United Technologies Corp.

UNITED TECHNOLOGIES CORP United Technologies Corporation and International Association of Machinists & Aerospace Work- ers AFL-CIO, North Haven Aircraft Lodge 707 and Aeronautical Industries District 91, Inter- national Association of Machinists & Aerospace Workers, AFL-CIO. Cases 39-CA-276, 39- CA-633, and 39-CA-840 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 June 1982 Administrative Law Judge Raymond P. Green issued the attached decision. The Charging Parties and the Respondent filed ex- ceptions and supporting briefs. 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, and conclusions only to the extent consistent with this Decision and Order. The judge found and we agree that there is no merit in the complaint allegations that the Re- spondent violated the Act by dividing Department 2431 into three separate departments without bar- gaining with the Union, by refusing to furnish in a timely fashion certain information requested by the Union concerning revocation of dues-checkoff au- thorizations, and by soliciting employees to revoke their dues-checkoff authorizations. The judge fur- ther found, however, that the Respondent bypassed the Union and dealt directly with employees by proposing and publicizing its proposal for a 3-year contract to replace the final 2 years of the then- current contract, thereby violating Section 8(a)(5). The Respondent excepts to this finding and argues that the communications with employees concern- ing the proposal were privileged by Section 8(c). We find merit in the Respondent's contentions. The facts are straightforward and are essentially undisputed. Lodge 743 has represented a produc- tion and maintenance unit at the Respondent's Hamilton Standard plant since 31 December 1968. The most recent collective-bargaining agreement, which was effective from 24 April 1978 to 24 April 1983, contained a provision permitting either the Company or the Union to reopen the contract for the purpose of negotiating wage rates and cost-of- living adjustments (COLA) for the fourth and fifth years of the agreement. As more fully set forth by the judge, the instant dispute centers on events which occurred during the reopener negotiations which took place during five meetings between 6 and 23 April i The Union presented its demands at I All dates are in 1981 unless otherwise indicated 609 the first meeting and notified the Respondent that it only sought to bargain for a 2-year wage and COLA agreement under the terms of the reopener clause. The Respondent stated its position that it could offer terms outside the scope of that clause, but it acknowledged that it would not be mandato- ry for the Union to bargain about the offer. At the third meeting, the Respondent made its initial 2-year proposal . The Respondent and the Union modified their respective positions at the next meeting, but each side rejected the other's po- sitions. At the final meeting, the Union again modi- fied its demands, and the Respondent presented its "last best and final " offer which contained two op- tions: a 2-year wage and COLA package and a new 3-year contract to replace the final 2 years of the then-existing contract.2 The Union stated its opposition to the 3-year option and reiterated its desire to negotiate only a 2-year wage and COLA reopener. Later that day the Respondent's supervi- sors distributed to employees leaflets describing the two options of the Respondent's offer.3 The leaflet stated that the Respondent was required by the contract to make the 2-year offer. It further stated that the 3-year option could only be considered by the employees if the Union presented it to the membership. The record shows that, contemporaneously with the distribution of the leaflets, some foremen en- gaged in verbal communications with certain em- ployees. For example, employee Twitchell, a shop steward, testified that during a meeting of the em- ployees in his department , General Foreman Cecil Chase started reading from the leaflet: "He read the first two paragraphs on the two-year package and he said it was a substandard offer ." Twitchell further testified that Chase "read the three-year proposal item for item . . . . After he was done reading all the items listed there, he told everyone that they should , if they wanted [the] three-year package, get over to the Union and let the people know what they wanted . . . ." Employee Millard Matthews, Jr. testified that he attended a meeting on 23 April conducted by his foreman Pete Chin- ard and Quality Manager Al Pianin , at which Chin- ard and Pianin discussed the various benefits in- cluded in the 3-year plan and stated "that they felt the three-year plan was better . . . ." In addition, they urged the employees to "petition your union to consider the three-year plan." They further stated that they were bringing the 3-year option to 2 The 3-year offer included better wage and COLA terms as well as benefit improvements and a cash bonus 9 The substance of the leaflets is set forth fully in the judge's decision 274 NLRB No. 87 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees' attention "because our union would not consider it." On 24 April the Respondent mailed letters4 to Its employees which further explained the two options of its final offer . The letters also stated the Re- spondent's preference for the 3-year option, re- quested employees to tell the union negotiators how they felt about the two options, and urged employees to vote at the ratification meeting on 26 April. At that meeting the Union presented only the 2-year option to the membership . The employ- ees voted against accepting the 2-year option. However, as provided by the Union's bylaws, since a two-thirds majority did not authorize a strike, the Respondent's 2-year offer was automatically ac- cepted. The Respondent contends that it was privileged under Section 8(c) of the Act to apprise its em- ployees of its position at the bargaining table and that its actions in this regard cannot be relied on to support a finding of unlawful direct dealing or by- passing the Union . We find merit in the Respond- ent's contentions. Section 8(c) of the Act provides that: The expressing of any views, argument, or opinion , 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. The Board has interpreted this provision to privilege noncoercive communication between an employer and its employees in the context of the collective-bargaining process. In Procter & Gamble Mfg. Co., 160 NLRB 334, 340 ( 1966), the Board stated: As a matter of settled law, Section 8(a)(5) does not, on a per se basis, preclude an em- ployer from communicating, in noncoercive terms, with employees during collective-bar- gaining negotiations . The fact that an employ- er chooses to inform employees of the status of negotiations, or of proposals previously made to the Union , or of its version of a breakdown in negotiations will not alone establish a failure to bargain in good faith. [Footnote omitted.] In Adolph Coors Co., 235 NLRB 271, 277 ( 1978), the Board adopted the judge 's finding that the em- ployer did not engage in direct dealing with its em- ployees when it sent them letters setting forth cer- tain proposed contract terms which had been pre- sented to the union and thereafter implemented when impasse was reached in negotiations. Similar- ly, in Stokely- Van Camp, Inc., 186 NLRB 440, 449- 450 (1970), cited by the Respondent, the Board found no unlawful direct dealing or bypassing the union where the employer conducted meetings with its employees for the purpose of discussing and clarifying its bargaining proposals.5 The goal of the Federal labor policy has always been to create a favorable climate in which a healthy and stable bargaining process can be estab- lished and maintained. We believe that permitting the fullest freedom of expression by each party to that process offers the best hope of nurturing that environment. Ideas which are tested in the market- place of free debate provide the foundation of a sound labor relations framework. We recognize that there may be some risk that direct communica- tion between an employer and its employees which bears on the bargaining process may be perceived by some as an attempt to undermine the statutory collective-bargaining representative. However, we are convinced that the benefits to be derived from free, noncoercive expression far outweigh such speculative concerns. It is from this perspective that we survey the present controversy. As set forth above, the Respondent offered the Union two options: a 2-year reopener package and a new 3-year contract. The Respondent, for its own reasons, preferred the 3-year option. The Union was entitled to reject that option and to refuse to bring it before the membership at the rati- fication meeting. The Respondent then decided to publicize its preference for the 3-year option and to urge the employees to consider favorably that plan. It is undisputed that the Respondent first presented its offers to the Union at the bargaining table and that it openly acknowledged that it could not insist to impasse on the 3-year option because it was out- side the scope of the reopener clause. The com- plaint did not allege that the offer itself was unlaw- ful. The sole question is whether the Respondent's communications to the employees publicizing the terms of the offer constituted unlawful direct deal- ing with the employees and bypassing of the Union. We find that they did not. The Respondent's efforts were undertaken in a noncoercive manner and the publicity fully ac- knowledged the Union's rightful role as the em- ployees' statutory bargaining representative. There was no suggestion that the employees should aban- don their Union and negotiate for better terms di- rectly with the Respondent. Furthermore, the Re- The text of the letter is set forth in pertinent part in the judge's deci- 5 See also Endo Laboratories, 239 NLRB 1074, 1084 at In 3 (1978), on Wantagh Auto Sales, 177 NLRB 150, 154 (1969) UNITED TECHNOLOGIES CORP 611 spondent's communications occurred in the context of lawful conduct at the bargaining table, and it was therefore not undertaken as part of a strategy to frustrate the bargaining process or otherwise avoid bargaining obligations under the Act.6 In assessing the propriety of the Respondent's conduct it is instructive to consider the context in which the instant dispute arose. The parties have had a long and fruitful bargaining history as evi- denced by several collective-bargaining agreements which have been executed between them. And while the bargaining relationship may occasionally be characterized by a vigorous and adversarial debate, there is no evidence that the Respondent has sought to achieve the elimination of the Union or otherwise alter the bargaining relationship. In these circumstances, and as the leaflets and letters at issue did not contain "any threat of reprisal or force or promise of benefit," they were privileged under Section 8(c) of the Act and were not unlaw- ful.7 In summary, the Respondent and the Union en- gaged in a tough, hard-fought battle over the terms of their collective-bargaining agreement. The object of the contest was not to achieve elimination of or dominion over the Union. Rather, each side, recognizing the other's legitimate role and right to exist, sought to accomplish its lawful goals through hard bargaining. Nothing in the Act bars such an effort. Therefore, we find that the Respondent did not violate the Act as alleged." Accordingly, we shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. B Cf General Electric Co, 150 NLRB 192 (1964), enfd 418 F 2d 736 (2d Cir 1969) 7 Similarly, we find nothing unlawful in the oral comments made by Foremen Chase and Chmard and by Quality Manager Pianin The re- marks were uttered in the context of distributing leaflets which we have found to be privileged under Sec 8(c) Chase 's "substandard " remark was uttered in reference to a comparison between the two prongs of the Respondent 's own offer Thus, the reference was to the 2-year option proposed by the Respondent, not by the Union Moreover, we view such remarks as mere opinion made on behalf of the Respondent's position at the bargaining table No effort was made to engage in bargaining directly with the employees and there was nothing coercive or promissory in the remarks In these circumstances, the oral statements were privileged by Sec 8(c) 8 Member Dennis does not rely on the preceding five sentences DECISION STATEMENT OF THE CASE RAYMOND P GREEN, Administrative Law Judge These consolidated cases were tried before me in Hart- ford, Connecticut, on March 1 through 5, 1982 The charge in Case 39-CA-276 was filed by the Inter- national Association of Machinists and Aerospace Work- ers, AFL-CIO, North Haven Aircraft Lodge 707 (Lodge 707), on June 27, 1980. A complaint based on that charge was issued by the Officer-in-Charge for Sub- region 39 on March 13, 1981 The charge and the first amended charge in Case 39- CA-633 were filed respectively on May 6 and June 17, 1981, by Aeronautical Industrial District No. 91, Interna- tional Association of Machinists and Aerospace Workers AFL-CIO (District 91) A complaint based on those charges was issued on June 19, 1981 The charge and the first amended charge in Case 39- CA-840 were respectively filed on September 21 and November 2, 1981, by District 91. A complaint