United Technologies Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1990

300 N.L.R.B. 902 (N.L.R.B. 1990)

902
300 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 We also note that, for the purpose of determining what rates of pay will
apply on the following day, the Saturday shift was treated as analogous to the
Friday shift. Thus, an employee was not paid time-and-a-half rates for work
during the first 8 hours ‘‘of any scheduled shift which begins on Friday and
continues on Saturday’’; and an employee was not paid at Sunday double-time
rates for work during the first 8 hours ‘‘of any scheduled shift beginning the
preceding day and continuing into the Sunday’’ (art. XII, sec. 1).
3 See 2 Coll. Barg., Negotiations and Contracts (BNA) at 57:1-57:3, 57:11
(daily work schedules specified in 85 percent of surveyed collective-bargaining
agreements; weekly schedules specified in 61 percent of such agreements).
United Technologies Corporation, Hamilton Stand-
ard Division and Hartford Aircraft Lodge No.
743, International Association of Machinists
and Aerospace Workers, AFL–CIO. Case 39–
CA–3575
December 14, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 1, 1988, Administrative Law Judge James
F. Morton issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, the Respondent filed cross-excep-
tions, an answering brief, and a brief in support of its
cross-exceptions, and the Charging Party filed an an-
swering brief in opposition to the Respondent’s cross-
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
In adopting the judge’s finding that the Union
waived its right to bargain over the increase in the
length of the Saturday overtime shift from 5 to 8
hours, we have considered (1) the language in the col-
lective-bargaining agreement’s management functions
clause permitting the Respondent unilaterally to deter-
mine ‘‘shift schedules and hours of work,’’ (2) the
agreement as a whole (including the scope of the sepa-
rate article on overtime), and (3) the parties’ discus-
sions in 1984, when the Respondent had reduced the
Saturday overtime shift from 8 to 5 hours.
Unlike our dissenting colleague, we find no ambi-
guity in the language of the management functions
clause pertaining to ‘‘shift schedules and hours of
work.’’ Because it is without qualifying language, it
plainly authorizes the Respondent to determine the
hours of scheduled shifts whether they occur on Satur-
day, when employees are paid at a premium rate, or
on a weekday. It is important in this regard that the
Saturday overtime at issue here is not the kind of un-
predictable overtime, varying from day to day or week
to week, that is distinct from shift work. Employees
who reported for work on a Saturday worked a regu-
larly scheduled shift, although they were paid at a
higher rate (time-and-one-half).
Contrary to our dissenting colleague, we see nothing
in the ‘‘Overtime’’ article (art. XII) of the agreement
that calls our reading of the management functions
clause into question. That article is confined to de-
scribing the work for which premium rates will be
paid, providing for equal distribution of overtime
among employees who regularly perform that type of
work, and determining the rate for occasions when two
different premium pay rates apply to the same hours
(e.g., when a paid holiday falls on Saturday). Nothing
in the overtime article suggests it was intended to ad-
dress, even implicitly, the matter of when shifts would
begin or end.2 Finally, we note that the agreement,
contrary to common industry practice, contains no pro-
vision setting out any particular shift or hours-of-work
schedule.3 This omission is yet one more indication
that the parties intended for the Respondent to have
broad discretion in this area.
We also disagree with our dissenting colleague on
the significance of the bargaining that took place in
1984, when the Respondent reduced the Saturday shift
from 8 hours to 5 hours. Even assuming arguendo that
a single incident of apparently voluntary bargaining
over a subject specified in a management-rights clause
would be sufficient to negate plain language listing the
matter as a management prerogative, we do not regard
the events surrounding the Respondent’s 1984 imple-
mentation of a Saturday shift change as establishing
that the parties had not agreed that the Respondent
could make such a change unilaterally. That is, the
parties’ conduct at that time does not in our view
render the language of the management functions
clause ambiguous.
As our dissenting colleague notes, the judge found
that, in 1984, after the Respondent told the Union of
its desire to reduce the Saturday shift from 8 to 5
hours, representatives of the parties discussed the mat-
ter and ‘‘reached an agreement.’’ No copy of any such
agreement was produced at the hearing in this case,
but the judge found that the substance of the agree-
ment reached was incorporated in a memorandum sent
by John Berg, the Respondent’s manager of personnel
relations, to its manager of mechanical manufacturing.
