United Technologies Corp.

248 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 January 9, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 16, 1987, the National Labor Rela tions Board issued a Decision and Order' that, among other things, adopted the administrative law judge's conclusion that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally excluding employees in the job classification of production control coordinator (PCC) from pro- duction and maintenance bargaining units at four of the Respondent's plants The Board filed an apple cation for enforcement of its Order with the United States Court of Appeals for the Second Circuit 2 In its brief to the court the Respondent argued, among other things, that the portion of the Board's Order requiring the Respondent to bargain with the Union over the continued status of PCCs as bargaining unit employees" improperly required the Respondent to bargain over the scope of the unit, a nonmandatory subject of bargaining On September 19, 1988, the Board moved the court to remand the case to permit the Board to reconsider its Decision and Order On October 14, 1988, the court granted the Board's motion On October 21, 1988, the Board notified the par ties that it was reconsidering its decision to the extent that it orders the Respondent to `bargain with the exclusive bargaining agents over the con tinued status of PCCs as bargaining unit employ ees"' and invited the parties to file statements of position The General Counsel and the Union filed statements of position arguing that the Board should clarify the Order by deleting the provision requiring the Respondent to bargain with the Union over the continued status of PCCs as bar gaining unit employees The Respondent filed a statement of position contending that the Board should dismiss the allegation that the Respondent violated the Act by excluding employees in the job 1 287 NLRB 198 Member Cracraft did not participate in the decision 2 The Union also filed a petition for review of another portion of the Boards Order in which the Board (Member Johansen dissenting) had dismissed an allegation that the Respondent had violated Sec 8 (a)(5) and (1) of the Act by unilaterally altering progressive discipline procedures for absenteeism classification of PCC from the four production and maintenance bargaining units The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Having considered the parties' statements of po sition and our Decision and Order in this case, we conclude that the portion of the Order requiring the Respondent to bargain over the continued status of PCCs as bargaining unit employees and the rationale that is the predicate for this portion of the Order are in error The complaint in this case did not allege that the Respondent 's decision to im- plement a new computerized inventory and pro duction control system violated the Act The judge, nevertheless, addressed this question and specifically found that under Otis Elevator Co 3 and First National Maintenance Corp v NLRB4 the Re spondent s decision to implement this new system was not a mandatory subject of bargaining 5 Con tinuing this analysis, the judge went on to find that the Respondent's exclusion of PCCs from the bar- gaining units was an effect of the Respondent's de cision to adopt a new inventory and production control system and that , therefore, the Respond ent's failure to bargain over its exclusion of PCCs from the units violated its duty to engage in effects bargaining Switching his mode of analysis, the judge further found the Respondent 's exclusion of PCCs from the bargaining units to violate the Re spondent's duty to bargain under the theory of Bay Shipbuilding Corp 6 and predecessor cases, which hold that an employer violates the Act when, with- out the agreement of the union , it removes a sub stantial group of employees from a bargaining unit without showing that the group is sufficiently dis similar from the remainder of the unit to warrant removal Because the judge found that the exclusion of PCCs from the bargaining units violated Section 8(a)(5) and (1) of the Act under the theory of Bay Shipbuilding, in his remedy he recommended that the Respondent be ordered to recognize the PCCs as members of the units, to apply the collective bargaining agreements to the PCCs, and to make them whole for any losses they might have suf- fered as a result of their exclusion from the units Although he incorporated these provisions in his Order, he included an additional provision in his Order at paragraph 2(a), apparently based on his 3 269 NLRB 891 (1984) 4 452 US 666(1981) 5 In our earlier decision at fn 2 we noted that no party had excepted to this finding and that therefore it was unnecessary for us to pass on the judge s analysis of Otis Elevator Co 6 263 NLRB 1133 (1982) 292 NLRB No 42 UNITED TECHNOLOGIES CORP 249 effects bargaining theory, requiring the Respondent to bargain with the Union over the continued status of PCCs as bargaining unit employees He also ordered the Respondent to cease and desist from excluding PCCs from the bargaining units without notice to or bargaining with the Union No party in earlier arguing its position to us raised the inconsistency of these provisions or the rationales on which they were based, and we adopted the portion of the judge's decision finding that the Respondent's exclusion of PCCs from the bargaining units violated Section 8(a)(5) and (1) of the Act, as we agreed with this conclusion On re- consideration, however, we now find it appropriate to address this matter Assuming arguendo that the judge was correct that the Respondent's decision to implement a new computerized inventory and production control system was not a mandatory subject of bargaining,7 we do not agree with his finding that the Respond ent's exclusion of PCCs from the bargaining units was an effect of this decision Rather, the effect of the Respondent's decision on unit employees was that certain unit employees, known as expediters," were required to perform their inventory-tracking function with new tools, i e , computers, and were assigned to the new PCC job classification The