United Technologies Corp.

UNITED TECHNOLOGIES CORP. 693 United Technologies Corporation and District Lodge 91, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 39-CA- 3081 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 21 April 1987 Administrative Law Judge Martin J. Linsky issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed a cross-exception. 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, cross-exception, and brief and has decided to affirm the judge's rul- ings, findings, I and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Technologies Corporation, Middletown, Connecti- cut, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i In sec. III,B, par 10, of his decision, the judge stated, apparently by inadvertence, that "the so-called zipper clause does not deny to the Union its right to negotiate a mid-term change to the contract ..." We find, as the judge indicated elsewhere in his decision, that the language of the zipper clause does not demonstrate that the Union waived its right to bargain over the Respondent's new uniform rule See Suffolk Child Devel- opment Center, 277 NLRB 1345, 1349 (1985) 2 The General Counsel requests a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request. (the Act), in the spring of 1986 and thereafter when it implemented a work rule requiring certain of its employ- ees to wear uniforms without giving prior notice to the Union and without affording the Union an opportunity to negotiate and bargain about the matter. Respondent filed an answer in which it admits that it implemented a new rule requiring certain of its employees to wear uni- forms but denies that it violated the Act in doing so. A hearing was held in Hartford, Connecticut, on 22 January 1987. On the entire record in this case, including posthearing briefs submitted by the General Counsel and Respond- ent, a supplemental memorandum of law submitted by the General Counsel and on my observation of the de- meanor of the witness, I make the following FINDINGS OF FACT 1. THE EMPLOYER Respondent, United Technologies Corporation, a Delaware corporation with its main office in Hartford, Connecticut, and with an office and place of business in Middletown, Connecticut (United Technologies Corp., Pratt and Whitney Aircraft Division), where it is and has been engaged in the manufacture and nonretail sale and distribution of aircraft engines and related products. During the 12-month period , ending 30 September 1986, Respondent, in the course and conduct of its busi- ness operations described above, sold and shipped from the Middletown facility, products, goods, and materials valued in excess of $50,000 directly to points outside the State of Connecticut. Respondent admits, and I find, that it is now, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Local Lodge 700, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), is now, and has been at all times material, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE Harvey M Shrange, Esq., for the General Counsel. Elizabeth B. Amato, Esq., of Hartford, Connecticut, for the Respondent. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Lave Judge. On 20 June 1986, District Lodge 91, International Association of Machinists and Aerospace Workers, AFL-CIO, filed a charge against United Technologies Corporation (Re- spondent). On 3 October 1986, the National Labor Relations Board, by the Officer in Charge for Subregion 39, issued a complaint, which alleges that Respondent violated Sec- tion 8(a)(1) and (5) of the National Labor Relations Act A. Issues The General Counsel contends that the wearing of uniforms by employees of Respondent is a term or condi- tion of employment and before Respondent could unilat- erally implement a work rule requiring its employees to wear uniforms Respondent was required by law to notify the Union that it wished to implement such a work rule and to bargain in good faith with the Union about it. The Respondent raises a number of defenses, First, Re- spondent contends that by virture of the collective-bar- gaining agreement in effect during the applicable times- specifically the management functions clause and the zipper clause-that Respondent was free to unilaterally implement a new rule requiring certain of its employees to wear uniforms. Second, Respondent contends that 286 NLRB No. 62 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD even assuming it had a duty to bargain, the Union waived any right it had to negotiate about the new rule requiring uniforms by its failure to object earlier when Respondent required other employees, who were repre- sented by the same Union, to wear uniforms. Third, Re- spondent participated in the processing of grievances protesting the rule requiring the wearing of uniforms and, in this case, that participation in the grievance proc- ess was the functional equivalent of bargaining. Fourth and last, the 10(b) statute of limitation period ran before the charge was filed and, therefore, the complaint is time-barred. I agree with the General Counsel and reject all of Re- spondent's defenses. Respondent violated Section 8(a)(1) and (5) of the Act when it unilaterally implemented a new rule requiring certain employees in its Middletown, Connecticut facility to wear uniforms, which is a term or condition of