Otis Elevator Co.

OTIS ELEVATOR CO. 223 Otis Elevator Company, a wholly owned subsidiary of United Technologies and Local 989,- United Automobile, Aerospace & Agricultural Imple- ment Workers of America. Case 22-CA-8507 13 March 1987 SECOND SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 25 March 1981 the National Labor Relations Board issued a Decision and Order' in this pro- ceeding (Otis Elevator 1) finding the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by: (1) refusing to bargain with the Union over the Respondent's decision to transfer and consolidate certain unit work from its Mahwah, New Jersey facility to other facilities in East Hartford, Connecticut; (2) refusing to provide the Union with information relevant to the Re- spondent's decision; and (3) refusing to bargain with the Union over the effects of the Respond- ent's decision. The Union and the Respondent filed petitions for review of the Board's Decision and Order with the United States Court of Appeals for the District of Columbia Circuit, and the Board filed a cross-appli- cation for enforcement of its Order. On 12 August 1981 the court granted the Board's motion to remand the case to the Board for reconsideration in light of the Supreme Court's decision in First Na- tional Maintenance v. NLRB, 452 U.S. 666 (1981). On 6 April 1984 the Board issued a Supplemen- tal Decision and Order2 (Otis Elevator fl) finding, contrary to its original Decision and Order, that the Respondent did not violate Section 8(a)(5) and (1) by refusing to, bargain with the Union over its decision to transfer and consolidate unit work, or by failing to provide the Union with certain infor- mation. The Board in Otis Elevator II found that the earlier Board relied substantially on its conclu- sion that the Respondent unlawfully refused to bar- gain over its decision to transfer and consolidate unit work to, find it also unlawfully refused to bar- gain about ' the effects of that decision. In light of its conclusion that the Respondent did not unlaw- fully refuse to bargain over the decision, the Board in Otis Elevator II remanded the effects-bargaining allegations of the complaint to the administrative law judge for further consideration. On 31 January 1986 Administrative Law Judge Irwin Kaplan issued the attached supplemental de- cision. The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed excep- tions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this decision and to adopt the recommended Order. Contrary to the judge, we find the Respondent did not violate Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union over a relocation package for those employees the Respondent chose to transfer, from its Mahwah, New Jersey facility to its facilities in East Hartford, Connecticut. The facts are largely set forth in Otis Elevator P and Otis Elevator 114 as well as in the judge's sup- plemental decision. The Union discussed or wished to discuss with the Respondent two general trans- fer effects issues-the relocation package to be of- fered to the transferred employees and the selec- tion criteria the Respondent would use to invite employees to transfer. We agree with the judge that the Respondent unlawfully refused to bargain with the Union about transfer selection criteria and unlawfully dealt directly with those employees whom it selected. Accordingly, we shall repeat here only those facts relevant' to the parties' bar- gaining over a relocation package. Any additional facts we have added are based on uncontradicted record evidence. United Technologies acquired Otis Elevator Company in 1975. Dr. William M. Foley thereafter conducted a study for the Respondent concluded that much of Otis' engineering activity, was diffuse and duplicative. The Respondent's management be- lieved Otis' engineering effort would be strength- ened if research and development were conducted closer to Otis' research already conducted in Con- necticut; and to other United Technologies devel- opment groups. The Respondent also concluded its Mahwah, New Jersey facility was outdated and in- adequate. For these reasons,, it decided to transfer its Mahwah product improvement group to Con- necticut immediately and consolidate it with similar efforts already there'. It also decided it would move its entire research and development, engineering, and cost-reduction efforts to Connecticut by mid- 1979. On 2 December 1977 Dr. Foley told the Union of the Respondent's plans. He stated certain 1 255 NLRB 235 2 269 NLRB 891. 8 Supra, 255 NLRB 235. 4 Supra, 269 NLRB 891 283 NLRB No. 40 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD changes were effective immediately "organization- ally," but that "the physical change will be much more prolonged." He further stated 15 employees would be transferred from Mahwah to Connecticut within the next 5 months and that those chosen would be notified within the next 8 weeks. On 17 January 19785 the Union gave Respond- ent Industrial Relations Manager J. J. Cronin a letter demanding that employees be contacted through the Union about "possible job opportuni- ties at locations other than Mahwah." The Re- spondent rejected the Union's demand and on 25 January offered 13 unit engineers jobs in East Hart- ford, Connecticut.6 The parties thereafter met on several occasions in February and early April during which the Union demanded the Respondent negotiate its deci- sion to transfer work, the effects of that decision, and recognition at the Connecticut facility. The parties did not substantially discuss at any of these meetings whether the Respondent would pay the employees' relocation expenses, give the employees time off to look for housing in Connecticut, or other issues associated with physically relocating from New. Jersey to Connecticut. Although the Union on 27 April asked for certain reports that had an impact on the Respondent's decision to move, for information about the inducements that the Respondent offered to encourage employees to accept `the Connecticut job offer, and for informa- tion on working conditions in Connecticut, it did not request information at any of these meetings specifically bearing on physically relocating to Connecticut. On 27 April the Respondent also gave the Union a booklet detailing a relocation package "handled by an outside group called `Trels."' It offered this package to those employees it invited to transfer to Connecticut in January. Although the package was not made part of the'record, certain facts about the package are known. Thus, the package provides, inter alia, that the Respondent will pay for two home-finding trips from Mahwah to Connecticut that may last a total of 6 days and 7 nights. An- other provision states that the Respondent will pay for meals and lodging for relocating employees for up to 90 days, and for up to 30 additional days for their families. The Respondent also offered to pay one-half to 1 month's salary for miscellaneous ex- penses. Although the Respondent stated in December 1977 there would be only two "waves" of engi- neers from Mahwah to Connecticut-immediately All dates are 1978 unless otherwise indicated Eleven accepted, including one who accepted a transfer to a supervi- sory position and again in mid-1979-the Respondent on 24 May announced for the first time an -additional 15 engi- neers would-be invited to transfer within the next 2 days. The parties next met 29 June. The Union asked if the Respondent planned a "third wave." The Re- spondent's representative stated, "[W]hile that was our original plan, it's still being reviewed . . . . As soon as a definite answer is reached, we will be talking to you ...." The Respondent also stated it would not transfer any technicians. On 4 August the Respondent offered a Mahwah technician a position in Connecticut. On 9 August it met with the Union to notify it that it had made the offer. The Union stated, "We're finding it very difficult to structure our demands the Company keeps changing position." On 15 September the Union presented a "Partial List of Demands."7 The Union demanded, inter 7 Partial List of Demands 1) Update Trels Report to reflect current conditions. 