Respondent's decision to consider the PCC job classification as outside the bargaining units was not simply an effect of the Respondent's adoption of its new inventory and production control system There was nothing about implementation of the new system that mandated that the new PCC position be outside the units Rather, the Re spondent's decision to regard PCCs as nonunit em- ployees was an entirely separate matter Further, the complaint did not allege that the changes in the expediters' work occasioned by the Respondent's computerization of its inventory and production control system violated the Act Thus, it was not contended that these changes constituted an effects bargaining violation Moreover, there is an additional basis for con cluding that the Respondents exclusion of PCCs from the bargaining units was not a matter for ef- fects bargaining As the Respondent now correctly points out, unit scope is not a mandatory subject of bargaining and, thus, neither party may be required to bargain about it 8 It was, therefore, improper to 7 As noted above no party excepted to the judge s conclusion that this decision did not concern a mandatory subject of bargaining and it is un necessary for us to resolve this question 8 Bozzuto s Inc 277 NLRB 977 (1985) Because unit scope is not a mandatory subject of bargaining a change in unit scope was not a matter on which the Respondent could insist to impasse or implement Cf Franklme Inc 287 NLRB 263 264 at fn 8 (1987) order the Respondent to bargain concerning the unit status of PCCs Accordingly, we decline to adopt the judge's conclusion that the Respondent committed an effects bargaining violation by ex- cluding PCCs from the bargaining units, and we shall delete from the Order the provision requiring the Respondent to bargain concerning the contin ued status of PCCs as unit employees We continue to agree, however, with the judge's conclusion that the Respondent's exclusion of the PCC classification from the bargaining units violat- ed Section 8(a)(5) and (1) of the Act on the basis of the Bay Shipbuilding theory, and we adopt his anal- ysis in this regard 9 It follows from this theory of the violation that the judge's recommended Order should be modified to require the Respondent to cease and desist from excluding PCCs from the bargaining units without the agreement of the Union 10 We therefore shall enter an order incor porating the modifications made to the judge's rec ommended Order in our original decision and fur ther modifying the recommended Order to require the Respondent to cease and desist from excluding PCCs from the bargaining units without the agree- ment of the Union Additionally, as discussed above, we shall delete the requirement that the Re- spondent bargain over the status of PCCs as bar gaining unit employees ORDER The National Labor Relations Board orders that the Respondent, United Technologies Corporation, North Haven, Southington, East Hartford, South Windsor, and Middletown, Connecticut, its offi- cers, agents, successors, and assigns, shall 1 Cease and desist from (a) Excluding production control coordinators (PCCs) from the collective-bargaining units found appropriate at each of the Connecticut facilities without the agreement of North Haven Aircraft Lodge 707, Industrial Aircraft Lodge 1746-A, In dustrial Aircraft Lodge 1746, and Lodge 700, Canel Lodge, all of the International Association of Machinists and Aerospace Workers, AFL-CIO 9 We do not completely agree with his characterization of Bay Ship building as holding that employers violate the Act when they without bargaining replace bargaining unit jobs with nonunit positions or transfer substantial groups of employees out of the unit (emphasis added) As unit scope is a nonmandatory subject of bargaining see fn 8 above it is not merely bargaining but rather agreement that is required before unit jobs are transformed into nonumt jobs In the present case there was net ther agreement nor bargaining on the exclusion of PCCs from the bar gaining units 10 We shall not include in our Order an exception that would allow exclusion of the PCCs from the units if the Respondent shows that they are sufficiently dissimilar from the other unit employees to warrant exclu sion The Respondent has had an opportunity to make this showing and has failed to do so 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Recognize the PCCs as part of the collective- bargaining units found appropriate at each of the Connecticut facilities and apply to the PCCs the terms of the collective bargaining agreements cov ering those units (b) Make the PCCs whole for any losses they may have incurred as a result of their unlawful ex clusion from the bargaining units and from cover- age of the collective-bargaining agreements, in the manner prescribed in the remedy section of the judge's decision (c) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its facilities at Middletown, North Haven, East Hartford, South Windsor, and South- ington, Connecticut copies of the attached notice marked "Appendix "i i Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main tained for 60 consecutive days in conspicuous places including all places where notices to em ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply " 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 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 the agreement of North Haven Aircraft Lodge 707, Industrial Aircraft Lodge 1746 A, Industrial Air craft Lodge 1746, and Lodge 700, Canel Lodge, all of the International Association of Machinists and Aerospace Workers, AFL-CIO WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer case 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 listed 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 plant United Technologies Corporation, Pratt & Whitney Aircraft Group (Commercial Engi- neering and Manufacturing Division), Middle town, Connecticut plant WE WILL make the PCCs whole for any losses they may have incurred as a result of their exclu- sion from the bargaining units and from coverage of the collective-bargaining contracts, with interest UNITED TECHNOLOGIES CORPORA TION