United Technologies Corp.

National Labor Relations Board - Board Decisions

Jan 9, 1989

292 N.L.R.B. 248 (N.L.R.B. 1989)

248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Technologies Corporation and International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, District 91 and Local Lodge
700, Canel Lodge , International Association of
Machinists and Aerospace Workers, AFL-CIO
Cases 39-CA-1638 and 39-CA-1732
January 9, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 16, 1987, the National Labor Rela
tions Board issued a Decision and Order' that,
among other things, adopted the administrative law
judge's conclusion that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally
excluding employees in the job classification of
production control coordinator (PCC) from pro-
duction and maintenance bargaining units at four of
the Respondent's plants The Board filed an apple
cation for enforcement of its Order with the United
States Court of Appeals for the Second Circuit 2 In
its brief to the court the Respondent argued,
among other things, that the portion of the Board's
Order requiring the Respondent to bargain with
the Union over the continued status of PCCs as
bargaining unit employees" improperly required
the Respondent to bargain over the scope of the
unit, a nonmandatory subject of bargaining On
September 19, 1988, the Board moved the court to
remand the case to permit the Board to reconsider
its Decision and Order On October 14, 1988, the
court granted the Board's motion
On October 21, 1988, the Board notified the par
ties that it was reconsidering its decision to the
extent that it orders the Respondent to `bargain
with the exclusive bargaining agents over the con
tinued status of PCCs as bargaining unit employ
ees"' and invited the parties to file statements of
position The General Counsel and the Union filed
statements of position arguing that the Board
should clarify the Order by deleting the provision
requiring the Respondent to bargain with the
Union over the continued status of PCCs as bar
gaining unit employees The Respondent filed a
statement of position contending that the Board
should dismiss the allegation that the Respondent
violated the Act by excluding employees in the job
1 287 NLRB 198 Member Cracraft did not participate in the decision
2 The Union also filed a petition for review of another portion of the
Boards Order in which the Board (Member Johansen dissenting) had
dismissed an allegation that the Respondent had violated Sec 8 (a)(5) and
(1) of the Act by unilaterally altering progressive discipline procedures
for absenteeism
classification of PCC from the four production and
maintenance bargaining units
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Having considered the parties ' statements of po
sition and our Decision and Order in this case, we
conclude that the portion of the Order requiring
the Respondent to bargain over the continued
status of PCCs as bargaining unit employees and
the rationale that is the predicate for this portion of
the Order are in error The complaint in this case
did not allege that the Respondent 's decision to im-
plement a new computerized inventory and pro
duction control system violated the Act The
judge, nevertheless , addressed this question and
specifically found that under Otis Elevator Co 3 and
First National Maintenance Corp v NLRB4 the Re
spondent s decision to implement this new system
was not a mandatory subject of bargaining 5 Con
tinuing this analysis, the judge went on to find that
the Respondent 's exclusion of PCCs from the bar-
gaining units was an effect of the Respondent's de
cision to adopt a new inventory and production
control system and that , therefore , the Respond
ent's failure to bargain over its exclusion of PCCs
from the units violated its duty to engage in effects
bargaining Switching his mode of analysis, the
judge further found the Respondent 's exclusion of
PCCs from the bargaining units to violate the Re
spondent 's duty to bargain under the theory of Bay
Shipbuilding Corp 6 and predecessor cases, which
hold that an employer violates the Act when, with-
out the agreement of the union , it removes a sub
stantial group of employees from a bargaining unit
without showing that the group is sufficiently dis
similar from the remainder of the unit to warrant
removal
Because the judge found that the exclusion of
PCCs from the bargaining units violated Section
8(a)(5) and ( 1) of the Act under the theory of Bay
Shipbuilding, in his remedy he recommended that
the Respondent be ordered to recognize the PCCs
as members of the units, to apply the collective
bargaining agreements to the PCCs, and to make
them whole for any losses they might have suf-
fered as a result of their exclusion from the units
Although he incorporated these provisions in his
Order , he included an additional provision in his
Order at paragraph 2(a), apparently based on his
3 269 NLRB 891 (1984)
4 452 US 666(1981)
5 In our earlier decision at fn 2 we noted that no party had excepted
to this finding and that therefore it was unnecessary for us to pass on
the judge s analysis of Otis Elevator Co
6 263 NLRB 1133 (1982)
292 NLRB No 42
UNITED TECHNOLOGIES CORP 249
effects bargaining theory, requiring the Respondent
to bargain with the Union over the continued
status of PCCs as bargaining unit employees He
also ordered the Respondent to cease and desist
from excluding PCCs from the bargaining units
without notice to or bargaining with the Union
No party in earlier arguing its position to us
raised the inconsistency of these provisions or the
rationales on which they were based, and we
adopted the portion of the judge's decision finding
that the Respondent's exclusion of PCCs from the
bargaining units violated Section 8(a)(5) and (1) of
the Act, as we agreed with this conclusion On re-
consideration, however, we now find it appropriate
to address this matter
Assuming arguendo that the judge was correct
that the Respondent's decision to implement a new
computerized inventory and production control
system was not a mandatory subject of bargaining,7
we do not agree with his finding that the Respond
ent's exclusion of PCCs from the bargaining units
was an effect of this decision Rather, the effect of
the Respondent's decision on unit employees was
that certain unit employees, known as expediters,"
were required to perform their inventory-tracking
function with new tools, i e , computers, and were
assigned to the new PCC job classification The
Respondent's decision to consider the PCC job
classification as outside the bargaining units was
not simply an effect of the Respondent's adoption
of its new inventory and production control
system There was nothing about implementation
of the new system that mandated that the new
