United Technologies Corp.

198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Technologies Corporation and International Association of Machinists and Aerospace Work- ers, AFL-CIO, District 91 and Local Lodge 700, Canel Lodge, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 39-CA-1638 and 39-CA-1732 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 7 May 1984 Administrative Law Judge Thomas T. Trunkes issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed briefs in response to the exceptions. 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 in Case 39-CA-1638 to affirm the judge's rulings, findings,' and conclusions,2 to modify the remedy, 3 and to adopt the recommended Order as modified and in Case 39-CA-1732 to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Respondent excepts to the judge's conclu- sion in Case 39-CA-1638 that it violated Section 8(a)(1) and (5) of the National Labor Relations Act by unilaterally excluding employees in the new job classification of production control coordinator from production and maintenance bargaining units at four plants in Connecticut. In Case 39-CA-1732, the Respondent excepts to the judge's conclusion that it violated Section 8(a)(1) and (5) by unilateral- ly altering its progressive discipline procedures for absenteeism at its plant in Middletown, Connecti- cut. We find merit in only the latter exception. The record evidence in Case 39-CA-1732 estab- lishes that the Respondent unilaterally altered its system of progressive discipline for absenteeism. Although employees with poor attendance would ' The citation in sec IV,A of the judge's decision to the court of ap- peals' decision enforcing Bay Shipbuilding Corp, 263 NLRB 1133 (1982), is corrected to read as follows 721 F 2d 187 (7th Cir 1983) 2 No party has excepted to the judge's finding that the Respondent's decision to institute a new computerized inventory and control system was not a mandatory subject of bargaining Accordingly, we find it un- necessary to pass on the judge's analysis of Otis Elevator Co, 269 NLRB 891 (1984) Chairman Dotson agrees with the judge's analysis of Otis Ele- vator, supra 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Flo,ida Steel Corp, 231 NLRB 651 (1977) continue to receive an oral warning and a written warning prior to being discharged, under the Re- spondent's revised policy such employees would no longer additionally receive disciplinary suspensions prior to discharge. The management functions clause of the collective-bargaining agreement be- tween the Respondent and the Union provides that the Respondent has "the sole right and responsibil- ity to direct the operations of the company and in this connection . . . to select, hire, and demote em- ployees, including the right to make and apply rules and regulations for production, discipline, efficiency, and safety." [Emphasis added.] In section IV,B of his decision, the judge found that, although this provision gives the Respondent considerable lati- tude in making rules, it does not clearly and un- equivocally waive the Union's right to bargain over a change in the Respondent's disciplinary practices. We do not agree. In our view, the con- tract language plainly grants the Respondent the right to unilaterally make and apply rules for disci- pline. The fact that the Respondent's action at issue here was characterized as changing a rule rather than making a rule is merely a semantical differ- ence. The Respondent's action could be as readily viewed as rescinding its rule on discipline for ab- senteeism and making a new rule on the same sub- ject. Additionally, we have examined the evidence of the parties' bargaining history concerning the management functions clause, and we can discern from history no indication that the contract lan- guage in issue here was intended to mean some- thing other than that which it plainly states. Thus, the Respondent's action falls within the scope of management functions provision. Accordingly, we hold that, by agreeing to the management functions provisions, the Union waived its'right to bargain over the Respondent's change in its progressive discipline procedure. See Metropolitan Edison Corp. v. NLRB, 460 U.S. 693, 707-710 (1983) 4 Our conclusion is not altered by the fact that 5 or 6 years prior to changing its progressive disci- pline policy for absenteeism, the Respondent had attempted to change unilaterally certain other rules, but subsequently agreed to bargain over the changes as part of a settlement of unfair labor prac- tice charges. Parties can have many different rea- sons for agreeing to settle unfair labor practice charges and many different reasons for agreeing on 4 See Emery Industries, 268 NLRB 824 (1984) (contract clause author- izing dismissal for neglect of duty coupled with union's inaction held to waive union's right to bargain over company's adoption and alteration of absentee control program), Laredo Packing Co, 254 NLRB 1, 8-9 (1981) Because the alleged contractual waiver provision in Ciba-Geigy Pharma- ceuticals Division, 264 NLRB 1013 (1982), enfd 722 F 2d 1120 (3d Cir 1983), did not specifically refer to rules on the subject concerning which the employer there made its unilateral change, that case is distinguishable 287 NLRB No. 16 UNITED TECHNOLOGIES CORP some occasions to forego exercising rights that are clearly theirs under a collective -bargaining agree- ment . The single, temporally distant incident on which our dissenting colleague relies as casting doubt on the meaning of the management functions clause with respect to disciplinary rules simply cannot bear the weight he assigns it.s Accordingly, in Case 39-CA-1732, we find no violation of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Technologies Corporation, Hart- ford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. -Delete paragraphs 1(b) and 2(c), (d), and (e) and reletter the subsequent paragraphs. 2. Delete the second sentence of paragraph 2(g). 3. Substitute the attached notice for that of the administrative law judge in Appendix A to his de- cision. MEMBER JOHANSEN, dissenting in part. I dissent from my colleagues ' reversal of the judge in Case 39-CA-1732 to find that the Re- spondent did not violate Section 8(a)(1) and (5) of the Act by unilaterally changing the progressive discipline procedure for absenteeism. It is undisputed that work rules and related disci- plinary procedures are mandatory subjects of bar- gaining . However, the Respondent contends that the Union clearly and unmistakably waived its right to bargain over the Respondent 's decision to change its discipline policy. The Respondent's ar- gument is based on the management functions clause contained in article I of the collective-bar- gaining agreement which states, inter alia, that the Respondent has the "right to make and apply rules and regulations for . . . discipline." The judge found that the clause "does not clear- ly and unequivocally waive the union 's bargaining rights when the employer makes a substantial change in well-established disciplinary practices." The judge made additional findings, with which 5 Unlike the evidence that the court of appeals in Electrical Workers IBEW Local 1395 v NLRB, 797 F 2d 1027 (D C Cir 1986), character- ized as possibly indicating an intent inconsistent with the language of the contractual provision at issue there, the incident on which our colleague relies lacks any linkage to the parties' negotiations over the clause This is not to say that evidence of the way in which a clause is applied is not relevant to its meaning One may, however, concede that such evidence is relevant without accepting the proposition that an express contractual waiver of a union's negotiating rights over a specific subject becomes a nullity if the employer fails to exercise its right to act unilaterally under the clause on every possible occasion 199 the, majority does not quarrel, that when the Re- spondent had last attempted to make a unilateral