The Berg memorandum recites certain ‘‘guidelines we
have mutually agreed to in an effort to insure the dis-
tribution of overtime work is fairly administered within
the requirements of our contractural [sic] agreement.’’
Because section 2 of the ‘‘Overtime’’ article of the
903UNITED TECHNOLOGIES CORP.
4 Because we accept the judge’s factual finding that the parties had reached
agreements in 1984 in connection with the Respondent’s reduction of the
length of the Saturday shift, we are not, as our dissenting colleague states,
overturning any credibility finding of the judge. We simply differ with the
judge on what inferences to draw from the 1984 bargaining. As indicated
above, we find that because the Respondent was legally obligated to ensure
that the shift change did not result in violations of the overtime distribution
provisions of the collective-bargaining agreement, it had reason to negotiate
generally on the subject. The Union would be less likely to grieve, or to pre-
vail on grievances, concerning overtime distribution if it had been involved in
the institution of the reduced hours. And it made sense to set out the entire
arrangement in written form. We find nothing in either the memorandum of
the substance of the agreement or the credited testimony of what actually oc-
curred that establishes that either party regarded the Respondent as having an
obligation to bargain about every aspect of the shift change.
5 We do not agree with the judge that par. 3 in the memorandum suggests
that the Respondent thereby agreed to a 5-hour Saturday schedule. That para-
graph reads as follows:
Employees scheduled for five hours work on Saturday will not be asked to
work beyond that time, except for emergent unplanned reasons. Here again,
the Union is concerned the reduced Saturday overtime work hours will result
in supervision making routine exceptions to the policy and allowing some fa-
vored employees to work beyond the normal five hour scheduled.
By its terms, this paragraph addresses only the circumstance of employees
‘‘scheduled for five hours work’’—not the question of changing the Saturday
shift schedule for all employees at some later date. Furthermore, it is tied in
with the contractual provision concerning equal distribution, which the Re-
spondent undoubtedly wanted to avoid violating.
We similarly do not find any conflict between our reading of the manage-
ment functions clause and the Berg memorandum’s reference to the parties’
plan to assess the ‘‘success’’ of the 5-hour Saturday schedule at the end of
a 90-day period. This is consistent both with the Respondent’s acknowledge-
ment of its obligations under the equal-distribution clause and with an under-
standable desire to encourage employee support of the Respondent’s manage-
ment initiatives.
6 By not reaching implementation agreements with the Union, as it had in
1984, the Respondent risked violating the contract’s equal-distribution provi-
sion. Of course, the Union was free to file grievances if the schedule change
resulted in the kinds of inequalities in overtime distribution that the provision
was designed to prevent.
collective-bargaining agreement in effect in 1984, like
the one in the 1986–1989 agreement, set out certain
conditions aimed at avoiding favoritism and ensuring
equal distribution of overtime among qualified employ-
ees, it made sense for the Respondent to discuss the
schedule change with the Union and to reach various
agreements on its implementation so as to assure that
the Respondent would not run afoul of the equal dis-
tribution provision. We do not view the bargaining that
occurred over those agreements as inconsistent with
the Respondent’s right to determine the hours of the
Saturday shift unilaterally.4 Indeed, the agreements de-
scribed in the Berg memorandum include the Respond-
ent’s promise that it ‘‘will communicate to the Union
when it becomes aware of significant scheduling prob-
lems or other emergent conditions requiring the [Re-
spondent] to revert to the regular eight hour overtime’’
(emphasis added).5 In fact, that is what the Respondent
did in 1987 when it made the change at issue here. It
communicated to the Union that new conditions (prob-
lems with overdue shipments) necessitated a reversion
to the former 8-hour Saturday overtime schedule.6
In sum, nothing in the parties’ bargaining history or
in other provisions of the collective-bargaining agree-
ment suggests to us that the management functions
clause meant other than what it plainly said. The Re-
spondent possessed the ‘‘sole right and responsibility’’
to determine ‘‘shift schedules and hours of work.’’ By
agreeing to that clause, the Union clearly and unmis-
takably waived its right to demand bargaining over the
decision to change the regular Saturday shift schedule
from 5 hours to 8 hours.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER DEVANEY, dissenting.
My colleagues find that the Union’s right to bargain
over the Respondent’s change of Saturday overtime
hours was waived by ambiguous language in the col-
lective-bargaining agreement’s management functions
clause, despite the judge’s finding that the Respondent
had bargained with the Union over a change in Satur-
day overtime hours just 3 years earlier. I would find
that the Union did not waive its right to bargain and
that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally changing Saturday overtime
from 5 hours to 8 hours.