em- ployment, without giving prior notice to the Union about the proposed change and without affording the Union the opportunity to bargain about the change. i B. Discussion Beginning in July 1986 approximately 80 employees of Respondent in several departments at Respondent's Pratt and Whitney Aircraft Division in Middletown, Connecti- cut, were required to wear a uniform while at work. Em- ployees are encouraged to wear the uniforms to work al- though they are allowed to change into the uniforms at the worksite but on their own time. The uniforms consists of dark blue pants and a light blue shirt with the employees' name on a patch on one side of the front of the shirt and Respondent's logo on a patch on the other side of the front of the shirt. Employ- ees were also furnished a light-weight jacket to wear de- pending on the temperature. The employees are also sup- posed to be furnished with a heavy winter jacket as well. Respondent paid for the uniforms, but the employees must pay for cleaning. Employees are permitted to wear a union logo but the union logo may not be permanently attached to the uniform. Respondent has not had to discipline any employee for not wearing the uniform . It is the position of Respondent that if an employee shows up for work without the uni- form after being instructed twice to wear it, the employ- ee will be sent home and not allowed to return to work unless the employee shows up for work in the uniform. The parties stipulated that during negotiations in Octo- ber-November 1985 leading up to its most recent collec- tive-bargaining agreement, which was effective 2 De- cember 1985 for a term of 3 years, there were no negoti- ations about uniforms and that neither Respondent nor the Union requested that the subject of uniforms be dis- cussed. Since November 1958 the Union has represented a unit that includes the 80 or so employees impacted by the im- plementation of the uniforms requirement of July 1986. The current collective-bargaining agreement, effective 2 December 1985, and the prior collective- bargaining agreement, effective 2 December 1982 to 1 December 1985, both contain the same management functions or management rights clause and the same zipper clause. The management functions clause provides as follows: 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 schedule 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 employees for dust cause, to promote and transfer, and to lay off because of lack of work or other cause, unless oth- erwise hereinafter provided. The zipper clause provides as follows: The parties in consideration of the benefits, privi- leges and advantages provided in this agreement and as a condition to the execution of this agree- ment suspend meetings in collective bargaining ne- gotiations during the life of this agreement with re- spect to any further demands, including pensions or insurance for employees or with respect to any questions of wages, hours, or working conditions, except as may be dealt with as a grievance under Article VII hereof. Respondent contends that a fair reading of the man- agement functions clause and the zipper clause furnish Respondent with authority to unilaterally implement a new rule requiring the wearing of a uniform by its em- ployees. I disagree. The evidence at the hearing reveals quite clearly that uniforms were introduced for one reason and one reason only-for appearance purposes.2 The employees who are being required since July 1986 to wear uniforms while at work test aircraft engines for a living. They do so in a facility in which Respondent conducts tours almost twice a day or 60 times a month. The people on these tours range from school children to potential buyers of aircraft engines who in turn range from domestic airlines to for- eign governments. The employees are required to wear t The wearing of uniforms is a condition of employment and a manda- tory subject of collective bargaining Valley Oil Co, 210 NLRB 370, 379 (1974) An employer generally violates the Act if it unilaterally and with- out bargaining with the union changes a condition of employment NLRB v. Katz, 369 U S 736 (1962). 2 In BASF Wyandotte Corp, 278 NLRB 173 (1986), a case cited by Re- spondent, the employer, having reserved the right to make safety rules in the management rights clause, could, without violating the Act, unilater- ally implement a rule prohibiting facial hair for those employees who had to wear respirators at work UNITED TECHNOLOGIES CORP. 695 uniforms only so that they will look better. There was ab- solutely no evidence at the hearing that the wearing of uniforms will change , in any way, "the methods, process- es, and means of manufacturing ," or that the wearing of uniforms will have any effect at all on "production, dis- cipline, efficiency , and safety." Accordingly, the issue of uniforms is not one reserved to Respondent under the management functions clause set out above. Similarly, the so-called zipper clause does not deny to the Union its right to negotiate a midterm change to the contract if Respondent wants to implement the same change as well. A zipper clause that might have that effect would be one similar to the zipper clause in Rockford Manor Care Fa- cility, 279 NLRB 1170, 1173 ( 1986), a case cited by Re- spondent. In that case the zipper