admitted telling them,
"Well, just like anything else, call in to the company,
give them a reason why you are not coming in . . it
may help out." Stroncek's testimony is supported, in
part, by that of employee Mary Beaulieu. She recalled
that Stroncek only told them to call in if they wanted to
go to work but were afraid to do so Employee John Ci-
chaski testified on behalf of Respondent and similarly
corroborated Stroncek's denial that he told employees
that they could be discharged for failing to come to
work. However, in his direct examination, Cichaski re-
called Stroncek telling employees that if they saw a
picket line they should "call in either way . if we
were afraid of any kind of physical abuse, for instance, to
call in "
The union steward in Stroncek's department, Stuart
Hipkin, had left the plant floor just before Stroncek
called this meeting When he returned, the employees
told him of Stroncek's meeting and asked him if it was
true that they could be discharged if they went on strike
Hipkin called Wayne Marcotte, a company personnel ad-
visor, to protest the holding of such a meeting in his ab-
sence Marcotte suggested that perhaps Stroncek had
held the meeting at that time because he felt that Hipkin
UNITED TECHNOLOGIES CORP
might be disruptive. Marcotte rejected Hipkin's sugges-
tion that the meeting be reconvened so that the employ-
ees might be properly instructed as to their rights Mar-
cotte offered to have Stroncek meet with any individuals
in the department to go over what had been said but re-
fused Hipkin's request to be present during such meet-
ings. Hipkin then approached Stroncek and asked him
why such a meeting had been held in his absence. Stron-
cek protested that Hipkin was not the only one absent;
others, including Cichaski, were also absent, he said. Pur-
suant to Hipkin's request, Stroncek repeated to Hipkin
what he had told the employees, telling Hipkin that he
had said that everyone was expected to be at work on
Monday and if they were not at work they were expect-
ed to call in or would be subject to normal disciplinary
action as if AWOL They argued over the question of
whether or not employees on a sanctioned strike had to
call in Hipkin's testimony is uncontradicted.
Considering all of these foregoing, particularly the im-
plications contained in both Stroncek and Cichaski's tes-
timony and Stroncek's failure to deny the statements at-
tributed to him by Hipkin, as well as Hipkin's uncontra-
dicted testimony of his conversations with Marcotte, I
credit the testimony of Bigenski and Hipkin. According-
ly, I find that the employees in Stroncek's department
were warned that they would be obligated to call in
daily during the course of the strike to explain their ab-
sence and that they could be terminated if they failed to
do so.36
On November 26, Respondent distributed a special
issue of one of its regular publications, "The Power
Plant," entitled "What You Should Know if There is a
Strike " It presented, in question and answer form, the
rights of the parties in the event of the strike. The ques-
tions were answered by Guy Farmer, identified therein
as a former chairman of the National Labor Relations
Board and as "the senior partner in a prestigious law
firm in Washington, D.C. which specializes in labor
law "37 Farmer described the rights of employees to par-
ticipate or to refuse to participate in a strike The right
to resign from the Union and the procedure for doing so
were also described as were the rights of economic strik-
ers to reinstatement in the event that their jobs were still
available. Additional questions asked and answered em-
phasized the Respondent's position that no strikes at
P&WA had ever resulted in better economic terms than
the Company had offered prior to the strike and what
the employees would lose during a strike.
The parties met in midafternoon on November 29.38
Morse then made an oral presentation of Respondent's
final proposal. Sawyer asked for it in writing and Morse
indicated that copies would be delivered to the Union as
soon as possible. The offer was about 3 percent greater
than the prior offer and provided for quarterly, rather
than semiannual, capped cost-of-living adjustments. The
'46 1 further find that this testimony reveals a striking disregard for the
rightful role of the Union and its steward by Respondent's agents, Stron-
cek and Marcotte
31 No mention was made of the fact that that law firm represents Re-
spondent
38 The meeting, according to Sawyer, had been scheduled for 1 p m
The parties met with the mediators during the morning
1091
proposal also included the savings plan previously of-
fered by Respondent Respondent acknowledged, how-
ever, that it could not insist upon the inclusion of that
savings plan because it was outside the scope of the
wage and COLA reopener . In a subsequent meeting later
that day, Respondent refused to consider adjusting the
offer by moving the cost of the savings plan to the
COLA and made clear that the offer was its "last, best,
and final" one The Union told Respondent that it would
recommend rejection of the Company's offer at the rati-
fication meeting scheduled for the following day.
The Company 's "final offer" was described in a press
release put out by Respondent shortly after the afternoon
meeting of November 29 concluded The Union, howev-
er, did not receive a copy of the offer in writing until
about 8 p.m
On Sunday , November 30, Respondent ran two full
page advertisements in the New Haven Register and the
Hartford Courant Both had been placed with the news-
papers prior to noon on November 29.39 One was a re-
print of a November 27 editorial decrying the possibility
of a strike among these employees and urging the union
leadership not to recommend a strike in support of exces-
sive demands or to further union politics . The editorial
further stated that the employees had three options- to
stop working , to accept the Company 's offer, or to con-
tinue working during additional negotiations . The third
option did not exist , Respondent had made it clear that it
had presented its final offer , and the Union did not seek
to extend negotiations beyond the expiration date The
second advertisement , addressed to the P&WA employ-
ees, described in detail the Company 's offer It urged the
employees to "weigh the Company's final offer against
the alternative of a strike" and to vote at the ratification
meeting . In regard to the savings plan, the ad stated'
NEW SAVINGS PLAN
In addition, the company offered-but couldn't insist
that the union bring to the membership-the highly
popular Savings Plan, which has a 90% participa-
tion rate at Pratt & Whitney Aircraft's Florida facil-
ity, where employees are also represented by the
IAM
The savings plan and its value to the employees, up to $8
and $10 per week, was described However, no mention
was made of the loss of the Christmas bonus, which, al-
though worth much less than the savings plan, was re-
quired if the savings plan was accepted.
At the November 30 ratification meeting, a simple ma-
jority of the employees supported their leadership's rec-
ommendation to reject the contract offer. However, they
failed to vote for rejection by the two-thirds majority re-
quired to call a strike. Accordingly, pursuant to the
Union's International constitution and procedures, since
the employees would not strike to support their de-
mands, Respondent's offer was automatically accepted 40
39 Testimony indicates that the ads could have been canceled until late
on Saturday, November 29
40 This acceptance of Respondent's offer did not include the savings
plan Ultimately, the Union agreed to accept the savings plan
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of December 1, two employees in the
East Hartford Plant, Donald Black and Roger Brown, a
shop committeeman and shop steward, respectively,
were each approached by one of Respondent's personnel
advisors, Jane Bolles She asked Black what he thought
of the contract and whether the savings plan had been
mentioned at the Sunday meeting. She similarly asked
Brown what had gone on at the ratification meeting,
whether he did not believe that it was a relief to have
the negotiations over and for his opinion of the savings
plan
2. Analysis and conclusions
The General Counsel contends that Respondent, by
the conduct described above, violated Section 8(a)(5) of
the Act by (a) failing and refusing to provide the Union
with information relevant and necessary to the perform-
ance of its role as collective-bargaining representative,
(b) bypassing the Union and dealing directly with its em-
ployees; (c) delaying the presentation of counterpropos-
als and presenting its counterproposals in a manner cal-
culated to frustrate negotiations; (d) failing to timely
appear for scheduled meetings or to schedule more fre-
quent negotiations , and (e) as illustrated by all of the
foregoing as well as the conduct described in the earlier
consolidated cases, by engaging in a pattern of bad-faith
bargaining with no intention of reaching mutual agree-
ment . Additionally, the General Counsel contends that
Respondent violated Section 8(a)(1) by. (f) Stroncek's
threats of discipline against those who would engage in a
strike and by Bolles' interrogation of two union stew-
ards. These issues will be treated seriatim.
