United Technologies Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1989

296 N.L.R.B. 571 (N.L.R.B. 1989)

UNITED TECHNOLOGIES CORP. 571
Hamilton Standard Division of United Technologies
Corporation and Hamilton Standard Independ-
ent Fire/Security Officers Association. Cases
39-CA-3438-2 and 39-CA-3681
September 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 7, 1988, Administrative Law
Judge Raymond P. Green issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief; the General Counsel filed exceptions
and a supporting brief; and the General Counsel
and the Respondent filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing and re-
fusing to bargain in good faith with the Union,
withdrawing recognition from the Union, and
making unilateral changes in certain mandatory
subjects of bargaining. Additionally, the judge
found that the Respondent violated Section 8(a)(1)
by telling employees that the selection of the
Union as collective-bargaining representative was
futile. For the reasons set forth by the judge and as
explained in more detail below, we agree with the
judge that the Respondent violated the Act, as al-
leged.
As more fully set forth in the judge's decision,
following a Board-conducted election on June 15,
1983, and a subsequent Board decision ordering the
Respondent to bargain with the Union, 2 the Union
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
We correct the following inadvertent errors in the judge's decision
The Respondent requested bargaining materials from a private labor re-
porting service on March 13, 1986, not March 21, 1986; Schrodi selected
April 9, 1986, as the date for the first bargaining session , not April 8, the
parties negotiated on July 9, 1986, not July 8, Leary's March 18 letter to
Carter indicated that Schrodi would be on vacation until early April, not
late March; the date of the meeting at sec 111 , par 18 of the decision is
June 30, 1988, not June 30, 1987
2 United Technologies Corp., 275 NLRB No 195 (Aug 19, 1985), enfd
mem. No 85 -4177 (2d Cir 1986)
requested bargaining with the Respondent by letter
dated March 13, 1986. At the Union's request, the
Respondent established the first bargaining session
for April 9, 1986. Thereafter, the Respondent and
the Union met and negotiated at 24 bargaining ses-
sions between April 9, 1986, and March 12, 1987.
The first bargaining session was devoted to pre-
liminary discussions and the establishment of
ground rules for negotiations. After this initial ses-
sion, the Union mailed its bargaining proposals to
the Respondent. Thereafter, the next 12 bargaining
sessions , from May 8 to October 30, 1986, were
largely spent with the Respondent reading the
Union's proposals aloud one-by-one; asking union
negotiators questions about each proposal, such as
why the Union wanted the proposal and what pre-
cisely did the proposal mean; and encouraging the
Union to correct assorted typographical, grammati-
cal, and other errors in the proposals.
During these 12 bargaining sessions, the Union
repeatedly asked the Respondent when it was
going to be submitting counterproposals. The Re-
spondent refused to submit counterproposals before
completing its review of the Union's proposals, and
refused to discuss economic issues until settling all
contract language issues. At the conclusion of this
phase of the negotiations, which lasted more than 6
months, the Respondent had not agreed to any of
the Union's proposals and had yet to submit any
counterproposals.
At the December 3, 1986 negotiation session, the
Respondent began submitting its counterproposals
to the Union. The Respondent would submit a
single proposal to the Union and solicit comments,
questions, and discussions regarding that proposal
before presenting its next proposal. According to
testimony credited by the judge, when the Union
objected to the manner in which the Respondent
was presenting its proposals, the Respondent's chief
negotiator replied that, if the Union wanted, the
parties could call off negotiations and wait until the
Company had a full contract proposal, which the
Company would then present on a "take-it-or-
leave-it" basis. Despite the Union's protests over
the Respondent's piecemeal submission of bargain-
ing proposals, the Respondent followed this proce-
dure for the remaining negotiation sessions.
On March 24, 1987, the Respondent wrote the
Union that it was suspending negotiations in order
to investigate a decertification petition allegedly
signed by a majority of the unit employees. On
April 2, 1987, the Respondent withdrew recogni-
tion from the Union on the basis of the petition. It
is undisputed that the Respondent subsequently ini-
tiated certain unilateral changes without bargaining
with the Union.
296 NLRB No. 79
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In determining whether a party has bargained in
bad faith, the Board looks to the totality of the cir-
cumstances in which the bargaining took place.
Hotel Roanoke, 293 NLRB 184 (1989); Port Plastics,
279 NLRB 362, 382 (1986); Atlanta Hilton & Tower,
271 NLRB 1600, 1603 (1984). The Board examines
not only the parties' behavior at the bargaining
table , but also conduct away from the table that
may affect the negotiations . Hotel Roanoke , above;
Port Plastics, above. Among other indicia that a
party has bargained in bad faith , the Board also
considers whether a party has engaged in delaying
tactics and whether a party has made unilateral
changes in mandatory subjects of bargaining . Atlan-
ta Hilton & Tower, above . In reviewing the totality
of the Respondent 's conduct here , we find that the
Respondent violated the Act by refusing to bargain
in good faith with the Union.
We find the following factors to be especially
significant . First , after almost 1 year of bargaining
with the Union , the Respondent had not presented
any economic proposals, despite repeated prompt-
ing from the Union , and had never even internally
discussed its economic demands . Further, at the
time Respondent withdrew recognition from the
Union, the Respondent had still not completed
drafting its proposed contract language . Because
the Respondent never made any economic propos-
als to the Union and had not completed drafting its
proposed contract language, the Union could not
have agreed to a contract prior to the withdrawal
of recognition even if it capitulated to the Re-
spondent 's every demand.