2) Employee's relocation policy guide to be offered to all employ- ees who relocate. This policy to be modified to include all demands put forth by Local 989, U.A W 3) Relocation package to be available for up to two (2) years after man starts work in Connecticut. 4) Pay any security and finders fees required on rentals 5) Pay all temporary housing costs as required in both Connecticut and New York metro. area. 6) Pay entire cost of motel and associated costs including meals for employees who choose to reside in motels during the week and commute home on weekends. 7) Provide adequate time off for employees relocating to permit finding and purchasing the new residence as well as time off for the move 8) Pay all moving costs. 9) Assist employee in obtaining nortgages 10) Provide compensation payment for increased mortgage rate (use formula Government uses for condemnation proceedings) and increased cost for housing. 11) Make lump sum payment to apartment dwellers equal to first two years difference in rent 12) Each employee who moves shall receive two months salary to cover misc. expenses. 13) Company shall pay all transportation cost in excess of employ- ee's cost to new location for'one (1) year, after -which it will be in- cluded in employee's salary. Transportation cost shall include the following items: - A) 20 [cents]/mile and all tolls for those who -drive to new loca- tion. B) All fare cost for those who use public transportation. C) Equal time off or payment for additional time used to com- mute to new location D) Cost to garage additional automobile used for transportation to new location. E) Increased cost of automobile insurance. F) Cost of renting a car while your car is in for repairs 14) Due to the higher risk of accident and the greater traveling time required to commute to the new facility, the Company shall: A) Increase medical coverage B) Increase accident and sickness benefits. C) Provide life insurance covering employees while traveling to and from work similar to that provided for employees while trav- eling on company business. D) Pay cost of L.T D plan. Continued OTIS ELEVATOR CO. 225 alia, reimbursement for certain costs associated with finding housing in Connecticut, compensation for added living and travel expenses, helicopter or airplane service to Connecticut, and a 20-percent salary increase for those transferred. It also de- manded that senior employees be given the first opportunity to transfer, and that the Respondent accept all requests for voluntary layoff. The Re- spondent asked the Union to clarify certain de- mands, but made no counterproposals at this meet- ing. The Respondent responded to the Union's de- mands at a meeting held 6 October. The Respond- ent's representative began by stating: I have reviewed the demands and in all fair- ness I would like to say I was disappointed in what was presented. I expected you to put to- gether something more allied to something we hopefully could reach agreement upon. L said at the last meeting that I would probably have negative responses to several of your demands and I feel it's only fair to tell you that a number of your proposals will receive no an- swers. Despite its statement to the contrary, the Respond- ent answered every demand, rejecting all but two. In response to the Union's demand that it accept all requests for voluntary layoffs, the Respondent said it would agree, subject to "procedural clarifica- tion." In response to the Union's demand that the Respondent reimburse employees for certain trans- portation costs, the Respondent offered $60 per 15) All salary offers made to employees who were offered jobs in Conn. will be given to them whether or not they go to Connecticut. Those employees who go shall get an additional 20% salary increase 16) The most senior employees will be given the first option on jobs in Connecticut. 17) The Company will supply free helicopter or airplane service from central locations to Connecticut. 18) Severance pay for those laid off shall be four weeks pay for each year of service. Those employees eligible for an unreduced pen- sion shall also be eligible for severance pay. 19) Special early retirement shall be offered to all employees age 55, and over. 20) Employment in other divisions of Otis and U T C. (length of service and benefits to be maintained) 21) Company will help find other employment outside of U T.C. by use of a consulting firm 22) Adequate time off will be given to find other jobs. 23) Tuition refund plan to be expanded to cover any type of train- ing and reimbursement to be 100%. 24) Accept all requests for voluntary layoff. These employees to receive severance pay and retain their recall rights 25) Employees forced on layoff will receive a salary supplement for five years equal to the difference between their new jobs, salary and their present jobs salary if their new jobs salary is lower This supplement will be revised annually to reflect inflation. 26) Company shall supply the Union in writing, a 10 year guaran- tee that Mahwah will remain open and will specify in detail the tyep of work to be performed. The Union reserves the right to add to, subtract from or otherwise modify these proposals as the occasion demands. month for a year for those employees who would have to commute for more than 1-1/2 hours to the new location. The Respondent also stated: We are unwilling to modify the [Trels] pack- age, but . . . in individual cases we would consider time extensions and ' minor adjust- ments and modifications, but we will not modify the entire policy. The Union modified some of its demands at a meeting held 31 October, dropping its demands that the Respondent reimburse employees for ga- raging an additional automobile used for transpor- tation to the Connecticut facility, pay increased automobile insurance costs, and pay rental costs while an employee's car is being, repaired. The Union also stated it would accept bus service in lieu of helicopter service. The Respondent rejected the Union's demands as modified, but proposed procedures for accepting requests for voluntary layoff from the Mahwah facility. The, Respondent also stated it had no information whether there would be a "third wave" of engineers to Connecti- cut. The Union again modified its proposal 1 Decem- ber, this time dropping its demand for "L.T.D. PLAN" reimbursement, and its demand for air- plane service to Connecticut. The parties last met on 30 and 31 January 1979. The Respondent then announced that within the next 2 days it would offer transfers to 20 engineers to fill 16 positions. If all 20 accepted, all would, be permitted to transfer. If none accepted, it stated it would lay off 16 engineers from the Mahwah facili- ty. The parties did not bargain over a relocation package at these meetings. We conclude the Respondent violated Section 8(a)(5) and (1) by offering the Trels package direct- ly to employees offered transfers in the first and second "waves." We regard that conclusion as en- compassed within our finding that the Respondent unlawfully dealt directly with unit employees. We do not agree with the judge, however, that the Re- spondent failed to bargain about the relocation package it would offer those engineers who were to transfer to Connecticut in January 1979. In finding a violation, the judge relied on his findings that the, Respondent offered the Trels package on a "take-it-or-leave-it" basis, made no formal counterproposals, and rejected outright almost all the Union's demands. The judge also relied on the fact that the Respondent failed to timely provide meaningful information. Hard bargaining alone, however, does not vio- late the Act. "A party . . . is, entitled to stand