PCC position be outside the units Rather, the Re
spondent's decision to regard PCCs as nonunit em-
ployees was an entirely separate matter Further,
the complaint did not allege that the changes in the
expediters' work occasioned by the Respondent's
computerization of its inventory and production
control system violated the Act Thus, it was not
contended that these changes constituted an effects
bargaining violation
Moreover, there is an additional basis for con
cluding that the Respondents exclusion of PCCs
from the bargaining units was not a matter for ef-
fects bargaining As the Respondent now correctly
points out, unit scope is not a mandatory subject of
bargaining and, thus, neither party may be required
to bargain about it 8 It was, therefore, improper to
7 As noted above no party excepted to the judge s conclusion that this
decision did not concern a mandatory subject of bargaining and it is un
necessary for us to resolve this question
8 Bozzuto s Inc 277 NLRB 977 (1985) Because unit scope is not a
mandatory subject of bargaining a change in unit scope was not a matter
on which the Respondent could insist to impasse or implement Cf
Franklme Inc 287 NLRB 263 264 at fn 8 (1987)
order the Respondent to bargain concerning the
unit status of PCCs Accordingly, we decline to
adopt the judge's conclusion that the Respondent
committed an effects bargaining violation by ex-
cluding PCCs from the bargaining units, and we
shall delete from the Order the provision requiring
the Respondent to bargain concerning the contin
ued status of PCCs as unit employees
We continue to agree, however, with the judge's
conclusion that the Respondent's exclusion of the
PCC classification from the bargaining units violat-
ed Section 8(a)(5) and (1) of the Act on the basis of
the Bay Shipbuilding theory, and we adopt his anal-
ysis in this regard 9 It follows from this theory of
the violation that the judge's recommended Order
should be modified to require the Respondent to
cease and desist from excluding PCCs from the
bargaining units without the agreement of the
Union 10 We therefore shall enter an order incor
porating the modifications made to the judge's rec
ommended Order in our original decision and fur
ther modifying the recommended Order to require
the Respondent to cease and desist from excluding
PCCs from the bargaining units without the agree-
ment of the Union Additionally, as discussed
above, we shall delete the requirement that the Re-
spondent bargain over the status of PCCs as bar
gaining unit employees
ORDER
The National Labor Relations Board orders that
the Respondent, United Technologies Corporation,
North Haven, Southington, East Hartford, South
Windsor, and Middletown, Connecticut, its offi-
cers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Excluding production control coordinators
(PCCs) from the collective-bargaining units found
appropriate at each of the Connecticut facilities
without the agreement of North Haven Aircraft
Lodge 707, Industrial Aircraft Lodge 1746-A, In
dustrial Aircraft Lodge 1746, and Lodge 700,
Canel Lodge, all of the International Association of
Machinists and Aerospace Workers, AFL-CIO
9 We do not completely agree with his characterization of Bay Ship
building as holding that employers violate the Act when they without
bargaining replace bargaining unit jobs with nonunit positions or transfer
substantial groups of employees out of the unit (emphasis added) As
unit scope is a nonmandatory subject of bargaining see fn 8 above it is
not merely bargaining but rather agreement that is required before unit
jobs are transformed into nonumt jobs In the present case there was net
ther agreement nor bargaining on the exclusion of PCCs from the bar
gaining units
10 We shall not include in our Order an exception that would allow
exclusion of the PCCs from the units if the Respondent shows that they
are sufficiently dissimilar from the other unit employees to warrant exclu
sion The Respondent has had an opportunity to make this showing and
has failed to do so
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Recognize the PCCs as part of the collective-
bargaining units found appropriate at each of the
Connecticut facilities and apply to the PCCs the
terms of the collective bargaining agreements cov
ering those units
(b) Make the PCCs whole for any losses they
may have incurred as a result of their unlawful ex
clusion from the bargaining units and from cover-
age of the collective-bargaining agreements, in the
manner prescribed in the remedy section of the
judge's decision
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(d) Post at its facilities at Middletown, North
Haven, East Hartford, South Windsor, and South-
ington , Connecticut copies of the attached notice
marked "Appendix "i i Copies of the notice, on
forms provided by the Regional Director for
Region 34, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main
tained for 60 consecutive days in conspicuous
places including all places where notices to em
ployees are customarily posted Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
" If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT exclude production control coor-
dinators (PCCs) from appropriate bargaining units
of production and maintenance workers without
the agreement of North Haven Aircraft Lodge 707,
Industrial Aircraft Lodge 1746 A, Industrial Air
craft Lodge 1746, and Lodge 700, Canel Lodge, all
of the International Association of Machinists and
Aerospace Workers, AFL-CIO
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
case of the rights guaranteed you by Section 7 of
the Act
WE WILL recognize the PCCs as part of the col
lective bargaining units of production and mainte-
nance workers at each of the plants listed below
and we will apply to the PCCs the terms of the
collective-bargaining agreements covering those
units
United Technologies Corporation, Pratt &
Whitney Aircraft Group, Manufacturing Divi-
sion, North Haven, Connecticut plant
United Technologies Corporation, Pratt &
Whitney Aircraft Group (Commercial Prod-
ucts Division and Manufacturing Division),
Southington, Connecticut plant
United Technologies Corporation, Pratt &
Whitney Aircraft Group (Commercial Engi-
neering and Manufacturing Division), East
Hartford, Connecticut (including the DE Lab,
the Willgoos Lab, facilities located at Man
chester and Rocky Hill) and Power System
Division, South Windsor, Connecticut plant
United Technologies Corporation, Pratt &
Whitney Aircraft Group (Commercial Engi-
neering and Manufacturing Division), Middle
town, Connecticut plant
WE WILL make the PCCs whole for any losses
they may have incurred as a result of their exclu-
sion from the bargaining units and from coverage
of the collective-bargaining contracts, with interest
UNITED TECHNOLOGIES CORPORA
TION