Even though these negotiations involved the first
collective-bargaining agreement between the par-
ties , we fail to find this factor to be a sufficient ex-
planation for the Respondent 's delay in presenting
its counterproposals or its failure to present eco-
nomic proposals. Rather , the totality of the evi-
dence indicates that the Respondent 's item-by-item
review of the Union's proposals , its piecemeal sub-
mission of counterproposals , and its insistence on
resolving all issues relating to contract language
before discussing economic issues were delaying
tactics designed to frustrate the bargaining process.
Second , we find the Respondent 's December 3,
1986 statement at the bargaining table constitutes
further evidence of bad -faith bargaining . As noted
above, the Respondent's chief negotiator told the
Union , in response to the Union's opposition to the
piecemeal submission of bargaining proposals, that
the Respondent could wait until it had a full con-
tract proposal that could then be presented on a
take-it-or-leave-it basis . In the totality of circum-
stances here , this statement by the Respondent's
chief negotiator clearly evidences bad-faith bar-
gaining.
Finally , we find additional evidence of the Re-
spondent's bad-faith bargaining in its unilateral
transfer of a unit employee from the Respondent's
main facility to its Midway Green facility during
the course of bargaining without notifying the
Union or bargaining over the transfer . It is undis-
puted that the Respondent did not notify the Union
of this action or provide the Union an opportunity
to bargain even though the parties were then cur-
rently engaged in negotiations . We note that the
Respondent had previously "temporarily" trans-
ferred a unit employee to Midway Green and, once
the Union raised the issue at the bargaining table,
unilaterally transferred that employee back to its
main facility without notice to the Union or pro-
viding the Union with an opportunity to bargain
over the decision.3
Based on the totality of the circumstances in
which the bargaining took place , including the Re-
spondent's delaying tactics, its statement that it
could submit a contract to the Union on a "take-it-
or-leave-it" basis, and its unilateral change in a
mandatory subject of bargaining , we find that the
Respondent violated Section 8(a)(5) and (1) by fail-
ing and refusing to bargain in good faith . Cf. Hartz
Mountain Corp., 295 NLRB 418 (1989) (no surface
bargaining found where employer presented union
with comprehensive counterproposals, including
proposals regarding economic issues, as soon as its
questions regarding union 's proposals were an-
swered ; agreement was reached on a number of
significant items; and employer did not engage in
other conduct evidencing bad-faith bargaining).4
8 In light of the previous temporary transfer and the issue being raised
at the bargaining table, we agree with the judge that the Respondent's
unilateral permanent transfer was a mandatory subject of bargaining See
Kansas Education Assn ., 275 NLRB 638 (1985)
The judge's finding that the Respondent violated the Act by transfer-
ring the unit employee flowed from his finding that the Respondent un-
lawfully withdrew recognition from the Union . We find , however, that
the Respondent 's conduct independently violated Sec. 8(a)(5) and (1) be-
cause the transfer occurred on March 9 , 1987, prior to the withdrawal of
recognition . Thus , even in the absence of a finding that the Respondent
engaged in surface bargaining and unlawfully withdrew recognition, we
find that the Respondent 's unilateral conduct violated the Act
4 Contrary to the Respondent 's contention, we also find that the
charge alleging the unlawful transfer of a unit employee was timely filed.
Although the Union 's president learned of a new post created by the Re-
spondent on April 4 , 1987, there is no evidence that the Union learned
prior to May 20, 1987 , that the transfer of the unit employee was to be
permanent or that the new post created by the Respondent was located
at Midway Green . In light of the Respondent's repeated insistence during
negotiations that no unit employees had been permanently assigned to
Midway Green , we find the union president 's observation of a new post
number in the Respondent's security records insufficient in itself to start
the running of the 10(b) period Furthermore , the charge is closely relat-
ed to the initial charge and, even were the charge barred by Sec 10(b),
events occurring outside the 10(b) period may be considered as evidence
of the Respondent 's refusal to bargain in good faith
Continued
UNITED TECHNOLOGIES CORP. 573
AMENDED REMEDY
The General Counsel has excepted to the judge's
failure to require, as part of the remedy for the Re-
spondent's unilateral change in terms and condi-
tions of employment, that the Respondent rescind
those unilateral changes at the request of the
Union. We find merit in the General Counsel's ex-
ception, and we shall modify the Order according-
ly.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Hamilton Standard Division of United
Technologies Corporation, Windsor Locks, Farm-
ington, and East Granby, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and re-
letter subsequent paragraphs.
"(b) On request by the Union, revoke the unilat-
eral changes in the rates of pay, wages, and other
terms and conditions of employment that were
placed into effect by the Respondent in the appro-
priate bargaining unit, until such time as the Re-
spondent negotiates with the Union in good faith
or an impasse in negotiations is reached."
2. Substitute the attached notice for that of the
administrative law judge.
In light of our decision here, we find it unnecessary to pass on the
General Counsel's exception regarding the judge's failure to rely on the
posthearing 8(a)(1) statement by Supervisor McGrath as further evidence
of the Respondent's refusal to bargain in good faith.
APPENDIX
WE WILL NOT refuse to bargain collectively and
in good faith concerning rates of pay, hours of em-
ployment, and other terms and conditions of em-
ployment with the Hamilton Standard Independent
Fire/Security Officers Association as the exclusive
representative of the employees in the bargaining
unit described below:
All full-time and regular part-time dispatchers,
technicians, fire protection officers, security
officers, fire/security officers and security re-
ceptionists at our Windsor Locks, Farmington,
and East Granby facilities; excluding all other
employees, chiefs, captains, lieutenants, office
clerical employees, professional employees;
and other supervisors as defined in the Act.
WE WILL NOT withdraw recognition from the
above-named Union.
WE WILL NOT unilaterally change wages and
terms and conditions of employment without first
notifying and bargaining with the Union.