firm on a position if he reasonably believes that it is fair 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and proper or that he .has sufficient bargaining strength to force agreement by the other party."8 The question is whether the totality of the Re- spondent's conduct demonstrates it unlawfully frus- trated the possibility, of arriving at any agreement rather than its having lawfully engaged in hard bargaining.9 We recognize that the Respondent unlawfully of- fered the Trels package directly to the first wave of engineers offered transfers in January 1978 and to the second wave in May. We also recognize that the Respondent failed to apprise the Union in a more timely fashion of each of its decisions to transfer employees. ` We do not, however, find the Respondent thus intended to frustrate, or in fact frustrated, bargaining from September through Jan- uary 1979 over a relocation package. When the Respondent offered its Trels package directly to those employees whom it chose to transfer to Connecticut in January and May, the Union had not yet provided its demands. Thus, its direct dealing- at that time, while separately violat- ing Section 8(a)(5) and (1), did not indicate that the Respondent would fail to negotiate with the Union once the Union had presented its demands. The fact that the Respondent did not timely notify the Union of its decision to transfer employ- ees also did not frustrate bargaining over a reloca- tion package from September through January 1979. Although the Respondent's failure to notify the Union excused the Union's substantial delay in coming forward with proposals, the Union ulti- mately formulated its demands and the Respondent bargained with the Union once the Union present- ed them. There are no other indications the Respondent lacked good faith. The Respondent met with the 'Union several times after the Union presented its demands in September, the Respondent answered each demand and agreed in principle with one of them, and made a limited financial offer in re- sponse. Although the Respondent remained stead- fast in its insistence that the' Union otherwise agree to' its Trels relocation package, this alone cannot support a finding that the Respondent failed to bar- gain in good faith. Accordingly, we 'find the Respondent did not violate Section 8(a)(5) and '(1) by failing to bargain in good faith with the Union over a relocation 9 NLRB v. Advanced Business Forms Corp, 474 F 2d 457, 467 (2d Cir. 1973) Sec. 8(d) of the Act states that the duty to bargain "does not compel either party to agree to a proposal or require the making of a concession " See also H. K. Porter Co. v NLRB, 397 U S 99 (1970) 9 NLRB v. Advanced Business Forms, supra, 474 F.2d at 467; see Sun- beam Plastics Corp., 144 NLRB 1010, 1013 (1963). package for those employees the Respondent chose to transfer to Connecticut in January 1979.10 AMENDED CONCLUSION OF LAW Delete paragraph (a) of Conclusion of Law 5 and reletter the subsequent paragraphs. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Otis Eleva- tor Company, a wholly owned subsidiary of United Technologies, Mahwah, New Jersey, and East Hartford, Connecticut, its officers, agents,' succes- sors, and assigns, shall take the action set forth in the Order. CHAIRMAN DoTSoN, dissenting. Contrary to my colleagues, I find the Respond- ent did not violate Section 8(a)(5) and (1) by failing to bargain with the Union about the effects of its decision to transfer unit work from its Mahwah, New Jersey facility to facilities in East Hartford, Connecticut, because I find the Union waived its right to bargain in its collective-bargaining agree- ment with the Respondent. The parties' contract, which was effective I April 1977 through 31 March 1980, reserved for the Respondent the rights to "transfer"; "to sched- ule and assign the work' ; "to assign employees among departments, offices or plants"; and "to de- termine the location of all Company offices."' Ac- 10 Unlike our dissenting colleague, we do not find the Union waived its right to bargain over the effects of the Respondent's decision The parties' collective-bargaining agreement, on which our dis- senting colleague relies, reserved for the Respondent the rights to "transfer"; "to schedule and assign the work"; "to assign employees among departments, offices or plants", and "to determine the loca- tion of all Company offices." While the contract may or may not waive the Union's right to bargain about the Respondent's decision, it in no way "clearly, and unmistakably," Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963), waived the Union's right to bargain about all of the effects of the Respondent's decision. Westinghouse Electric Corp., 206 NLRB 812 (1973), which the dis- sent cites, does not support finding waiver here In that case, the Board found the employer's contractual right to "direct employees in the available work" waived the union's right to bargain over the identity of those employees the employer would select for transfers to a new facility within the same unit That case does not suggest, as the dissent's analysis implicitly assumes, that the reserved right to "direct employees in the available work" waives the union's right to bargain over every effect of that decision and not just the identity of those to be chosen. Further, that case involved an mtraunit transfer, not a transfer, like the one here, to jobs outside the unit and which will necessarily result in a loss of unit jobs i Management Clause Except as specifically limited by any provision of this Agreement, it is agreed that the management of the Compan y's business is the sole and exclusive right and responsibility of the Company and that this management right includes but is not limited to the right to employ, promote, demote, transfer, retire in accordance with the Company's established retirement plan' to discharge or discipline for Continued OTIS ELEVATOR CO. cordingly, I find the Respondent was clearly privi- leged to transfer unit work without bargaining with the Union. Despite the contract's clear language, my col- leagues find the Respondent had a duty to bargain with the Union about the relocation package the Respondent would offer to employees chosen to transfer, the baiss on which employees are to be given the opportunity to transfer, and the identity of those employees. They argue that the contract's language, regardless of whether it would waive the Union's right to bargain abot the decision to trans- fer unit work, did not waive the Union's- right to bargain about the effects of that decision. I find, however, tha the parties' clause clearly contemplated that the Respondent could "transfer" work unhindered by bargaining with the Union. To read the clause as pertaining only to the decision itself, and not the decision's effects, is to hold that the Respondent may not freely transfer work. Not only must the Respondent bargain with the Union under my colleagues' analysis, current Board law demonstrates that the Respondent must neces- sarily do so before it effects the transfer.2 Thus, pursuant to the majority opinion, the Respondent is subject to a substantial bargaining obligation de- spite the fact that it reserved for itself the -right to "transfer" work. The principle I suggest is not a new or novel one. Thus, in Westinghouse Electric Corp.,3 the Board in 1973 held that the employer's contractual right to "direct employees in the available work" waived the union's right to bargain over the identi- ty of employees the employer would transfer to a new facility.4 The facts in Westinghouse are stun- ningly similar to those in, this case and Westing- house should therefore control the result here.5 cause, to maintain discipline and efficiency of employees ; to lay off or recall employees in connection with a reduction or increase in the necessary working force , to schedule and assign the work; to assign employees among departments, offices or plants; to determine the lo- cation of all Company offices, the control and regulation of use of all equipment and other property of the Company; to increase or reduce working hours and workweek and to determine and establish any Company policy. 