change in the discipline rules in the face of the same clause-at least 5 years earlier-the Union filed a charge with the Board. The charge was only withdrawn after the Respondent agreed to bargain over the change. At the same time the Re- spondent refused to bargain over a unilateral change involving solicitation of literature. The charge was litigated and the Board and the Second Circuit Court of Appeals found a violation of the Act. The majority admits that it is inappropriate to in- terpret the language contained in a collective-bar- gaining agreement in a vacuum.' However, they fail to ascertain the importance of this history, characterizing it as a single, distant incident with- out linkage to negotiations. The linkage is that the Respondent, having once asserted its interpretation of the management-rights clause and, after union opposition, agreeing to bargain, led the Union rea- sonably to believe that the Union's position was correct and therefore that there was no need to ne- gotiate a change in the language of the collective- bargaining agreement. Only now, over 5 years later, does the majority attempt to legitimize the Respondent's forfeited interpretation. Based on the past practice of the parties, it is clear that there was no waiver notwithstanding the words used.2 The very least that can be said re- garding the past practice is that it demonstrates that there certainly was no "clear and unequivo- cal" waiver. I agree with the majority in all other respects. i Indianapolis Power Co, 273 NLRB 1715 (1985), revd and remanded sub nom Electrical Workers IBEW Local 1395 v NLRB, 797 F 2d 1027 at 1033 (D C Cir 1986) 2 Electrical Workers IBEW Local 1395, 797 F 2d at 1036 fn 9 (noting that the "plain meaning" rule is ill-suited for the interpretation of collec- tive-bargaining agreements) APPENDIX A 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 ordered us to post and abide by this notice. WE WILL NOT exclude production control coor- dinators (PCCs) from appropriate bargaining units of production and maintenance workers without bargaining with or notice to North Haven Aircraft Lodge 707, Industrial Aircraft Lodge 1746-A, In- 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dustrial Aircraft Lodge 1746, and Lodge 700, Cartel Lodge, all of the International Association of Machinists and Aerospace Workers, AFL-CIO. WE WILL NOT ip any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize the PCCs as part of the'col- lective-bargaining units of production and mainte- nance workers at each of the plants noted below and we will apply to the PCCs the terms of the collective-bargaining agreements covering those units: United Technologies Corporation, Pratt & Whitney Aircraft Group, Manufacturing Divi- sion, North Haven, Connecticut plant. United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Prod- ucts Division and Manufacturing Division), Southington, Connecticut plant. United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Engi- neering and Manufacturing Division), East Hartford, Connecticut (including the DE Lab, the Willgoos Lab, facilities located at Man- chester and Rocky Hill) and Power System Division, South Windsor, Connecticut. United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Engi- neering and Manufacturing Division), Middle- town, Connecticut plant. WE WILL bargain with the Local unions over the continued status of PCCs and bargaining unit em- ployees. WE WILL make PCCs whole for any losses they may have incurred as a result of their exclusion from the bargaining units and from coverage of the collective-bargaining contracts, with interest. UNITED TECHNOLOGIES CORPORA- TION Otto P Witt, Esq., for the General Counsel. Joseph C Wells, Esq. (Farmer, Wells, Sibal & Dempsey), of Hartford, Connecticut, for the Respondent Daniel E. Livingston and James L Kestell, Esqs. (Kestell, Pogue & Deinhardt), of Hartford, Connecticut, for the Charging Party DECISION STATEMENT OF THE CASE THOMAS T. TRUNKES, Administrative Law Judge The above proceeding was held on November 7 and 8, 1983, in Hartford, Connecticut. On a charge filed by District 91, Machinists (District 91) the Officer in Charge for Su- bregion 39 (Officer in Charge) issued a complaint on August 18, 1983, 'in Case 39-CA-1638 pursuant to Sec- tion 10(b) of the National Labor Relations Act (the Act) In addition, on a charge filed by Local Lodge 700, Cartel Lodge, Machinists (Lodge 700)1 the Officer in Charge, on August 31, 1983, issued a complaint in Case 39-CA- 1732 pursuant to Section 10(b) of the Act.2 An order consolidating the two cases was issued on September 14, 1983, by the Officer in Charge pursuant to Section 102 33 of the Board's Rules and Regulations and State- ments of Procedure The complaints in both cases allege that United Tech- nologies Corporation (Respondent or the Company) made unilateral changes in terms and conditions of em- ployment in derogation of the Unions' bargaining rights under Section 8(a)(5) and (1) of the Act. Respondent filed answers in both cases denying the commission of any unfair labor practices. In Case 39-CA-1638 Re- spondent also asserted a number of affirmative defenses All parties were represented, and participated at the hearing, and had a full opportunity to adduce evidence, examine and cross-examine witnesses, file briefs, and argue orally. All the parties filed briefs that have been carefully considered The issues raised in these proceedings are: 1. Whether Respondent violated Section 8(a)(5) and (1) of the Act by restructuring its operations and thereby excluding a group of production control coordinators from the collective-bargaining unit without notice to, or bargaining with, the exclusive bargaining representatives of its employees? 2 Whether Respondent, in unilaterally altering its dis- ciplinary procedures in attendance cases, violated Sec- tion 8(a)(5) and (1) of the Act? 3. On the entire record,3 including my observations of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Delaware corporation with a main office located in Hartford; Connecticut, and places of business in North Haven, Southington, East Hartford, and Middletown, Connecticut, collectively called the Connecticut facilities. These four facilities are part of Re- spondent's Pratt & Whitney Aircraft Group. At all times material, Respondent has been engaged in the manufac- ture, nonretail sale, and distribution of aircraft engines and related products. During the 12-month period ending August 30, 1983, Respondent, in the course and conduct of its business, sold and shipped from its Connecticut fa- cilities products, goods, and materials valued in excess of $50,000 directly to points located outside the State of ' Together District 91 and Local 700 will be referred to as the Charg- ing Party 2 Lodge 700 filed an amended charge on August 9, 1983, and a second amended charge on August 25, 1983, in Case 39-CA-1732, both amend- ing the original charge filed on July 20, 1983 1 After the close of the hearing Respondent, in a written motion dated November 8, 1983, and served on the other parties, requested that the record be reopened to admit a written stipulation signed by counsel for each of the parties In light of the agreement among the parties, the motion is granted UNITED TECHNOLOGIES CORP Connecticut The complaints allege, Respondent admits, and I find that, at all times material, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. iI THE LABOR ORGANIZATIONS District 91 is an administrative division of the Machin- ist Union (IAM) that is comprised of a number of local unions in the Hartford, Connecticut area, including North Haven Aircraft Lodge 707, Industrial Aircraft Lodge 1746-A,' , , Industrial Aircraft Lodge 1746, and Lodge 700.4 The complaint in Case 39-CA-1638 al- leges,5 Respondent admits, and I find that each of the above-named locals and District 91 are labor organiza- tions within the meaning of Section 2(5) of the Act. III THE BARGAINING UNITS INVOLVED At all times material Respondent, at each of its Con- necticut facihties,6 has been a party to a collective-bar- gaining agreement, covering a unit of production and maintenance workers with one of the District 91.7 The complaint in Case 39-CA-1638 alleges,8 Respondent admits, and I find that the following units are appropri- ate for the purposes of collective bargaining under Sec- tion 9(b) of the Act. 1 All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Aircraft Group, Manufacturing Division at its North Haven, Connecticut, plant, including in- spectors, crib attendants, material handlers, factory clerks and working leaders, but excluding timekeep- ers, engineering and technical employees, laboratory technicians, foremen's clerks, salaried office and clerical employees, medical department employees, first aid employees, plant protection employees, ex- ecutives, plant superintendent, division superintend- ents, general foremen, foremen, assistant foremen, group supervisors, watch engineers, and all other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. 