WE WILL NOT tell our employees that selecting a
union would be futile.
WE WILL NOT in 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, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the above bargaining unit.
WE WILL, on request by the Union, revoke the
unilateral changes in the rates of pay, wages, and
other terms and conditions of employment which
we put into effect in the bargaining unit, until such
time as we negotiate with the Union in good faith
or reach an impasse in negotiations.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
HAMILTON STANDARD DIVISION OF
UNITED TECHNOLOGIES CORPORA-
TION
Micheal A. Marcionese, Esq., for the General Counsel.
Charles V. Gagliardi Esq. and Edward J. Dempsey Esq.,
for the Respondent.
James L. Kestell, Esq. (Kestell, Pogue & Gould), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge.
These cases were heard by me on June 27, 28, and 29
and October 13, 1988. The charge in Case 39-CA-3438-
2 was filed on May 8, 1987. That charge alleged that
since December 1, 1986, the Company engaged in sur-
face bargaining and that on April 2, 1987, the Company
unlawfully withdrew recognition. The charge and
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amended charge in Case 39-CA-3681 were filed on No-
vember 20 and December 11, 1987. These alleged certain
unilateral changes, namely, the transfer of a unit employ-
ee to a new location , the granting of a wage increase,
and the institution of a new grievance procedure. The
consolidated complaint was issued on February 26, 1988.
It alleged as follows:
1. That from April 1986 through April 1987, during
the course of collective bargaining , the Respondent
failed and refused to bargain in good faith and without
any intention of reaching an agreement.
2. That on or about April 2, 1987, the Respondent
withdrew recognition from the Union.
3. That in May 1987, the Respondent unilaterally
transferred an employee to another facility.
4. That on or about July 1, 1987, the Respondent uni-
laterally instituted a wage increase for the bargaining
unit employees.
5. That on or about November 17, 1987, the Respond-
ent unilaterally instituted a new personnel policy includ-
ing a new grievance procedure.
6. That on or about June 30, 1988, the Respondent by
a supervisor, told its employees that the selection of the
Union as a bargaining representative was futile.
The Respondent admits that it withdrew recognition
on April 2, 1987; that it unilaterally granted unit employ-
ees wage increases; that it unilaterally instituted new per-
sonnel policies (including a grievance procedure); and
that it transferred an employee . The Respondent asserts,
however, that it negotiated in good faith and that it only
withdrew recognition after it had obtained objective evi-
dence that the Union no longer represented a majority of
the employees in the bargaining unit . It therefore con-
tends that the unilateral changes were not unlawful as
the Union no longer was the majority representative at
the time such changes are made . It also contends that the
transfer of a single employee to a separate facility is not
a mandatory subject of bargaining.'
On the entire record, including my observation of the
demeanor of the witnesses , and after considering the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent admits and I find that it is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a defense contractor engaged in
manufacturing aerospace products. Its facilities are locat-
I Respondent asserts that certain allegations are barred by the statute
of limitations set forth in Sec 10 of the Act Respondent has not howev-
er, specified which allegations of the complaint are so barred As I do not
see any allegations which are barred by the 6 -month statute of limita-
tions , I reject this defense.
ed at various locations in Connecticut . For many years
the Respondent 's production and maintenance employees
have been represented by Lodge 743 , International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO.
On June 15, 1983, in Case 39-RC-435, the Board's
Hartford office held an election in the following unit of
employees:
All full-time and regular part-time dispatchers, tech-
nicians, fire protection officers, security officers,
fire/security officers and security receptionists at
the Employer's Windsor Locks, Farmington, and
East Granby facilities ; excluding all other employ-
ees, chiefs , captains, lieutenants , office clerical em-
ployees, professional employees ; and other supervi-
sors as defined in the Act.
The Union ultimately was certified as the representa-
tive of the above-described unit on March 21, 1985, after
a hearing had been held regarding the eligibility of cer-
tain voters and regarding certain allegations of employer
preelection misconduct . After the certification , the Union
made a request to bargain which was refused by the Em-
ployer. This resulted in an Order by the Board on
August 19, 1985 , that the Respondent bargain with the
Union . United Technologies Corp., 275 NLRB No. 195
(Aug. 19 , 1985). This Order was thereafter efiforced by a
United States court of appeals on March 7, V986.
B. The Negotiations
Following the court's order, the Union by its presi-
dent, Dick Carter, wrote to the Respondent on March
13, 1986, seeking to begin negotiations . The letter was
addressed to Jack Leary, who was the vice president of
personnel resources for the Company's Hamilton Stand-
ard Division . Leary responded by letter dated March 18
and stated that the Respondent 's chief spokesman during
the negotiations would be Walter Schrodi who would be
on vacation until sometime in late March.
On March 21, the Company wrote to the the Bureau
of National Affairs asking for samples of contracts that
various companies had with security unions . The BNA
sent such samples and the Company made an analysis of
those contracts at or near the commencement of negotia-
tions with the Charging Party.
On March 27, 1986 Carter wrote again to Leary re-
questing a schedule for bargaining dates . He also advised
Leary that the Union had set April 27, 1986, as its target
date for completing negotiations . (April 27 was the expi-
ration date of the Company's contract with the IAM
which represented a unit of about 4000 employees at
Hamilton Standard .) The Union , in the letter, also indi-
cated that if the target date was not met, it would con-
sider a work stoppage or other appropriate action. On
April 4, Schrodi responded with a fetter stating that he
had selected April 8 as the date for the first meeting.