2 See Metropolitan Teletronics Corp, 279 NLRB 957 (1986) I dissented in Metropolitan Teletrontcs. I would not hold that an employer's failure to give notice before it makes the change necessarily violates Sec 8(a)(5) and (1). a 206 NLRB 812 (1973) 4 Id at 812 fn 1. s My colleagues unpersuasively attempt to distinguish Westinghouse on the ground that Westinghouse involved an intraunit transfer and not, like here, a transfer outside the unit Neither the contract in Westinghouse, nor the contract here, made such a distinction Instead, in both cases the con- tracts broadly reserved for the employers the rights to "direct employees in the available work" or the rights to "transfer," "schedule and assign," and to "assign employees amont . plants " My colleagues' decision to read into the contract a distinction between intraumt transfers and other transfers is inconsistent with the contractual analysis in Indianapolis Power Co, 273 NLRB 1715 (1985), remanded sub nom Electrical Workers IBEW Local 1395 v NLRB, 797 F.2d 1027 (D C. I would dismiss the complaint.6 227 Cir 1986), in which the Board refused to assume that a broad no-strike clause did not encompass sympathy strikes. See also Milwaukee Spring Di- vision, 268 NLRB 601 (1984) (refusing to imply a work-preservation clause in a contract silent on the issue). 6 I agree, for the reasons cited in the majority opinion, that the Re- spondent did not in any event violate Sec 8(a)(5) and (1) by failing to bargain in good faith with the Union over a relocation package for those employees the Respondent chose to transfer to Connecticut in January 1979. J. Michael Lightner, Esq. and Thomas W. Cestare, Esq., for the General Counsel. Edward J. Dempsey, Esq., of Washington, D.C., for the Respondent. Mr. Robert Kushnir, president, of Yonkers, New York, for the Union. SUPPLEMENTAL DECISION ON REMAND DECISIONAL BACKDROP IRwIN KAPLAN, Administrative Law Judge. On 29 November 1979 I issued my initial decision upholding the allegations in the amended complaint (JI)-823-79). In essence, I found that the Respondent (Otis Elevator Company, a wholly owned subsidiary of United Tech- nologies) violated Section 8(a)(5) and (1) of the Act, by failing to bargain with the Union (Local 989, United Automobile, Aerospace & Agricultural Workers of America), over its decision to discontinue its research and `development activities in Mahwah, New Jersey, and to consolidate them with its operation in East Hartford Connecticut; by refusing to furnish the Union with the "Booz-Allen and Cole reports;" admittedly relevant to Respondent's decision; and by failing and refusing to bar- gain over the "effects" of its decision on unit employees. In connection with the "effects bargaining" allegations (the subject of this supplemental decision), I found initial- ly, that Respondent not only failed to bargain in any meaningful fashion, but also that Respondent unlawfully bypassed the Union by unilaterally determining both the criteria for selecting employees for transfer to Connecti- cut and the employees who were offered such Job oppor- tunities. In this latter regard, I further foundl that Re- spondent unlawfully denied the Union a presence at these transfer- interviews. On 25 March 1981 the afore- noted findings were affirmed by the Board in Otis Eleva- tor Co., 255 NLRB 235 (1981) (Otis 1). Shortly, after Otis I issued, the Supreme Court decided First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). There the Court held that an economically moti- vated decision to shut down part of a business is not en- compassed by terms and conditions of employment under Section 8(d) and, as such, it (the "decision") is not deemed to be a mandatory subject for bargaining pur- poses. On 6 April 1984 the Board, in light of the princi- ples set forth in First National Maintenance, on reconsid- eration, issued a Supplemental Decision and Order re- versing, in part, its earlier decision (Otis '1), and finding, inter alia, that the Respondent was not obligated to bar- gain over its "decision" to discontinue certain functions in Mahwah, New Jersey, and to transfer those functions 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to its facility in East Hartford, Connecticut. Otis Elevator Co (Otis II), 269 NLRB 891 (1984).' Further, the Board, having determined that Respond- ent was not required to bargain over its decision, con- cluded, a fortiori, that Respondent was not required to furnish the Union the Booz-Allen and Cole reports. Id. at 984. Still to be disposed of were the- effects bargaining allegations, which had been upheld by the Board in Otis I. These allegations were remanded to me and form the subject of the instant supplemental decision. In Otis II, the Board noted that the earlier Board "relied substantially on its holdings that the Respondent unlawfully refused to bargain over its consolidation deci- sion and unlawfully withheld information from the Union."2 As those holdings were subsequently reversed, the Board remanded the outstanding effects-bargaining allegations for my further consideration in light of the decision in Otis IL For my reconsideration and preparation of this supple- mental decision, I have reexamined the entire original record as well as the postremand supplemental briefs.3 Having done so, I reaffirm my initial credibility resolu- tions. In my original decision, I rejected certain represen- tations mady by Respondent's chief witness, Dr. Foley, as conclusionary and not supported by documentary or other corroborative evidence. (See, eg., 255 NLRB at 246.), I was also otherwise unimpressed with Dr. Foley as a witness. The record disclosed that at times he was evasive and equivocal and less than responsive or forth- right. For example, Dr. Foley, when asked on cross-ex- amination whether he knew at the 24 May bargaining session, the identities of the new group of engineers to be invited to transfer, he responded, "Not exactly. Earlier we [the Company] had a group, but we had an additional group we were going to ask." However, Dr. Foley, when asked the next question, admitted that in fact he i While First National Maintenance dealt basically with a partial,clos- ing, the Board in Otis If decided to take a lead from the Court's overall discussion to exclude from coverage under Sec. 8(d) those decisions which "affect the scope, direction or nature of the business" (269 NLRB at 893) On reconsideration, the Board found that the "essence of the de- cision" turned on a fundamental change in the nature and direction of the business, and thus (unlike "labor costs"), was not amenable to bargaining. (Otis II, 269 NLRB at 892-893) In short, the "decision" was not a man- datory subject 2 The composition of the Board in Otis II with the exception of Member Zimmerman had changed Although Member Zimmerman joined the Board majority in Otis I, he concurred in the result with the Board plaurality in Otis II vis-a-vis the decision. On the other hand, Member Zimmerman would have affirmed the effects-bargaining holdings of Otis I and therefore dissented with regard to the remand. 