The Respondent and the Union were parties to a col-
lective-bargaining agreement effective from April 25,
1983, through April 27, 1986, and a successor agree-
ment effective from April 28, 1986, through April 30,
1989. Both agreements contained an article entitled
‘‘Management Functions’’ that stated, in part: ‘‘[T]he
company has and will retain the sole right and respon-
sibility to direct the operations of the company and in
this connection to determine . . . shift schedules and
hours of work.’’ Both agreements also contained a sep-
arate article concerning overtime.
Before 1984, the Respondent operated an 8-hour
overtime shift on Saturdays. In late 1983, John Berg,
the Respondent’s manager of personnel relations, pro-
posed to Philip Bellico, the Union’s president, that the
Saturday overtime shift be reduced from 8 to 5 hours,
because there were not enough employees volunteering
for the 8-hour shift. Bellico met with Berg several
times concerning this proposal. Ultimately, they
reached agreement on a 5-hour Saturday shift after the
Respondent assented to conditions addressing the
Union’s concerns, including retaining 8-hour overtime
shifts on holiday weekends and not increasing over-
time before and after shifts on weekdays. The sub-
stance of the agreement was contained in a memo-
randum Berg sent to the Respondent’s manager of me-
chanical manufacturing, the second paragraph of which
stated:
as a result of . . . discussions, the Company and
the Union have mutually agreed to a ninety (90)
day trial period for voluntary first and second
shift employees to work a five (5) hour day on
Saturdays.
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 United Technologies Corp., 287 NLRB 198 (1987).
2 Chef’s Pantry, 274 NLRB 775 fn. 6 (1985).
3 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
4 Although it is true, as my colleagues note, that neither the overtime article
nor any other provision of the contract sets shift schedules, it is also beside
the point. The complaint allegation is not that the Respondent, in changing
Saturday overtime hours, departed from the terms of the contract. Rather, the
contract is relevant only to the issue of whether the management functions
clause clearly and unmistakably waived the Union’s statutory right to bargain
over the change in Saturday overtime hours. Thus, the absence from the con-
tract of a provision setting forth shift schedules establishes little. The existence
of a separate article concerning overtime, however, tends to show that the par-
ties regarded overtime as a separate and distinct subject that might not be en-
compassed by general language in the management-rights clause concerning
shift schedules and hours of work.
5 In attempting to reconcile the Respondent’s 1987 unilateral change in Sat-
urday overtime with the parties’ bargaining history, my colleagues characterize
the parties’ 1984 bargaining as concerning not the decision to change Saturday
overtime from 8 to 5 hours but only how that decision would be implemented.
In so doing, my colleagues ignore the facts found by the judge. Although, as
my colleagues note, the memorandum setting forth the substance of the 1984
agreement contained guidelines to insure fair distribution of overtime work, the
guidelines constitute only a portion of the memorandum. They are preceded
by an explicit statement, quoted above, that the Company and the Union have
‘‘mutually agreed’’ to employees’ working 5 hours overtime on Saturdays for
a trial period. The judge set out the entire memorandum in his decision. Addi-
tionally, the judge noted that Union President Bellico testified that the 1984
negotiations over Saturday overtime began when Personnel Relations Manager
Berg stated that ‘‘he wanted to discuss the possibility of reducing the Saturday
overtime shift from 8 hours to 5 hours.’’ Berg, on the other hand, testified
that he merely informed Bellico that the Respondent had ‘‘decided to go with
a 5 hour work schedule’’ on Saturdays and asked Bellico if he saw any prob-
lems. Analyzing these two accounts, the judge stated:
Were it necessary to choose between them, I would accept Bellico’s.
Berg’s account, insofar as it may suggest that he was merely notifying
Bellico of a fait accompli would not stand in view of the statement in
his 25 January memorandum that agreement had been reached between
him and Bellico.
Based on this credibility determination, among other things, the judge con-
cluded that, ‘‘the 1984 negotiations as to Saturday overtime show clearly that
Respondent and the Union had never agreed in prior contract negotiations that
Respondent could unilaterally modify overtime hours.’’ In reversing this con-
clusion, my colleagues, without justification or acknowledgement, are over-
turning the judge’s credibility determination and factual findings on which the
conclusion was based.