The first meeting was held on April 9. Thereafter,
there were a total of 24 negotiating sessions through
March 12, 1987. At the negotiations, the Union was rep-
resented by Dick Carter as its chief spokesman , by its at-
torney, Dan Livingston (who at times also acted as a
UNITED TECHNOLOGIES CORP. 575
spokesman), and by its officers, Dave Oliver, Art Theo-
fane and Skip Hunter . (The latter three individuals were
also employees of the Hamilton Standard Division.) At
various times , Attorney Ruth Pulda also attended as a
representative for the Union . The Respondent's repre-
sentatives were Walter Schrodi and John Carpino as
chief spokesmen , Beth Amato , Craig Gaudreau, and
Dave McGrath. Schrodi and Carpino are directors of
labor relations for the corporation, United Technologies.
Amato is a corporate labor attorney . Craig Gaudreau is
the division 's (i.e., Hamilton Standard), compensation
and benefits analyst and McGrath is the division 's direc-
tor of security.
The first meeting, on April 9 primarily dealt with
ground rules . At this meeting the Union repeated its
desire to reach an agreement by April 27. The Company
said that the earliest time that it could meet again was on
May 8 , because of negotiations with the IAM .2 Carter
replied that by May 8 , his Union might be on strike.
Carter also said that the Union was willing to meet at
any time and any place in order to get an agreement by
April 27.
On April 28 the Company and the IAM made a new
contract for the large production and maintenance em-
ployee unit . Accordingly the Union 's "deadline" passed
without any action on its part.
On April 29 the Union sent to the Company a pro-
posed contract . This was a 37-page document, which in
part contained contract language identical to that in the
contract between Hamilton Standard and the IAM. This
was intended to shorten bargaining by making proposals
which the Company had already agreed to with another
union.
On May 8, Schrodi , starting at page one of the Union's
proposed contract questioned the name of the Union be-
cause the name in the proposal was slightly different
from the name in the Board 's certification . The Union
explained that in the interim between the time the peti-
tion was filed and the commencement of negotiations it
had changed its name (in 1984). As to the next item on
the Union's proposed contract which stated that there
would be "prompt and fair disposition of grievances,"
Schrodi stated that this proposal assumed that there was
going to be a grievance procedure.
At the May 8 meeting the Company said that it
wanted to hire part -time employees as a means of cutting
costs and wanted the Union to agree to allow the Com-
pany to hire such people at reduced wage rates. The
Union took the position that part -time employees would
be part of the bargaining unit, and would have to be
hired at the existing wages and conditions until bargain-
ing had reached an impasse . At the time this issue was
raised by the Company there were in fact no part-time
security personnel employed. Subsequently there was
further discussion on this issue raised by the Company
but it ultimately was dropped in October 1986 and there
neither was any agreement reached on the subject nor
were any part-time employees hired into the unit.
2 None of the people who were involved in these negotiations on
behalf of the Respondent were also directly involved in the negotiations
with the IAM.
Also at the May 8 meeting , the Union stated that it
would give the Company 10 days notice before taking
any job action , provided that the parties were engaged in
bargaining . At the conclusion of the meeting Schrodi of-
fered to meet on May 15, 20, 21, and 22, but the Union
could not meet on the last three dates as its attorneys
were not available.
On May 8, Schrodi told the Union's committee that
the Company would not submit its own counterproposals
until the parties had reviewed completely the Union's
proposed contract.
A series of 12 bargaining sessions took place on May
15, June 3, 4, and 26, July 8, August 13 and 14, Septem-
ber 17 and 18 , and October 1, 15, and 30 (all in 1986).
Without going into specific details of the discussions at
this point , it is noted that all of these meetings involved
review, item by item, by the Company of the Union's
contract proposals, in seriatim . Essentially , this consisted
of a procedure whereby Schrodi would read a union
proposal and then demand to know exactly what the
Union meant by it . This was done not only as to clauses
which did in fact have confusing elements, but also as to
clauses which had been copied out of the Company's
contract with the IAM and which had been part of that
agreement for many years . Generally, each meeting dealt
with two or three clauses in the Union 's proposed con-
tract.
During this series of meetings , the Union on various
occasions asked when the Company was going to make
its counterproposals. The Company responded that it
would only do so after reviewing the Union 's proposed
contract . The Company also made it clear that it was not
willing to discuss economic issues until after all contract
language issues had first been agreed to . The Union re-
luctantly went along:
By the meeting of October 30, 1986 , the parties had
finished reviewing the Union 's proposed contract insofar
as the language items were concerned . By this time,
about 5 months after bargaining had commenced, the
Company had not made any counterproposals of its own
and had not agreed to accept any of the Union's pro-
posed contract language . At this meeting the Union
asked the Company when it would be getting its coun-
terproposal. Schrodi said that he would bring them to
the next meeting which was scheduled for December 3,
1986.
On December 3, 1986 , at the outset of the meeting,
Schrodi stated that the division (Hamilton Standard),
was doing poorly and had to cut costs. He stated that
the company was considering possible layoffs , an early
retirement program and contracting out the guard serv-
ice.
After the initial statements , Schrodi handed to the
union representatives, a single sheet of paper which read:
Article 1 Agreement
This Agreement made and entered into this
day of by and between the United Technologies
Corporation for and on behalf of Hamilton Stand-
ard Division , hereinafter called the "company" and
the HAMILTON STANDARD INDEPENDENT
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FIRE/SECURITY OFFICERS ASSOCIATION,
hereinafter called the "union."
When the Union asked where the rest of the Compa-
ny's counterproposal was, Schrodi responded that he in-
tended to present each of the company 's counterpropos-
als, one at a time . When the Union objected, Schrodi
said that if the Union wanted , the parties could call off
negotiations , wait until the Company had a full contract
proposal which the Company would then present on a
take-it-or-leave-it basis . The Union responded that this
was not the only two alternative means of bargaining.