2. All production and maintenance employees of the. United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Products Di- vision and Manufacturing Division) at its Southing- ton, Connecticut, plant including inspectors, crib at- " Each of these local unions will henceforth be referred to as "Lodge" followed by its designated number When it is clear which local is being referred to, the local may simply be called the Union Additionally, all the locals together or District 91 may be referred to simply as the Union when the reference is clear from the context 5 Additionally , the complaint in Case 39-CA-1732 alleges Local 700 is a labor organization within the meaning of the Act 6 Henceforth , the Connecticut facilities, when referred to individually, will be called by the name of the town in which they are located ' 7 Lodge 700 represents Respondent's employees at Middletown, at North Haven Lodge 707 is the representative, at East Hartford Lodge 1746 is the representative , at Southington Lodge 1746-A is the represent- ative 8 Additionally , the complaint in Case 39-CA-1732 alleges that the unit at Middletown is appropriate for the purposes of collective bargaining 201 tendants, material handlers, factory clerks and working leaders, but excluding timekeepers, engi- neering and technical employees, apprentices, train- ees, laboratory technicians, foremen's clerks, sala- ried office and clerical employees, medical depart- ment employees, first aid employees, plant protec- tion employees, executives, plant superintendents, division superintendents, general foremen, foremen, assistant foremen, group supervisors, watch engi- neers, and all other supervisory employees with au- thority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. 3 All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Engineering and Manufacturing Division) at their facilities in and around East Hartford, Connecticut (including the DE lab, the Willgoos Lab, and facilities located at Manchester and Rocky Hill) and Power Systems Division and its facility located at South Windsor, Connecticut, including inspectors, crib attendants, material handlers, factory clerks and working lead- ers, but excluding timekeepers, engineering and technical employees, laboratory technicians, fore- men's clerks, salaried office and clerical employees, .medical department employees, first aid employees, plant protection employees, executives, plant super- intendents, division superintendents, general fore- men, foremen, assistant foremen, group supervisors, watch engineers, and all other supervisory employ- ees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees, or effectively recommend such action 4. All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Engineering and Manufacturing Division) at its Middletown, Connecticut, plant, including inspectors, crib attend- ants, material handlers, working leaders, and plant clerical employees but excluding all timekeepers, engineering and technical employees, professional employees, laboratory technicians, foremen's clerks, salaried office and salaried clerical employees, medi- cal employees, first aid employees, plant protection employees, executives, plant superintendents, divi- sion superintendents, general foremen, foremen, as- sistant foremen, group supervisors, watch engineers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effec- tively recommend such action. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Case 39-CA-1638: Exclusion of the Production Control Coordinators from the Bargaining Units Prior to 1982 Respondent, at all four of its Connecti- cut facilities, employed a staff of expediters , also known as dispatchers, to keep track of inventory and to move parts throughout the plants . The expediters were includ- 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed in the collective-bargaining units at all four Connecti- cut facilities at all times material.9 As of July 4, 1982, Respondent employed approximately 146 expediters at East Hartford, 37 at North Haven, 14 at Southington, and 44 at Middletown. i o Expediters at the various Connecticut facilities per- formed basically the same job. Working from lists pro- vided by their supervisors, expediters followed parts that were subject to shortages, commonly referred to as "hot parts," from the time of the anticipated shortage until the part reached its ultimate destination. Only between 10 and 20 percent of the parts processed at the Connecticut facilities were "hot" and needed to be expedited. The balance went through the shop on their own accord. In chasing hot parts through the plant, expediters physically followed the parts from one department to an- other. Accordingly, expediters spent a large part of the day walking throughout the plant. Expediters were also responsible for taking inventory by physically counting the parts for which they were responsible. They also in- vestigated delays, followed up on engineering changes, and allocated parts for use in engines and use as spares. Part of their time was spent behind a desk compiling daily status reports for all parts on the shortage list. At least some of the expediters also used computer terminals (CRTs) for various purposes, including allocating and lo- cating parts. Expediters worked under the direction of foremen and working-leader expediters. The latter group made assign- ments and assisted expediters with problems in addition to following parts themselves. Respondent also employed a group of clerical employ- ees whose main function was to maintain production control records and reports These production inventory clerks (PICs) were salaried employees and were not in- cluded in the bargaining units. t t In at least some of the plants PICs were located in office areas, away from the shop floor. In their capacity as recordkeepers, PICs spent most of their working time operating the CRTs. They kept track of parts within departments. Information about the parts was fed into the computer by the PICs and was gathered in a central data bank Computer printouts on the parts were produced the following day and audited for accura- cy A major flaw in the system, according to David Fairbanks, Respondent's senior compensation administra- tor, was that the information it generated was always 1- day old and frequently unreliable Toward the middle of 1982 Respondent began to im- plement a new system of inventory and production con- 9 Expediters were first included in the bargaining unit at Middletown in 1979 pursuant to a written supplement to the parties' 1977 collective- bargaining agreement 10 The General Counsel and Respondent both entered into evidence figures concerning the numbers of expediters Respondent employed at each of the Connecticut facilities as of July 4, and October 1982 The parties stipulated that any inconsistencies should be resolved in favor of the computer printouts submitted by the General Counsel The figures submitted by both parties included working-leader expediters, who were also members of the bargaining unit i i All salaried employees at the Connecticut facilities were nonunion employees, while all the hourly workers were included in the bargaining units trol. According to Fairbanks, the purpose of the new program, which was called the production control system, was to account for all parts at all times with up- to-date information. This was to be accomplished by computerizing the process of following parts within and among the various departments Under the Company's plan implementation of the pro- duction control system involved the elimination of expe- diters and PICs and the employment of production con- trol coordinators (PCCs), who would report to planning supervisors instead of to working-leader expediters and foremen Like expediters, PCCs are responsible for fol- lowing parts and expediting their progress throughout the plant. 