(a) The refusal to furnish information
The cases dealing with an employer ' s obligation to
provide information to its employees ' collective-bargain-
ing representative are legion , the principles they state are
well established For example , in Florida Steel Corp., 235
NLRB 941,943 (1978), the Board stated:
It is well established that Section 8(a)(5) of
the Act imposes on an employer the duty to furnish
a union, upon request, information relevant and nec-
essary to enable it to intelligently carry out its statu-
tory obligations as the employees' exclusive bar-
gaining representative. And, under the standard of
relevancy as applied by the Board and the courts, it
is sufficient that the Union's request for information
be supported by a showing of "probable" or "po-
tential" relevance.'
2 NL R B v Acme Industrial Co, 385 U S 432 (1967)
Wage and related information pertaining to the unit em-
ployees, the Board and the courts have repeatedly held,
is "presumptively relevant to a collective-bargaining
agent's statutory duty to represent employees and must
be produced because it goes to the very core of the em-
ployer-employee relationship."4 i The collective-bargain-
ing representative is entitled to relevant information to
meet its duty to formulate wage and other proposals in
connection with contract negotiations as well as to
police the administration of an existing agreement. West-
ern Massachusetts Electric, supra, A. S. Abell Co, 230
NLRB 161 (1977) Where relevant and requested infor-
mation is not available in the form requested by the col-
lective-bargaining representative, the "minimum stand-
ards of good faith require the employer to make a rea-
sonable effort to obtain this information, to investigate al-
ternative means for obtaining it, or to explain or docu-
ment the reasons for its unavailability " Borden, Inc , 235
NLRB 982, 983 (1978), enfd. in pertinent part 600 F 2d
313 (1st Cir. 1979); General Electric Co, 150 NLRB 192,
261 (1964). The employer is not required to provide
copies of its records or to conform such data as it might
have to meet the format demanded by the union at its
own expense It may, within the bounds of good faith,
insist that the union bear the expense of furnishing the
requested information. United Aircraft Corp., 192 NLRB
382, 390 (1971), enfd in pertinent part 436 F 2d I (2d
Cir. 1975)
In the instant case, the Union initially sought the total
employment costs, broken down into straight-time pay
and the various differentials (i e., overtime and shift pre-
miums), and information regarding the hours worked and
paid, including the total hours worked, total hours paid,
total overtime hours, and the weekly average for each of
those for each separate bargaining unit, including Lodge
743. Respondent, while noting its contention that it was
not obligated to furnish the information requested (be-
cause of the contractually contained waiver), described
the difficulties involved in meeting the Union's demand
because of the way in which it maintained its records,
and offered to furnish what information it could if the
Union would explain its needs and accept the informa-
tion in a format different than it had requested 42 The
Union, perhaps misunderstanding or misreading the Em-
ployer's position, did not further pursue the matter be-
tween August 29 and November 11, a week into the
actual negotiations On that date, the Union submitted es-
sentially the same request, in somewhat simplified lan-
guage, still seeking information for the five bargaining
units . Morse responded at the next meeting, November
14, again seeking clarification of what the Union wanted
and why He reiterated the difficulty of furnishing the in-
formation in the format sought and explained that Re-
spondent did not maintain its records by bargaining unit.
He offered to provide what the Union requested but
warned that it would be both time consuming and expen-
sive (to the Union) The Union made no offer to bear the
expenses involved. The only information provided was
an approximation of the average number of hours
worked by each employee.
91 Western Massachusetts Electric Co, 234 NLRB 118, 119 (1978), affd
589 F 2d 42 (1st Cir 1978), citing Curtiss-Wright Corp v NLRB, 347
F 2d 61 (3d Cir 1965)
42 Respondent refused to furnish any information regarding the unit
represented by Lodge 743, which was not party to this reopener
UNITED TECHNOLOGIES CORP
Citing Borden, supra, the General Counsel contends
that the information sought by the Union related to
wages and was therefore presumptively relevant I do
not believe that application of the presumption is war-
ranted on these facts. The information sought did not
deal with the wages paid to, or the hours worked by, in-
dividual employees Rather, the Union sought financial
data related primarily to Respondent's cost of doing busi-
ness In Teleprompter Corp. v. NLRB, 570 F 2d 4 (1st Cir
1977), enfg 227 NLRB 705 (1977), the union had sought
economic data concerning the profitability of the individ-
ual subsidiaries with which it was bargaining. Because
the employer had put profitability in contention, the
Board and the Court both held that the employer was
obligated to furnish the requested data However, in dis-
cussing the question, the court distinguished such finan-
cial data from information concerning existing wage
rates and stated "Financial data need not be disclosed in
the course of contract negotiations unless the bargaining
representative first makes a showing that it is specially
relevant to the bargaining taking place " The court fur-
ther pointed out "The union does not make that show-
ing merely by claiming that the data would be helpful in
performing its tasks " Teleprompter, supra 570 F.2d at 9
Absent the presumption, has the Union established the
relevance of the information it sought? I do not believe
so Sawyer, on direct examination, testified that the in-
formation was requested "to determine the total of the
present wage structure . . It would allow the
Union to determine the cost package of the proposals
and also of the present wages " On cross-examination, he
testified that such information would be "very relevant
to the drafting of the proposals as to knowing exactly
what the cost of the present agreement was in light of
future proposals " The information would give the com-
mittee an indication of the employees' earning power and
would be background information for comparing the
total earning power of the unit employees with what the
Labor Department deemed necessary for a moderate
standard of living He acknowledged that he had never
heard of such information being used in negotiations
before William Bittle, of the Union's research division,
testified that the "total employment cost approach" was
important where, as here, an employer has made a claim
that it must remain competitive with a particular compet-
itor because the employer and its competitor might have
a different mix of wages and fringe benefits which would
render a comparison based solely on hourly wages less
than meaningful P&WA was comparing its wages with
those paid to the employees of General Electric, howev-
er, there was no showing that the Union possessed the
total employment cost information from GE with which
it might make the types of comparisons it sought Bittle
also testified that if the Union had the data it requested,
it could determine how particular demands might affect
the Employer's costs and might be willing to shift bene-
fits from wages, where there would be "roll-up" costs, to
fringes such as health and welfare which would not in-
volve such "roll-ups " These negotiations did not involve
health and welfare benefits and these explanations, I must
conclude, amount to nothing more than a claim that the
data "would be helpful [to the Union] in performing its
1093
tasks " Necessity and relevance to these negotiations have
not been established
Additionally, I am compelled to agree with Respond-
ent that the Union has waived any right to require the