After a caucus , the Union told the Respondent that it
wanted the Company to submit its contract proposal in
its entirety by February 1, 1987. The Union further
stated that if the Company did not provide an entire con-
tract counterpropogal by that date, it would abrogate its
commitment to give 10 days notice before taking strike
or other action.
According to Schrodi, he adopted the procedure of
presenting individual counterproposals because he
"didn 't want to have a full contract out there you can
get in a position of horse trading . By going one proposal
at a time you won't get yourself in a horse swapping sit-
uation where you're buying language you don't agree
with." (Of course the other thing that you can avoid is
the other side saying "Ok, I'll take it.")
During the remainder of the December 3 meeting, the
company submitted two more contract clauses, neither of
which, in my opinion is of much substance.
These were:
Article 11
Coverage
The union, having been certified by the National
Labor Relations Board in Case No. 39-RC-4335 is
hereby recognized by the company as the exclusive
bargaining agent for the following employees:
All full-time and regular part -time dispatchers,
technicians , fire protection officers, security offi-
cers, fire/security officers and security reception-
ists at the Employer' s Windsor Locks, Farming-
ton, and East Granby facilities ; excluding all
other employees , chiefs, captains, lieutenants,
office clerical employees , professional employees;
and other supervisors as defined in the Act.
Article III
Purpose
It is the intent and purpose of the parties hereto that
this agreement shall promote and improve the rela-
tionship between the company and its employees
and the employees represented by the Union, and
between the company and the union; moreover, it is
recognized by both parties that they have a mutual
interest and obligation to maintain friendly coopera-
tion between the company and the union which will
eliminate interference with the efficient operation of
the company 's business so as to improve the com-
petitiveness of the company in the marketplace for
the benefit of both management and its employees.
To summarize, the Company on December 3 made
counterproposals on three clauses , one stating that there
would be an agreement , one stating that the Company
would recognize the union (as required by law), and the
last stating that the Company should be competitive. To
my mind this was not a good beginning for the next
phase of bargaining.
At the next meeting , on December 17, the Company
made a single proposal and this was an interim proposal
for layoffs and recalls to be in effect during the period
before the execution of any collective -bargaining agree-
ment.
On January 7, 1987, the Company made a single coun-
terproposal dealing with the subject of union representa-
tion . In essence, the Company proposed that the Compa-
ny would recognize the Union's appointment of a bar-
gaining committee of three employees (including a chair-
man) and the appointment of one steward for each shift
consisting of more than five employees . The Company
further proposed that the persons appointed by the
Union had to be full-time employees having worked at
least 12 continuous months.
On January 20, 1987, the Company submitted its coun-
terproposal regarding a grievance procedure . This pro-
vided that the procedure would be the sole and exclusive
means of resolving any disputes with employees. In es-
sence, the Company proposed a three-step grievance pro-
cedure with the Company's answer at the third step to
be final and binding . It also proposed that the first step
should be between the employee and his or her supervi-
sor.
At a meeting on January 29 the Company submitted
proposals regarding three new subjects and also made a
revised proposal regarding its proposal for an interim
layoff-recall procedure.
On January 29 the company proposed a no-solicitation
clause which prohibited soliciting of employees for union
membership or dues on company premises while either
the solicitor or solicitee were performing work. The
Company also proposed a nondiscrimination clause
whereby it agreed that its current policy was not to dis-
criminate against employees on the basis of race , color,
religion, gender, etc. Finally , the Company proposed a
very broad management-rights clause.
On February 18, the Company revised its previous
proposals regarding an interim layoff-recall procedure. It
also made a revised offer on the coverage clause, origi-
nally proposed on December 3, 1986, and a revised no-
solicitation clause, which was slightly less restrictive.
Similarly , the Company revised slightly, its proposed
union representation clause so as to allow the Union to
select who it wanted when negotiating for a collective-
bargaining agreement. The new item presented by the
Company at this meeting was a broad no-strike clause.
As to this, the proposed clause prohibited the union and
its representatives or employees from engaging in any
strikes (whether primary or secondary), work stoppages,
slow downs, sit downs, organized absences or sicknesses,
picketing, sympathy strikes, refusals to cross picket lines
UNITED TECHNOLOGIES CORP. 577
of other unions, or any other interferences with company
operations. The Company also proposed that breach of
this provision could result in nonreviewable discharge or
discipline against any employee and termination of the
collective-bargaining agreement at the Company's sole
discretion.
At the meeting on February 19, the Company submit-
ted a revised union representation clause wherein it
agreed to increase the number of employees the Union
could appoint to the bargaining committee from three to
four. It also agreed to permit the Union to appoint a
steward at the Farmington location.
Also at the February 19 meeting the Company revised
its management-rights proposal, specifically in section 2.
In essence , while proposing to retain the exclusive right
to unilaterally restructure, eliminate or subcontract out
work for any reason, with a concomitant union waiver
over decision bargaining, the Company did propose that
if such a decision permanently reduced the unit by 50
percent or more, it would bargain with the Union over
the effects.
On March 2, the Company made a revised offer re-
garding a grievance clause . In this regard, it agreed to
modify its earlier proposal so as to allow a shop steward
to be present at a first-step adjustment made between an
employee and his/her supervisor. Also the Company
proposed that if an employee claimed that he was dis-
charged for just cause, such a grievance would be arbi-
tral.
On March 12 the Company made a proposal regarding
seniority. At this meeting, the Union accepted four out
of the five sections of the Company's proposed clause.