thereon was thereafter issued on November 3, 1981 At the same time, all three cases were consolidated for hearing In substance, the complaint in Case 39-CA-276 alleges that about March 3, 1980, the Respondent at its North Haven plant subdivided department 2431 without first notifying or giving the bargaining representative (Lodge 707) an opportunity to bargain over the decision or the effects such decision had on the employees. In general terms, it is the General Counsel's position that the subdi- viding of this department had an adverse impact on the employees' terms and conditions of employment, mainly in terms of changing their overtime and promotional op- portunities The Respondent, in response, contends that the decision did not affect, in any material way, the em- ployees involved, and that the decision was one reserved exclusively to management pursuant to its collective-bar- gaining agreement with the Union. Accordingly, the Re- spondent asserts that it had no legal obligation to notify the Union about its decision . It also alleges that it did bargain over the alleged effects on the employees in- volved. The complaint in Case 39-CA-633 alleges. (1) That in April and May 1981, the Respondent, at its North Haven facility, "solicited its employees to revoke authorization for the checkoff of union dues from their wages " (2) That about April 23, 24, and 25, 1981, the Re- spondent , at its Hamilton Standard Division, located at Windsor Locks, Connecticut, bypassed the International Association of Machinists and Aerospace Workers, AFL-CIO, Hartford Aircraft Lodge 743 and dealt, di- rectly with the employees represented by that labor or- ganization. (3) That Respondent failed and refused to furnish to Lodge 743, in a timely fashion, the names of those em- ployees who had revoked their union dues-checkoff au- thorizations during the period from April 10 through ^0, 1981 With respect to the allegations set forth in Case 39- CA-633, the Respondent asserts. (1) To the extent that it advised employees of their contractual right to revoke their union dues-checkoff au- thorizations, such notifications were consistent with the terms of the collective-bargaining agreement and were protected pursuant to Section 8(c) of the Act. (2) That insofar as the direct dealing allegation, it merely advised employees of its final offer to Lodge 743, which it had made at the bargaining table. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) That Lodge 743's request for the names of those employees who had revoked their dues-checkoff authori- zations " was timely complied with The Respondent fur- ther asserts that, pursuant to the collective-bargaining agreement, it had no obligation to furnish the Union with the information requested The complaint in Case 39-CA-840 alleges that about September 15, 1981, the Respondent at its East Hartford facility solicited employees to revoke dues-checkoff au- thorizations on behalf of International Association of Ma- chinists and Aerospace Workers, AFL-CIO, Industrial Aircraft Lodge 1746 (Lodge 1746) As in Case 39-CA- 633, the Respondent asserts that its conduct was privi- leged pursuant to Section 8(c) of the Act. Based on the entire record in this proceeding, includ- ing my observation of the demeanor of the witnesses, and after reviewing the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION The Respondent is a Delaware corporation having its main offices in Hartford, Connecticut, and places of busi- ness at various locations in Connecticut and Florida. The complaint alleges, the answer admits, and I find that an- nually the Respondent sells and ships products valued in excess of $50,000 directly to points located outside the State-of Connecticut It therefore is concluded that the Respondent is an employer within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is undisputed and I find that Lodges 707, 743, and 1746, 'along with District 91,1 are labor organizations within the meaning of Section 2(5) of the Act. In relation to this case, Lodge 707 has, since about July 1974, represented the production and maintenance employees at the Respondent's Pratt & Whitney plant lo- cated in North Haven, Connecticut. Lodge 743 has since December 31, 1968, represented the production and maintenance employees of Respondent's Hamilton Stand- ard Division plant located in Windsor Locks, Connecti- cut. Finally, Lodge 1746 represents the production and maintenance employees at Respondent's Pratt & Whitney division plant located in East Hartford, Connecticut III. THE ALLEGED UNILATERAL CHANGE AT NORTH HAVEN The Pratt & Whitney Division plant in North Haven employs over 3000 persons, many of whom are repre- sented by Lodge 707. In operating the plant, the Compa- ny has divided the plant into a variety of departments, and the employees are classified by occupational groups (i e, similar skill levels) and job codes. In terms of wage classifications, employees are assigned labor grades which, insofar as relevant herein, run from labor grade 4 (highest paid) to labor grade 10 (lowest paid) 1 District 91 is a body which coordinates the activities of various of the local Lodges It therefore is, in a sense, an intermediate organization between the Lodges and the International Union Prior to March 1980 there existed a department num- bered 2431 whose function was to coat turbine blades and fans .2 Originally, the department contained grit blast machines, Temescal coating machines, and glass bead peen machines. The workflow was that parts coming into the department were first cleaned by the grit blast machines, then coated by the Temescal machines, and fi- nally finished on the glass bead peen machines In 1977 the Company purchased two Leybold & Horaeus ma- chines (referred to herein as L & H machines) from a German company at a cost of $2 5 million each. In es- sence, the two L & H machines performed the same coating functions as the Temescal machines, but had a greater capacity and were potentially more efficient. The first of the L & H machines was installed and became operational in early 1979, and the second L & H machine was installed and commenced operating in late 1979 In relation to the operation of the L & H machines, some of the personnel who had previously operated the Temescal machines were trained and assigned to work on the new machines. According to David Cone, the first-shift superintend- ent, there was a backlog of parts worth $10 million wait- ing to be coated in department 2431 in January 1979. He testified that in November or December 1979 experts from Leybold & Horeaus visited the plant and recom- mended, inter alia, that to increase productivity the L & H machines would be operated more efficiently if teams of employees, along with a foreman, were assigned to work exclusively on the machines. Cone also testified that another aspect of the problem was that under the Company's internal reporting system scrap and rework reports were generated on a departmental basis so that it was not possible to ascertain the amount of scrap or parts requiring rework that was being generated by the L & H machines. According to Cone, with these factors in mind, and in an effort to increase efficiency, he recom- mended that department 2431 be split into three separate departments, each with its own department head. Ac- cordingly, when his recommendation was accepted, the Company, on March 3, 1980, split the department as fol- lows: the Temescal and the employees who worked with those machines were designated as 2431, the L & H ma- chines, with its employees, were designated as depart- ment 2437, and the remainder of the old department 2431 including the people who worked on the grit blast and glass bead peen machines were designated as department 2438 3 It is not disputed that, prior to the split, the Union was not notified or given an opportunity to bargain about the decision. In support of the assertion by the Respondent that it had no such obligation it cites the management- rights clause in its contract with Lodge 707, which reads as follows: 2 These are the parts of a jet engine which cause air to move from front to back According to Cone, during 1979 a substantial number of airfoils and vanes were sent to other companies for coating because of the backlog He states that in 1980 after the split occurred, the backlog was reduced and the subcontracting virtually ceased The cessation of subcontracting was attributed by him to increased efficiency and a reduction in orders UNITED TECHNOLOGIES CORP It is recognized that in addition to other func- tions and responsibilities, the company has and will retain the sole right and responsibility to direct the operations of the company 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 em- ployees or other persons; the schedules of produc- tion; shift schedules; and hours of work, the meth- ods, processes, and means of manufacturing; and to select, hire, and demote employees, including the right to make and apply rules and regulations for production, discipline, efficiency, and safety. It shall also have the right and responsibility to discharge 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 oth- erwise hereinafter provided. Although clearly intended as a broad management- rights clause, the above does not expressly relate to de- partmental reorganizations and no evidence was received as to whether that subject or the type of splitup of de- partments as occurred herein was discussed during the collective-bargaining negotiations which resulted in the above language. In support of its case the Respondent did adduce evidence that since 1975 it has, without ob- jection or bargaining with the Union, added new depart- ments, deleted old departments, and changed other de- partmental designations. It therefore argues that such evidence indicates the Union's concession, sub silentio, that the reorganization of department 2431 into three new departments was a decision which involved "the methods, processes, and means of manufacturing." In re- lation to above, it is noted that the Union, in its brief, states: The Union did not object, nor could it, to the Com- pany's decision to segregate and identify scrap and rework reports of the L & H machines from those of the Temescal machines, as it was possible to do. The Union did not object, nor could it, to the Com- pany's decision to have certain foremen and em- ployees concentrated on certain machines , as it was possible to do. The Union did not even object, nor could it, to the Company's decision to establish new departments. [Emphasis added.] Nevertheless, despite what would appear, at least on the surface, to be a major concession by the Charging Party, it still asserts that it never waived its right to bargain about a decision to split departments, in terms of the impact such a decision would have on bargaining unit employees. The Charging Party also concedes that under the contract the Company has the right to transfer em- ployees.4 4 The grievance-arbitration clause at art III, sec 4, expressly precludes from arbitration the rights reserved in the management-rights clause and also the "right to determine whether transfers, promotions, or demotions are to be made " 613 In February and March 1980, prior to the split of de- partment 2341, that department employed about 77 em- ployees on the first shift, 25 on the second shift, and 22 on the third shift. On each shift, there were four fore- men, one for the Temescal machines, one for each of the L & H machines, and one for the surface treatment and bench areas, encompassing the grip blast and glass bead peen machines. As noted above, the split was accom- plished by having the operation of the Temescal ma- chines designated as department 2431, the operation of the L & H machines designated as department 2437, and the remaining operations designated as department 2438. Indeed, what in fact happened was that no physical changes were made in the department as no machines were moved, and the foremen and employees who gen- erally were assigned at that point in time to the Temes- cal machines kept their 2431 designation, the foremen and employees who generally worked at that time on the L & H machines were "transferred" to department 2437, and the remaining foremen and employees were redesig- nated as department 2438 Therefore, the employees, as of the moment the split was made, continued to do the same work on the same shifts under the same supervi- sors. No employees were laid off as a proximate result of the reorganization, and at least for the near term, things remained as they were before. Notwithstanding the apparent lack of change resulting from the split, the Union did envision that it would have foreseeable adverse effects on some of the department's employees. Accordingly, on April 10, 1982, the Union filed a contract grievance stating: Union grieves that the company is unilaterally split- ting department 2431 into three (3) separate depart- ments which will adversely affect the promotion and job assignment opportunities, layoff and recall, rights of employees in this unilateral action.5 Thereafter grievance meetings were held between the Company and the Union at the third step of the griev- ance procedure. Ultimately, the grievance was denied by the Company and, although the Union requested arbitra- tion, the Company refused on the grounds that the sub- ject matter was not one which