furnishing of the information requested The language of
the waiver contained in the letter attached to each col-
lective-bargaining agreement (fn 23, supra) is clear and
unequivocal The Union pays for and receives certain in-
formation, in return for that, it has agreed not to seek
"any other information, data, or listings related to the
wages, hours or working conditions" during the life of
the agreement The General Counsel and the Union con-
tend that this waiver applies only to information regular-
ly submitted during the life of the agreement and not to
information sought in order to prepare for negotiations
The last sentence of the waiver, however, specifically
stating what additional information the Union may seek
for such negotiations (pension and insurance information)
clearly negates any such contention
Accordingly, I must conclude that Respondent's refus-
al to furnish the information sought by the Union on
August 20 and November 11 was neither independently
violative of Section 8(a)(5) nor evidence of bad=faith bar-
gaining
(b) Direct dealing
The General Counsel contends that Respondent's No-
vember 17 and 19 publication of the contract settlement
it had reached at Sikorsky with the implication that the
IAM had rejected an opportunity to reach a similar set-
tlement, and the November 30 publication of its final
offer including the savings plan, constituted attempts to
bypass the Union and deal directly with the employees in
violation of Section 8(a)(5) of the Act The Union would
include all of Respondent's distributions to the employ-
ees in its similar contention. Respondent asserts that its
presentation of factual material to the unit employees
may have facilitated the conclusion of an agreement and
the avoidance of a strike and labels as "absurd", and out-
side the scope of Section 8(c) the Act's free speech pro-
vision, what it deems to be the General Counsel's con-
tention that the membership should be deprived of Re-
spondent's communications and be required to rely solely
upon the union leadership for information
In General Electric, supra at 194, the Board stated
On the part of the employer, [good-faith bargain-
ing] requires at a minimum recognition that the stat-
utory representative is the one with whom it must
deal in conducting bargaining negotiations, and that
it can no longer bargain directly or indirectly with
the employees.14 It is inconsistent with this obliga-
tion for an employer to mount a campaign, as Re-
spondent did, both before and during negotiations,
for the purpose of disparaging and discrediting the
statutory representative in the eyes of its employee
constitutents, to seek to persuade the employees to
exert pressure on the representative to submit to the
will of the employer, and to create the impression
that the employer, rather than the union, is the true
protector of the employees' interests. i s As the Trial
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner phrased it, "the employer's statutory obli-
gation is to deal with the employees through a
union, and not with the union through the employ-
ees."
14 " the duty of management to bargain in good faith is es-
sentially a corollary of its duty to recognize the union" N L R B
v Insurance Agents' International Union, AFL-CIO (Prudential Ins
Co) [361 U S 477] at 484-485
is NLRB P Herman Sausage Co, Inc [275 F 2d 229 5th Cir
19601, at 233, NL R B v Fitzgerald Mills Corporation, 313 F 2d
260, 268 (C A 2)
However, General Electric does not preclude all employ-
er communication. In Proctor & Gamble Mfg. Co, 160
NLRB 334, 340 (1966), the Board pointed out:
As a matter of settled law, Section 8(a)(5) does
not, on a per se basis, preclude an employer from
communicating, in noncoercive terms, with employ-
ees during collective-bargaining negotiations. The
fact that an employer chooses to inform employees
of the status of negotiations, or of proposals previ-
ously made to the Union, or of its version of a
breakdown in negotiations will not alone establish a
failure to bargain in good faith.9 It is plain, howev-
er, that a tioncoercive communication campaign
may be utilized as an effective instrument for by-
passing the Union and engaging in direct dealing
with the employees
e NL R B v. Reed & Prince Manufacturing Company, 118 F 2d
874, 889 (C A I)
The Board in Proctor & Gamble illustrated this last point
by reference to the General Electric case where, it stated,
the employer's extensive conmmuication campaign di-
rected at marketing its bargaining position directly to the
employees was accompanied by a fixed position at the
bargaining table, effectively excluding the union from
meaningful bargaining.
Respondent's communications with its employees did
not occur in a vacuum; for months prior to the opening
of negotiations the Union and its local Lodges had been
publicizing its bargaining intentions and seeking to in-
crease employee support for the positions it intended to
take, particularly in regard to an uncapped COLA and a
sizeable wage increase The Union's literature repeatedly
compared the P&WA wages with those paid at other
aerospace firms, including those on the West Coast
(Boeing, Lockheed, and McDonnell-Douglas). Respond-
ent expressed concern, in the August 29 meeting, that the
Union was unduly raising the employees' expectations
and warned that it intended to settle on the basis of area
(basically General Electric) wages and without an un-
capped COLA. At the outset of negotiations, Respond-
ent proposed that the restrictions adhered to in prior ne-
gotiations, requiring a 24-hour notice before either side
publicized the course of negotiations, be followed in
these negotiations. The Union rejected any such restric-
tions and was put on notice that despite its objections
Respondent would deem itself free to communicate with
the employees.
In early November, the Union's literature reported on
the negotiations and urged the employees to show their
willingness to strike in support of the Union's demands.
About November 1, Respondent issued a letter and at-
tached booklet to all employees, comparing their wages
and benefits with the wages and benefits of other em-
ployees in the same geographical area The letter disput-
ed the propriety of the Union's comparisons to Boeing
and Lockheed. Boeing and Lockheed, it stated, were
P&WA's customers, not its competition Its competition
was General Electric and Rolls Royce, which the Union
had not mentioned. Contained within the letter was the
following:
By beginning the negotiations through press re-
leases and flyers, the union appears intent in putting
the parties to the negotiations on a collision course
even before they begin.
With common sense and good faith on both sides
of the negotiation table, we can achieve a peaceful
and profitable settlement for all employees That's a
lot better than a head-on collision before the Christ-
mas holiday-or anytime, for that matter.
On November 10, the Union published its attempt to
refute the November 1 publication
When they had met on August 29, Morse and Sawyer
had discussed the possibility of an early reopener; Morse
had said that Respondent was bargaining at other loca-
tions and indicated the possibility of additional benefits
beyond the scope of the reopener in return for early set-
tlement. Morse made clear then, and when he suggested
it again on October 7, that what he envisioned was infor-
mal negotiations involving only the negotiators from
both sides, without their respective committees being
present. Sawyer was unable to secure the Union bargain-
ing committee' s agreement to such a format and early
negotiations were not held. At Respondent's Sikorsky
Division, where the contract with the Teamsters was not
due to be reopened until February of 1981, early negotia-
tions were held. On November 14, Sawyer asked Morse
whether a contract offer had been made to the Team-
sters at Sikorsky. Morse did not respond directly but re-
minded Sawyer that the Union had been offered an op-
portunity to engage in early reopening discussions.