Also the Company submitted a revised no-strike clause,
which in essence allowed the Union to terminate the
agreement in the event of a company lockout. Addition-
ally, the Company again revised its proposed grievance
clause, this time to permit arbitration of any case where
an employee is discharged for violating the no-strike
clause, the arbitration to deal only with the question of
whether the employee engaged in the prohibited con-
duct.
During the March 12 meeting, the Union indicated
that it was willing to meet around the clock in order to
reach an agreement by March 18. The Company, howev-
er, stated that it could not meet again until March 30 be-
cause the Company was too busy on a defense depart-
ment audit.
March 12 turned out to be the final negotiation ses-
sion . To recap, the evidence shows that up until March
12, 1987, the Company starting on December 3, 1986,
presented some counterproposals regarding basically
eight subjects, and one of which dealt with an interim
procedure to deal with layoffs pending an agreement to a
contract. The evidence also shows that at most there
were tentative agreements regarding a union representa-
tion provision, a seniority clause, the coverage clause,'
9 The only real problem raised with respect to the coverage clause was
whether employees assigned to a new location , Midway Green, should be
in the unit . Ultimately, the parties agreed to disagree , leaving open the
question as to whether that location was an "accretion."
and a nondiscrimination clause.4 The evidence shows
that by March 12 the Company had not yet proposed a
full and complete contract, had not drafted such a docu-
ment , and in my opinion had no intention of doing so in
the foreseeable future. Moreover, it is clear that the
Company had not considered, even internally, what eco-
nomic proposals (such as wages), it would make to the
Union if and when it ever finished presenting its noneco-
nomic proposals.8
C. The Withdrawal of Recognition
On February 11, 1987, a bargaining unit employee,
Stephen LaFanchise, sent a letter to McGrath, director
of security, stating that he had contacted the NLRB and
was circulating a petition amongst the employees to get
rid of the Union. The letter went on to state that he
would be ready to file a petition with the NLRB 1 year
after the commencement of negotiations.
Leary, on behalf of the company, responded to La-
Franchise by sending a letter stating whether or not you
present the Company with a petition, the Company will
be obligated to recognize and bargain with the Union at
least until the expiration of the 1-year period, March 21,
1987."
On March 23, LaFranchise sent a copy of a petition
signed by 23 employees to McGrath. After reviewing the
situation with the Company' s legal staff, the Respondent
decided to withdraw recognition. At the time, there
were 41 employees in the bargaining unit and there were
23 signatures on the petition.
Also, on March 23, LaFranchise filed with the Board's
Regional Office a decertification petition in Case 39-
RD-113.
On March 24, company counsel, Edward J. Dempsey
sent a letter to the Union's attorney Daniel Livingston.
In this letter Dempsey stated that he was asked to
review the decertification petition and situation . He went
on to advise Livingston that because of the situation, the
Company was postponing the negotiation sessions sched-
uled for March 30 and 31.
On April 2, Dempsey sent another letter to Living-
ston. In pertinent part he stated:
I have reviewed that petition and other informa-
tion supplied to me by Hamilton Standard and have
advised Hamilton Standard that there exists suffi-
cient objective considerations to support a good
faith doubt on the part of the Company as to the
union's continued majority status.
In view of these circumstances, I have been
asked by the Company to inform you, as a repre-
sentative of the Union, that the Company will no
4 The parties also reached a tentative agreement over the Company's
proposed interim agreement for layoffs and recalls
S At one point during negotiations the Union said that it would be will-
ing to accept the existing fringe benefit package offered to the employees
The Company then gave to the Union a booklet describing its benefits,
but stated that it would not necessarily be offering these to the Union
Schrodi testified that the Company refused to offer the existing fringe
benefits because the "economic package would be predicated on many
things Now maybe this Union, for a substantial raise .. might want to
give up a certain amount of sick days
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
longer recognize the union as a representative of
the Company's employees.
D. The Unilateral Changes
It is undisputed that on July 2, 1987, the Company
granted to the unit employees a wage increase of 4-1/2
percent. This raise was granted unilaterally , without
notice to or bargaining with the Union.
It also is undisputed that on November 17, 1987, the
Company instituted a new personnel policy for unit em-
ployees which included a grievance procedure. This too
was promulgated unilaterally without notice to or bar-
gaining with the Union.
The Respondent has a facility at Midway Green which
is located about 5 miles away from its facility at Windsor
Locks. As noted above, although the Union was certified
to represent security employees at Windsor Locks,
Midway Green was not included in the certification, pre-
sumably because at the time , there were no bargaining
unit employees located at that facility . In April 1986 at
the outset of negotiations , the Union indicated that it had
information that unit employees were being sent there to
work. At that time Security Director McGrath denied
this . Later, in July 1986, the Union , during negotiations
stated that a unit employee Jacob was working at
Midway Green and McGrath indicated that her assign-
ment there was only temporary. Shortly thereafter,
Jacob was reassigned back to the Windsor Locks facility.
Still later in the negotiations, when the subject of
Midway Green came up, the Company insisted that no
unit employees were being assigned to that location on a
permanent basis.
According to Company Representative Leary, a deci-
sion was made in early March 1987 to assign a security
officer to Midway Green on a permanent basis . He testi-
fied that such an employee was in fact permanently as-
signed to that location on March 9, 1987 . There is no
dispute that the Company did not notify the Union about
this permanent assignment and did not offer to bargain
about the decision before it was made or implemented.
As noted above the final negotiation session took place
on March 12, 1987, and the Company formally withdrew
recognition on April 2.