A ‘‘guideline’’ in the 1984 agreement on Saturday overtime providing that
the Respondent would communicate to the Union when it became aware of
problems or conditions requiring reversion to 8 hours’ overtime is not contrary
to the judge’s conclusion that the 1984 negotiations showed that the parties
had not agreed that the Respondent could unilaterally modify overtime hours.
This guideline merely reiterated the Respondent’s statutory obligation to notify
the Union when it desired to change Saturday overtime hours. Such notifica-
tion, of course, is consistent with, and a prerequisite to, bargaining over such
a change.
At the end of the 90-day trial period, the 5-hour Satur-
day overtime policy was retained.
The 5-hour Saturday overtime policy continued in
effect until early 1987. On or about April 20, 1987,
Tutch Shirane, the Respondent’s manager of labor rela-
tions, telephoned Mark Bond, who was then the
Union’s president, and told him that employees would
be notified the following day that the Saturday over-
time shift for the Respondent’s manufacturing oper-
ations employees was being increased from 5 hours to
8 hours, because the Respondent was having a problem
with overdue shipments and needed the additional
hours of work. Bond asked if the increase in Saturday
overtime was negotiable, and Shirane replied that it
was not. The change went into effect the following
day.
The judge, whose decision my colleagues in most
respects adopt, stated that, in his view, the 1984 nego-
tiations regarding Saturday overtime showed clearly
that the Respondent and the Union had never agreed
in prior contract negotiations that the Respondent
could unilaterally modify overtime hours. The judge
nevertheless found that an earlier United Technologies,
case1 compelled a conclusion that the Respondent’s
April 1987 unilateral change in Saturday overtime
from 5 hours to 8 hours did not violate the Act. Ac-
cording to the judge, the earlier decision had held that
a prior instance in which the Respondent had bar-
gained over a change in its disciplinary procedure for
absenteeism did not compromise the Respondent’s
contractual right subsequently to change that discipli-
nary procedure unilaterally.
It is well settled that overtime constitutes a manda-
tory subject of bargaining.2 Thus, the Respondent’s
unilateral change in Saturday overtime is a violation of
the Respondent’s obligation to bargain concerning a
change in mandatory bargaining subject, unless the
Union has waived its right to bargain over this change.
To waive a statutorily protected right, however, ‘‘the
waiver must be clear and unmistakable.’’3
I find no clear and unmistakable waiver of the
Union’s right to bargain over the change in Saturday
overtime. The language of the management functions
clause authorizing the Respondent to determine ‘‘shift
schedules and hours of work’’ may well be understood
as authorizing the Respondent to set unilaterally such
matters as shift starting and ending times for regular
weekday work shifts. The collective-bargaining agree-
ment contains a separate article devoted entirely to the
subject of overtime and the management functions
clause makes no mention of overtime. The manage-
ment functions language concerning ‘‘shift schedules
and hours of work’’ may, therefore, reasonably be un-
derstood as applicable only to the regular workweek
and not to weekend overtime. Because it is, at the very
least, ambiguous whether the ‘‘shift schedules and
hours of work’’ language of the management functions
clause was intended to encompass weekend overtime,
I cannot conclude that this language clearly and unmis-
takably waived the Union’s statutory right to bargain
over a change in Saturday overtime.4
Moreover, I agree with the judge that the parties’
bargaining history demonstrates that both parties un-
derstood that the Union’s right to bargain over changes
in Saturday overtime was not waived by the manage-
ment functions clause of the contract. As described
above, when the Respondent wanted to change Satur-
day overtime from 8 hours to 5 hours in 1984, the Re-
spondent negotiated this change with the Union.5
In this regard, I find this case distinguishable from
the United Technologies decision that the judge found
905UNITED TECHNOLOGIES CORP.
controlling. In that case, the Board found that language
in the management functions clause permitting the Re-
spondent to make rules for discipline waived the
Union’s right to bargain over the Respondent’s change
in progressive discipline procedures for absenteeism,
i.e., omitting suspensions as a step in the discipline.
Five or six years before that change, the Respondent
had attempted to change unilaterally certain other dis-
ciplinary rules but, after unfair labor practice charges
were filed, the Respondent had ultimately agreed to
bargain over the rule changes as part of a settlement
of the charges. The Board found that, as parties can
have many different reasons for agreeing to settle un-
fair labor practice charges, this prior bargaining did not
cast doubt on the meaning of the language in the man-
agement functions clause reserving the Respondent the
right to make rules for discipline.