Sawyer questioned why, if Respondent could make an
offer at Sikorsky, it could not make one here.43 On No-
vember 16, Respondent settled with the Teamsters at Si-
korsky. The agreement went beyond the limited terms of
the 2-year reopener and was a complete agreement for 3
years. On November 17, Respondent issued a superviso-
ry bulletin which Respondent clearly intended the unit
employees to see, describing the advantageous features of
the Sikorsky settlement and stating that the Union had
rejected a similar early settlement opportunity.
43 Sawyer's testimony , not contradicted by Morse's testimony, was
that he asked for an offer, not the Sikorsky offer Respondent's notes of
the meeting would seem to indicate otherwise but have no independent
probative weight
UNITED TECHNOLOGIES CORP
On November 11 and 18, before Respondent had made
any counterproposal, Morse suggested that the Union
call in the mediatiation services. At the November 18
meeting, when Morse told the Union that Respondent's
offer would be similar to its offer at Sikorsky, Sawyer
made it clear and plain that the Union was not interested
in any offer other than one limited to wages and COLA
for a 2-year period.
On November 19, Respondent again issued another
bulletin to its supervisors with the unmistakeable intent
that it be seen by unit employees. In that bulletin it re-
ferred to the Union's demands as "unrealistic" and as
providing "no basis for reasonable settlement." It casti-
gated the Union for refusing to seek the assistance of the
mediation services, as compared to Respondent's willing-
ness to do so, in order to reach an agreement, and again
alluded to the Union's refusal to participate in explorato-
ry discussions for an early settlement. The Union's refus-
al was compared to the willingness of the Teamsters at
Sikorsky and the employees were reminded, once again,
of what the Teamsters-represented employees had rati-
fied No mention was made of the reason why the Union
refused to meet for early contract talks, i e., the Re-
spondent's insistence that the Union's committee be ex-
cluded from such talks
The Union's literature continued during this period, it
included reports on strike plans and descriptions of the
liability of members to fines should they cross a picket
line without satisfying the Union's constitutional require-
ment of resignation at least 14 days prior to the strike.
On November 20 and 26, Respondent issued publications
disputing the Union's right to fine anyone who had re-
signed. The employees were also warned of the risks and
costs of striking and of the probability that a strike
would not yield an improved contract offer.
On November 24, after the Union's revised proposal
had been summarily rejected, Respondent made its first
contract offer. Notwithstanding that Respondent had
taken the position at the outset of negotiations that any
offer going beyond wages and fringes was inappropriate
for consideration, and notwithstanding that Respondent
knew that the Union had no interest in, or obligation to
consider, any offer other than a 2-year wage and COLA
package, Respondent tendered the Union essentially the
same 3-year, complete contract offer ratified at Sikorsky.
It included the savings plan, a proposal which the Union
had been making, without success, for 12 years. Morse
conceded, when making the offer, that bargaining on it
was not mandatory Not surprisingly, it was rejected.
Morse was not prepared, at that time, to make an offer
consistent with the terms of the reopener. On November
25, Respondent publicized the Union's "out-of-hand" re-
jection of its 3-year offer, which it described as amount-
ing to $2 79 per hour, 34.5 percent, over the 3 years. It
described Respondent's offer of the savings plan without
mentioning that the employees would have to give up
their Christmas bonuses, worth considerably less, to get
it. It repeated its description of the Union's modified de-
mands as "totally unrealistic" and as providing "no valid
basis for an agreement."
On November 26, Respondent made its first 2-year
wage and COLA offer. That offer was improved on No-
1095
vember 29, by approximately 3 percent. It included the
savings plan and was characterized by Respondent at
that time as its "last, best and final" offer. Respondent re-
fused to consider taking the cost of the savings plan it
offered and adding it to the COLA
On November 30, Respondent ran two advertisements.
One, a reprint of an editorial, urged the Union leadership
not to recommend a strike and, in error, stated that the
employees had three Options* to accept the contract, to
strike, or to continue working while negotiations contin-
ued. The third option was, for all practical purposes,
nonexistent. The second advertisement described the
Company's offer, including the savings plan Once again,
no mention was made of the quid pro quo for that plan,
the loss of the Christmas bonus.
There was, in Respondent's publications, much that
cannot be found objectionable Indeed, some of what Re-
spondent told its employees through its distributions
could probably have contributed in a healthy way to the
making of an informed choice by employees at the point
of contract ratification. The Union had made many com-
parisons of the wages and benefits of the unit employees
with those of other aerospace employees It was entirely
proper for the Employer to argue that the Union was
making inappropriate comparisons and to present the em-
ployees with the comparisons which it deemed appropri-
ate. Similarly, where the Union had been encouraging
the employees to support its bargaining positions with
strike authorization, and threatening discipline against
those members who crossed picket lines, I deem it entire-
ly appropriate for the employer to describe, in noncoer-
cive terms, the costs involved in striking and to correct
what it deemed to be misstatements concerning the
Union's legal right to discipline nonstriking employees
who had resigned their membership.
However, as noted, an employer may not, in its com-
munications with the employees, seek to persuade them
to exert pressure on their representative to submit to the
will of the employer, "or create the impression that the
employer rather than the union is the true protector of
the employees' interests." Texas Electric Coop, 197
NLRB 10, 14 (1972). Neither may it, by "casting doubt
in the minds of the membership as to the bona fides of
the efforts of union representatives in advancing the in-
terst of its membership," seek to drive a wedge between
the membership and its union . General Athletic Products
Co., 227 NLRB 1565, 1575 (1977). This, I believe, was
the reasonably predictable and intended effect of certain
of Respondent's publications. Thus, as early as Novem-
ber 1, prior to the first negotiation session, Respondent
described the Union as being "intent on putting the par-
ties to the negotiations on a collision course" and implied
that its negotiators lacked the common sense and good
faith necessary to avoid a strike. This wedge, inserted be-
tween the employees and their representatives, was
driven further on November 17 and 19 when Respond-
ent, in somewhat surreptitious fashion (through supervi-
sory bulletins which were permitted to fall into the view
of unit employees) and with less than complete candor,
told the employees that their Union had rejected an early
settlement opportunity which impliedly could have led
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to an agreement similar to that accepted by the Team-
sters at Sikorsky In fact , the offers of early settlement
discussion had been circumscribed by Respondent's in-
sistence that any such meetings be held outside the pres-
ence of the employees ' bargaining committee and Re-
spondent had made clear its refusal to meet early with
the committee which the employees had elected Re-
spondent omitted these facts from its supervisory bulle-
tins, creating and enhancing the impression that it was
more interested in the employees ' welfare than was the
Union That impression was further enhanced when Re-
spondent castigated the Union for its reluctance to call in
the mediation and conciliation services At the point in
tine when Respondent suggested that the Union do so, it
was refusing to put any offer on the bargaining table
Hence, there was essentially nothing to mediate or con-
ciliate The Union had been asked , in effect , to call in the
mediators for the purpose of influencing it to reduce its
own proposals , not to reconcile differences between the
parties It was being portrayed as irresponsible or disin-
terested in settlement for its refusal to do so At the same
time, Respondent was portraying itself as being more in-
terested in an agreement because it was willing to per-
form the essentially ministerial task of calling in the me-
diators
This wedge was given another blow when, after Re-
spondent made the 3-year contract offer which it knew
with certainty that the Union would reject (an offer
which , incidentally , was also inconsistent with Respond-
ent's own refusal to consider demands it deemed to be
outside the scope of the reopener), Respondent broadly
publicized the terms of its offer and the Union 's rejection
of it Again, the Union's demands were described as "to-
tally unrealistic" and as providing "no valid basis for
agreement " It is not difficult to conclude that this offer
was made, not with any hope of its acceptance or as a
basis for reasoned discussion , but rather with the inten-
tion of publicizing its rejection.