was subject to the arbitra- tion provisions of the contract. At the trial, the Union agreed that the matter was not arbitrable under the con- tract. In the briefs filed by the General Counsel and the Charging Party, they principally maintain that the split of department 2431 had adverse effects on promotional opportunities among the employees and also in relation to overtime opportunities. With respect to promotions, the contract states: Whenever promotions are made to higher-rated' jobs other than to supervisory jobs, they shall be made on the basis of the coequal standards of se- 5 In fact, because selection for layoff and recall is not done based on department seniority , but rather on seniority within plantwide occupa- tional codes, the split of department 2431 would not be relevant to or affect layoffs and recalls 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mority, ability, and fitness of the employee. It is un- derstood that the employees who may file a griev- ance concerning such a promotion are those as- signed to the department in which the promotion occurs or in the department from which the promo- tee was transferred. To illustrate, under the promotion clause, whereas an employee in the old department 2431 would have the right to grieve any promotion offered within the entire department, this would not be the case after the depart- ment was split. Thus, after the split, if an employee had been transferred to department 2437 (L & H machines) and if a promotion was then offered to a man within the newly constituted department 2431 (Temescal machines), the department 2437 employee no longer would have the right to grieve that promotion even if he was more senior than or more capable than the employee of de- partment 2431 who was offered the promotion. Of course, it may also be said that while some employees were potentially disadvantaged, others were aided in this respect as a result of the splits As to the promotion problem, it is noted that during the grievance meetings noted above, the Company did offer to allow all of the employees of the three new departments who were pre- viously employed in department 2431 to retain their right to file grievances with respect to promotions offered in either of the three departments. This, however, was re- jected by the Union on two grounds. First, this modifica- tion of the collective-bargaining agreement (already a complicated document) would be difficult to police. Sec- ondly, the Union felt that since the offer was extended only to employees who had formerly worked in the old department 2431, and since new employees would likely be transferred into the new departments, overtime there would then exist of two classes of employees, each with different contractual grievance rights. With respect to overtime, the asserted adverse impact arises in the context of a complex and somewhat confus- ing situation Before the split, despite the provisions of the collective-bargaining agreement (described below), the custom and practice within the department was to equalize overtime on each shift among the employees having the same job codes (i.e., job classifications) on a departmental basis. For example, some employees in job code 377.7 were basically assigned to work on the Temescal machines whereas others with the same job code were assigned to work under a different foreman on the L & H machines. If more overtime within that job code existed on the L & H machines as opposed to the Temescal machines, an effort would be made to equalize overtime within a particular shift among the em- ployees within that job code on a departmental basis. Therefore, under that practice, job code 377.7 employees 6 For example, employee Gurtowski was transferred to department 2437 after the split where he was a labor grade 8 When a promotional opportunity for a labor grade 6 occurred in department 2431, he was passed over by employees who were less senior to him in the old depart- ment 2431 However, as seniority is but one factor for making promo- tions, it cannot be said that employees who could have grieved when the three departments were one , and who had greater seniority in the overall department , would have prevailed in their grievances working on the Temescal machines would tend to have, over a period of time, comparable overtime as job code 377 7 employees who worked on the L & H machines.7 This practice was, however, contrary to the terms of the collective-bargaining agreement as it provides for equali- zation of overtime among employees working under the jurisdiction of each foreman and not on a departmental basis. That is, the old department 2431 had separate fore- men for the Temescal and L & H machines and there- fore, pursuant to the contract, the Company could have equalized overtime among the employees of each fore- man with the result that the L & H employees would have had, even without the split, more overtime than the Temescal employees 8 It appears to be agreed that, subsequent to the split, the only-employees of the old department 2431 who could have been affected, in terms of overtime equaliza- tion, were those who in the old department worked on the Temescal and L & H machines and who, as a result of the split, went either to department 2437 or remained in department 2431 As all the other employees were transferred as a group to department 2438, their rights to overtime equalization among their various job codes re- mained the same and were not affected. However, as some employees having job codes of 375.5, 377.7, and 377.8 went to department 2437, while some having the same job codes remained in department 2431 under dif- ferent foremen, no further attempt was made to equalize overtime within these job codes across the newly estab- lished departmental lines. This therefore was a change from the preexisting practice; and from the time of the split until the end of December 19809 it appears that em- ployees assigned to department 2437 (L & H machines) generally received more overtime than their counterparts in department 2431 (Temescal machines). Yet, it may be said that this change could have legitimately come about even had no split occurred since it was the Company's intent to eliminate interchange of employees between the Temescal and L & H machines in an effort to specialize. Since each type of machine was always operated under separate foremen, the Company was therefore not obli- gated, under the contract, to equalize overtime on a de- partmental basis, but could have restricted overtime to the employees under each foreman In other words, even assuming that the split had never occurred, the current method of equalizing overtime is more consistent with For purposes of equalizing overtime , job codes are not interchange- able and within a given shift, equalization would be applicable only for employees within the same job codes Thus, an equalization effort would not be made, for example, between employees in job code 377 7 and em- ployees in job code 377 8 even if they worked in the same department Art XII, sec 2, of the contract states (a) for the sole purpose of preventing favoritism or discrimination in the distribution of overtime , the company will distribute overtime work equally among the qualified employees under the jurisdiction of each foreman who is regularly employed on such work, insofar as it may be practicable to do so Such overtime distributions shall be made on the respective shifts on which overtime work occurs There is no obligation on the part of the company to distribute overtime equally between shifts or between employees under the jurisdiction of different foremen After December 1980 there was little or no overtime in any of the three new departments and therefore there was no overtime to equalize UNITED TECHNOLOGIES CORP the terms of the collective-bargaining agreement, than was the practice before March 3, 1980. IV THE ALLEGED DIRECT DEALING AT THE HAMILTON STANDARD PLANT Respondent's production and maintenance employees at the Hamilton Standard plant were covered by a 5-year contract with Lodge 743 which ran from April 24, 1978, to April 24, 1983. In past years, the pattern of negotia- tions between the Union and the Company at this plant was to wait until after negotiations had concluded at Re- spondent's East Hartford facility and thereafter bargain on the basis of the latter agreement. Thus, as a general matter the collective-bargaining agreement at Hamilton Standard tracked the agreement reached earlier at East Hartford with clarifications or modifications as might be appropriate. The East Hartford contract (with Lodge 1746) ran from November 28, 1977, to November 28, 1982. That contract, as well as the Hamilton Standard contract, con- tained a provision permitting either side to reopen the contract for "the sole purpose of negotiating wage rates and cost of living allowance," for the fourth and fifth years of the contract. i ° Thus, in August 1980 negotia- tions opened at the East Hartford facility in which the Union sought to reopen the contract there as provided in the agreement Although Lodge 743 sent representatives to observe those negotiations, it was understood by the parties that negotiations pursuant to the wage reopener provisions of the Hamilton Standard contract would not commence until April 1981. Preliminary to a discussion of the facts relative to the instant case, it is noted that the wage reopener negotia- tions which encompassed the East Hartford plant and which preceded the instant negotiations were also the subject of an unfair labor practice proceeding in Case 39-CA-422 which resulted in a decision adverse to Re- spondent by Administrative Law Judge Michael O. Miller in JD-613-81.11 Although there were many other issues in that case, the allegation of "direct dealing" dealt with there involves facts which are substantially similar to those involved in the present case. Moreover, as the overall pattern of negotiations was established during the East Hartford negotiations, it would be useful to review the highlights of those negotiations before setting forth the facts encompassed by the instant case. The first session for the East Hartford negotiations took place on November 3, 1980, at which Lodge 1746, in conjunction with other lodges, presented its initial proposals as to wages and cost-of-living adjustments (COLA). The Company among other things objected to the inclusions of Lodge 743 in the Union's proposals and accordingly that inclusion was dropped. After that meet- ing the Union distributed literature to employees report- ing the November 3 meeting and urging members to be 10 The same provision was contained in the Company's contracts with Lodges 700, 707, 1746 and 1746A in other bargaining units Also, a simi- lar provision was contained in a 5-year contract between the Company and a Teamsters Union which represented employees at Respondent's Si- korsky plant i i That decision issued on December 17, 1981 Exceptions to that deci- sion are pending before the Board 615 willing to strike Thereafter further meetings were held on November 11 and 14. In the, meantime, similar wage reopener negotiations were going on between Respondent and a Teamsters Union at the Company's Sikorsky plant As a result of the Sikorsky negotiations, instead of agreeing to a 2-year agreement on wages and cost-of-living adjustments, the parties there negotiated a complete and new 3-year con- tract to replace the final 2 years of the extant contract. This Teamsters agreement was then publicized to the East Hartford employees At the next meeting of the East Hartford negotiations, on November 18, the Respondent stated that it would make a 3-year offer similar to the Sikorsky agreement. The Union's representatives objected, stating that they were only willing to negotiate for a 2-year supplement within the limits of the wage reopener clause of the con- tract. In response, the Company stated that any offer it would make under the wage reopener provision would be considerably less than an offer it would make for a new 3-year contract. On the following day, the Compa- ny distributed a bulletin which, after describing the Union's demands as "unrealistic" and as providing "no basis for a reasonable settlement," noted the fact that the Company had concluded a new 3-year agreement with the Teamsters which provided for pay increases totaling approximately 35 percent over 3 years. On November 24, the Company, notwithstanding the Union's expressed objections on November 17, made a contract offer which proposed a complete 3-year collec- tive-bargaining agreement to replace the final 2 years of the East Hartford contract. In presenting the offer, the Company acknowledged that it was not a proposal on which bargaining was mandatory. The Union rejected the offer, insisting that it only was interested in negotiat- ing on the basis of the reopener provisions of its con- tract. Although not having made a 2-year proposal as yet, the Company stated that such an offer, when forth- coming, would be substantially less than the first 2 years of its 3-year offer. On November 25 the Company put out a notice which described the 3-year offer it had made and characterized the Union's demands as being "totally unrealistic." On November 26, the Company made its initial 2-year offer as to wages and cost-of-living adjustments Thereaf- ter, on November 29, the Company modified its 2-year