3 The Board's Order remanding this proceeding provided, inter alia, "any party . . . the opportunity to adduce further evidence on [effects- bargaining] allegations." Thereafter, I conducted an all-party telephone conference and'all parties agreed that the record in Otis I was sufficient to decide the remand allegations without the need to reopen the hearing for the production of further evidence In a position paper dated 2 May 1985 counsel for the General Counsel moved to amend the outstanding effects-bargaining allegations of the instant case with later-filed unfair labor practice charges The motion was opposed by Respondent. I denied the motion noting, inter alia, that the later-filed' unfair labor practice charges covered events subsequent to my original decision and, in part, related to matters not cognizable under the scope of the remand order. The order setting time' for supplemental briefs and denying motion to amend complaint and consolidate cases is marked ALJ 'Exh I and the positions papers submitted by the parties in connection therewith (attach- ments A, B, and C) are made part of the record had a list of names at that meeting. According to Dr. Foley, his memory was refreshed by counsel for the General Counsel. However, based on my observation of Dr. Foley, I find it more likely that it represented an _ effort by him to be less than candid or responsive. Simi- larly, I found Jack Williams, Respondent's other witness, to be conclusionary and unreliable. On the other hand, I was impressed with Allan Newell, the Union's chief witness, as responsive, consist- ent, and forthright. In this latter regard, it is noted, inter alia, that Newell readily acknowledged that Respondent "discussed" all the Union's proposals (although for rea- sons explained, infra, this does not mean Respondent "negotiated"). I also note that New testimony was substantially corroborated by Respondent's minutes. (G.C. Exh. 2.) In sum, on reconsideration, after carefully reviewing the entire transcript and the record as a whole, I credit Newell over Dr. Foley and Williams in all material respects. - A. Overall Effects-Bargaining In finding in my original decision that Respondent failed to fulfill its bargaining 'obligations over the "ef- fects" of its decision to transfer certain engineers (prod- uct improvement group) from Mahwah, New Jersey, to the Hartford, Connecticut area, I relied, inter alia, on the 'Board's retionale in Ozark Trailers.4 There, I found in- structive that the Board recognized situations in, which "the effects are so inextricably interwoven with the deci- sion itself that bargaining limited to effects will not be meaningful if it -must be carried on within, a framework of a decision which cannot be revised." Id. at 570. How- ever valid this proposition may be, the Board. in Otis II determined that the "decision" was not a mandatory sub- ject within the meaning of Section 8(d)5 and, as such, Respondent was not obligated to bargain thereon. This left open whether, in the circumstances of Otis, "mean- ingful" negotiations over "effects" were possible and, if so, whether Respondent met its "effects" bargaining obli- gations. With regard to the former, I find a plethora of valid reasons, supported by the record, justifying a re- sponse in the affirmative. It is nnidsputed, the record supports, and I find that the decision clearly impacted on unit employees. Not only were unit employees to be permanently transferred, but their jobs (product improvement group) would even- tually - be lost. As for the employees remaining in Mahwah, inter alia, an indeterminate number of them faced "possible" layoffs. As pointed out by 'Dr,. Foley in his speech on 2 December 1977, "as the development ac- 4 161 NLRB 561 (1966). 5 The duty to bargain as defined by Sec. 8(d) of the Act in relevant part is as follows- [T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negoti- ation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if, requested by either party, .but such obligation does not compel either party to agree to a proposal or require the making of a con- cession . OTIS ELEVATOR CO. tivity moves to Hartford, the test effort will also shift there leaving us with a possible excess of technicians and clerical personnel in Mahwah." (G.C. Exh. 2, p. 8, em- phasis added.) Noting that the "decision" impacted on unit employ- ees, I find that matters, involving, inter alia, the order of layoffs, recall, severance pay, input in the selection proc- ess, the transfer package, i.e., moving expenses, and a host of related considerations, particularly meaningful to the Union and the unit employees affected. This is so, and these matters are amenable to the bargaining process exclusive of the Union's power or right to reverse Re- spondent's "decision." The Supreme Court in First Na- tional Maintenance treated a decision involving a change in the scope and direction of the enterprise (as found herein in Otis II), as a nonmandatory subject. However, the Court also noted that "[a]t the same time, the decision touches on a matter of central and pressing concern to the Union and its member employees." (452 U.S. at 677, em- phasis added.) It is now beyond dispute that the Re- spondent is under a duty to address these concerns by bargaining over the results or effects of such decision. Id. at fn. 15. Having determined that the circumstances were con- ducive to meaningful bargaining over "effects" (exclu- sive of the "decision"), the case now turns on whether Respondent fulfilled its obligations. The Respondent, in its opening statement "readily concede[d]" its obligation to bargain over the impact of its decision but asserted that such obligation was fulfilled. Whether the Respond- ent engaged in "hard bargaining," but in "good faith" on one hand or "bad faith" or "surface bargaining" on the other, is determined on a case-by-case basis from an ex- amination of the totality, of the circumstances. See Chev- ron Chemical' Co., 261 NLRB 44, 45,(1982); NLRB v. Pa- cific Grinding Wheel Co., 572 F.2d 1343, 1348 (9th Cir. 1978). It has long been noted that a take-it-or-leave-it posture constitutes evidence of bad faith. See NLRB v Insurance Agents, 361 U.S. 477, 485 (1960); General Athletic Prod- ucts Co., 227 NLRB 1565, 1574 (1977). Although the Board in Otis I agreed with my rationale and reliance on Ozark Trailers, supra, concerning Respondent's failure to bargain over "effects," it-also went further, characteriz- ing Respondent's overall conduct as "a kind of `take it or leave it' bargaining." In support thereof, the Board, in pertinent part, noted as follows: Thus, the Union sitting at "the bargaining table" was never certain about what actions Respondent was taking in effecting its reorganization; nor would Respondent commit itself to a timetable for antici- pated changes in the bargaining unit. As a result of its uncertainty concerning what changes would occur, and when any changes would take place, the Union submitted its "Partial List of Demands" some 9 months after' Respondent's announcement of its plans. Respondent made no formal counterpropos- als, and, in fact, rejected outright almost all of the Union's demands. Indeed, Respondent's answer to the Union's demands was that it was disappointed with what the Union presented, and that it had 229 hoped that the Union would have submitted a re- quest more closely aligned with what Respondent wished to accomplish. It thus becomes clear that Respondent engaged in a kind of "take it or leave it" bargaining, whereby Respondent would agree to clarify its actions "after the fact," but where mean- ingful bargaining seemed to have no place in Re- spondent's grand design. 