E. Other Allegations
On June 30, 1988, at a regular meeting of the security
department , McGrath gave a brief summary of what had
taken place during the 3 days of this hearing. Among
other things he told the employees that at the hearing it
was necessary to disclose the names of the people who
had signed the decertification petition . He also told em-
ployees that anyone who harassed those employees
would be disciplined . The credible evidence further
shows that at this point in the meeting , McGrath said
that there was no union here, that there never was one
and that there never would be one.
III. ANALYSIS
The crucial issue in this case is whether, as alleged by
the General Counsel , the Respondent has bargained in
good or bad faith . In this respect , the National Labor
Relations Act does not require either a company or a
union to make concessions . Thus, it is not sufficient for a
finding of bad faith to conclude that one of the parties
has maintained a tough posture and has engaged in hard
bargaining . NLRB v. American National Insurance Co.,
343 U.S. 395 (1952); Peelle Co., 289 NLRB 113 ( 1988).
As stated by the Supreme Court in H. K. Porter v.
NLRB, 379 U.S. 99 (1970)
It is implicit in the entire structure of the Act that
the Board acts to oversee and referee the process of
collective bargaining , leaving the results of the con-
test to the bargaining strengths of the parties... .
While the parties' freedom of contract is not abso-
lute under the Act, allowing the Board to compel
agreement when the parties themselves are unable
to agree would violate the fundamental premise on
which the Act is based-private bargaining under
governmental supervision of the procedure alone,
without any official compulsion over the actual
terms of the contract.
It therefore is important to note that the bargaining
positions taken by parties are shaped by their respective
strengths vis a vis each other and it is not necessarily un-
lawful for the stronger side to make demands and take
positions consistent with its strength . Thus the Court
noted in NLRB v. Insurance Agents International Union,
361 U.S. 477 (1960):
The presence of economic weapons in reserve, and
their actual exercise on occasion by the parties, is
part and parcel of the system that the Wagner and
Taft-Hartley Acts have recognized . . . the truth of
the matter is that at the present statutory stage of
our national labor relations policy, the two factors-
necessity for good faith bargaining between parties,
and the availability of economic pressure devices to
each to make the other party incline to agree on
one's terms-exist side by side.
Although a company (or union) may engage in hard
bargaining, Section 8(a)(5) of the Act still requires it to
bargain in good faith . This good-faith requirement is ba-
sically defined as a willingness to enter into a contract.
NLRB v. Insurance Agents Union, supra . Thus even
though it is permissible for a company to use its relative
strength to press for contract terms favorable to itself, it
may not use its strength to engage in futile or sham ne-
gotiations with no intention of ever reaching an agree-
ment . NLRB v. Herman Sausage Co., 275 F.2d 229, 232
(5th Cir. 1960). As stated by the Board in Abingdon
Nursing Center, 197 NLRB 781, 787 (1972):
[G]ood faith, or want of it, is concerned essentially
with a state of mind. . . . That determination must
be based upon reasonable inference drawn from the
totality of conduct evidencing the state of mind
with which the employer entered into and partici-
pated in the bargaining process. . . . All aspects of
the Respondent 's bargaining and related conduct
UNITED TECHNOLOGIES CORP. 579
must be considered in unity, not as separate frag-
ments each to be assessed in isolation.6
The Respondent asserts that as it became obvious that
it had the economic strength , it "utilized skillful and ex-
perienced negotiators who were attempting to achieve
for the Employer . . . the best deal possible for itself." It
contends that during the negotiations it met with the
Union at reasonable times and places ; that it listened to
and discussed the Union 's demands ; that it made objec-
tive proposals of its own ; that it made concessions there-
by demonstrating a flexible attitude ; that it provided the
Union with relevant information when requested; and
that it reached a number of tentative agreements as to
certain contract clauses.
If the law requires parties to bargain in good faith and
if good faith is defined as a willingness to reach an agree-
ment, then I do not see how the Company bargained in
good faith. While it no doubt is true that the Company
had the relative bargaining power, I do not think that it
ever intended to reach any agreement with the Union
even on its own terms . Rather, it is my opinion that the
entire posture of the Company 's bargaining tactics was
to delay as long as possible and to put off indefinitely the
making of a contract offer.
The evidence in this case shows that the Company in-
sisted on discussing in extraordinarily fine detail , the pro-
visions of the Union 's contract proposals, ostensibly to
make sure that the parties understood the meaning of the
language even when the Union 's proposed contract lan-
guage was "plagiarized" from the Company 's own con-
tracts with another labor organization . Moreover, this
process took more than 7 months and the Company in-
sisted that it would not make any counterproposals
before a complete review of the Union's proposed con-
tract language.
The evidence also shows that when the Company fi-
nally got down to submitting counterproposals it did so
one or two clauses at a time . More significantly, the
Company, within the entire period of negotiations, never
made a complete contract offer either as to contract lan-
guage or as to economic issues . Thus, there was never
any time when the Union could have accepted a compa-
ny offer since no offer was ever made . To my mind this
is distinctly different from seeking a contract on one's
own terms , since the terms of such a contract were
never made known to the Union during the more than 11
months of bargaining.
By March 12 , 1987 (the final bargaining session), the
Company had still not presented to the Union all of its
counterproposals. Indeed , by this time it had not drafted
a complete set of counterproposals . What's more, the
Company had not even discussed among its own repre-
sentatives , what kind of economic package it would offer
to the Union . It therefore seems obvious to me that by
this date not only had the Company not made a contract
offer which was capable of acceptance, but that it had
no intention of making such an offer within the foreseea-
ble future.
6 See also Re,chhold Chemical II, 288 NLRB 69 (1988)
In Southside Electric Cooperative, 243 NLRB 390
(1979), the Board held that a company engaged in sur-
face bargaining when it limited the frequency and dura-
tion of negotiation meetings and when it refused, for 7
months to submit an economic proposal in response to
the Union.