offer upward and included a proposal within the offer for a savings plan As to the latter provision, the Compa- ny stated that the savings plan was beyond the limits of the wage reopener and said that it could not insist on its inclusion. On the following day, November 30, the Com- pany placed advertisements in the local newspapers. One urged the Union's leadership not to recommend a strike. The second, among other things, detailed the Company's final offer and urged the employees to vote for its ratifi- cation. On November 30, the Union held its ratification meet- ing where a majority voted to reject the Company's final offer. However, less than two-thirds of the membership voted to strike, as required by the Union's constitution, 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, accordingly, the Company's final offer was auto- matically accepted. Turning now to the present case, I note initially that there does not appear to be any significant dispute as to the facts The first meeting for the Hamilton Standard wage reopener negotiations was held on April 6, at which time the Union presented its demands The Union's representative, Gordon Sawyer, notified the Company that the Union was only interested in negotiat- ing for a 2-year wage and COLA agreement pursuant to the reopener clause He further stated that the Union was not interested in considering any other type of pro- posals. Respondent stated, however, that it was its posi- tion that it could not be precluded from making propos- als outside the scope of the wage reopener provision, albeit that it recognized that it could not bargain to im- passe over such proposals A second meeting was held on April 9 where the Union modified its initial demands. On April 13 a third meeting was held where the Union again modified its de- mands and the Company orally made an initial 2-year offer Further modifications by each side were made as to wage reopener proposals on April 20 Each side re- jected the other's proposals at this meeting On April 23, 1981, the final negotiation meeting was held, and the Union's ratification meeting had already been scheduled for April 26, 1981. At the April 23 meet- ing, after the Union modified its demands, the Company made its "last best and final offer" This offer consisted of two options, the first of which was a 2-year offer as to wages and cost-of-living adjustment. The other, howev- er, was an offer of a complete and new 3-year contract to replace the final 2 years of the existing agreement. As to the third option, this offer was made for the first time during this meeting of April 23. As to its substance, the offer was substantially similar to the offer made and re- jected at East Hartford. On presentation of the two- pronged offer, the Union's representative reiterated the Union's opposition to negotiating a new collective-bar- gaining agreement and stated that it only desired to ne- gotiate pursuant to the terms of the reopener clause. The Company's representative thereupon called Sawyer a "lame duck who didn't have the good of the employees in mind."12 Feeling insulted, the union representatives left the meeting. On the afternoon of April 23, company supervisors met with employees in the plant where they passed out leaflets describing the Company's two-pronged offer One foreman, at a meeting with his employees, described the 2-year option as being substandard. Evidence was presented that supervisors urged employees to petition the Union to permit a vote on the 3-year option. The leaflets stated: Here is a copy of our final offer to Machinists Union negotiators The material gives details on 1. A two-year proposal on wages and COLA. 2. An optional three-year proposal. This pro- vides additional pay increases and COLA pay- 12 Sawyer's term in office was soon to expire outs, plus a series of benefit improvements. It also provides a $125 cash bonus to all employees. The two-year package represents total wage and COLA increases averaging $1.72 per hour-or 21.3% The three-year proposal gives total wage and COLA increases averaging $2 76 per hour-or 34 2%. That's in addition, of course, to the im- proved benefits shown on the attached sheet We are required to make a two-year offer under the terms of our contract reopener, covering only wages and COLA. The three-year proposal can be considered by employees only if the union negotiat- ing committee chooses to bring it before the mem- bership. We are offering a three-year agreement as an option because we want our Hamilton Standard employees to have the same opportunity as employ- ees at three other UTC facilities where similar three-year agreements are now in effect after they were recommended by union negotiators and rati- fied by the membership. These units are Pratt & Whitney Aircraft's Government Products Division, also represented by the IAM, Sikorsky Aircraft, represented by the Teamsters, and UTC's Chemical Systems Division, represented by the IUE I hope you will consider the Company's propos- als carefully, express your views to union negotia- tors, and turn out and vote at Sunday's ratification meeting at Windsor Locks High School at 1 p.m. On April 24, 1980, Respondent mailed letters to its em- ployees at Hamilton Standard which stated, inter alia- By now I hope you have looked over the materi- al distributed in the plant Thursday. It is a copy of the Company's final offer to Machinists Union ne- gotiators As we told you earlier, the material com- prises: 1 A two-year proposal on wages and cost-of- living adjustments (COLA); 2. An optional three-year proposal providing ad- ditional pay increases and COLA payouts-plus a series of benefits improvements. These include improved pension, group insurance, and automat- ic progression; an additional paid holiday; pay- ment of the first-year general wage increase two weeks earlier than normal; and introduction of a new savings plan and a new optional plan. The three-year package also gives a $125 cash bonus to all employees, to be paid during the first week in May, and provides earlier vacation payments. The two-year package gives total wage and COLA increases averaging $1.72 per hour-or 21.3%. The three-year proposal provides wage and COLA increases averaging $2 76 per hour-or 34 2%-plus, of course, the improved benefits. Why two offers? Our current five-year labor agreement is reopena- ble after three years solely on wages and COLA for UNITED TECHNOLOGIES CORP the remaining two years Anything additional the Company offers may not be bargained to an im- passe Thus the three-year proposal may be consid- ered by Hamilton employees only if the union bar- gaining committee chooses to bring it before the membership The Pratt & Whitney Aircraft commit- tee refused to do this following negotiations cover- ing Pratt's Connecticut plants So that membership considered and voted on only the two-year wage and COLA proposal Not so at Pratt & Whitney Aircraft's Govern- ment Products Division in Florida, also represented by the IAM, or at Sikorsky Aircraft, represented by the Teamsters, or at UTC's Chemical Systems Divi- sion, represented by the IUE. At each of those plants, the three-year proposals were recommended by the union committee and ratified by the employ- ees As this is written, of course, we do not know what course your union negotiating committee will take In any event, we didn't want to withhold a similar opportunity for Hamilton Standard employ- ees to consider a three-year package similar to the agreements accepted by employees at other UTC facilities Personally, I think a three-year agreement makes a lot of sense for both the employees and the Com- pany. For employees and their families, it provides added stability, security, and predictability for fi- nancial planning For the Company, it improves our competitiveness It puts us in a stronger position to bring new production into our plant-with greater job opportunities-as we seek to expand our exist- ing businesses and to take advantage of emerging new markets opening up to us as a member of UTC's Electronics Group. The offer we presented to the union negotiators, and then to you, represents the company's final eco- nomic offer-both for the mandatory two-year wage and COLA proposals or for the optional addi- tional three-year proposal offered by the Company. We have, of course, indicated to the union our will- ingness to discuss rearrangement of the terms so long as this is within the total economic cost of our offer We would expect negotiations to continue along these lines Please consider the Company's proposals careful- ly Tell your union negotiators how you feel about them Most important of all, if you are eligible, attend Sunday's ratification meeting at 1 p.m. at Windsor Locks High School-and vote. Too much is at stake to let others make a decision so important to you and your future On April 26, 1981, the Union held its ratification meet- ing At this meeting the Union's membership was asked to vote on whether to accept the Company's final 2-year offer. The 3-year option was not present. Although the employees voted against accepting the offer, a two-thirds majority was not obtained in order to strike. Therefore, 617 as in the East Hartford situation, the Company's final two-year offer was automatically, albeit reluctantly, ac- cepted V. THE ALLEGED REFUSAL TO FURNISH INFORMATION The collective-bargaining agreement between the Re- spondent and Lodge 743 covering the Hamilton Stand- ard plant does not contain a clause requiring union mem- bership as a condition of continued employment It does, however, provide for dues checkoff for those employees who desire to be union members and, if an employee executes a dues-checkoff authorization, the Company will deduct dues from the employee's pay and remit them to the Union The contract also contains a 10-day escape period each year, during which employees can revoke their dues-checkoff authorizations The escape period for the Hamilton Standard employees was from April 10 to 20 Thus, the escape period in 1981 happened to coincide with the negotiations previously described In previous years the Company has made either the rev- ocation letters or a list of the revokees available to the Union shortly after the close of the escape period.' 3 Ob- viously, as the revocation letters need only be sent to the Company, the information as to who has sent such letters is turned over to the Union each year to enable it to verify which employees no longer desired to have dues deducted from their wages As such, there is no dispute as to the Union's need for this information and the Com- pany appears to agree that such information is required by the Union to administer the dues-checkoff provision of the collective-bargaining agreement. The Union first requested a list of revokees on April 13, 1981, before the escape period was over. A second request was made later that week and Jack Berg, the Re- spondent's manager of personnel relations, responded that the Union would get the information when it was available to the Company. On April 20, 1981, at 7 a.m., union representatives went to the plant where they ad- vised company representative Mike Patulach that they were "here to pick up the list of revocations" The Union was told that the list was not yet ready At 9 a.m that day, another request for the list was made on Berg, who stated that the list was not ready and that he had not as yet reviewed it The Union was told that the list was not one of the Company's priorities Another re- quest for a list was made at the April 23 negotiation meeting, again on April 24, and again on April 26 On April 28, the Union was invited to inspect and copy all of the revocation letters submitted during the 10-day escape period. This was accomplished over the next couple of days. As to the Union's need for the list of revokees, the Union's witnesses testified that their desire for immediate production of the list was not motivated by any need to administer the existing contract, but rather was needed to evaluate the Union's own internal standing prior to 13 It was stipulated that the information was supplied in 1980 on April 22, in 1979 on April 26, in 1978 on April 21, in 1977 on April 22, in 1976 on April 22, in 1975 on April 24, in 1974 on April 22, in 1973 on April 24, in 1972 on April 27, and in 1971 on April 26 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the scheduled ratification meeting on April 26 Thus, the testimony revealed that union officials were interested in knowing how many members had revoked their dues- checkoff authorization so as to be able to judge the Union's strength vis-a-vis the Company and, therefore, to help them evaluate whether to urge the employees to ratify the Company's last offer or whether to strike. (In fact the Union urged the employees, at the April 26 rati- fication meeting, not to strike.) There was no evidence however, that the Union ever communicated to the Em- ployer the reason it desired this information before April 26 As a related matter, the collective-bargaining agree- ment contains a letter which requires the Company to regularly furnish the Union with certain information about employees and their status on a monthly basis In- cluded in the information given each month are reports which indicate whether employees are having dues de- ducted from their pay. The letter goes on to state. 