The final taps to the wedge were delivered by Re-
spondent 's somewhat incomplete descriptions of its sav-
ings plan offer , also a matter outside the scope of the re-
opener, and by its reprinting of the editorial which both
implied that the Union sought a strike for internal politi-
cal reasons and misstated the options available to the em-
ployees
All of this conduct , particularly when considered in
light of Respondent's refusal to make any offer until the
last week of negotiations , its adamant refusal to consider
readjusting the cost of its savings plan proposal into
COLA, and its fixed position on an uncapped COLA
brings this case within the ambit of General Electric,
Texas Electric , and General Athletic Respondent's con-
duct , I find, constituted an unlawful attempt to bypass
the Union, to bargain with it through the employees. It
has, by this conduct, violated Section 8 (a)(5) and (1) of
the Act
(c) Delayed and oral counterproposals
With a November 30 deadline for the negotiations es-
tablished by contract and fixed firmly in everyone's
mind, these negotiations began on November 3 Re-
spondent would not meet earlier while the Union insisted
upon representation by its full committee and the Union
would not agree to meetings in that committee's absence.
Repeatedly after the Union made its proposals, it sought
Respondent's counterproposals Until the last week, Re-
spondent rejected every such request, stating that it
would present an offer at what it deemed to be "an ap-
propriate time" and would not present an offer "as ridic-
ulously low" as the Union's was "ridiculously high "44
Its first offer was not made until November 24, an offer
that was outside the scope of the limited reopener In ex-
ceeding the bounds of the reopener, Respondent was
asking the Union to bargain in a way which Respondent
had refused to do at the start of these negotiations
Moreover, it was presenting an offer which it knew
could properly be rejected and would be so rejected be-
cause it went beyond the terms of the reopener.
Respondent's first counterproposal, which was consist-
ent with the terms of the reopener, was not made until
the evening of November 26, 4 days before the contract
expiration Its final offer, presented as such and without
opportunity for negotiation thereon'45 was presented on
the eve of the expiration.
The General Counsel and the Union, citing Howmet
Corp, 197 NLRB 471 (1972), enfd 495 F 2d 1375 (7th
Cir 1974), contend that Respondent's refusal to make
any counterproposals until the Union modified its offer
independently violated Section 8(a)(5) of the Act In
Howmet, the parties, bargaining for an initial agreement,
met eight times over a 3-month period. As here, the em-
ployer repeatedly refused to make any economic propos-
al until the Union modified its proposals, and the em-
ployer labeled those proposals "ridiculous " Unlike the
instant case, however, the employer in Howmet never
made a wage offer. The Board, affirming the decision of
the Trial Examiner, held (at 486)
In the circumstances of this case [which included
unilateral changes in terms and conditions of em-
ployment and attempted direct dealing with em-
ployees], Respondent's adamant refusal to take any
specific, definite position on the economics of a bar-
gaining agreement, while deriding and rejecting re-
peated concessions by the Union, frustrated bargain-
ing, prevented agreement on a contract, and consti-
tuted bad faith. If the parties to bargaining refuse to
say what they will accept in a complete agreement,
the conditions under which such an agreement may
properly be reached are impermissbhly undercut
and the purposes of the Act are frustrated.
Here, of course, Respondent did present offers to the
Union ultimately leading to a contract. On that basis I
believe that the instant case must be distinguished from
Howmet I therefore cannot find that Respondent's refus-
al to make earlier counterproposals, standing alone, is
violative of Section 8(a)(5). It is, however, a factor
which I believe tends to demonstrate that Respondent's
44 Contrary to Respondent's argument, what is involved here is not
whether an employer is required to make a counteroffer The issue is
whether the timing of its counteroffers frustrated meaningful bargaining
95 Respondent's minutes emphasized the finality of this offer
UNITED TECHNOLOGIES CORP
overall course of conduct constituted a refusal to engage
in good-faith bargaining with the Union See Lawrence
Textile Shrinking Co., 235 NLRB 1178 (1978) The rea-
soned discussion of divergent points of view, which is es-
sential to bring parties to a common ground, is difficult,
if not impossible, where one party refuses to disclose its
position in sufficient time to permit discussion
Additionally, it is argued that Respondent's failure to
timely furnish written copies' of its November 26 and
November 29 counterproposals independently violated
Section 8(a)(5) and evidenced overall bad faith I cannot
agree Respondent's conduct in this regard, particularly
with respect to its failure to furnish the Union with as
much written information as it had already given to the
press, smacks of one-upmanship. However, in view of
the brevity of the offers and the availability of note
takers among the Union's extensive committee, I can find
no real detriment to the bargaining process in Respond-
ent's insistence upon the presentation of oral counterpro-
posals
(d) Scheduling of and Attendance at Meetings
Between November 3 and November 29, the parties
met in face-to-face negotiations on seven days, Novem-
ber 3, 11, 14, 18, 24, 26 and 29 On some of those days,
they met more than once The parties also met on other
days privately with the mediators and Respondent was
available to meet on at least one other day, November
16. Each face-to-face meeting was scheduled at the meet-
ing which preceded it, Respondent refused to schedule
more than one meeting at a time. On two occasions, ac-
cording to Sawyer, the Company negotiators were late
for meetings. On November 24, the'meeting was alleged-
ly scheduled for 1 or 1.30 p.m but Respondent reported
through the mediator that it would not be ready to meet
until later That meeting began around 3.30 p m On No-
vember 26, the mediators informed the Union when its
committee arrived for a 1 p. m. meeting that Respondent
was working on its proposal; Respondent was then ready
to meet about 5 p m. and the meeting convened at
7 30.p.m
Based on these facts, I am compelled to reject the con-
tentions of the General Counsel and the Union that such
conduct contributed per se violations of the Act In the
absence of evidence that Respondent rejected the
Union's request for more frequent meetings , seven face-
to-face meetings plus several others with the mediators in
a period of 28 days can hardly be described as a breach
of the duty "to meet at reasonable times." See Lawrence
Textile, supra, at 1179 And, while it might have been
more convenient for the Union to have a prearranged
schedule of meetings for the bargaining period, I cannot
conclude that Respondent's refusal to ' agree to such a
schedule constituted a refusal to bargain in good faith
The lack of a schedule did not prevent the parties from
meeting.46
46 The cases cited by the General Counsel in support of this conten-
tion are inapposite In Lawrence Textile, supra, Respondent refused to
meet except on one evening per week, for a limited number of hours on
each occasion, and at a city some miles away from the plant It also re-
jected union requests to meet at other times and places In Borg-Warner
Corp, 198 NLRB 726 (1972), the employer unilaterally determined that it
1097
Similarly, I must reject the contention that Respond-
ent's tardiness at two meetings constituted a per se viola-
tion of Section 8(a)(5). While that tardiness may have
hindered the Union in effectively communicating with
the employees concerning the Employer's offers made in
those meetings, especially the meeting of November 26,
the eve of Thanksgiving, and is therefore suspicious, it is
not, in and of itself, a breach of the duty to meet at rea-
sonable times 47
(e) Surface Bargaining
The foregoing discussion leads to the central and most
difficult issue involved in this litigation. As framed by
the General Counsel it is whether "[t]hroughout the 1980
contract negotiations . . Respondent engaged in a pat-
tern of bad faith bargaining with no intent to reach
mutual agreement with the Union." As the Board in
Borg-Warner Corp, supra, noted at 726:
[N]o case involving an allegation of surface bargain-
ing presents an easy issue to decide We fully recog-
nize that such cases present problems of great com-
plexity and ordinarily . . are not solvable by
pointing to one or two instances during bargaining
as proving an allegation that one of the parties was
not bargaining in good faith. In fact, no two cases
are alike and none can be determinative precedent
for another, as good faith "can have meaning only
in its application to the particular facts of a particu-
lar case." N.L.R.B. v. American National Insurance
Co., 343 U.S. 395, 410. It is the total picture shown
by the factual evidence that either supports the
complaint or falls short of the quantum of affirma-
tive proof required by law.