12 Unlike expediters, PCCs perform this oper- ation primarily through the use of CRTs and, according- ly, spend most of their time at the computer terminal rather than traveling throughout the plant Another dif- ference between the expediter and PCC jobs is that al- though expediters moved parts from their point of origin throughout the entire plant, at least the majority of PCCs appear to monitor the progress of a particular part in only a limited number of areas, after which another PCC assumes responsibility for the part. Additionally, PCCs feed information about parts into the automated production and inventory system Hence, it appears that in addition to expediting, PCCs also have an expanded recordkeeping function. Implementation of the production control system began with a pilot program at Southington. William Shortell, the shop committeeman at Southington, testified that toward the middle of 1982 Lodge 1746-A began re- ceiving complaints from expediters that CRTs were being installed on the shop floor, and that bargaining unit work was being performed by salaried people. The Union filed a grievance and, according to uncontradicted accounts, at a third-step grievance meeting management denied that bargaining unit work was being performed by salaried personnel and that Respondent had plans to eliminate the expediters In October or November 1982, Lodge 1746-A filed grievances relating to the layoffs of two expediters whom the Union claimed were replaced by salaried per- sonnel. At the third-step grievance meeting held on March 31, 1983, management informed union officials that expediters were being replaced by PCCs and that because of the technical nature of the job and the sensi- tivity of the information that PCCs would have access to, they would not be bargaining unit employees. In ad- dition, the company officials indicated that the new system was also being implemented at other plants The two grievants were later rehired as salaried employees. On March 31, 1983, Respondent also held meetings with union officials at each of the other Connecticut fa- cilities. Respondent, at each meeting, announced the in- troduction of the production control system and the elimination of expediters in favor of nonunit PCCs. At East Hartford and Middletown, the Company also indi- 12 Two different PCC job descriptions were received into evidence According to Fairbanks' uncontradicted testimony, the job description of- fered by Respondent went into effect June 1983 and superseded the one offered by the General Counsel UNITED TECHNOLOGIES CORP cated that individuals working as expediters would be transferred to nonunit jobs The production control system has been introduced gradually and, as of the date of these proceedings, was at various stages of implementation at each of the Connecti- cut facilities By October 30, 1983, there were no longer any expediters employed at Southington or North Haven At Hartford approximately 44' expediters were still employed as of that date and at Middletown the number was 23 Many former expediters were moved out of the bargaining unit into PCC ,lobs. 13 Other expediters have been eliminated through attrition, termination, de- motion, and promotion Additionally, the parties stipulat- ed that by October 30, 1983, 48 out of the 76 PICs who had been employed at the Connecticut facilities were as- signed as PCCs The others were transferred, promoted, demoted, terminated, or left in the PIC jobs Of the 24 group leaders for production information control, whom Respondent employed at the 4 plants, 10 became PCCs. Respondent provided the PCCs with some training in their new jobs Initially an instructor, during a 1- or 2- day session, explained the general operation of the new system and taught the employees how to use the CRTs. Later on the system was explained in greater detail during a week-long training program at which time em- ployees received instruction 3 hours per day Discussion and Analysis The General Counsel and the Charging Party contend that in unilaterally eliminating the expediters and replac- ing them with nonunion personnel, Respondent refused to bargain over a mandatory subject of bargaining in vio- lation of Section 8(a)(5) and (1) of the Act. Moreover, they argue that the Union never waived its right to bar-, gain over the issue Respondent characterizes the PCC position as an en- tirely new job that had never been part of the bargaining unit in the first place Furthermore, Respondent argues that its decision to institute the PCC position outside the bargaining unit and assign former unit employees to the job is clearly within its management's perogatives under each of the collective-bargaining agreements at the Con- necticut facilities I find in agreement with the General Counsel and the Charging Party that Respondent unlawfully refused to bargain over the decision to exclude PCCs from the bar- gaining unit In making this determination I emphasize that Respondent's decision to modernize and restructure its operations was not itself a mandatory subject of bar- gaining Respondent's failure to bargain over the exclusion of PCCs from the bargaining unit, however, violated its duty to bargain over the effects of the decision to insti- tute a production control system. In First National Maintenance Corp v NLRB, 452 U.S 666 (1981), the Supreme Court set forth an analytic 13 According to Respondent's own records, at Southington and North Haven, where the position has already been completely eliminated, a ma- jority of the former expediters have been reassigned to PCC jobs A sub- stantial number of former expediters have also become PCCs at Middle- town and East Hartford, although it is unclear how many will become PCCs when the expediter positions finally are eliminated completely at those facilities 203 framework for determining when managerial decisions are mandatory subjects of bargaining The Court divided managerial decisionmaking into three categories Deci- sions in the first category, such as advertising, product type, and financing arrangements have only an attenuat- ed impact on the employment relationship and, accord- ingly, employers are free to act unilaterally. At the other extreme, the second type of decision regarding such things as layoffs, recalls, and work rules lie at the heart of the employment relationship and are therefore subject to mandatory bargaining. The third type of managerial decision is not itself primarily about employment, but it has a substantial impact on terms and conditions of em- ployment. Regarding this last category, the Court im- posed a balancing test that weighs the "employer's need for unencumbered decisionmaking" against the benefit that mandatory bargaining would accrue to "labor-man- agement relations and the collective-bargaining process." First National Maintenance, supra at 679 On the facts of First National Maintenance, the Court placed respond- ent's decision to partially close its operations in the third category and after applying the balancing test