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 agreement any other information, data, or listing, related to wages, hours or working conditions of employees covered by this agreement. This waiver, however, shall not affect any right the Union may have with respect to information concerning pensions or insurance neces- sary to bargaining for agreements in the future. VI THE ALLEGED SOLICITATION OF DUES-CHECKOFF AUTHORIZATION REVOCATIONS The General Counsel alleges that the Respondent un- lawfully solicited employees at its North Haven and East Hartford plants to revoke their dues-checkoff authoriza- tions. However, no such allegation was made concerning the Hamilton Standard plant. Similar to the Hamilton Standard contract, the con- tracts covering the North Haven and East Hartford plants do not contain union-security clauses, although they do provide for dues checkoffs for those employees who execute the proper authorization forms Escape pe- riods are also provided and they are set forth on the dues-checkoff authorization forms which are appended to the collective-bargaining agreement i' The escape period at North Haven was from May 5 to 14 of each year and the escape period at East Hartford was from September 12 to 21. It appears that in years prior to 1981, the Company has had a practice, without union challenge, of posting notices at its plants to advise employees of the upcoming escape periods In 1981, at North Haven, a notice was posted by the Company on April 30, 1981 This stated- SUBJECT- Cancellation of Union Dues Checkoff Au- thorization 14 Curiously, the Unions' copies of the respective contracts do not contain the dues-checkoff forms There also was testimony that the Unions do not make a practice of advertising the 10-day escape periods The present contract and checkoff form agreed to by the Company and the Union provide that those who wish to do so, may cancel their checkoff cards authorizing the Union dues deductions of $17.70 per month ($212.40 per year) by giving notice to the Company within ten days prior to May 14, 1981 This provision is consistent with the principle of an open shop and the Company's con- viction that no employee should be forced to pay dues to work at Pratt & Whitney Aircraft. Those people who previously authorized Union dues deductions may at this time review that deci- sion and, if they so desire, cancel their dues authori- zations by giving written notice containing their sig- natures, to the Company between 12.01 a.m on May 5, 1981, and midnight, May 14, 1981. No writ- ten notice to the Union is required. Contemporaneously with the above notice, supervisors were issued a bulletin designed to help them answer em- ployee questions. This stated In anticipation of the Union dues revocation period from May 5 to May 14, the letter on the re- verse side of this bulletin is being sent by Don Co- trone to all North Haven employees on checkoff. It is expected that this letter, and a General Notice which will be posted on the same subject, will prompt a number of inquiries from your employees. The following information will be helpful to you- Effective in January 1981, Union dues in North Haven were increased to $17.70 a month. This amounts to a yearly total of $212.40. Since the I A.M became the official bargaining agent in North Haven in 1974, dues have increased from $5 00 to their present level, representing a rise of 254% in less than ten years. A $10.00 initiation fee was introduced for the first time in 1980. Also, strike benefits which were $35.00 a week in 1960 were alleged to be $40.00 a week in 1980-only a $5.00 a week increase in twenty years. Employees who have authorized dues deduction have the right to decide for themselves the merits of having dues irrevocably in effect for another year, or cancelling them at this time Employees may cancel these dues by giving written notice to the Company only during the ten-day period begin- ning 12 01 a.m. on May 5, and ending at midnight, May 14, 1981 People usually submit a handwritten note to their foreman or Personnel Administrator, which should be dated and initialed to verify that it was received during the established revocation period On May 1, 1981, the Company sent a letter to its North Haven employees which stated: Federal Labor Laws and the Pratt & Whitney Labor Agreement assure that you, as an employee, are free to join the Union or to refuse to join the Union. North Haven employees who have elected to join the Union currently pay $17.70 per month in UNITED TECHNOLOGIES CORP 619 Union dues The Pratt & Whitney Labor Agree- ment provides that once a year, during a ten-day period, you have the right to cancel the deduction of Union dues from your paycheck and thereby save $212 40 per year. At North Haven, this once-a- year Union dues revocation period begins at 12.01 a m , May 5, 1981, and runs through midnight, May 14, 1981. If you wish to stop having monthly Union dues deducted from your paycheck, you may do so, by simply giving written notification to the Company. The Company must receive your written notice be- tween May 5 and May 14, 1981. It is not necessary to notify the Union. Although you have the right to cancel your dues deductions only once a year, you should know that you also have the legal right to resign from the Union at any time by providing the Union with written notification. Resignation from the Union terminates any obligations imposed on you by the Union, including Union rules, fines, fees and assess- ments. You, as an individual, have the legal right to join or not join, and to remain or not remain, a member of the Union. You should be aware of this impor- tant individual right. Neither the Company, nor the Union, may interfere with the exercise of this right If you have any questions concerning this matter, contact your Supervisor or Personnel Administra- tor The situation at East Hartford was essentially the same as that at North Haven As noted above, the escape period at East Hartford was from September 12 to 21, 1981. On September 10, 1981, the Company posted a bul- letin which read• SUBJECT CANCELLATION OF UNION DUES CHECKOFF AUTHORIZATION The present contract and checkoff form agreed to by the Company and the Union provides that those who wish to do so may cancel their checkoff cards authorizing the Union dues deduction of $16.20 a month by giving notice within ten days prior to September 22, 1981 This provision is consistent with the principle of an open shop and the Compa- ny's conviction that no employee should be forced to pay dues to work at Pratt & Whitney Aircraft. Those people who previously authorized Union dues deductions may at this time review that deci- sion and, if they so desire, cancel their dues authori- zation by giving written notice to the Company during the period September 12, 1981, through Sep- tember 21, 1981 No written notice to the Union is required. 15 Also, at the same time supervisors were given a notice which read. SUBJECT: CANCELLATION OF UNION DUES CHECKOFF AUTHORIZATION At North Haven, 194 persons revoked their dues- checkoff authorizations during the May 1981 escape period. In prior years, the number of people revoking such authorizations were as follows. Year No. of dues-checkoff revocations 1980 53 1979 124 1978 157 1977 34 1976 unknown 1975 73 1974 39 1973 106 1972 35 In a subsequent bulletin the Respondent stated- Here is some labor relations news for your informa- tion. During the recent revocation period in North Haven, 194 bargaining unit members chose to cancel their union dues deductions. The interesting thing is that the Union strongly protested a Compa- ny letter sent to employees' homes defining the con- tractual and legal rights, and subsequently the Union issued a flyer claiming the "letter backfired." However, there were actually close to three times more revocations this year than in 1980 The Com- pany firmly believes that all employees should be aware of their legal right to join or not to join the Union Under the terms of the existing Union agreement, those who have authorized the deduction of month- ly dues from their paychecks may revoke such au- thorization during the period September 12, 1981 through September 21, 1981. The attached General Notice will be posted on all shop bulletin boards notifying employees of their rights. 16 In the past, posting of this notice has produced a variety of questions dealing with the proper procedure to follow in revoking checkoff authorizations. In order that you may accurately answer such questions, the following is provided. Effective in January, 1981, Union dues were in- creased to $16 20 per month, amounting to $194 40 per year This was in keeping with the past in- creases through the "open ended" checkoff authori- zation, under which dues have gone from $6 in 1968, to this present level this year Those who have authorized dues deductions have the right to decide for themselves the merits of leaving them irrevocably in effect for an additional twelve months or taking this opportunity to stop deductions of Union dues from their pay. Thus, while you should not under any circumstances so- licit or encourage the soliciting of cancellations, you should feel completely free to answer questions ad- dressed to you and to point out the Company be- 15 It also appears from the testimony that one of the supervisors read this notice to employees in his department 11 The attached notice referred to is the one quoted above 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neves in the principle that no one should be re- quired to pay dues to work at Pratt & Whitney Air- craft People wishing to revoke their checkoff authori- zation should give written notice to the Company during the ten-day escape period beginning Septem- ber 12, 1981, and continuing through September 21, 1981, indicating a desire that the Company stop the deduction of Union dues from their pay. Written notice to the Company only is required. Signatures should be in ink and correspond to legal names No form has been nor should be provided since the rev- ocation must be a voluntary action. Employees desiring more detailed answers should be referred to the Personnel Advisors' Office. Should you have further questions, please feel free to take them up with your Advisor. In addition to the above, the Company sent a letter to its East Hartford employees which read as follows: Federal Labor Laws and the Pratt & Whitney Labor Agreement assure that you, as an employee, are free to join the Union or to refuse to join the Union. East Hartford employees who have elected to join the Union currently pay $16.20 per month in Union dues. The Pratt & Whitney Labor Agree- ment and Federal Labor Laws provide that once a year, during a ten-day period, you have the right to cancel the deduction of Union dues from your pay- check Annual dues are $194.40 At East Hartford, this once-a-year Union dues revocation period begins at 12:01 a.m , September 12, 1981, and runs through midnight, September 21, 1981. If you wish to stop having monthly Union dues deducted from your paycheck, you may do so, by simply giving written notification to the Company. The Company must receive your written notice be- tween September 12 and September 21, 1981. It is not necessary to notify the Union. You, as an individual, have the legal right to join or not join, and to remain or not remain, a member of the Union. You should be aware of this impor- tant individual right Neither the Company, nor the Union, may interfere with the exercise of this right. If you have any questions concerning this matter, contact your Supervisor or Personnel Advisor At East Hartford, in which over 10,000 people are em- ployed in the bargaining unit, about 856 employees re- voked their dues-checkoff authorizations in 1981. This compares with about 191 people who revoked authoriza- tions during the 1980 escape period and a similar number who did so in 1979. According to the Union's testimony almost all of the employees who revoke their dues- checkoff authorizations subsequently ceased their mem- bership in the Union. VII. ANALYSIS A. The Alleged Unilateral Change at North Haven The Supreme Court in First National Corp. v NLRB, 452 U.S. 666 (1981), dealt with the question of what types of managerial decisions required mandatory collec- tive bargaining with unions prior to their implementa- tion In that case, the Court concluded that absent unusu- al circumstances an economically motivated decision to terminate a portion of a company's business operations was not, at least insofar as the decision itself, a mandato- ry subject of bargaining. It was, however, recognized that a company was obligated to bargain over the effects of such a decision. In reaching its conclusion, the Court discussed a wide variety of managerial decisions and it appears to have assigned them to three separate catego- ries. Firstly, the Court stated that "some management de- cisions, such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect and attenuated impact on the em- ployee relationship." In this category, it is clear that the Court felt that such decisions were not subject to manda- tory bargaining. The second category, according to the Court, are managerial decisions, such as "the order of succession of layoffs and recalls, production quotas, and work rules," which are "almost exclusively an `aspect of the relationship' between employer and employee." As to this second category, which would also