At the outset, it must be noted that "the essential thing
[in collective bargaining ] is the serious intent to
adjust differences and to reach an acceptable common
ground." The maintenance of a "take it or leave it" atti-
tude, without a desire to reach ultimate agreement, is not
good-faith collective bargaining. NLRB v. Insurance
Agents, 361 U.S. 477, 485-486 (1960). There must be "ne-
gotiations-with attendant give and take-between par-
ties carried on in good faith with the intention of reach-
ing agreement through compromise " Winn-Dixie Stores,
243 NLRB 972, 974 (1979), General Electric Co, 150
NLRB 192, 194 (1964). Moreover, an allegation of bad-
faith surface bargaining is neither negated nor mooted by
the fact that the parties may have reached an agreement.
See, for example, Carpenters Local 1780, 244 NLRB 277
would meet only once a week and after working hours, it refused to re-
lease employees for meetings during working hours or to make its own
negotiators available at such times In Endo Laboratories, 239 NLRB 1074
(1978), the finding of bad-faith bargaining was predicated, in part, on the
employer's unilateral imposition of ground rules concerning how an offer
was to be made, on retroactivity, and on the communication of bargain-
ing news to the employees, the scheduling of meetings was not an issue
in that case
41 Canterbury Gardens, 238 NLRB 864 (1978), relied on by the General
Counsel, is completely distinguishable from the instant case In Canter-
bury Gardens, the employer generally refused to respond to the union's
demand for meetings and failed to show up for the one meeting to which
there had been agreement
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1979), San Isabel Electric Services, 225 NLRB 1073, 1079
(1976) and General Electric, supra. Viewing Respondent's
entire course of conduct preceding and during the 1980
negotiations against these general principles, I am com-
pelled to conclude that, although Respondent desired to
sign an agreement with the Union, it had no intention of
reaching that agreement on "common ground," or
"through compromise "
The conduct examined herein begins with the wage
survey administered at each of the plants starting on
April 1, conduct which I have already found violative of
the statutory mandate (Case 39-CA-308) Therein Re-
spondent, in derogation of its obligation to recognize the
Union's exclusive agency status, went directly to em-
ployees hired since the execution of the last agreement to
determine their satisfaction with existing wages and ben-
efits. Moreover, it misled the Union as to its conduct and
refused to share the information it gathered from the unit
employees with the Union. It thus impermissibly armed
itself at the Union's expense for the upcoming negotia-
tions. Thereafter, Respondent unlawfully interfered with
the Union's efforts to increase its membership and its
bargaining strength by prohibiting the distribution of the
"scab" literature (Case 39-CA-275)
In late August, Respondent offered to meet early with
the Union for discussions on the reopener, conduct
which would normally be some evidence of good faith.
However, it seriously circumscribed the conditions under
which it would meet by limiting its offer to meetings
outside the presence of the entire committee When that
offer was rejected, it refused to consider early meetings
with the full committee and turned the Union's refusal
into misleading and divisive propaganda.
Similarly, Respondent proposed limitations on publici-
ty during negotiations and, when the Union rejected that
proposal, took rejection as a license to communicate
however it wished with the employees. Respondent
deemed its right to communicate with the employees to
be equal to that of the Union. In this, I believe, Respond-
ent erred; the rights are not equal because the relation-
ships and obligations are not equal Unions are, in es-
sence, the employees; they are not, as they are so fre-
quently referred to during organizational campaigns,
"third parties " When an employer wishes-or is re-
quired-to deal with its union-represented employees in
regard to wages, hours, and working conditions, it must
respect the fact that its employees have chosen a repre-
sentative. As described earlier, an employer must deal
with its employees through their union and not with that
union through its employees General Electric, supra.
Here I have found that Respondent breached its obliga-
tion to deal exclusively with the Union as the employees'
representative, denigrated the Union and its interests in
bargaining on behalf of the employees, misled the em-
ployees concerning the course of bargaining, and at-
tempted to create an image of itself rather than the
Union as the beneficent protector of their benefits.
Further, I have found that Respondent's delay in the
submission of its counterproposals impeded the kind of
discussions necessary to reach a common ground on the
issues before the parties and was a factor to be weighed
in resolving the surface bargaining allegation.
A final factor to be considered is Respondent's inclu-
sion of the savings plan in its offers of November 24 and
29 and the publicity attendant thereto As previously dis-
cussed, Respondent's offer of a 3-year contract, present-
ed on November 24, included the savings plan Respond-
ent's November 25 "General Notice" described that offer
in detail It further described the Union's rejection as
having been "out of hand " The savings plan was not in-
cluded in Respondent's November 26 offer but was
added to the "last, best, and final" offer of November 29.
At that time, Respondent acknowledged that the plan
was an item not encompassed within the scope of the re-
opener and that bargaining on it was not mandatory Re-
spondent stated its willingness to institute it if the Union
chose to present it to the membership. Respondent was
unwilling, however, to reallocate the cost of the savings
plan to benefits within the scope of the reopener. In the
advertisents run on November 30, the day of the ratifica-
tion vote, Respondent again described the savings plan,
its value to the employees, and its popularity elsewhere,
stating that this was an item which the "company of-
fered-but couldn't insist that the union bring to the
membership." In neither publication concerning the sav-
ings plan was there any mention of the quid pro quo re-
quired for its implementation, the elimination of a less
valuable Christmas bonus plan.