held that the employer was not required to bargain over its deci- sion. The Court did, however, require the employer to bargain over the effects of its decision on its employees. There is no dispute that the union must be given a significant opportunity to bargain about these mat- ters of job security as part of the "effects" bargain- ing mandated by § 8(a)(5) . . . And under § 8(a)(5), bargaining over the effects must be conducted in a meaningful manner and at a mean- ingful time, and the Board may impose sanctions to insure its adequacy. A union, by pursuing such bar- gaining rights, may achieve valuable concessions from an employer engaged in a partial closing It also may secure in contract negotiations provisions implementing rights to notice, information, and fair bargaining. First National Maintenance, supra at 681-682 . The Board, in a recent plurality decision, considered the question as to when managerial decisions are subject to mandatory bargaining in light of First National Main- tenance, and established the following test. [T]he critical factor . . . is the essence of the deci- sion itself, i.e., whether it turns upon a change in the nature or direction of the business, or turns upon labor costs, not its effect on employees nor a union's ability to offer alternatives Otis Elevator Co., 269 NLRB 891, 892 (1984) Applying this test Board Chairman Dotson and Member Hunter held that the employer did not violate its duty to bargain by failing to consult with the union over its decision to close certain obsolete facilities and to consolidate its research operations in a single location. Members Dennis and Zimmerman, each in separate opin- ions, agreed with the Board's conclusion in Otis Elevator, but refused to adopt the Board's rationale narrowly limit- ing the scope of mandatory bargaining over managerial 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I decisions to situations in which labor costs alone moti- vated the employer's action Both Members Zimmerman and Dennis envisioned a broader category of cases in which managerial decisions would be subject to the duty to bargain All the Board members did agree that although the de- cision to consolidate and relocate the employer's oper- ations was not a mandatory subject in and to itself, the employer was obliged to bargain over the effects of the decision. Accordingly, the Board remanded the case to the administrative law judge for a determination as to whether the employer unlawfully failed to engage in ef- fects bargaining Member Zimmerman dissented on the grounds that the record already demonstrated that Re- spondent violated its duty in this regard and, according- ly, a remand was inappropriate and unnecessary In the instant case Respondent's decision to improve the efficiency and accuracy of its inventory control oper- ation by modernizing its procedures through the produc- tion control system was clearly not a mandatory subject of bargaining under any of the tests set forth in First Na- tional or Otis Elevator i' Indeed, 'neither the General Counsel nor the Charging Party argue to the contrary. However, the decision to implement the production con- trol system had a substantial and direct impact on Re- spondent's employees, although it did not primarily focus on wages, hours, and working conditions In short, the decision belongs in the third category of the First Na- tional scheme and accordingly Respondent was obliged to engage in effects bargaining. In unilaterally excluding PCCs from the bargaining unit, Respondent failed to meet this duty. It is indeed hard to imagine a more sig- nificant effect on employees, save losing their jobs entire- ly, than their exclusion from the bargaining unit, an action that could impact on all their other terms and conditions of employment. Respondent's contention that the former expediters had no interest in the exclusion of PCCs from the bar- gaining unit because the latter position was an entirely new job that had never before existed is without merit. The Board has consistently held that employers violate the Act when they, without bargaining, replace bargain- ing unit jobs with nonunit positions or transfer substan- tial groups of employees out of the unit Bay Shipbuilding Corp, 263 NLRB 1133 (1982), enfd 721 172d 187 (7th Cir. 1983), Newspaper Printing Corp, 250 NLRB 1144 (1980), reversed on other grounds 692 F 2d 615 (6th Cir. 14 It should be noted that the case at bar is unaffected by the Board's recent decision in Milwaukee Spring Division, 268 NLRB 601 (1984) In Milwaukee Spring, in contrast to the case at bar, the parties stipulated that the employer satisfied its obligation to bargain with the union over its de- cision to relocate its assembly operations and also expressed a willingness to bargain over the effects of that decision The question addressed by the Board was whether respondent's implementation of its decision in the absence of union's consent was an unlawful midterm modification within the meaning of Sec 8(d) of the Act Neither is Administrative Law Judge Green's decision in United Tech- nologies Corp, JD-NY-58-82 (1982), a case involving Respondent at its North Haven facility and cited by all the parties, helpful in deciding the issues here In that case the judge held that the employer's decision to restructure its plant was not a mandatory subject of bargaining after find- ing that the decision belonged in either the first or third category set out by First National The judge also found that the employer made genuine efforts to bargain over the effects of its decision 1982); Dura-Vent Corp., 257 NLRB 430 (1981). This is true even when the restructuring results in changes in certain jobs. Specifically, the Board requires that, "When, as here, an employer attempts to justify removing a particular group or groups from the coverage of a collective-bar- gaining agreement or relationship, it has the burden of showing that the group is sufficiently dissimilar from the remainder of the unit so as to warrant removal "' Bay Shipbuilding, supra at 1140, quoting, Rice Food Markets, 255 NLRB 884 (1981) (emphasis supplied). In Bay Ship- building, the Board held that the employer violated the Act by unilaterally instituting a computerized lofting process outside the bargaining unit in place of a manual lofting system that had employed bargaining unit work- ers. Although the Board acknowledged that computer technology had significantly altered the lofting job, it concluded that the bargaining unit including any lofting work was still viable. Like the employer in Bay Shipbuilding, Respondent has not met its burden of showing that the PCC position was so different from the expediter job as to justify its exclu- sion from the bargaining unit Respondent concedes that the mere introduction of technology would not warrant keeping PCCs out of the bargaining unit, but points to a number of very significant differences between PCCs and expediters, including the PCCs' extensive use of the CRTs, reduced mobility about the plant, and expanded recordkeeping functions. These differences, however, flow directly from the improved methodology and in- creased efficiency brought on by the computer technolo- gy. The expediter's basic function to keeping track of in- ventory and following parts through the plant coincided precisely with the function ascribed to the PCCs Not surprisingly, the implementation of the production control system improved efficiency to the extent that the clerical PICs could be eliminated Neither this nor the fact that Respondent, rather than laying off all PICs, re- assigned some of them as PCCs, defeats the conclusion that PCCs essentially assumed the jobs formerly per- formed by the expediters Respondent's contention that its power to exclude PCCs from the bargaining unit is clearly embodied in ar- ticle I of its collective-bargaining agreements at each of the Connecticut facilities is also without merit All four collective-bargaining agreements contain a