include rates of pay, hours of work, etc., it is self-evident that unilater- al changes within this category would violate the Act. The Court then went on to describe a third category of managerial decisions, into which it placed partial clos- ings It described this category as involving management decisions which, while motivated and undertaken for rea- sons unrelated to the employer-employee relationship, nevertheless have a direct impact on employment. As to this last category, it appears that the Court would utilize a balancing test and weigh the adverse impact on em- ployees versus the burden placed on a company by re- quiring it to bargain over such decisions before imple- mentation. In this respect the Court stated (452 U S. at 679): Congress did not explicitly state what issues of mutual concern to union and management it intend- ed to exclude from mandatory bargaining. Nonethe- less, in view of an employer's need for unencum- bered decisionmaking, bargaining over management decisions that have a substantial impact on the con- tinued availability of employment should be re- quired only if the benefit, for labor-management re- lations and the collective-bargaining process, out- weighs the burden placed on the conduct of the business. It is noted that, although the Court held that a compa- ny need not bargain with a union concerning its decision to partially close its business, it held in abeyance and ex- pressed no conclusion as to "other types of management decisions, such as plant relocations, sales, other kinds of subcontracting, automation, etc, which are to be consid- ered on their particular facts " UNITED TECHNOLOGIES CORP It seems to me that the present case, which essentially involves a reorganization of the Company's manufactur- ing departments, falls either into the first or third catego- ry of managerial decisions described above That is, that this is not a case where the employer made a direct change in wages, hours, or other terms of employment, or otherwise attempted to modify the existing collective- bargaining agreement Rather, the situation here involves a change in the Company's organizational structure, un- dertaken for economic reasons17 which, because of its interface with the existing collective-bargaining agree- ment, would have an impact on the employees involved Thus, even if one were to place the decision herein within the Court's third category, it still would be neces- sary to determine if the change had a substantial or sig- nificant adverse impact on the employees 18 Assuming, arguendo, that the present case involves a third category managerial decision, it is hard for me to imagine what, if any, burden would have been placed on the Respondent, had it notified and bargained with the Union before splitting up department 2431. (In this regard, the law would not require agreement, but only good-faith bargaining after which the Company could have implemented its decision.) On the other hand, I have my doubts as to the substantiality of the adverse impact on the employees involved In this respect, the split of department 2431 did not result in any employees losing their jobs and if one were to walk into the three new departments immediately after the split, one would have seen the same employees working on the same ma- chines, in the same physical areas, under the same super- visors as before the split i 9 Nevertheless, it was established that the split did have some impact on some, but not all, of the employees of the old department 2431 in relation to the prior practice of equalizing overtime within the department. That is under the old practice but, contrary to the terms of the contract, overtime was shared on each shift among em- ployees with the same job codes on a departmental basis 17 The testimony disclosed that one reason for creating separate de- partments was to assign teams of employees who would work exclusively on the L & H machines and thereby, through specialization, become more efficient Another reason was to be able to segregate out reports on scrap and the amount of rework from the L & H machines, as opposed to the older Temescal machines While it may be that these goals could have been accomplished with- out splitting up the department, this does not mean that the split was not economically justified or without rationale In any event, it is not alleged in the complaint that the decision to regoranize department 2431 was mo- tivated by antiunion considerations and, as such, it is not my function to second-guess the wisdom of the decision It is only my function to decide whether the decision was a mandatory subject of bargaining which re- quired the Company to give the Union adequate notice and an opportuni- ty to bargain about the decision before it was implemented 1s See, eg , Easigate IGA Foodhner, 236 NLRB 1305 (1978) In that case, the company was charged with unilaterally changing its meat de- partment operations by transferring certain work to the deli department Nevertheless, the administrative law judge concluded that the change was one which primarily related to accounting procedures and did not have adverse economic or work consequences See also Westinghouse Electric Corp, 150 NLRB 1574 (1965) 19 As noted above, the split into three departments had no effect on the order of succession as to layoffs and recalls, as that is not determined on a departmental basis Rather, seniority for such purposes is based on plantwide seniority among employees within the same occupational codes, irrespective of what departments in which they happen to work 621 Howe-ver, under the contract, the Respondent was not obligated to manage overtime in that way, but was only obligated to equalize overtime on each shift among em- ployees in the same job code who worked under the ju- risdiction of each foremen (i.e., by contract the Company was not obligated to equalize overtime on a departmental basis) Therefore, had the contract been strictly applied before the split, and as there were four separate foreman per shift in the old department 2431, there would have been greater disparity in overtime than existed In this respect, one effect (probably unintended) of the reorgani- zation of department 2431 into three separate depart- ments was to bring the overtime practice into conformity with the terms of the collective-bargaining agreement, which was not the case prior to the split. It also seems to be the case that, given the terms of the existing contract as to promotions, an effect of the split was to limit promotional opportunities for some of the employees while enhancing them for others, depending of course on where promotions became available Thus, pursuant to the contract, when all the employees were part of a single department, if one was passed over for a promotion within the department, he would have the right to grieve the promotion and assert that he either had greater seniority, ability, or fitness for the job in question. However, when the department was split, the right to grieve was reduced As explained above, if for example, a promotion was available in the new depart- ment 2431 and that promotion was given to an employee within that department, other employees who had been transferred to departments 2437 and 2438 would no longer have the right to grieve the promotion. Although it may be concluded that the Company's re- organization of department 2431 had a real, if somewhat limited, impact on the employees of that department, the Respondent nevertheless asserts that pursuant to the terms of the collective-bargaining agreement, the Union had waived its right to bargain over that decision. In this respect, although the management-rights clause does not specifically address the Company's right to establish or change its own internal organizational structure, it does state, inter alia It is recognized that in addition to the other func- tions and responsibilities, the company has and will retain the sole right to direct the operations of the company and in this connection to determine the methods, processes, and means of manufactur- ing.ao The Respondent therefore contends that given the scope of the management-rights clause, coupled with the con- ceded right to make transfers, plus the past practice of making departmental changes without bargaining with, or objection from, the Union, that there has been mani- fested a recognition by the Union that such changes as occurred here are within the sole discretion of the Com- pany. 20 Neither party presented any evidence regarding the negotiations from which this clause arose 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel and the Charging Party assert that the language cited above, although concededly broad, does not constitute a waiver by the Union as to its right to bargain about the decision to split up department 2431. In this regard, the Board stated in Southern Florida Hotel Assn., 245 NLRB 561, 567-568, 569 (1979), that "a waiver will not be lightly inferred but must be clearly evidenced either by the terms of the parties' collective- bargaining agreement or in the nature of the prior con- tract negotiations." The Respondent asserts that because the contract re- serves to it the sole discretion as to the determination of the methods, processes, and means of manufacturing, and as it also preserves its right to make transfers, the lan- guage of the contract, in its totality, must perforce in- clude and encompass the Company's right to establish or change its own internal organizational structure. As noted above, the Respondent adduced evidence that since 1975, during a period when the management-rights clause was in effect, the Company has deleted depart- ments, added new departments, and changed other de- partments. Indeed, the Union, while asserting in its brief that it did not waive its right to bargain over such deci- sions, does state that it could not object to the Company's establishment of new departments. Also, the General Counsel indicates in brief that if the Respondent has simply moved the L & H machines to another part of the plant, it would possibly have been within its rights under the contract.21 Based on all of the above, it is my opinion that the parties intended and understood that the collective-bar- gaining agreement, which was in effect at the time of the change, reserved to the Company the exclusive right to determine the manner, means, and processes of manufac- turing which encompassed the right to establish or rear- range its own organizational structure and to change and rearrange its manufacturing departments as it saw fit. Therefore, it is my opinion that when the Respondent split department 2431 into three separate departments, it was within its contractual rights to do so and that the Union had waived any right it might otherwise have had to bargain over that subject matter 22 Moreover, the evi- dence establishes that there was, in the context of the grievance procedure, bargaining over the effects of that decision on the employees, and that the Company made a genuine proposal to meet the promotion problem envi- sioned by the Union. Accordingly, it is recommended that the allegations of the complaint, in this respect, should be dismissed. 21 In the General Counsel's brief, he differentiates the reorganization of department 2431 from other past departmental changes by asserting that the split of 2431 was merely a "paper" division He then goes on to hypothesize that if the Company can get away with this "paper" division, it could totally abrogate the contract by creating a multitude of new de- partments, each containing a single job code on even a single employee, and thereby eliminate all grievances over promotions, transfers, etc This hypothesis, to my mind, is speculative and basically assumes, contrary to the evidence, that the real motivation in splitting department 2431 was to enable the Company to evade the terms of the existing collective-bargain- ing agreement 22 See, e g, Laredo Packing Co, 254 NLRB 1 (1981) B. The Allegation of Direct Dealing During the Hamilton Standard Negotiations It is initially noted that the negotiations in 1981 at Hamilton Standard were undertaken pursuant to the wage reopener clause of a 5-year collective-bargaining agreement As such, the scope of the negotiations were circumscribed by the terms of the reopener provision of the contract and were unlike the more open-ended nego- tiations which normally occur at the end of a contract's term. Thus, given the fact that all other terms and condi- tions of employment had been established and were on- going during the contract's 5-year term, the only manda- tory subjects of bargaining during these negotiations were wages and cost-of-living adjustments.23 Therefore, any proposal by either side which would encompass terms and conditions of employment outside the subjects which the parties agreed to reopen would constitute non- mandatory subjects of bargaining. As to nonmandatory subjects of bargaining (as opposed to mandatory subjects of bargaining), the Board and the courts have held that while either side may present a mandatory subject during negotiations, it may not bargain to impasse over such a subject and may not insist on the proposal as a condition of agreement NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). Further, as noted above, the provisions of Section 8(d) of the Act specifically give either party to a collec- tive-bargaining agreement the right to refuse to discuss or agree to any modifications of a contract to become ef- fective during its term. In view of the above, it is clear that although the Company may have been strictly within its rights in pro- posing a new 3-year collective-bargaining agreement to replace the final 2 years of the existing contract, it was also within the prerogative of the Union to refuse to dis- cuss such a proposal and to insist that bargaining take place only within the parameters of the wage reopener provision. As a related proposition, the Board has held that an employer may, in certain circumstances, notify its em- ployees of the status of negotiations and of the proposals it has made to a union. In Procter & Gamble Mfg. Co., 160 NLRB 334, 340 (1966), the Board stated: 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 made to the Union, or of its version of a breakdown in negotiations will not alone establish a failure to bar- gain in good faith. It is plain, however, that a non- coercive communication campaign may be utilized as an effective instrument for bypassing the Union and engaging in direct dealing with the employees. 