255 NLRB at 237. On reconsideration, after carefully reviewing the entire record, I find myself in total agreement with the Board's remarks describing the Respondent 's failure to engage in "meaningful bargaining." Clearly; the Board was justified in ascribing, the Union's delay in presenting its "Partial List of Demands" to the confusion, uncertainty, and fail- ure of Respondent to timely provide meaningful informa- tion, Thus, in addition to the reasons cited by the Board, it is also noted that at the time Respondent announced its decision to move to Hartford , "many of the details and background . . . were not covered." (G.C; Exh. 2B, p. 3.) Thereafter, the Union's efforts to learn more about Respondent's plans in order to structure its demands were continually frustrated by Respondent's unwilling- ness or inability to provide concrete or reliable answers. For example, at the 3 April bargaining session, the Com- pany was asked by the Union whether lab mechanics and technicians would be leaving Mahwah and was told, "We do not know what is going to happen but we are in the process of analyzing and formulating plans." (G.C. Exh. 2A, p. 6.) Although at a subsequent session the Re- spondent informed ' the Union that technicians were not going to be, transferred (G.C. Exh. 2E; p. 15), approxi- mately a month later, `Respondent decided to invite Wil- liam Altridge, a technician, to relocate to the Respond- ent's research center in Hartford . (G.C. Exh. 2F.) The Union expressed surprise at the offer to Altridge and questioned the Company regarding its intentions to invite other technicians and also engineers .6 In response thereto, the Respondent's manager of industrial relations, J. J. Cronin, stated, "I don't know at this point if the Company has plans in either case." (G.C. Exh. 2G, p. 5.) Cronin's response was the same when questioned about draftsman and designers. (Id.) In circumstances when, as here, the Respondent provides little or no information on critical subjects, while at the same time undergoing changes in those areas regarding its originally announced plans, I find, in agreement with the Board, that the Re- spondent was at fault for any union delay `in submitting 6 Regarding' engineers, the Respondent had initially advised the Union that it would physically transfer the product improvement group in the middle of 1979 This was to be accomplished in two stages- The first group of engineers was going to be invited to transfer to the Hartford area by late January 1978; the second group in January 1979 (G.C. Exh. 2A, pp. 5-8.) However, at the 24 May 1978 meeting, the Union was noti- fied that still another group of approximately 15 engineers would be asked to transfer within a few days: (G C Exh 2C) As for the engineers who were supposed to be asked to transfer in January 1979 ("third wave"), little or no information was provided, although the Union con- tinued to press the Respondent to state its intentions (See, e g , G C Exh 2M, p. 1 ) 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its demands. Further, I find that such conduct tends to reflect adversely on Respondent's good faith. I reject Respondent's notion that the Act requires merely that a company "discuss the impact of its deci- sion to satisfy its bargaining obligations." (Supp. Br. 19- 20.) Thus, I do not find it overly significant, contrary to Respondent, that I had concluded in my original decision that "Respondent discussed all these items ('Partial List of Demands') with the Union although only marginal agree- ment was achieved." (Otis I, supra at 248, emphasis added.) Rather, it is of greater significance , that I found there, and I now reaffirm that Respondent failed to ne- gotiate' in any meaningful fashion . The term "discuss," unless used in an agreed on context, does not, without more, mean "negotiate" as contemplated by the Act.7 Compare National Metalcrafters, 276 NLRB 90 (1985). Although the Act does not compel the parties to make concessions, it does mandate that they bargain in "good faith" for the ultimate purpose of reaching an agreement. See NLRB v. American National Insurance Co., 343 U.S. 395, 403-404 (1952); NLRB 1. Insurance Agents, supra at 485. In the circumstances of this case , I join in the Board's assessment that "meaningful bargaining seemed to have no place in Respondent's grand design." (Otis I, supra at 237.) As the Board noted, inter alia, "Respondent made no formal counterproposals, and, in fact, rejected out- right almost all of the Union 's demands." Id.; compare Mack Trucks, 277 NLRB 711 (1985). The Union, for its part, as noted in my original decision, modified or elimi- nated many of its demands and conveyed a willingness to discuss and bargain over its entire package . As such, and on the total state of this record , I find that Respondent failed to make any reasonable or genuine effort to reach common ground on the outstanding proposals. In short, I find that the record clearly established Re- spondent's bad faith with regard to overall effects-bar- gaining in violation of Section 8(a)(5) as alleged. B. Selection Criteria Bypassing the Union and Dealing Directly with Employees It is undisputed that Respondent unilaterally deter- mined the selection criteria for the employees invited to transfer. Although the 'Respondent eventually informed the Union of certain factors comprising the selection process (longevity was not a consideration), this was ex- pressed in the most general terms some 3 months after the first wave of engineers had already been selected for transfer and interviewed . (See generally G.C. Exh. 2B; G.C. Exh. 6.) It is also noted, as to this group of engi- neers, that the Union did not know their identities until long after the interviews had been conducted.8 Further, 7 Clearly, the Respondent did not treat the terms synonymously at the bargaining table While Respondent earned on discussions , it dodged the Union's inquiry regarding its "intent to reach an agreement" from these discussions. Thus, Thomas Bouchard, Respondent's vice president of per- sonnel and industrial relations , responded, "They [the discussions] could, but it is too early for a yes or no to that question." Bouchard, in differen- tiating the term negotiate from discussion, opined, ",For me, negotiations implies an adversary climate." (G C. Exh 2A, pp 10-11.) 8 Respondent's reliance on Westinghouse Electric Corp., 174 NLRB 636 (1969), ignores some material differences . For example, there, unlike the situation with the first wave of engineers in the instant case , the employ- Respondent concedes that concerning this group of engi- neers, it did not advise any of them of a right to have union representation at the interviews. However, Re- spondent asserted (and not controverted by the record), that the engineers selected for interviews in June 1978 ("second wave") were asked whether they wanted union representation but all of them declined. In any event, it is undisputed that the Union 's insistence that it be `permit- ted to attend all transfer interviews was refused by Re- spondent. The Respondent defended its position mainly on the basis that the transfers involved employment at a differ- ent company location, in nonbargaining unit jobs. For reasons noted in my original decision and affirmed by the Board in Otis I, I found there, and on reconsideration reaffirm, that the Respondent unlawfully foreclosed the Union from effectively representing the bargaining unit as a whole in violation of Section 8(a)(5) as alleged. In rejecting Respondent's position insofar as denying the Union any input in the selection process, I relied in part on considerations assessed by the Court of Appeals for the Second Circuit in Cooper Thermometer Co. v. NLRB.9 There the court dealt with this matter in perti- nent part as follows: [T]he Board may reasonably interpret § 8(a)(5), as explicated in § 8(d), as requiring an employer relo- cating his plant not merely to give reasonable notice to a recognized union . . . but also to discuss with it the basis on which employees may transfer and, in that connection, to give information as to jobs in the new plant essential to the intelligent formulation of the union 's requests. The most improtant interest of workers is in working; the Board may reasonably consider that an employer does not fulfill its obliga- tion under § 8(a)(5) if he refuses even to discuss with employees' representatives on what basis they may continue to be employed . . . . While Cooper was not bound to agree to the Union's demand that the Pequabuck employees "be taken" to Middlefield with everything unchanged or even to less burden- some proposals, the Board could properly fault it for an attitude which, in effect, ousted the Union from any