management functions clause that provides in pertinent part that: It is recognized that in addition to other func- tions and responsibilities the company has and will retain the sole right and responsibility to direct the operations of the company and in this connection to determine the number and location of its plants; the product to be manufactured, the types of work to be performed; the assignment of all work to em- ployees or other persons, the schedules of produc- tion, shift schedules and hours of work, the meth- ods, processes and means of manufacturing; and to select, hire, and demote employees, including the right to make and apply rules and regulations for production . [and] efficiency . . . UNITED TECHNOLOGIES CORP 205 It shall also have the right and responsibility . . . to promote and transfer, and to lay off because of lack of work or other cause, unless otherwise here after provided Essentially, Respondent's argument ' rests on the premise that, even assuming its exclusion of PCCs from the bargaining unit was a mandatory subject of bargain- ing, the Union waived its right to negotiate over such matters by agreeing to a broad management functions clause. i 5 Indeed, article I reserves to the Company a great deal of latitude in pursuing its managerial objec- tives The Board and Courts have consistently held, however, that the waiver of a statutory right, including the right to bargain over a mandatory subject, will not be inferred lightly and must be clear and unmistakable. Metropolitan Edison Co v NLRB, 460 U S. 693, 708 fn 12 (1983); Southern Florida Hotel & Motel Assn., 245 NLRB 561, 567-568 (1979) The General Counsel and the Charging Party do not dispute Respondent's right under the management func- tions clause to unilaterally create new departments, alter its methods of production and inventory control, and to assign work at its discretion. The management functions clause, however, does not waive the Union's right to bar- gain over the substitution of a substantial group of bar- gaining unit workers with nonunit employees, i 6 and it certainly does not do so "clearly and unmistakably." See Bay Shipbuilding, supra, 263 NLRB at 1140. i °' B. Case 39-CA-1732: The Changes in Progressive Discipline for Attendance Problems Although the parties have instituted no written system of progressive discipline, it is undisputed that Respond- ent, at Middletown, i 8 had established a practice of sus- pending employees with attendance problems before dis- charging them. Clifford Forster, a pipefitter at Middle- town and the president and chairman of the shop com- mittee, testified that employees who committed attend- ance infractions after receiving verbal and/or written warnings received a 3-day suspension before being dis- charged A long-term employee might receive an addi- tional 5-day suspension prior to termination Martin Lawrence, Respondent's senior personnel administrator at Middletown, testified that since January 1, 1980, out of 71 employees terminated for unsatisfactory attend- ance, all but 4 were suspended first. 15 During both the 1977 and 1982 negotiations between Respondent and the Union, which were apparently conducted jointly for all four Connecticut facilities, the Union unsuccessfully sought sweeping changes in the broad management functions clause 18 It is worth noting that the Board draws a sharp distinction between transfers or promotions of individuals or small groups outside the bar- gaining unit and the removal of enough employees to cause the unit a substantial loss of work The Board does not consider the latter company action a mere promotion or assignment Lutheran Home of Kendallville, Indiana, 264 NLRB 525 (1982) 11 Cf United Aircraft Corp (Pratt & Whitney Division), 192 NLRB 382, 389 (1971), modified 534 F 2d 422 (2d Cir 1975) (no violation when the employer, in order to avoid layoffs, transferred five employees to preex- isting, unrelated jobs outside of the bargaining unit) 18 Only the Middletown facility is involved in this dispute In June 1983 the manager of Middletown operations posted a notice at the facility that provided the following in pertinent part In applying progressive disciplinary action in cases involving poor attendance, we have used a pattern of verbal warning, written warning, suspension and finally, dismissal. The imposition of additional time off from the job in the form of a suspension for poor attendance is counterproductive Effective immediately, any indi- vidual who received a final warning and who fails to improve or maintain an attendance record satis- factory to supervision will be dismissed. In a telephone conversation with Forster, Sal Carabetta, the personnel manager at Middletown, explained the Company's decision. 19 Forster delivered the Union's response with a letter dated June 8, 1983, in which he contended that the pro- gressive discipline procedure was a mandatory subject of bargaining under the law and in which he formally re- quested that Respondent negotiate. In a June 17, 1983 reply letter, Carabetta, pointing to the management func- tions clause in the collective-bargaining agreement, denied that the Company was required to bargain over its decision and refused the Union's request Discussion and Analysis It is well settled that work rules, including disciplinary procedures, are mandatory subjects of bargaining Ctba- Geigy Pharmaceuticals Division, 264 NLRB 1013, 1016 (1982), enfd 722 F 2d 1120 (3d Cir. 1983), Womac Indus- tries, 238 NLRB 43 (1978).20 The question raised by.Re- spondent's defense is thus whether the Union clearly and unmistakably waived its right to bargain over Respond- ent's decision to change its discipline policy for absen- tees Respondent's argument that the management functions clause empowered it to unilaterally alter disciplinary pro- cedures is without merit. Article I of the collective-bar- gaining agreement provides in pertinent part that 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 to select, hire, and demote employees, including the right to make and apply rules and regulations for production, dis- cipline, efficiency and safety It shall also have the right and responsibility to discharge or otherwise discipline any employee for just cause and to lay off because of lack of 19 It is unclear from the record whether the Union was notified of the decision before the notice was posted, but it is undisputed that the Com- pany never offered to bargain 20 See also First National Maintenance, supra Respondent's decision regarding work rules falls into the second category of managerial deci- sionmakmg because it is primarily concerned with the employment rela- tionship See Womac industries, supra 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work or other cause, unless otherwise hereinafter provided. Although the clause permits the employer considerable latitude in making rules and disciplining its employees, it does not clearly and unequivocally waive the union's bargaining rights when the employer makes a substantial change in well-established disciplinary practices. Ciba- Geigy Pharmaceuticals Division, supra,at 1017, Merillat In- dustries, 252 NLRB 784 (1980). In his June 17 letter Carabetta also referred to article XXVII, section 2 of the collective-bargaining agreement,- a "zipper" type clause that provides 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 further demands . . . or with respect to any questions of wages, hours, or working condi- tions, except as may be dealt with as a grievance under Article VII hereof This clause, however, does not support Respondent's ar- gument that the Union waived its right to bargain over changes in the progressive discipline procedure. Al- though a "zipper" clause precludes parties from making new demands during the life of a contract, the employer cannot use it as a sword in order to justify unilateral changes GTE Automatic Electric, 261 NLRB 1491, 1492 fn 3 (1982).21 Nor has Local 700 waived its right to bargain over