Unlike that case, however, the Respondent here bar-
gained over the 1984 change in Saturday overtime
without attempting to make the change unilaterally,
and its offer to bargain over the change was not made
under the pressure of pending unfair labor practice
charges or done as a means of settling charges. More-
over, here, unlike the change in the discipline policy
for absenteeism in the prior case, the earlier change
over which the Respondent had willingly bargained
concerned precisely the same subject as the change
now at issue and occurred only 3 years before this
change. Thus, contrary to the judge, in determining the
Respondent’s bargaining obligation here, I do not find
that the weight to be given the 1984 bargaining is con-
trolled by the Board’s view of prior bargaining under
dissimilar circumstances in the earlier United Tech-
nologies case. Rather, I find that the bargaining over
the 1984 change in Saturday overtime clearly dem-
onstrates the parties’ understanding that the Union had
retained its right to bargain over such a change. Ac-
cordingly, I would find that the Respondent’s unilateral
change in Saturday overtime in 1987 violated Section
8(a)(5) and (1) of the Act.
Michael A. Marchionese, Esq., for the General Counsel.
Philip I. Kruger, Esq., for United Technologies Corporation.
James M. Parent, representing Hartford Aircraft Lodge No.
743, International Association of Machinists and Aero-
space Workers, AFL–CIO
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that United Technologies Corporation, Ham-
ilton Standard Division (Respondent) has violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act)
by having implemented and maintained since 30 April 1987,
an 8-hour Saturday overtime policy for employees in a unit
represented by Hartford Aircraft Lodge No. 743, Inter-
national Association of Machinists and Aerospace Workers,
AFL–CIO (the Union) without having given the Union an
opportunity to bargain. Respondent, in its answer, contends
that the Union, by having agreed to a broad management-
rights clause in its contract with Respondent and also by its
failure to request bargaining in a timely manner, had waived
any right it might have to require Respondent to bargain col-
lectively as to the changes in shift schedules and losses of
work as contemplated in the general notice Respondent
issued on 21 April 1997.
On the entire record, including my observation of the de-
meanor of the witnesses and after due consideration of the
briefs filed by the General Counsel and Respondent I make
the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The pleadings establish and I thus find that Respondent
manufactures and sells aerospace products and that its oper-
ations meet the Board’s jurisdictional standard for nonretail
concerns. The pleadings also establish and I further find that
the Union is a labor organization as defined in Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
1. Relevant contract provisions
The Union since about 31 December 1968, has represented
a unit of all production and maintenance employees of Re-
spondent at five plants in Connecticut. Article I of the collec-
tive-bargaining agreement covering these employees and
which was in effect from 25 April 1983 through 27 April
1986 and article I of the successor agreement, effective
through 30 April 1989, read:
Management Functions
It is recognized that in addition to other functions
and responsibilities, (Respondent) has and will retain
the sole right and responsibility to direct the operations
of (Respondent) and in this connection to determine the
number and location of its plants; the product to be
manufactured; the types of work to be performed; the
assignment of all work to employees or other persons;
the schedules of production; shift schedules and hours
of work; the methods, processes, and means of manu-
facturing; and to select, hire, and demote employees, in-
cluding the right to make and apply rules and regula-
tions for discipline, efficiency, production and safety.
It shall also have the right and responsibility to dis-
charge or otherwise discipline any employee for just
cause, to promote and transfer, and to lay off because
of lack of work or other cause, unless otherwise herein-
after provided.
Article XII of those agreements provides, inter alia,
that employees will be paid at time and a half rates for
Saturday work and that overtime work will be distrib-
uted equally among qualified employees.
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The earlier change in Saturday overtime work
Respondent for years had operated an 8-hour shift on Sat-
urdays. This shift was staffed with volunteers from the unit
represented by the Union. In late 1983, Respondent was ex-
periencing problems in getting enough volunteers for this
shift.
Philip Bellico testified as follows for the General Counsel.