role in negotiating what might be offered-to em- ployees desiring to transfer. [Emphasis added] Here, too, the Union was wrongfully foreclosed from any role in the selection process and denied a presence at the transfer interviews. At the time Respondent com- menced these interviews , the Union was the "exclusive" bargaining agent for the unit employees at Mahwah and had been for over 30 years. The transferees, as well as those employees not invited to transfer, were then still members of that unit. The Union's responsibilities ex- ees who transferred did so with the knowledge and consent of the union Moreover, in Westinghouse, the changes did not "affect either the conti- nuity of its operations or the employment of its employees " (Id. at 638 ) In Otis, it is noted, inter aha, that in January 1979 respondent threatened to lay off some 16 engineers if a sufficient number of them failed to vol- untarily transfer (Tr. 36-37.) Some employees had already been laid off See G C Exh 15 9 376 F 2d 684, 688 (2d Cir. 1967) OTIS ELEVATOR CO. 231 tended to all of them. See also Continental Insurance Co„ 204 NLRB 1013, 1014 (1973), enfd. 495 F.2d 44 (2d Cir. 1974). Surely, the Union was vulnerable to failure-to-rep- resent charges, if it refused to render any assistance re- quested by the transferees regarding such items as moving expenses and time off to look for new resi- dences.' 0 Indeed, subsequently, Respondent apparently recognized that an offer of prospective nonunit jobs to still current unit employees does not per se strip the Union of its bargaining role. Thus, Respondent began to ask engineers comprising the "second wave" (unlike the "first wave"), whether they desired to have the Union in attendance at the transfer interviews. The Union's exclusivity, however, is predicated on majority support as defined by Section 9(a) of the Act" and does not turn on the whim of individual employees. While the Union's representative standing is limited by the first proviso to Section 9(a) insofar as permitting unit employees an option to adjust grievances on their own; significantly (as noted in my original decision), the second proviso protects the Union's overall exclusivity by'providing that it be given "the opportunity to be present at such adjustment." The Union's presence en- ables it to monitor direct dealings between management and individual employees to frustrate "under the table" arrangements at the expense of other unit employees or the unit as a whole.12 In sum, on reconsideration, and in the absence of any waiver (and none found herein to exist),13 I reaffirm my 10 To induce these employees to transfer, Respondent offered them a relocation package sometimes referred to as the "Trels Package." Trels is an outside contracting service that publishes a booklet reflecting mone- tary and benefit inducements in the Greater Hartford area. Under Re- spondent's agreement with Trels, all employees asked to transfer through November 1979 were offered the Trels relocation package The Respond- ent refused to negotiate any modifications thereto, only a willingness to consider certain "extenuating circumstances" or "hardships" on an indi- vidual basis (G C Exh. 2L, pp. 3-5, G.C. Exh. 2B, p. 9.) 11 Sec. 9(a) in its entirety reads as follows Representatives designed or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the em- ployees in such unit for the purposes of collective bargaining in re- spect to rates of pay, wages, hours of employment, or other condi- tions of employment. Provided, That any individual employee or a group of employees shall have the right at any time to present griev- ances to their employer and to have such grievances adjusted, with- out the intervention of the bargaining representative , as long as the adjustment is not inconsistent with the terms of a collective -bargain- ing contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. 12 See Valencia Baxt Express, 143 NLRB 211 (1963). See also Westing- house Electric Corp., 206 NLRB 812, 822 (1973). While in Westinghouse the Board found merit in Respondent's exception to the judge's findings that Respondent was obligated to notify the Union of the positions in Manassas and bargain collectively concerning the identity of employees at Laurel who would be notified of the availability of the positions, it did so because the Laurel facility constituted an accretion to Manassas and, therefore, management's right to select employees for transfer was gov- erned by contract. 18 During the course of negotiations, Respondent defended its refusal to bargain with the Union over the transferees because they were to be employed at a location outside the bargaining unit The Respondent did not then contend, as at apparently does now, that the Union waived by contract any role in bargaining over transferees In my original decision, I noted that "a waiver to be effective would have to be clear and un- equivocal and the record is devoid of evidence tending to show that this was done " Otis I, supra, 255 NLRB at 247 fn. 26 Noting that the Re- original effects-bargaining findings (upheld by the Board in Otis 1), and consistent with the remand by the Board in Otis II, I do so for reasons independent of Respond- ent's refusal to bargain over the "decision." CONCLUSIONS OF LAW 1. Otis Elevator Company, a wholly owned subsidiary of United Technologies Corporation is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Local 989, United Automobile, Aerospace and Agri- cultural Implement Workers of America is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All classifications of employees employed in Re- spondent's Engineering Division located in Mahwah and Harrison, New Jersey, and Yonkers, New York, in the classifications described in Appendix A of the collective- bargaining agreement effective 1 April 1977 to 31 March 1980, but excluding nontechnical, secretarial, clerical em- ployees not described in Appendix A, maintenance em- ployees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 4. Since sometime prior to 1 June 1950, the above- named Union has been, and is now, the exclusive repre- sentative of all the employees in the aforesaid appropri- ate unit for the purpose of collective bargaining within the meaning of Section 9(a) of 'the Act. 5. Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act by (a) Failing and refusing, on request, to engage in any meaningful good-faith negotiations with the Union con- cerning the effects of its decision on the employees in the unit described above in paragraph 3. (b) Failing and refusing, on request, to permit the Union an opportunity to bargain about the basis on which employees were to be given the opportunity to transfer from its Mahwah, New Jersey facility to other of its facilities in Connecticut and on the identity of the employees selected for transfer interviews. (c) Dealing directly with employees and failing and re- fusing to permit the Union the opportunity to be present -at employee interviews that involve the loss of unit work and the transfer of employees from Respondent's Mahwah, New Jersey facility to Respondent's unrepre- sented facilities in Connecticut unless requested by the employees interviewed. THE REMEDY I will recommend that the Respondent be required to bargain in good faith with the Union over the effects on unit employees of its decision to transfer and consolidate. In this connection, I will recommend that Respondent's obligation include permitting the Union an opportunity spondent has not proffered additional evidence, but relies solely on the original record, I reaffirm my original finding. Compare Mack Trucks, 277 NLRB at 711, in which, inter alia, virtually all of the so-called ef- fects-bargaining subjects were secured within the master shop agreement and relevant supplements There, the Respondent's outright rejection of certain union proposals was privileged under Sec 8(d) of the Act. 