Respondent's decision through inaction. Martin H. Lee, the director of labor relations for the Pratt & Whitney Division, testified that Respondent has routinely made rules as to discipline and safety without bargaining with the Union. On cross-examination, however, he admitted that the last unilateral change' Respondent made in disci- plinary rules, 5 or 6 years prior to these proceedings, re- sulted in a charge filed with the Board, which the Union withdrew only after Respondent negotiated over the rules.22 It is thus clear that the Union has not slept on its right to bargain over these types of decisions. The fact that 4 out of 71 employees were discharged for absenteeism without a preliminary suspension does not show waiver by inaction either In the first place, it is unclear from the record that these lapses in the estab- lished procedure were ever brought to Lodge 700's at- tention through the grievance process 23 Moreover, a 21 The "zipper" clause is also contained in art XXVII, sec 2 of the collective-bargaining agreements for the other Connecticut facilities and Respondent points to this clause in its brief to justify the implementation of the production control system For the same reasons noted above I find that this clause did not waive the Union's right to bargain over the exclusion of PCCs from the bargaining unit 22 Regarding one of the rules Respondent unilaterally changed, involv- ing solicitation of literature, the charge was litigated Both the Board and the Second Circuit found a violation of the Act 23 According to Forster, although the Union is notified of every termi- nation and reason behind it, unless the individual grieves his dismissal, the Union has no way of knowing if he was ever suspended right once waived is not necessarily lost forever NLRB v. Miller Brewing Co., 408 F 2d 12, 15 (9th Cir. 1969); Murphy Diesel Co., 184 NLRB 757 (1970), enfd 454 F 2d 303 (7th Cir 1971) Although the Union may have chosen to allow the Company to bypass established pro- cedures in a few isolated instances, there is no indication that the Union intended to waive its right to bargain over a complete alteration of the Company's absentee policy.24 For all the reasons discussed here, I find that Respond- ent in Cases 39-CA-1732 and 39-CA-1638 violated Sec- tion 8(a)(5) and (1) of the Act 25 CONCLUSIONS OF LAW 1 United Technologies Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. District 91, Machinists, AFL-CIO and each of the following local unions of the Machinists, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act: North Haven Aircraft Lodge 707, Industrial Aircraft Lodge 1746-A; Industrial Aircraft Lodge 1746; and Local Lodge 700, Cartel Lodge 3. At all times material each of the locals referred to above has been the designated and recognized exclusive bargaining agent for Respondent's employees at one of its Connecticut facilities: Lodge 707 at North Haven; Lodge 700 at Middletown, Lodge 1746 at East Hartford; and Lodge 1746-A at Southington 4 'The following units are appropriate for collective- bargaining purposes under Section 9(b) of the Act. (a) All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Air- craft Group, Manufacturing Division of its North Haven, Connecticut plant, including inspectors, crib attendants, material handlers, factory clerks and working leaders, but excluding timekeepers, engineering and technical em- ployees, laboratory technicians, foremen's clerks, salaried office and clerical employees, medical department em- ployees, first aid employees, plant protection employees, executives, plant superintendents, division supervisors, watch engineers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. (b) All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Air- craft Group (Commercial Engineering and Manufactur- ing Division) at their facilities in and around East Hart- 24 Cf Emery Industries, 268 NLRB 824 (1984) (The union waived its right to bargain over changes in the employer's absentee control policy The Board based its decision on the management rights clause, that ex- plicitly gave the employer the right to discipline for "neglect of duty" which the Board construed as including absenteeism, coupled with the union's inaction on several prior occasions when the employer unilateral- ly changed its policy on absenteeism, including at least one change that preceded the parties' negotiations ) 25 Notwithstanding the Board's recent decision in United Technologies Corp, 268 NLRB 557 (1984), strengthening the deferral doctrine, deferral to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971) is not appropriate in the case at bar because no part has raised it See MacDon- ald Engineering Co, 202 NLRB 748 (1973) UNITED TECHNOLOGIES CORP ford, Connecticut (including the DE Lab, the Willgoos Lab, and facilities located at Manchester and Rocky Hill), and Power Systems Division and its facility locat- ed at South Windsor, Connecticut, including inspectors, crib attendants, material handlers, factory clerks and working leaders, but excluding timekeepers, engineering and technical employees, laboratory technicians, fore- men's clerks, salaried office and clerical employees, med- ical department employees, first aid employees, plant protection employees, executives, plant superintendents, division superintendents, general foremen, foremen, as- sistant foremen, group supervisors, watch engineers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recom- mend such action. (c) All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Air- craft Group (Commercial Engineering and Manufactur- ing Division) at its Middletown, Connecticut plant, in- cluding inspectors, crib attendants, material handlers, working leaders, and plant clerical employees, but ex- cluding all timekeepers, engineering and technical em- ployees, professional employees, laboratory technicians, foremen's clerks, salaried office and salaried clerical em- ployees, medical employees, first aid employees, plant protection employees, executives, plant superintendents, division superintendents, general foremen, foremen, as- sistant foremen, group supervisors, watch engineers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise , effect changes in the status of employees, or effectively recom- mend such action. (d) All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Air- craft Group (Commercial Engineering and Manufactur- ing Division) at its Middletown, Connecticut plant, in- cluding inspectors, crib attendants, material handlers, working leaders, and plant clerical employees, but ex- cluding all timekeepers, engineering and technical em- ployees, professional employees, laboratory technicians, foremen's clerks, salaried office and salaried clerical em- ployees, medical employees, first aid employees, plant protection employees, executives, plant superintendents, division superintendents, general foremen, foremen, as- sistant foremen, group supervisors, watch engineers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recom- mend such action 5. By unilaterally excluding PCCs from the units of production and maintenance workers at each of its Con- necticut facilities, Respondent has breached its duty to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. 6 By unilaterally altering the progressive discipline procedures for absenteeism at its Middletown facility, Respondent has breached its duty to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. 