In National Press, 246 NLRB 1071 (1979), the employ-
er refused to negotiate with a recently certified union
while a unit clarification petition was pending. During
that same period, however, it notified the employees of
its desire to grant them a wage increase if the union
would agree and notified the union that it would imple-
ment the increase unless it objected. The Board found
that such conduct undermined the union's relationship
with the employees and precluded it from engaging in
real bargaining. It stated, at 1073:
Thus the Union was in a classic "no-win" situation
If it acceded to the wage increase, the employees
would inevitably assume that all benefits are de-
rived from Respondent rather than through the col-
lective-bargaining process; however, if the Union
rejected the increase the employees may well have
concluded that their representative did not have
their best interests in mind. Thus, either course of
action taken by the Union would undermine its abil-
ity to bargain- effectively on behalf of the employees
it represents.
In a similar vein, the Board has described bargaining tac-
tics which require a union to accept an employer's uni-
laterally determined benefits or appear to the employees
as being opposed to their welfare as presenting a "Hob-
son's choice. "48'Such tactics, the Board held, are "a
most effective means of undermining the collective-bar-
gaining process and denigrating the Union's status as col-
lective-bargaining agent " J. P. Stevens & Co., 239 NLRB
738 (1979), enfd. in relevant part 623 F 2d 322 (4th Cir.
1980).
4 B A choice without an alternative . American Heritage Dictionary, 626.
UNITED TECHNOLOGIES CORP
I am convinced that Respondent's offer of the savings
plan, its timing of that offer so as to preclude any mean-
ingful negotiations, and its publicity placed the Union in
the same "no-win" situation which the Board found in-
dicative of bad faith in National Press It created a "Hob-
son's choice" in the same manner as did J. P. Stevens'
bargaining tactic In terms of the principles enunciated in
General Electric, supra, it tended to discredit the Union
in the employees' eyes and to create the impression that
the Employer rather than the Union was the protector of
the employees' interests The logical effect, particularly
in light of the last minute publicity, was to persuade the
employees to exert pressure on the Union to bend to the
will of the Employer
In sum, I am convinced that Respondent's conduct
throughout the period in question was intended not to
reach agreement "on common ground" through compro-
mise with the Union Rather, it sought to take advantage
of the International union's procedures and constitutional
provisions requiring the adoption of an employer's last
offer unless two-thirds of the employees voted their will-
ingness to strike in support of the Union's demands by
assuring itself that at least one third of those voting on
November 30 would vote to accept Respondent's offer
contrary to the recommendations of the negotiating com-
mittee. In essence, Respondent sought not mutual agree-
ment but a "hung fury " Such a conclusion is compelled
by Respondent's preparation for these negotiations with
an unlawful survey of unit employees so as to determine
how far it would have to go to satisfy at least some of
them, its prohibition of a lawful organizing technique
through which the Union sought to increase its strength
among the employees, its unwillingness to begin the ne-
gotiations early unless the Union was willing to meet
without the full committee, its publicity which denigrat-
ed the Union, its negotiators and their motives and por-
trayed itself as the true protector of the employees' inter-
ests, its delayed presentation of counterproposals so as to
place the maximum pressure on the Union negotiators
and to preclude meaningful discussion, and its unilateral
offer of benefits outside of the scope of the reopener.
Accordingly, I conclude that Respondent engaged in
surface bargaining with no real desire to reach an agree-
ment with the requisite give and take and compromise of
good-faith bargaining and has violated Section 8(a)(5)
and (1) of the Act
(f) Independent 8(a)(1) violations
I have found that about November 26, Foreman Steve
Stroncek warned his employees that they were required
to call in on a daily basis to explain their absences during
a strike and could be subject to discipline if they failed to
do so Unquestionably, such a requirement would dis-
courage employees from striking and thus would inter-
fere with, restrain, and coerce them in the exercise of
their right to strike Respondent, in addition to arguing
that no such threat was made, contended that Respond
ent's power plant publication of November 26 remedied
any misinformation given by Stroncek In that publica -
tion, former NLRB Chairman Farmer is quoted as star -
ing that individual employees were free to work or to
strike without being threatened by either management or
1099
the Union E ven assuming that a written statement from
a stranger co uld negate the coercive effect of a threat by
one's immediate supervisor, I do not find that Farmer's
general asses rance of statutory rights related to or negat-
ed the specific threat uttered by Stroncek Accordingly,
I find that Respondent, by its supervisor and agent
Stroncek, threatened employees in violation of Section
8(a)(1) of tl ie Act.
I do not find, however, that Personnel Advisor Bolles'
questionmi g of two union officers concerning the ratifica-
tion meeti ng held a day earlier violated Section 8(a)(1)
The test of whether conduct violates that section is
whether it has a reasonable tendency to interfere with,
restrain, (,)r coerce employees in the exercise of their stat-
utory rig,hts See, e g , Florida Steel Corp., 224 NLRB 45
(1976) `.uch a tendency is present where interrogation
probes (employee union sentiment and discourages union
activity by conveying the employer's displeasure PPG
Industries, 251 NLRB 1146 (1980) Bolles' questions,
asking ' the employees whether the savings plan had been
mentic ned and generally what had happened at the ratifi-
cation meeting, and asking for their opinion of the con-
tract and of the savings plan, were not likely either to
probe: into the employees' union sentiments or to convey
empl oyer displeasure with union activities. Considering
the timing of these conversations, the casual circum-
stam ces under which they arose, and the questions asked,
I cannot find in this evidence any reasonable tendency to
inte rfere with, restrain, or coerce employees. According-
ly, I shall recommend that this allegation be dismissed.
ADDITIONAL CONCLUSIONS OF LAW
1 By discouraging employees from engaging in lawful
al id protected strike activity through threats of discharge
or other discipline if they failed to call in daily during a
s trike, and by prohibiting the distribution of union orga-
riizational literature referring to nonmembers as scabs or
J .)y other similar terms, Respondent has interfered with,
restrained , and coerced its employees in the exercise of
the rights guaranteed under Section 7 of the Act and has
violated Section 8(a)(1) of the Act.
2. At all times material herein, Local Lodge 707, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO has been the exclusive collective-bargain-
ing representative of Respondent 's employees in the fol-
lowing unit appropriate for the purposes of collective
bargaining:
All production and maintenance employees of the
United Technologies Corporation, Pratt & Whitney
Aircraft Group, Manufacturing Division at its
North Haven, Connecticut plant, including inspec-
tors, crib attendants, material handlers, factory
clerks and working leaders, but excluding timekeep-
ers, engineering and technical employees, laboratory
technicians, foremen's clerks, salaried office and
clerical employees, medical department employees,
first-aid employees, plant protection employees, ex-
ecutives, plant superintendents, division superintend-
ents, general foremen, foremen, assistant foremen,
group supervisors, watch engineers, and all other
1100 DECISIONS Oi F NATIONAL LABOR RELATIONS BOARD
supervisory employees with authority i o hire, pro-
mote, discharge, discipline, or other wise effect
changes in the status of employees, or, effectively
recommend such action
AFL-CIO (Lodge 700) has been the exclusive collective
bargaining representative of Respondent 's employees in
the following unit appropriate for the purposes of collec-
tive bargaining
3 At all times material herein, Lodge 1746-, 4, Interna-
tional Association of Machinists and Aerospace - Workers,
AFL-CIO (Lodge 1746-A), has been the exclusive col-
lective-bargaining representative of Responds ent's em-
ployees in the following unit appropriate for the pur-
poses of collective bargaining:
All production and maintenance employe es of the
United Technologies Corporation, Pratt & 'Whitney
Aircraft Group (Commercial Products Divia,ion and
Manufacturing Division), at its Southingtoi i, Con-
necticut plant, including inspectors, crib atte ndants,
material handlers, factory clerks and workinlg lead-
ers, but excluding timekeepers, engineering and
technical employees, apprentices, trainees, lab orato-
ry technicians, foremen's clerks, salaried office and
clerical employees medical department emplc lyees,
first-aid employees, plant protection employees ex-
ecutives, plant superintendents, division superint end-
ents, general foremen, foremen, assistant forei nen,
group supervisors, watch engineers, and all other
supervisory employees with authority to hire, f to-
mote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectivt-ly
recommend such action.