He was president of the Union in 1983 and 1984. When he
was elected president in 1983, Respondent sought a ‘‘better
relationship’’ with the Union in view of the large number of
outstanding grievances. In that context, Respondent’s man-
ager of personnel relations then, John Berg, called him to his
office and said that he wanted to discuss the possibility of
reducing the Saturday overtime shift from 8 hours to 5 hours
because there were not enough volunteers to work the full
shift. Bellico replied that he would talk to the employees
who had just served on the union committee which earlier
that year took part in negotiating the 1983–1986 agreement
discussed above. Bellico related that he was met with consid-
erable internal opposition. He informed Berg of this and,
after several meetings between them, they reached an agree-
ment which was approved first by James Botellio, Respond-
ent’s manager of mechanical manufacturing and other offi-
cials and then by the Union’s executive board. The substance
of that agreement is contained in a memorandum Berg sent
to Botellio on 25 January 1984 which reads:
Pursuant to your request, I have met with our Union
representatives to discuss the implementation of a five
hour Saturday overtime work schedule for first and sec-
ond shift manufacturing department employees. During
these discussions, I have attempted to impress upon the
Union, the company does expect its Manufacturing De-
partment employees will be working continuing Satur-
day overtime schedules throughout the year in order to
meet our production commitments. They were told
management of the Manufacturing Departments has,
therefore, been exploring options to insure our sched-
uled requirements are attained, while at the same time,
be cognizant of the demands protracted overtime sched-
uling places upon the hourly work force. Our goal,
therefore, is to maintain a high degree of morale, im-
prove our productivity during overtime work hours and
meet the schedule.
As a result of those discussions, the Company and
the Union have mutually agreed to a ninety (90) day
trial period for voluntary first and second shift employ-
ees to work a five (5) hour day on Saturdays.
Listed below are guidelines we have mutually agreed
to in an effort to insure the distribution of overtime
work is fairly administered within the requirements of
our contractural agreement.
1. The five hour Saturday overtime work schedule
will be tried for ninety (90) days and its success will
be assessed and considered by both parties at that time.
2. Except for emergent reasons, there will be no pre
or post shift overtime work. The Union is concerned
the reduced Saturday overtime work hours might result
in supervision attempting to increase the number of
available hours by increasing pre or post shift overtime
requirements.
3. Employees scheduled for five hours work on Sat-
urday will not be asked to work beyond that time, ex-
cept for emergent unplanned reasons. Here again, the
Union is concerned the reduced Saturday overtime
work hours will result in supervision making routine
exceptions to the policy and allowing some favored em-
ployees to work beyond the normal five hour schedule.
4. All direct manufacturing and support operations
will work to the five hour schedule. Within reason, the
Company will communicate to the Union when it be-
comes aware of significant scheduling problems or
other emergent conditions requiring the Company to re-
vert to the regular eight hour overtime.
5. Sunday, holiday and Saturday overtime work dur-
ing a holiday weekend will be scheduled on an eight
hour basis rather than the new five hour schedule. If su-
pervision or the employee choose to work less than
eight hours, that can be accomplished; however, the
employee will at first be given the option to work a
scheduled eight hour day if, in fact, eight hours work
is available.
6. Immediate difficulties or problems as a result of
the revised overtime schedule will be discussed be-
tween the Shop Committee and the Committee of Man-
agement at third step and will not be addressed at ear-
lier steps of the grievance procedure.
7. To the extent currently practiced, overtime be-
tween shifts will be distributed equitably.
8. All employees affected by this change will be
properly notified by their immediate supervisor of the
reasons the Company and the Union mutually agreed to
this change. In other words, we will simply practice
good communications. I would expect shop supervision
to be fully cognizant of the reasons for the change and
be able to effectively communicate its benefits to our
bargaining unit employees. In an effort to insure super-
vision is consistent with our employes, attached to this
memorandum is a copy of remarks we consider appro-
priate for such a discussion.
While we recognize some employees have a strong
desire to continue working a full eight hour overtime
schedule and will be disappointed with this change in
procedure, we believe that a schedule change such as
this, when properly communicated and fairly adminis-
tered, can be perceived as a positive improvement by
our bargaining unit employees. I would expect when we
proceed with this change effective February 3,1984,
that will be achieved.
Berg’s account as to his discussion with Bellico on this
subject is as follows. He told Bellico that Respondent ‘‘had
decided to go with a five hour work schedule’’ and asked
Bellico if he saw any problems. Bellico was cautious. Bellico
and he agreed that Bellico ‘‘would talk it among his folks
and get back to us’’ There was no discussion as to Respond-
ent’s decision to go to a 5-hour shift but only on two points;
Respondent agreed that the Union’s view that employees
should receive 8 hours’ pay for the 5 hours worked on a hol-
iday was reasonable and that Respondent would solve ‘‘an
ongoing problem of a lack of equalization’’ in apportioning
overtime assignments. Berg related that a morale problem ex-
isted at the time and that Respondent ‘‘didn’t want to take
a heavy handed approach.’’