7 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY 207 Having found that Respondent has engaged in unfair labor practices, I recommend that Respondent cease and desist therefrom and take certain affirmative action nec- essary to effectuate the policies of the Act. Having found that Respondent unlawfully excluded PCCs from the collective-bargaining units at each of the Connecticut facilities without bargaining with or notice to the Union, I recommend that Respondent be ordered to recognize the PCCs as part of the respective units, to apply the terms of the collective-bargaining agreements to the PCCs, and to make them whole for any losses they may have suffered by Respondent's unlawful con- duct. Bay Shipbuilding, supra, 263 NLRB at 11, Rice Food Markets, supra. Specifically, Respondent is ordered to pay any wage differential from the contract rate, in- cluding any cost-of-living increases lost,26 to be comput- ed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp, 231 NLRB 651 (1977). See generally Isis Plumbing Co., 139 NLRB 716 (1962). Additionally, I recommend that Respondent be ordered to pay any pension or other benefits unlawfully withheld.27 Although article V of each collective-bargaining agreement provides for dues-checkoff procedures, in the absence of evidence that employees have signed checkoff authorizations, I reject the Union's request that Respond- ent be ordered to reimburse the Union for all dues and fees lost as result of Respondent's unlawful conduct. California Blowpipe & Steel Co., 218 NLRB 736, 754 (1975), enfd mem 543 F.2d 416 (D C. Cir 1976). Having found that Respondent unlawfully altered its disciplinary procedures for absenteeism at Middletown, I recommend that Respondent be ordered to rescind the unlawful changes and to bargain with Lodge 700 in good faith. Additionally, I recommend that Respondent be or- dered to offer reinstatement to any employees dismissed pursuant to the unlawfully instituted procedures28 to their former or substantially equivalent positions, and to make them whole with full backpay. Ciba-Geigy Pharma- ceuticals Division, supra, 264 NLRB at 10-11. Lost pay shall be computed in the manner set forth in F. W. Wool- worth Co, supra, with interest as prescribed in Florida Steel Corp, supra See generally Isis Plumbing Co., supra. I also recommend that any unlawful dismissals be ex- punged from the records of affected employees and that 26 There is evidence in the record that as of June 1983 PCCs, as a result of their exclusion from the bargaining unit , lost 2 cents per hour in cost-of-living increases and that future increases would have brought this figure up to approximately $1 per hour The precise determination of the cost-of-living increases lost by PCCs as a result of Respondent 's unfair labor practice, however, is best left to compliance proceedings See Goshen Litho, Inc, 196 NLRB 977 (1972), modified on other grounds 476 F 2d 662 (2d Cir 1973) 27 The Board has held, "Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicatory stage of a proceeding for this addition of interest at a fixed rate on unlawfully withheld fund payments " Bay Shipbuilding, supra , 263 NLRB at 1133, Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) 28 There is no evidence in the record that as of the date of this pro- ceeding any employees were, in fact , dismissed pursuant to Respondent's unlawfully implemented policy 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent notify them in writing that this has been done and that the unlawful dismissals will not be used against them in future personnel actions On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed29 ORDER The Respondent, United Technologies Corporation, Hartford, Connecticut, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Excluding PCCs from the collective-bargaining units found appropriate herein at each of the Connecticut facilities, without notice to or bargaining with Machin- ists, Lodge 700, Lodge 1746, Lodge 1746-A, and Lodge 707. (b) Altering established disciplinary procedures regard- ing absenteeism without notice to or bargaining with the Machinists, Lodge 700 (c) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize the PCCs as part of the collective-bar- gaining units found appropriate at each of the Connecti- cut facilities here and apply to the PCCs the terms of the collective-bargaining agreements covering those units, and bargain with the exclusive bargaining agents over the continued status of PCCs as bargaining unit employ- ees. (b) Make PCCs whole for any losses they may have incurred, as a result of their unlawful exclusion from the bargaining units and from coverage of the collective-bar- gaining agreements, in the manner prescribed in the remedy section of this decision. (c) Rescind all unilateral changes made in the discipli- nary procedures for absenteeism at Middletown and bar- gain with the exclusive bargaining agent for the unit at Middletown , found appropriate here, over any alterations in those procedures. (d) Reinstate any employees dismissed pursuant to the unlawfully instituted disciplinary procedures ' to their former or substantially equivalent positions, without prej- udice to their seniority or other rights and privileges, with backpay as prescribed in the remedy section of this decision. (e) Remove any reference to a dismissal effected under the unlawfully instituted disciplinary procedures from the records of any affected employees, and notify them in writing that this has been done and that the unlawful terminations will not be used against them in any future personnel actions. (f) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- 29 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 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. (g) Post at its plants at Middletown , North Haven, East Hartford, and Southington copies of the attached notice marked "Appendix A." [Omitted from publica- tion.] Post at its plant at Middletown , copies of the at- tached notice marked "Appendix B."30 Copies of the notice, on forms provided by the Officer in Charge for Subregion 39, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (h) Notify the Officer in Charge in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 30 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 " APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT alter established disciplinary procedures regarding absenteeism without notice to or bargaining with Local 700, Canel Lodge, International Association of Machinists and Aerospace Workers, AFL-CIO. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed to them in Section 7 of the Act. WE WILL rescind all unilateral changes made in the disciplinary procedures regarding absenteeism and WE WILL bargain over any alterations in those procedures with the Union representing an appropriate unit of. All production and maintenance employees of the United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Engineering and Man- ufacturing Division) at its Middletown , Connecti- cut, plant, including inspectors , crib attendants, ma- terial handlers, working leaders, and plant clerical employees but excluding all timekeepers , engineer- ing and technical employees , professional employ- ees, laboratory technicians , foremen's clerks, sala- ried office and salaried clerical employees , medical employees, first aid employees , plant protection em- ployees, executives , plant superintendents , division superintendents , general foremen, foremen , assistant foremen , group supervisors, watch engineers, and all other supervisory employees with authority to UNITED TECHNOLOGIES CORP hire, promote, discharge , discipline , or otherwise effect changes in the status of employees , or effec- tively recommend such action. WE WILL reinstate any employees dismissed pursuant to the unlawfully altered disciplinary procedure to their former or substantially equivalent positions without prej- udice to their seniority or other rights and privileges WE WILL make all whole employees who were dis- missed pursuant to the unlawfully altered disciplinary 209 procedures with backpay and interest , if any such em- ployees exist. WE WILL remove from the records of all affected em- ployees any reference to a dismissal resulting from the unlawfully altered disciplinary procedures and WE WILL notify them, in writing, that this has been done and that such dismissal will not be used as a basis for future per- sonnel actions against them. UNITED TECHNOLOGIES CORPORATION