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to bargain about the basis on which employees are to be given the opportunity to transfer from its Mahwah, New Jersey facility to other of its facilities in Connecticut and on the identity of the employees selected for transfer interviews. I will also recommend that Respondent cease and desist from bypassing the Union in derogation of its exclusive bargaining status by dealing directly with em- ployees concerning the transfer of unit jobs. As for backpay,, I find, in the circumstances of this case, that a traditional bargaining order without a limited backpay requirement will not effectuate the purposes of the Act. The record disclosed that some employees were laid off with others to follow as a result of Respondent's "decision." 114 Concerning such individuals, the Board has observed, "meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union." See Gar Wood-Detroit Truck Equipment, 274 NLRB 113 (1985). I therefore recommend that Respond- ent be required to compensate the affected laid-off em- ployees in a manner similar to that required in Gar Wood. Thus the Respondent should be required to pay the affected employees backpay at the rate of their normal wages when last in Respondent's employ from 5 days after the date of the Board's Decision and Order until the occurrence of the earliest of the following con- ditions: (1) the date the Respondent bargains to agree- ment with the Union on those subjects -pertaining to the effects of its transfer and consolidation decision on its employees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of the Board's Decision and Order, or to commence ne- gotiations within 5 days of the Respondent's notice of its desire to bargain with the Union; (4) the subsequent fail- ure of the Union to bargain in good faith; but in no event shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" 14 Respondent's contention in its supplemental brief that the closing of the Chemical Laboratory and the status of technicians were not encom- passed by the pleadings or litigated, and therefore are not elements in this case, is without merit For example Newell's uncontroverted and credited testimony disclosed that at the 24 May effects-bargaining session, Foley advised the Union that the Company would probably close down the ma- chine shop and "probably cause a layoff of a lab mechanic and also some technicians." Foley also advised that the Chemical Laboratory would close down with the layoff of chemists (Tr. 30) Further, the record dis- closed that Foley, in downplaying the impact of Respondent's "decision," advised the Union at that 24 May session that "only some thn*gs hke the Chem lab which did not do engineering support work in the first place will really be effected " (G.C. Exh 2C, p 6, emphasis added) However, as noted by the Board in Otis I, the record is not clear whether the classi- fication of "chemist" is included in the bargaining unit herein I recom- mend that this, as well as the identities of all unit employees laid off as a result of Respondent's "decision," be deferred to the compliance stage of this proceeding (Otis I, 255 NLRB at 238.) 15 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ORDER The Respondent, Otis Elevator Company, a wholly owned subsidiary of United Technologies Corporation, Mahwah, New Jersey,_ its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with, Local 989, United Automobile, Aerospace and Agricultural Imple- ment Workers of America as the exclusive bargaining representative of the employees in the unit found appro- priate herein over the effects on unit employees of its de- cision to transfer and consolidate certain of its engineer- ing operations, including unit work from its Mahwah, New Jersey facility to other facilities in Connecticut. (b) Failing and refusing, on request, to permit the Union an opportunity to bargain about the basis on which employees are to be given the opportunity to transfer from its Mahwah, New Jersey facility to other of its facilities in Connecticut and on the identity of the employees selected for transfer interviews. (c) Dealing directly with employees and failing and re- fusing to permit the Union a full opportunity to be present at employee interviews that involve the loss of unit work and the transfer of the employees from Re- spondent's Mahwah, New Jersey facility to its unrepre- sented facilities in Connecticut. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On the Union's request, bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment. (b) On the Union's request, bargain with the Union concerning the effects on unit employees of its decision to transfer and consolidate unit work from Mahwah, New Jersey to other of its facilities in Connecticut. (c) On the Union's request, bargain with the Union about the basis on which employees in the appropriate unit are to be given the opportunity or required to trans- fer to its facilities in Connecticut and on the identity of these employees. (d) Pay the laid-off, employees their normal wages in the manner set forth in the remedy section of this deci- sion. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Mahwah, New Jersey facility and those facilities in Connecticut wherein unit work from Mahwah has been transferred, copies of the attached notice marked "Appendix." 16 Copies of the notice, on 16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- Continued OTIS ELEVATOR CO. forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain collectively in good faith with Local 989, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America as the exclusive representative of our employees in the appropriate unit set forth below concerning the effects on unit employees of our decision to transfer and consolidate certain of our engineering op- erations, including unit work, from our Mahwah, New Jersey facility to other facilities, including our facilities in Connecticut. The appropriate unit is: All classifications of employees employed in our Engineering Division located in Mahwah and Harri- son, New Jersey, and Yonkers, New York, in the classifications described in Appendix A of the col- 233 lective-bargaining agreement effective April 1, 1977, to March 31, 1980, but excluding non-technical, sec- retarial, clerical employees not described in Appen- dix A, maintenance employees, guards and supervi- sors as defined in the Act. WE WILL NOT fail and refuse, on request, to permit the Union an opportunity to bargain about the basis on which employees are to be given the opportunity to transfer from its Mahwah, New Jersey facility to other of its facilities in Connecticut and on the identity of the employees selected for transfer interviews. WE WILL NOT bypass the Union as the exclusive bar- gaining representative of the employees in the unit de- scribed above, and deal directly with employees con- cerning their transfer and the transfer of unit work from our Mahwah, New Jersey facility to our unrepresented facilities in Connecticut. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on the Union's request, bargain collectively with the Union as the exclusive bargaining representative of our employees in the appropriate unit with , respect to wages, hours, and other terms and conditions of employ- ment. WE WILL, on the Union's request, bargain with the Union concerning the effects on unit employees of our decision to transfer and consolidate unit work from Mahwah, New Jersey, to other of our facilities in Con- necticut. WE WILL on the Union's request, bargain with the Union about the basis on which employees in the appro- priate unit are to be given , the opportunity or required to transfer to our facilities in Connecticut and on the identi- ty of these employees. WE, WILL pay the laid-off employees their normal wages, as set forth in the Decision and Order. OTIS ELEVATOR COMPANY, A WHOLLY OWNED SUBSIDIARY OF UNITED TECHNOL- OGIES