clause contained the following language: The parties acknowledged that during the negotia- tions which resalted in this Agreement, each had the unlimited right and opportunity to make de- mands and proposals with respect to any subject or matter not removed by law from the area of collec- tive bargaining, and that the understandings and agreement arrived at by the parties after the exer- cise of those rights and opportunities are set forth in this Agreement. Each voluntarily and unqualifiedly waives the right to bargain collectively with respect to any subject or matter not specifically referred to in this Agreement, even though such subject or matter may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated this Agreement. The employees covered by this Agreement are enti- tled only to those certain aspects of wages, hours, or working conditions which are specifically cov- ered by this Agreement. All aspects of wages, hours, or working conditions which are not covered by this Agreement may be changed, altered, contin- ued, or discontinued without consultation with the Union. This is the kind of unequivocal language needed before it can be found that a union waived its right to bargain over mandatory subjects of collective bargaining. The parties simply never addressed the issue of uni- forms in their negotiations or contract. Accordingly, if Respondent wants uniforms it should let the Union know that and bargain with the Union over the issue until agreement is reached or impasse is reached after good- faith bargaining in which latter event Respondent may then, but only then, implement a uniform policy. In 1984 a group of eight or nine truckdrivers em- ployed by Respondent and represented by the Union were given uniforms and instructed that the wearing of the uniform was mandatory. The Union did not object Respondent contends that since the Union did not object when it required 8 or 9 truckdrivers to wear uniforms it should not object if Respondent requires an additional 80 of its employees, who are test and inspection employees for aircraft engines and work in the test facility, to wear uniforms. This is fallacious reasoning . Suppose only 1 employee was required to wear a uniform and the Union made no objection does that mean the Union waives its right to bargain over a mandatory uniform policy for the 2000 other employees of Respondent that it represents? Of course not A union may for any number of valid rea- sons not demand bargaining regarding a small number of employees who are being required to wear uniforms, e.g., the employees want to wear a uniform, the union agrees that it makes good sense for those employees to wear a uniform, etc. A union should be able to do this and not waive its right to bargain over that matter gener- ally. Any waiver would have to be clear and unmistak- able. Peerless Publications, 231 NLRB 244 (1977). This was not a clear and unmistakable waiver. Although it was not made a matter of record at the hearing Respond- ent represents in its brief that the Union represents 3000 employees at the Middletown plant. Respondent also contends that the Union waived any right it might have to negotiate regarding uniforms be- cause it never demanded to bargain or requested to bar- gain over the issue during the October-November 1985 negotiations and it knew at that time that Respondent was going to impose a uniform requirement. While it is true that certain of Respondent's supervi- sors did tell certain of Respondent's employees-to in- clude some who held union office-that Respondent was considering a uniform policy , it is also true that Re- spondent, prior to the October-November 1985 negotia- tions, never formalized its uniform policy and never, prior to those negotiations, formally advised the union of- ficials-as union officials and not as part of a group of employes-that Respondent was considering making the wearing of uniforms mandatory. At a meeting between Respondent and two union officers in the spring or summer of 1985 the Union wanted to know if a union patch could be worn with the uniform about which they had had discussion. Respondent said wearing of a union patch was negotiable. Respondent never said uniforms would be mandatory at that meeting. While the Union at most may have suspected that Respondent would try to implement a mandatory uniform policy Respondent knew, by its own admissions, that it would definitely im- plement such a rule. Therefore, common sense and fair play dictate that Respondent should have brought the matter up during the October-November 1985 negotia- tions and be estopped from arguing that the Union's fail- ure to bring the matter up waived their right to bargain about the matter. Four employees (Eddie E. Robinson, Ronald Wein- berg, John M. Barone, and Paul H. Abel) all of whom were union officers or former union officers, filed griev- ances in the spring of 1986 protesting the uniform re- quirement implemented by Respondent. Respondent con- tends that since it fully discussed all aspects of the uni- form policy with those employees during the processing of their grievances that their doing so constituted de facto bargaining over the uniform policy. Respondent is mistaken. The employees were faced during the griev- ance procedure with a fait accompli, namely, Respond- ent