907UNITED TECHNOLOGIES CORP.
1 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 objec-
tions to them shall be deemed waived for all purposes.
There is little difference between Bellico’s and Berg’s ac-
counts. Were it necessary to choose between them, I would
accept Bellico’s. Berg’s account, insofar as it may suggest
that he was merely notifying Bellico of a fait accompli
would not stand in view of the statement in his 25 January
memorandum that agreement had been reached between him
and Bellico.
B. The Alleged Unlawful Change
The 5-hour Saturday schedule remained in effect until the
spring of 1987. On about 20 April 1987, the Union’s presi-
dent, Mark Bond, received a telephone call from Respond-
ent’s manager of labor relations informing him that Respond-
ent would notify employees on the following day that the
Saturday overtime shift in the manufacturing area was being
increased from 5 to 8 hours. Bond asked Respondent if this
was negotiable and was told that it was not. Bond was told
that Respondent was having a problem with overdue ship-
ments and needed the extra hours. The change was effective
the next day. Bond related that the change resulted in many
individual grievances because of the impact the changes had
on the home lives of employees.
Respondent argues that it has litigated this same issue be-
fore the Board under the identical management-rights lan-
guage appearing in another of its contracts with the Inter-
national Association of Machinists and Aerospace Union,
AFL–CIO. See United Technologies Corp., 287 NLRB 198
(1987), where the panel majority held that Respondent’s uni-
lateral implementation of a change in its disciplinary policy
for absenteeism was lawful as the management function pro-
vision of the contract granted it the right to do so. The Board
there further held that a prior instance where the Respondent
had bargained with the Union there respecting a change in
that disciplinary procedure did not compromise Respondent’s
right to thereafter effect a unilateral change. In the case be-
fore me, Respondent relies on that point in support of its
contention that in its negotiations in 1984 vis-a-vis Saturday
overtime, it did not, in effect, waive the waiver by the Union
of its right to bargain. General Counsel seeks to distinguish
the holding in the 1987 decision on the ground that the man-
agement functions clause expressly mentions rules and regu-
lations for discipline and that it does not expressly mention
Saturday overtime. The clause, however expressly applies to
shift schedules and hours of work. For all practical purposes,
there is no distinction to be drawn.
I find that the holding of the panel majority in the 1987
case involving this same Respondent to be controlling as to
the issue before me and shall therefore recommend dismissal
of the complaint. The argument in General Counsel’s brief
rests in part on the view set out in the dissenting opinion in
that case. To the extent that General Counsel may seek re-
consideration of that holding, her arguments cannot be ad-
dressed to me as I am bound by the clear precedent of the
decision. Ibid.
Should the Board hold that that decision is not controlling,
I would then recommend that Respondent be found to have
violated Section 8(a)(1) and (5) of the Act, as alleged in the
complaint. Respondent had presented the Union with a fait
accompli and has stated that it would not bargain. In my
view, the 1984 negotiations as to Saturday overtime show
clearly that Respondent and the Union had never agreed in
prior contract negotiations that Respondent could unilaterally
modify overtime hours. Most likely, neither side actually
contemplated resolving disputes as to Saturday overtime
when they negotiated the collective-bargaining agreements. I
do not see how the Union could have waived a matter nei-
ther had thought of. Paragraph 3 of Berg’s memorandum
dated 25 January 1984, set out above, indeed suggests that
Respondent agreed to a 5-hour limit; if so, its actions in
April 1987 would have abrogated that agreement.
However, the Board held in United Technologies, supra,
that one aberration does not supersede the plain language of
the broad management functions clause. I therefore find that
the Union had, by assenting to that clause in its collective-
bargaining agreements with Respondent, waived its rights to
bargain as to changes in scheduled work hours on Saturdays.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not committed any unfair labor
practice violative of Section 8(a)(1) and (5) of the Act.
On the foregoing finding of fact, conclusions of law, on
the entire record, and pursuant to Section 10(c) of the Act,
I issue the following recommended1
ORDER
The complaint is dismissed.