23 Sec 8(d) of the Act provides, inter aha, that "the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provision of the con- tract " UNITED TECHNOLOGIES CORP Accordingly, direct communications by an enployer to its employees when bargaining is underway is subject to a degree of scrutiny, and the Board has held that such communications, in certain situations, may fall outside the ambit of protected conduct. In Texas Electric Corp, 197 NLRB 10, 14 (1972), the Board adopted the decision of the administrative law judge who held that the em- ployer's communications violated Section 8(a)(1) and (5) of the Act In finding that the employer's statements constituted "direct dealing" and were not protected by Section 8(c) of the Act, the judge noted that the employ- er told employees that they were entitled to "a more substantial increase" than was being proposed by their union, that they should prevail upon their union to accept the company's counterproposal, and that they were given the impression that the employer, rather than the union, was the true protector of their interests. Also in General Athletic Products Co, 227 NLRB 1565 (1977), the Board, with Member Walther dissenting, held that the employer's communications with its employees vio- lated the Act In that case, the administrative law judge found that after making a final offer to the union, and after a prolonged strike, the employer, in its communica- tions to its employees: Insist[ed] on acceptance of its offer and no other by disparaging the Union and by casting doubt in the minds of the membership as to the bona fides of the efforts of union representatives in advancing the interest of its membership, thus driving a wedge be- tween union representatives whom it had previously invited to step aside from active negotiations and the employees on whose behalf they were negotiat- ing. In short, the Respondent was asking unit mem- bers to repudiate the position taken by their bar- gaining representatives . . . Respondent repeated- ly suggested to unit members that they phone the Company and discuss the Company's position di- rectly with company representatives. It let them know in no uncertain terms that they would either have to accept the Company's offer . . . or there would be no agreement at all. As part of its hard sell approach to striking em- ployees, Respondent told employees in the October 6 letter that "time was running out" and the Com- pany had to decide soon whether or not to include the Greenville plant in its production plans for the forthcoming year. . . Thus, Respondent communi- cated to employees the . . . distinct thought that if they did not ratify the proposed agreement very soon they faced the distinct possibility that the plant would be closed and orders of necessity would be filled by its other plants. In the present case, the Respondent asserts that al- though its 3-year contract offer was a nonmandatory proposal, it nevertheless had the right to publicize that offer to its employees. While the Respondent's assertions have the force of simple logic, it is my opinion that its position oversimplifies the facts. In my opinion, the Re- spondent's argument should be rejected. 623 The negotiations concerning the Hamilton Standard plant opened on April 6, where the Union made it clear, as was its right, that it would not entertain nor would it be willing to discuss any proposals outside the scope of the reopener provision of the contract. As the union rep- resentatives were aware of the Company's 3-year offer made at other plants, it is plain that both sides were aware that the Union did not wish to entertain or discuss any similar proposals during these negotiations. In fact, although the Company stated, at the April 6 meeting, that it reserved its right to make such a proposal, it did not do so during the succeeding bargaining sessions held on April 9, 13, and 20, during which the discussions re- lated to wages and COLA. As such, it was not unreason- able for the Union's representatives to conclude that the 3-year contract idea was not going to surface during the negotiations and that the Company was going to honor its desire not to discuss such an idea It was, in fact, not until the final bargaining session, just 3 days before the Union's scheduled ratification meeting, that the Company made a 3-year offer. At that time, the Company, as part of its "last best and final offer" proposed the option of a 2-year agreement on wages and COLA or, alternatively, a complete and new 3-year collective-bargaining agreement to replace the final 2 years of the existing contract. As to the 3-year option, it is noted that prior to making that offer, there had been absolutely no discussion of its terms with this Union during the negotiations It is apparent to me that the Respondent's 3-year offer, as made in the circumstances of this case, was ill con- ceived and pernicious in nature. It is obvious that the Respondent was aware that the Union, as expressly stated at the April 6 meeting, rejected the idea of negoti- ating outside the scope of the reopener provision of the existing contract Indeed, by its course of conduct during the subsequent negotiations, the Company led the Union to believe that the negotiations would not be burdened with such an attempt which the Company recognized would not be a subject of mandatory bargaining. Not- withstanding the above, the Respondent, 3 days before the Union's scheduled ratification meeting, and without prior bargaining, made the 3-year offer as an alternative to a 2-year offer, either option being described as its final offer. In these circumstances, it seems to me that given the nature and timing of the 3-year offer, it was made, not with any genuine expectation that the Union would, or even could, seriously consider it. Rather, it is my belief that the manner and the timing of this offer smack more of a publicity ploy which, when publicized to the employees, was designed to create confusion and to create doubts in the employees' minds as to the efficacy of their representatives' bargaining capability. Indeed, evidence that the Company was more interested in the publicity effect, than in bargaining, is manifested by its literature which reached employees on the same day the offer was made and which therefore must have been pre- pared before the offer was actually presented to the Union at the bargaining table. Accordingly, it is conclud- ed that, by the above conduct, the Respondent has vio- lated Section 8(a)(1) and (5) of the Act 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Refusal to Furnish Information as to those Employees at Hamilton Standard Who Revoked Their Dues-Checkoff Authorizations Pursuant to the terms of the Hamilton Standard collec- tive-bargaining agreement, the escape period during which employees could revoke their union dues-checkoff authorizations was from April 10 to 20, 1981 . Contempo- raneously, negotiations between Lodge 743 and the Company commenced on April 6 and a ratification meet- ing was scheduled for April 26 , wherein members of the Union would be asked to vote on the Employer's last offer (made on April 23) and on whether to strike As noted above , the negotiations were not for a new con- tract, but were undertaken during the midterm of the ex- isting contract to deal with wages and cost-of -living ad- justments pursuant to the wage reopener clause During the period from April 10 to 20 , a number of employees (about 190) did in fact submit dues-checkoff revocations to the Company,24 and as early as April 13, the Union requested the Company to provide it with a list of the revokees Thereafter, further demands were made on the Company to furnish such a list on April 20, 23, 24, and 26. The Company's response , on each occa- sion, was that the list was not yet ready and when it had an opportunity to review the revocation letters, it would make that information available to the Union . The Union was also told that as negotiations were in progress, the Company did not review the compilation of a list of re- vokees as having a high priority. On April 28, after the ratification meeting was held, the Company did invite the Union's representatives to in- spect and copy the revocation letters The Union and the General Counsel contend, however, that despite the fact that the information was given 8 days after the revoca- tion period terminated, this delay was prejudicial to the Union and thereby violated Section 8(a)(5) of the Act. There is little doubt that as the contract required the Respondent to deduct union dues from those employees who so authorized , the Union would be entitled to know which employees had revoked their dues -checkoff au- thorizations so as to be able to administer the checkoff provision of the collective-bargaining agreement (i e., the Union would be entitled to verify which employees had, in fact, revoked their dues-checkoff authorizations). Nev- ertheless, the Company made available to the Union the revocation letters on April 28 and therefore the informa- tion was clearly given within sufficient time to enable the Union to carry out its contract administration func- tions. As the information was provided within sufficient time to enable the Union to police the checkoff provisions of the contract , it must then be asked what harm did the Union suffer from the slight delay In this respect, the testimony of the Union's representative was that the in- formation was not sought to police the collective-bar- gaining agreement , but rather was sought prior to the April 26 ratification meeting, so as to enable the Union's officials to evaluate the degree of employee support for the Union and thereby enable them to make a judgment 24 Employees need not submit the revocation letters to the Union as to the Union's strength vis a vis the Company in terms of the negotiations. Whether or not a union has a right to require a com- pany to furnish information showing a union's support or lack of support among the employees for the purpose of evaluating its bargaining strength vis-a-vis the compa- ny,25 the evidence herein does not indicate that the Union ever communicated to the Company the reason it required the list of revocations prior to April 26. As such, the Company was not required to guess at the Union's purpose, and it could reasonably have assumed that the information, as in the past, was simply being sought to verify which employees had revoked their dues-checkoff authorizations. Although the Union asserted that, in the past, the Company has made this information available shortly after the revocation period ended, the parties stipulated that in prior years the information was furnished from dates ranging from April 21 to 27. Clearly, April 28, the date the information was given in 1981, is not significant- ly outside the range of dates when this information was given in past years, and would not, in my opinion, con- stitute an unreasonable delay Inasmuch as the information requested was furnished within sufficient time for the Union to police its contract, and as the Union did not communicate any other reason for wanting this information at an earlier date, I cannot conclude that the Respondent violated the Act in this re- spect D The Alleged Solicitation of Dues-Checkoff Revocations This allegation relates to events at the Respondent's North Haven plant on April 30 and May 1, 1981, and at its East Hartford plant during September 1981. As noted above, the contracts in effect at both plants do not con- tain union-security clauses, but do provide that the Com- pany will check off and remit union dues from those em- ployees who authorize such checkoffs Also, the con- tracts permit employees to revoke their dues-checkoff authorizations during a 10-day period each year. At North Haven, the escape period ran from May 5 to 14 and at East Hartford it ran from September 12 to 21. The record reveals that in Previous years the Compa- ny has made a practice of posting notices prior to the escape periods in order to notify the employees when the escape periods began. It is the General Counsel's conten- tion that the events at these two plants in 1981 were dif- ferent from prior years, in that in 1981, the Respondent "chose to actively