4 At all times material herein, Lodge 1746, Intern a-
tional Association of Machinists and Aerospace Worker, s,
AFL-CIO (Lodge 1746) has been the exclusive collec -
tive bargaining representative of Respondent's employees
in the following unit appropriate for the purposes of col.
lective bargaining:
All production and maintenance employees of the
United Technologies Corporation, Pratt & Whitney
Aircraft Group (Commercial Products Division and
Manufacturing Division) at their facilities in and
around East Hartford, Connecticut (including the
DE Lab, the Willgoos Lab, and facilities located at
Manchester, Rocky Hill, and Bradley Field) and
Power Systems Division at its facility located at
South Windsor, Connecticut, including inspectors,
crib attendants, material handlers, factory clerks and
working leaders, but excluding timekeepers, engi-
neering and technical employees, laboratory techni-
cians, foremen's clerks, salaried office and clerical
employees, medical department employees, first-aid
employees, plant protection employees, executives,
plant superintendents, division superintendents, gen-
eral foremen, foremen, assistant foremen, group su-
pervisors, watch engineers, and all other superviso-
ry employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend
such action.
5 At all times material herein, Lodge 700, Internation-
al Association of Machinists and Aerospace Workers,
All production and maintenance employees of the
United Technologies Corporation, Pratt & Whitney
Aircraft Group (Commercial Products Division and
Manufacturing Division) at its Middletown, Con-
necticut plant, including inspectors, crib attendants,
material handlers, and working leaders, but exclud-
ing all timekeepers, engineering and technical em-
ployees, professional employees, laboratory techni-
cians, foremen's clerks, salaried office and salaried
clerical employees, medical employees, first-aid em-
ployees, plant protection employees, executives,
plant superintendents, division superintendents, gen-
eral foremen, foremen, assistant foremen, group su-
pervisors, watch engineers, and all other superviso-
ry employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend
such action
6 Since about May 15, 1980, and continuing to date,
Respondent has refused to bargain collectively in good
faith concerning rates of pay, hours of employment, and
other terms and conditions of employment with the
Lodges 707, 1746-A, 1746 and 700 (collectively referred
to as the Union) as the exclusive representatives of its
employees in the aforesaid units by failing and refusing
to bargain with Lodge 707 over the impact of its summer
help program on the bargaining unit, by failing and re-
fusing to provide Lodge 707 with information concern-
ing the summer help program, by dealing directly with
the employees in contravention of the Union's exclusive
representative status by taking a wage and benefit survey
of unit employees without notice to and bargaining with
the Union, by failing and refusing to provide the Union
with information concerning that wage and benefit
survey, by dealing directly with the employees in regard
to the wage and COLA reopener negotiations in contra-
vention of the Union's exclusive representative status and
by engaging in surface bargaining with the Union with
no intention of reaching mutual agreement, all in viola-
tion of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8 Respondent has not otherwise engaged in conduct
violative of the Act as alleged in the complaints
THE REMEDY
It having been found that Respondent has engaged in
tinfair labor practices in violation of Section 8(a)(1) and
( 5) of the Act, it will be recommended that Respondent
c ease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully prohibit-
ed the distribution of certain union organizational litera-
tare within all four of these plants, I shall recommend
UNITED TECHNOLOGIES CORP
that its order or rule be revoked and that the notice per-
taining thereto be posted in each of those plants
As I have found that Respondent unlawfully refused
to give the Union relevant information which it had re-
quested, I shall order that Respondent furnish the Union
with the requested information concerning both the
summer-help program and the wage and benefit survey
taken among its employees
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed49
ORDER
The Respondent, Pratt & Whitney Aircraft Division,
United Technologies Corporation, Hartford, Connecti-
cut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing employees
in the exercise of their Section 7 rights by discouraging
employees from participating in lawful and protected
strike activity by threatening them with discharge or
other disicplme if they fail to call in daily during a strike
against Respondent or by prohibiting the distribution of
union organizational literature which describes non-
members as scabs or by other similar terms
(b) Refusing to bargain in good faith with Lodges 707,
1746-A, 1746 and 700 as the certified collective-bargain-
ing representatives of the employees in the appropriate
collective-bargaining units described in the section of this
decision entitled "Additional Conclusions of Law" by re-
fusing to bargain with Lodge 707 concerning the impact
of the summer-help program on the bargaining unit, by
failing and refusing to provide Lodge 707, on request,
with information concerning its summer-help program,
by dealing directly with the employees in contravention
of the Union's exclusive representative status by taking a
wage and benefit survey of employees without notice to
or bargaining with the Union, by failing and refusing to
furnish the Union, on request, with information concern-
ing that wage and benefit survey, by dealing directly
with its employees in contravention of the Union's exclu-
49 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
1101
sive representative status through its communication
campaign concerning the wage and COLA reopener ne-
gotiations, and by engaging in surface bargaining with no
intention of reaching mutual agreement in regard to
wages and other terms and conditions of employment
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2 Take the following affirmative action necessary to
effectuate the purposes of the Act
(a) Revoke its order or rule prohibiting employees
from in-plant distribution of union organizational litera-
ture which describes nonmembers as scabs or by other
similar terms
(b) On request, bargain collectively with Lodge 707
and the Union generally by furnishing them with the in-
formation they requested concerning the summer- help
program and the wage and benefit survey
(c) On request, bargain collectively with Lodges 707,
1746-A, 1746, and 700 as the exclusive representatives of
all of the employees in the appropriate units with respect
to rates of pay, wages, hours, and other terms and condi-
tions of employment and, if understandings are reached,
embody such understandings in signed agreements 50
(d) Post at its plants in North Haven, Southington,
East Hartford, and Middletown, Connecticut, copies of
the attached notice marked "Appendix."51 Copies of the
notice, on forms provided by the Officer in Charge of
Region 39, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Officer in Charge of Region 39 in writ-
ing within 20 days from the date of this Order what
steps the Respondent has taken to comply
50 Nothing herein is to be construed as impinging in any way upon the
validity of the collective-bargaining agreements executed by the parties
hereto sometime following November 30, 1980
53 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "