United Technologies Corp.

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Technologies Corporation (Formerly United Aircraft Corporation) and Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 1-CA-8370 November 3, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 30, 1976, Administrative Law Judge Wal- ter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, General Counsel and Charging Party filed exceptions and supporting briefs, and Respondent filed a brief in opposition. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION FINDINGS OF FACT A. Statement of the Case WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Hartford, Con- necticut, on an amended unfair labor practice complaint I issued by the Regional Director for Region 1, which alleges that Respondent herein violated Section 8(a)(1), (3), and (5) of the Act. More particularly the amended complaint 2 i The principal docket entries in this case are as follows Charge filed by Lodge 743 , International Association of Machinists and Aerospace Workers, AFL-CIO (herein called the Union), on May 30, 1972, and amended on April 12, 1973, and again on April 16, 1973; complaint issued on July 6, 1973, amended complaint issued on November 13, 1975, Respondent's answer to original complaint filed on July 18, 1973, and to amended complaint filed on November 24, 1975, hearing held at Hartford, Connecticut, on March 23, 1976; briefs filed with me by the General Coun- sel, the Charging Party, and Respondent on or before May 26, 1976 alleges that Respondent refused to bargain in good faith with the Union by unilaterally discontinuing an established policy of granting wage increases at its Broad Brook plant commensurate with wage increases granted in contracts ne- gotiated by Respondent with the-Union in other nearby bargaining units, and that its refusal to grant such increases was prompted by a desire, to punish Broad Brook employ- ees for having selected the Union as their bargaining agent. Respondent denies that any policy ever existed of granting Broad Brook employees the same wages and benefits which existed at Respondent's other plants, and denies any intention to punish them for union activities by this or any other means. Upon these contentions, the issues herein were joined. B. The Unfair Labor Practices Alleged Respondent, like its corporate predecessor, the United Aircraft Corporation, is a conglomerate which operates manufacturing plants in various parts of the United States. It is organized into approximately nine different divisions and maintains its corporate headquarters in East Hartford, Connecticut. The Hamilton Standard Division' of Respon- dent includes five bargaining units. One unit, employing about 4,000 employees and located at Windsor Locks, Connecticut, is comprised of two buildings where air-con- ditioning units and aircraft accessories are made. Employ- ees in those buildings are represented by the Charging Par- ty to this case. A second unit, normally referred to as building 3, is located near the Windsor Locks unit. It is composed of about 500 employees who are also repre- sented by the Charging Party herein. At building 3 elec- tronic components are manufactured. The Hamilton Stan- dard Division operates a plant at Long Beach, California, where employees are represented by the Teamsters, and a plant at Trumbull, Connecticut, some 50-60 miles from Windsor Locks, where its 200 employees are unrepre- sented. The Hamilton Standard Division plant involved in this controversy is located at Broad Brook, Connecticut, some 11 or 12 miles from the Windsor Locks plants. The plant at Broad Brook is an old mill which at one time was used as a warehouse. Early in 1969, Respondent moved some of the work being done at Windsor Locks to Broad Brook and set up a separate operation which it called the Boron Filament plant. This plant operated until January 1974, when it was sold by Respondent to a subsid- iary of Alcoa. At the Boron Filament Plant, Respondent was engaged in the chemical processing of tungsten wire. When this plant was opened in 1969, Respondent had high hopes that it would ultimately expand into a large opera- 2 Respondent admits, and I find, that it is a Delaware corporation which maintains its principal office at East Hartford, Connecticut, where it is en- gaged in the manufacture and distribution of aircraft engines, helicopters, and space and rocket components In addition, Respondent operates plants in Florida, New York, Pennsylvania, and California. In connection with its operations in the State of Connecticut, it annually purchases and receives from points and places outside the State of Connecticut goods and materials valued in excess of $1 million and ships from its plants in Connecticut to points and places outside that State goods and materials valued in excess of $1 million Accordingly, it is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act The Union is a labor organiza- tion within the meaning of Sec 2(5) of the Act 226 NLRB No. 104 UNITED TECHNOLOGIES CORP. tion employing 400 or 500 persons. These hopes were never realized. The largest number of employees that ever worked at Broad Brook was about 65. By 1972, when the events of this case took place, this number had dwindled to about 25. The dealings between these parties during the early period of the Boron Filament plant are more fully set forth in a Board decision which was enforced in principal part by the Second Circuit .3 Early in 1969, Respondent concluded a contract with the Charging Party herein covering the Windsor Locks plant. This contract called for-interim wage-increases of 8 per- cent, 3 percent, and 3 percent over the period of 3 years, plus cost-of-living, adjustments. On April 17, 1969, Respon- dent posted a detailed notice on the- bulletin board at the Boron- Filament plant at Broad Brook, informing employ- ees at that plant, which was then unorganized, of wages and benefits they would receive and could expect to receive during the following 2 years. It announced increases of 8 percent, 3 percent, and 3 percent on designated dates in the ensuing 3 years at times which corresponded with the dates of the increases contained in the Windsor Locks contract. The notice also set forth the details of various fringe bene- fits, including cost-of-living adjustments, bereavement pay, group health and life insurance, holidays, and other terms and conditions of employment- which Respondent was in- stituting at the Broad Brook plant. Respondent implemented the wage increase for 1969 which the notice mentioned, but it did not grant the 3- percent increase due on April 20, 1970, until July of that year. Three days-before the April 20 increase-was due to go into effect, the Charging Party herein won a representation election at the Broad Brook plant. Respondent's delay in implementing the April 20, 1970, increase was the subject of the earlier litigation involving this plant. In that case, the Board, with court approval, found that the delay in grant- ing the scheduled April 20 increase constituted a violation by Respondent of Section 8(a)(3) and (5) of the Act. During the organization campaign leading up to the April 17, 1970, election, the Charging Party first went to Respondent to ask for recognition based on designation cards in its possession. It also asked that the Broad Brook plant be treated as an accretion to the Windsor Locks unit and, that employees therein be accorded the same wages and benefits which existed in the Windsor Locks unit. Re- spondent declined both requests and insisted on a Board election. The election was conducted in a single-plant unit limited to the Broad Brook employees. About a month be- fore the election, Respondent sent out some preelection propaganda to its Broad Brook employees, urging them to reject the Union at the forthcoming election. Included in this campaign was a letter, dated March 13, 1970, contain- ing the following language: Let's consider for a moment your present working conditions and benefits. You now have exactly the same pension and group insurance plans, wage rates, vacation provisions, recognized holidays, bereavement 3 United Atrcraft Corporation, Hamilton Standard Division (Boron Filament Plant), 199 NLRB 658 (1972), enfdreed as modified 490 F 2d 1105 (C A 2, 1973), herein sometimes referred to as the Boron Filament decision 751 leave pay, military service make-up pay, and jury duty pay as employees who work in other shops of the Company where there is a union. The only differences in your working conditions result from the rotational schedule which is necessary if we are to produce at prices which permit us to stay in business and expand the use of our product. - * You now have the best of both possible worlds-the same wages and benefits and the same working condi- tions; except those established by the necessary rotat- ing schedules, as are provided by the Company's other shops and without Union dues, fines, restrictions, and other obligations. Apparently the letter proved unpersuasive since the em- ployees at Broad Brook voted to select the Charging Party as their representative. In January 1972, the parties to this case began a series of 13 collective-bargaining sessions, running from January 20 to May 2, for the purpose of working out a contract cover- ing the Broad Brook plant. At the same time, they were also negotiating contracts covering the two units located at Windsor Locks. The 3-year contract concluded on April 24, 1972, covering the Windsor Locks plants provided for yearly wage increases over a period of 3 years at 8 percent, 3 percent, and 3 percent. During the Broad Brook negotia- tions which took place at or about the same time, the Union asked for the same terms and conditions at Broad Brook which existed or would be concluded at Windsor Locks, but Respondent refused. By way of wage increases, the most Respondent would offer the Union for the Broad Brook employees was a 3-year contract providing for year- ly increases of 5 percent, 3 percent, and 3 percent. The offer was unacceptable to the Union and no contract cov- ering Broad Brook was ever concluded. On January 1, 1974, Alcoa took over the operation of the plant, and the relationship of Respondent to the Broad Brook employees ceased. The refusal of Respondent to agree to 8-percent, 3-percent, 3-percent yearly increases in 1972 during negoti- ations covering Broad Brook_ corresponding to the increas- es agreed upon at Windsor Locks in that year constitutes the gravamen of the amended complaint in this case. C. Analysis and Conclusions The essence of the argument advanced by the General Counsel and the Charging Party is that Respondent had established an enduring policy of granting to Broad Brook employees the same terms and conditions of employment extant at the Windsor Locks plants, and that its refusal to grant to these employees the wage rates which were negoti- ated in 1972 for the Windsor Locks plants constitutes a discrimination aimed at punishing Broad Brook employees for selecting the Union as their bargaining agent in 1970, and is also a refusal to bargain in good faith with the certi- fied representative of the Broad Brook employees. To counter this contention Respondent placed in evidence'tes- timony from its director of labor relations to the effect that Respondent does not and has never maintained a policy of 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD automatically granting to employees in any bargaining unit the terms and conditions, agreed upon in another unit, that it never had-any fixed policy during-the 5 years that the Broad Brook plant was in operation of granting to Broad Brook employees the terms and conditions of employment extant at Windsor Locks, and that Respondent's standard and consistent wage policy throughout the entirety if its operations was and is to engage in collective bargaining on an individual unit-by-unit basis. If so, this statement would eliminate, the factual premise necessary for the General Counsel to establish his case, since,. in the absence of any preelection company, policy of granting to Broad Brook employees wages and conditions agreed upon at Windsor Locks, Respondent would be free to, offer and to agree, or to decline agreement , to any terms and conditions which might be placed on the table during negotiations covering Broad Brook. The Supreme Court in H. K. Porter Co., Inc., Disston Division-Danville Works v. N.L.R:B., 397 U.S. 99 (1970), made it abundantly clear that the Board is not enti- tled to compel parties to a collective-bargaining relation- ship to agree to wages or conditions of employment that they have not in fact agreed upon between themselves. In assessing the underlying factual question herein, the Board is by no means bound by the self-serving declara- tions of a corporate official in arriving at its ultimate find- ing. However, such testimony is evidence and must be con- sidered along with all the evidence adduced by the General Counsel who, in this as in all cases, bears the burden of establishing by a preponderance of the evidence all of the elements of a violation alleged. The General'Counsel and the Charging Party maintain that the Board, with court approval, has already determined that Respondent institut- ed and maintained an enduring policy of granting to its Broad Brook employees all wages and benefits granted to Windsor Locks employees, and that such question is, in effect, res judicata in this proceeding. Such a contention reads into the earlier Boron Filament decision a conclusion which simply is not there. In that case, Administrative Law Judge Henry L. Jalette considered Respondent's initial re- fusal and delayed implementation of the 3-percent wage increase which had been specifically promised to -Broad Brook employees on a stated effective date. In evaluating the, evidence on,- this point, Administrative Law Judge Jalette noted that Respondent's vice president , Morgan Mooney, admitted in his testimony that "the April 20 [19701 wage increase was withheld because the employees selected the Union as their representative for purposes of collective-bargaining." He went on to state that, "based upon the foregoing, I find that the Respondent violated Section 8(a)(1) and (3) of the Act by withholding the wage increase of April, 20, 1970" and that "Respondent, without notifying the Union, decided to withhold the April 20, 1970, wage increase and to use the increase as an item in bargaining. That such conduct was violative of Section 8(a)(5) of the Act is too clear to warrant any discussion." The Board affirmed and, on appeal, the second circuit en- forced relevant portions of the Board 's order. In so doing, the court directed its attention to the fact that the April 20 wage increase was part of a specific promise made to em- ployees a year in advance of its effective date and that the promised increase was a part of the terms and conditions of their employment which-could not, be eliminated for discriminatory , reasons. Neither Administrative Law Judge Jalette, the Board, nor the court said anything in their respective decisions about a permanent policy on the part of this Respondent always to pay to Broad Brook employees any and,all wages paid to employees at Windsor Locks. The d ecisions in question were addressed exclusively to a particular prom- ised increase, due-to-take effect on ,& particular date, and to nothing else . It was the 3-percent increase , contained-in a written notice posted a year earlier on-the bulletin board at Broad Brook, which was the condition of employment that Respondent had discriminatorily denied. There is- nothing in any of the decisions concerning that violation which re- motely suggests that Respondent had also undertaken for- ever and a day to continue paying Broad Brook according to the Windsor Locks scale. Those decisions dealt with a concrete fact, the promised 3 percent, not a generalpolicy. Any reliance by the General Counsel and the Charging Party on the earner Boron Filament decision to- establish a permanent ongoing equality, of benefit policy is wholly -misplaced. Hence, the proponents of this view must look to some other evidence of record herein as the factual predi- cate for their contentions. General Counsel and the Charging Party rely on- two additional items to establish, -that Respondent had em- barked on a company policy of paying Broad Brook em- ployees the-same wages and benefits as those paid at Wind- sor Locks. They assert that the 1969 announcement, posted at Broad