campaign for revocations." Both the General Counsel and the Charging Party assert that by the manner and means of its communications to employ- 25 None of the parties have presented me with any case precedent on the precise issue involved herein, and my research has failed to disclose any Query, if the revocations were required to be sent to the Union, could the Company, pursuant to Sec 8(b)(3) of the Act, obtain the names and number of the revokees for the purpose of evaluating its strength vis- a-vis the Union? In Florida Ambulance Service, 258 NLRB 459 (1981), the Board, in the circumstances of that case, held that an employer may not condition bargaining on first receiving from the union a list of its mem- bers In so finding the Board concluded, inter alia, that the demand was irrelevant to the employer's bargaining position UNITED TECHNOLOGIES CORP ees, the Respondent unlawfully solicited employees to revoke their dues-checkoff authorizations. At North Haven, the Company, on April 30, 1981, posted a notice which, in addition to notifying employees that the escape period was about to commence, set forth the procedure to follow. It also stated the amount of dues the Union was assessing (accurately stated as $212 40 per year), and went on to say that the escape provision of the contract "is consistent with the principle of an open shop and the Company's conviction that no employee should be forced to pay dues to work at Pratt & Whitney Aircraft." Simultaneously, the Company issued instructions to its supervisors which were de- signed to assist them in answering employee questions This bulletin accurately stated, inter alia, that the Union's dues had increased from $5 per month to $17 50 per month, a rise of 245 percent in less than 10 years It also accurately described the Union's strike benefits The bul- letin went on to state that employees had the right to decide for themselves the merits of revoking their dues- checkoff authorizations. In connection with the supervi- sory bulletin, no evidence was presented as to any con- versations between employees and supervisors at the North Haven plant. Thereafter, on May 1, a letter was sent to the employ- ees at North Haven reminding them of the contractual escape period. After describing the amount of dues which could be saved by revoking their dues checkoffs, the letter described the procedure for doing so. Addi- tionally, the letter accurately notified employees of their legal and contractual right to resign their membership in the Union, which would terminate any obligations to union rules , fines, fees, and assesments 26 This letter went on to state. You as an individual, have the legal right to join or not join, and to remain or not remain, a member of the Union You should be aware of this important right Neither the Company, nor the Union, may interfere with the exercise of this right. Although the record does not indicate the type of communications made by the Union to employees during the escape period, there clearly was nothing to prevent the Union from countering the employer's statements or from urging employees to retain their dues-checkoff au- thorizations or union membership At East Hartford, the facts as they occurred in Sep- tember 1981 are not much different from those that oc- curred earlier at North Haven. In view of the escape period which was to commence on September 10, a bul- letin was posted After accurately setting forth the amount of union dues ($16 20 per month), the bulletin stated that the escape provision of the contract "is con- sistent with the principle of an open shop and the Com- pany's conviction that no employee should be forced to pay dues to work at Pratt & Whitney Aircraft." Unlike the evidence at North Haven, the record establishes that in one department, employees were approached and 26 As the contract does not require membership in the Union as a con- dition of employment, employees do not have any obligation to join and may revoke their membership at any time 625 orally told of the escape period by their foreman and that he read to them the above-quoted bulletin.27 As at North Haven, the Respondent at East Hartford also issued a bulletin to supervisors so that they could re- spond to employees' questions This bulletin accurately described the increase in union dues over the years, and set forth the procedure for employees to follow if they desired to revoke their dues-checkoff authorizations. The bulletin went on to state. Those who have authorized dues deductions have the right to decide for themselves the merits of leaving them irrevocably in effect for an additional twelve months or taking this opportunity to stop deductions of Union dues from their pay Thus, while you should not under any circumstances so- licit or encourage the soliciting of cancellations, you should feel completely free to answer questions ad- dressed to you and to point out the Company be- lieves in the principle that no one should be re- quired to pay dues to work at Pratt & Whitney Air- craft. . . No form has been nor should be provid- ed since the revocations must be a voluntary action. At East Hartford, a letter was also sent to employees which was virtually identical to the one sent to the em- ployees at North Haven on May 1, 1981. As at North Haven, nothing precluded the Union from responding to the Company's statements and from urging employees either to remain union members or to retain their dues- checkoff authorizations. In Perkins Machine Co, 141 NLRB 697 (1963), the col- lective-bargaining agreement provided for the deduction of dues from union members under a maintenance of membership contract. It also provided for a 15-day escape period each year so that employees could with- draw from the Union and revoke their checkoff authori- zations Prior to the escape period in 1962, the company sent a letter to each union member pointing out the escape provision of the contract and notified them that if they wanted to escape, they should sign an enclosed letter to the union and the company The letter sent to employees went on to state that the decision was for the employees to make and that the company was not urging employees either to remain members of or resign from the union. Based on these facts, the Board concluded that the company did not violate the Act, stating that the company "acted lawfully in bringing to the attention of its employees their contractual rights to resign from the Union and to revoke their dues deduction authoriza- tions " The Board also noted that the communication to the employees was "free from any threat of reprisal or promise of benefit," and that the communication ex- pressed the company's neutrality. In Cyclops Corp, 216 NLRB 857 (1975), the Board adopted the administrative law judge's conclusion that similar types of communica- tions to employees did not violate the Act, despite the fact that the company's written communications did not contain a statement of neutrality In Cyclops,28 the judge 27 The bargaining unit in East Hartford contains about 10,000 employ- ees 28 See also Tennsco Corp, 206 NLRB 48 (1973) 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded that the case was governed by the decision in Perkins, and distinguished the facts from Red Rock Co, 84 NLRB 521 (1949), and Hexton Furniture Co., 111 NLRB 342 (1955). In Red Rock Co., supra, the Board held that in the context of a surrounding atmosphere of hostility toward a union, which was attempting to organize the employ- ees, the company violated the Act by, among other things, soliciting employees to send telegrams to the union purporting to withdraw their membership applica- tions. In Hexton Furniture Co., supra, the Board found a violation of the Act in circumstances where the employ- er, in addition to posting a notice, held an employee meeting to discuss the checkoff authorization withdrawal provisions of the contract, and furnished supervisors with revocation forms. Also, the Board noted that the foremen approached and spoke to individual employees in an insistent fashion and frequently returned to those who had not signed the revocation forms. In Rock-Tenn Co., 238 NLRB 403 (1978), the Board found that the respondent :nlawfully solicited dues- checkoff revocations where an employee (Mitchell) was told that the union representative had deliberately al- lowed the contract to renew, thus precluding a pay raise, and where the company also misrepresented the number of employees who had already signed revocations. As to the first statement, the Board opined that "the obvious purpose of providing this information was to disparage the Union and thereby to convince Mitchell that the Union was unworthy of his further support " As to the misrepresentation, the Board stated that the exaggeration of the number of employees who had submitted revoca- tions "was an obvious attempt . to influence Mitchell to jump on the bandwagon and join the purported nearly unanimous group of employees who had revoked their checkoff authorizations." While Perkins and its progeny suggest that noncoer- cive communications to employees designed to remind them of their contractual rights to revoke union member- ship or dues-checkoff authorizations will, of themselves, not violate the Act, such communications will be viewed in a different light where the employer has engaged in other contemporaneous unfair labor practices which would, of course, manifest to employees that their reten- tion of union membership was not a voluntary matter. Thus, in a number of Board cases, including the above- cited Red Rock Co., such communications have been held to violate the Act when accompanied by conduct of a coercive nature, such as threats, promises, interroga- tions, and surveillance.29 As pointed out by the Charg- ing Party, the Board in Davis Co., 249 NLRB 488 fn. 2 (1980), stated: We believe that, in the context of other unfair labor practices designed to discourage union support, Re- spondent was not merely advising employees of their rights, but was unlawfully soliciting them to withdraw from the Union and to revoke authoriza- 29 See, e g, Cummins Component Plant , 259 NLRB 456 (1981 ), Smith's Complete Market, 237 NLRB 1424, 1427 (1978), L'Eggs Products Inc, 236 NLRB 354, 389 (1978) tions for the checkoff of union dues from their wages. It seems to me that the facts of the present case come closer to those in Perkins, Tennsco, and Cyclops, than they do to the facts of the cases relied on by the General Counsel and the Charging Party. The written communi- cations to the employees in the present case set forth in an accurate manner the contractual rights of the employ- ees to revoke their dues-checkoff authorizations during the escape periods and their concomitant right to termi- nate their union membership. Although the Respondent stated its preference for an open shop, I doubt that this expression of opinion was a matter of much surprise or concern to the employees. In any event, the notifications to employees as well as to the supervisors did not con- tain any threats or promises and were therefore noncoer- cive on their face. In fact, those communications express- ly stated that employees were free to choose whether to retain their union membership and their dues-checkoff authorizations. Also, the communications did not contain any misstatements of fact or exaggerations, and to the extent that the Respondent cited the increase in union dues over the years, that information was accurate and relevant to the issue. Although there was evidence that, at East Hartford, one foreman approached employees in his department and reminded them of the escape period, it appears that he essentially read to them the notice that was contemporaneously posted. In my opinion, this evi- dence of verbal contact between one foreman and some employees in a unit of about 10,000 does not approach the situations described in Hexton Furniture Co., supra, or Rock Tenn Co., supra. Moreover, as the record does not disclose any other contemporaneous unfair labor practices at the plants in- volved herein ' 30 it is my conclusion that this case is dis- tinguishable from the cases cited by the General Counsel and the Charging Party and that this aspect of the com- plaint should be dismissed. CONCLUSIONS OF LAW 1 United Technologies Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Unions involved herein are labor organizations within the meaning of Section 2(5) of the Act. 3. By bypassing Lodge 743 and bargaining directly with its employees represented by that labor organization at its Hamilton Standard Division plant, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 4 The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. Zo It is recognized that Administrative Law Judge Miller's decision (JD-613-81) concluded that the Respondent did engage in certain unfair labor practices at East Hartford and North Haven in relation to the re- opener negotiations which occurred at those plants in 1980 Nevertheless, it seems to me that even assuming that the Board adopts Judge Miller's decision, those events are too remote in time to taint the alleged solicita- tions which occurred at North Haven on April 30 and May 1, 1981, and at East Hartford during September 1981 UNITED TECHNOLOGIES CORP 627 5. Except to the extent found above, the Respondent [Recommended Order omitted from publication ] has not violated the Act in any other manner.