advised the employees and their union representa- tives that this is our policy on uniforms do you have an 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD questions? In any event, processing a grievance is no sub- stitute for bargaining. Peerless Publications, 231 NLRB 244, 258 (1977). I note that Respondent refused the Union's request to submit the matter to arbitration. With respect to Respondent's argument that the 6- month 10(b) statute of limitations period had expired before the charge was filed, I conclude that while there was talk about a rule on uniforms being put in place it was not in fact put in place until April 1986 when em- ployees were measured for uniforms and this is well within a 6-month period before the filing of the charge by the Union's parent, District Lodge 91 of the Machin- ists, on 20 June 1986.3 The discussion of uniforms in the spring and summer of 1985 was just general discussion and not anything remotely approaching the unilateral im- plementation of a uniform requirement and it was not in- cumbent on the Union to file a charge within 6 months of its first getting wind of the fact that Respondent was contemplating implementation of a rule on uniforms. Ar- guably, those employees, who were also union officials, when they first heard the issue of uniforms being dis- cussed could or should have handled the matter differ- ently than they did. It reasonably appeared to the Union, however, that the uniform issue was a dead issue when the parties met to negotiate a successor collective-bar- gaining agreement in October-November 1985. But again, since Respondent planned on going forward with a rule requiring the wearing of uniforms Respondent, and not the Union, should have brought the matter up at the negotiating table. REMEDY The remedy should include a cease-and-desist order, the posting of a notice, restoring the status quo ante by rescinding the uniform rule for the employees required for the first time to wear uniforms in July 1986, and an order to Respondent to bargain in good faith with the Union regarding the wearing of uniforms and unilaterally implement such a policy if, and only if, impasse is reached after good-faith bargaining. CONCLUSIONS OF LAW 1. Respondent, United Technologies Corporation, is an employer engaged in commerce, and in operations affect- ing commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Local Lodge 700, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By unilaterally implementing a rule requiring the wearing of uniforms by certain of its employees without giving prior notice to the Union and without affording the Union an opportunity to negotiate and bargain with respect to this rule Respondent violated Section 8(a)(1) and (5) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. S There was some mention of a fitting for uniforms back in 1985 but even if this happened and union witnesses did not remember it that earli- er uniform program had been scrapped by Respondent On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended4 ORDER The Respondent, United Technologies Corporation, Middletown, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally implementing rules requiring its em- ployees to wear uniforms without giving prior notice to the Union and without affording the Union an opportuni- ty to negotiate and bargain with respect to the rule. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Revoke the uniform rule which resulted in certain of its employees being furnished uniforms in or about July 1986. (b) Bargain collectively and in good faith with the Union as the exclusive representative of the employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment, to include, any rule requiring the employees represented by the Union to wear uniforms. (c) Post at its facility in Middletown, Connecticut, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Officer in Charge for Subregion 39, after being signed by the Re- spondent's authorized representative, 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Officer in Charge in writing within 20 days from the date of this Order, what steps Respondent has taken to comply. For the purpose of determining or securing compliance with this Order, the Board, or any of its authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concern- ing any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had on any matter reasonably related to compliance with this Order, as enforced by the Court. 4 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 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " UNITED TECHNOLOGIES CORP. 697 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. Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT unilaterally implement rules requiring our employees to wear uniforms without giving prior notice to the Union and without affording the Union an opportunity to negotiate and bargain with respect to any such rules. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed them under Section 7 of the Act. WE WILL, rescind our uniform policy which resulted in certain of our employees being issued uniforms in July 1986 and we will bargain collectively and in good faith with the Union on this issue and on wages, hours, and other terms and conditions of employment. UNITED TECHNOLOGIES CORPORATION