Brook when Respondent first began its tungsten filament -manufacturing process at that location, contained a commitment or undertaking to pay equal benefits in the unorganized unit as were paid in its nearby organized units: The wages and benefits outlined in the April 17, 1969, notice generally parallel those accorded to employees in an organized unit although the notice itself does not say so. Indeed, the notice in question, posted at the Broad Brook plant only, makes no reference whatsoever to orga- nized plants or to wages and 'benefits paid at any other location. Unlike the 3-percent increase due on April 20, 1970, there was no undertaking in the notice to continue to pay Broad Brook employees the Windsor Locks scale or the prevailing benefits in any other bargaining unit. To conclude that this notice conditioned employment at Broad Brook on wages paid elsewhere would be to read into this notice a provision which the language of the no- tice in no way suggests even by a most liberal reading. The notice addressed itself to specifics of particular wage rates and benefits, not to -generalities of company policy. If Re- spondent had intended by this notice to establish such a far-reaching policy, it would have been a simple matter to inform its employees of such an intention , but it did not do so, and there is nothing within the four corners of this document which implies any such commitment or any fair reading of its language. A year later, the Respondent disseminated some preelec- tion propaganda, quoted above in pertinent part, which the General Counsel and the Charging Party contend provide a permanent commitment at Broad Brook to establishing an enduring equality of benefits policy with the neighbor- mg bargaining unit. The March 13, 1970 , letter to Broad UNITED TECHNOLOGIES CORP. Brook employees reminds them that, as unorganized em- ployees, they: now have the best of both possible worlds-the same wages and the same working conditions, except those established by necessary rotating schedules, as are provided in the company's other shops and without union dues, fines, restrictions, and other obligations. General Counsel and Charging Party wish this letter to be construed as saying that Respondent, which was then cur- rently paying employees at Broad Brook on a parity with organized plants, thereby undertook always to do so in the foreseeable future if employees would reject, unionization. Such an undertaking is not spelled -out in the language of the letter and again the General Counsel and the Charging Party read into Respondent's words much more than was there. The thrust of this letter was simply to remind em- ployees that they did not require a union to achieve the benefits which they were currently enjoying. Any other construction on this letter would mean that Respondent was thereby promising to pay employees on a parity with all other shops'if they should reject the Union; a promise of benefit would constitute an unfair labor practice had it been made. When the legality of this literature was litigated in the earlier Boron Filament case, it was found to be per- missible campaigning within the ambit of Section. 8(c) of the Act. Had the literature in question been construed to amount to an undertaking of any kind on the part of Re- spondent, such a conclusion could not have been reached by the Board. A review of the letter in question for a sec- ond time does not lead to a different conclusion, and I am not persuaded to recommend to the Board that it reverse the findings and necessary implications of its earlier deci- sion. In the light of the foregoing, it clearly appears that the General Counsel has not successfully shouldered his bur- den of persuasion in establishing that Respondent main- tained an equality of benefit policy between Broad Brook and Windsor Locks, or, for that matter, between any of Respondent's many and various units, whether they be within or outside of the Hamilton Standard Division. Since no such policy ever existed, it follows necessarily that, in the bargaining which took place in 1972, no such policy 753 was ever discontinued by this Respondent, either for dis- criminatory reasons- or any reasons. The Charging Party had attempted unsuccessfully from the outset of its rela- tionship with Broad Brook employees to cause them to be blanketed in under the Windsor Locks contracts, first by making them a part of those bargaining units and later by urging Respondent to institute the policy which it now claims had been instituted, namely, to accord to Broad Brook by contract the wages and benefits which it had won at the larger plants. In both efforts it was unsuccessful. Since the Board cannot grant to parties the wages and ben- efits which were not achieved 'at the bargaining table, the amended complaint herein must be dismissed. Upon the foregoing findings of fact and_ upon the entire record herein considered as a whole, I make the following: CONCLUSIONS of LAW 1. Respondent United Technologies Corporation is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has -failed to establish by a pre- ponderance of the evidence that the Respondent herein has violated Section 8(a)(l), (3), and (5) of the Act. Upon the foregoing findings of fact and conclusions of , law, and upon the entire record herein considered, as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER4 The amended complaint herein shall be, and it hereby is, dismissed in its entirety. 4 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.