The Respondent cites Industrial Waste Service, 268
NLRB 1180 ( 1984), in support of its contention that its
bargaining strategy was lawful . In that case, the General
Counsel alleged that the company bargained in bad faith
by among other things, refusing the union 's request to
present a total contract proposal and by submitting one-
page or one-paragraph proposals instead . The administra-
tive law judge noted that by the commencement of a
strike, the company had made counterproposals on many
of the union 's ideas, had expressed its opposition to other
union demands , and was bargaining . However the period
of time in question was less than 3 months whereas in the
present case , more than 11 months of the certification
year had gone by with no total contract counterproposal
even in contemplation on the respondent 's part.
It is my opinion that the Respondent entered into and
conducted itself in these negotiations with no intention of
reaching an agreement . I therefore conclude that the Re-
spondent in this respect has violated Section 8(a)(5) of
the Act. See Whisper Soft Mills, 267 NLRB 813, 814
(1983), reversed on other grounds 754 F.2d 1381 (9th
Cir. 1984); Howmet Corp., 197 NLRB 471, 486 (1972).
The Respondent claims that its withdrawal of recogni-
tion on April 2 , 1987, was justified because it had a
good-faith doubt as to the Union's continued majority
support . It relies on the fact that it received a petition
seeking to decertify the Union signed by a majority of
the employees in the bargaining unit.
Having determined , however, that the Respondent al-
though going through the motions of bargaining, did so
with no intention of reaching agreement , it follows that
the Respondent may not justify its withdrawal of recog-
nition even if all of the unit employees had expressed
their desire to rid themselves of union representation.
Thus, the employees ' dissatisfaction with the Union's
progress at negotiations ultimately was caused by the
Employer's refusal to bargain in good faith. According-
ly, I conclude that the Respondent's withdrawal of rec-
ognition violated Section 8(a)(1) and (5) of the Act.
Southside Electric Cooperative, 243 NLRB 390 (1979).
Further, having found that the Respondent's with-
drawal of recognition violated the Act, it also follows
that its unilateral changes in terms and conditions of em-
ployment made contemporaneously with and after the
withdrawal of recognition must also violate Section
8(a)(1) and (5) of the Act. See Hearst Corp., 281 NLRB
764 (1986); Southside Electric Cooperative, supra.
There is no dispute that the wage increase given to the
unit employees in July 1987 was a mandatory subject of
bargaining . Nor is there any dispute that the establish-
ment in November 1987, of a new grievance machinery
for the unit employees was a mandatory subject of bar-
gaining. Finally, it is my opinion that the transfer of a
unit employee to a new location (particularly one which
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employer contended was outside the unit), also in-
volves a mandatory subject of bargaining.
Inasmuch as the Respondent made the changes noted
above without notice to or bargaining with the Union, at
a time when it had an obligation to bargain with the
Union , it is my opinion that it violated Section 8(a)(1)
and (5) of the Act in this respect.
The credible evidence establishes that on June 30,
1987, Security Director McGrath told employees at a
meeting that as far as he was concerned there never had
been a union at the Respondent , and that there never
would be one . While I do not view this transaction as
having that much significance in the context of this
entire case , and I shall not rely on the statement to sup-
port my previous conclusions of bad -faith bargaining, I
do agree with the General Counsel that the statement
does constitute a violation of Section 8(a)(1) of the Act.
In this respect and in view of my earlier finding of bad-
faith bargaining , I view the statement as expressing to
unit employees the futility of selecting a bargaining rep-
resentative . Dorothy Shamrock Coal Co., 279 NLRB 1298
(1986).
CONCLUSIONS OF LAW
1. By bargaining with the Union, with no intention of
reaching an agreement , the Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act.
2. By withdrawing recognition from the Union on
April 2 , 1987, the Respondent has violated Section
8(a)(1) and (5) of the Act.
3. By unilaterally changing terms and conditions of
employment of the employees in the unit represented by
the Union , the Respondent has violated Section 8(a)(1)
and (5) of the Act.
4. By telling employees that the selection of the Union
would be futile, the Respondent has violated Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
In order to ensure that the bargaining unit employees
will be accorded the services of their collective -bargain-
ing representative for the full period provided by law, I
shall recommend that the initial period of certification as
beginning on the date the Respondent commences to bar-
gain in good faith with the Union. See Mar-Jac Poultry
Co., 136 NLRB 785 (1962).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
7 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
ORDER
The Respondent , Hamilton Standard Division of
United Technologies Corporation, Windsor Locks,
Farmington, and East Granby, Connecticut, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Bargaining in bad faith with the Hamilton Standard
Independent Fire/Security Officers Association by enter-
ing into negotiations with no intention of reaching an
agreement.
(b) Withdrawing recognition from the aforesaid Union.
(c) Unilaterally changing terms and conditions of em-
ployment without first notifying and bargaining with the
Union.
(d) Telling employees that the selection of the Union
as their collective -bargaining representative is futile.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request , bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and , if an understanding is reached, embody the un-
derstanding in a signed agreement.
The appropriate bargaining unit is as follows:
All full-time and regular part -time dispatchers, tech-
nicians, fire protection officers, security officers,
fire/security officers and security receptionists at
the Employer 's Windsor Locks , Farmington, and
East Granby facilities; excluding all other employ-
ees, chiefs, captains , lieutenants, office clerical em-
ployees, professional employees , and other supervi-
sors as defined in the Act.
(b) Post at its facilities in the State of Connecticut, en-
compassed by the Board's certification in Case 39-RC-
435, copies of the attached notice marked "Appendix."a
Copies of the notice, on forms provided by the Regional
Director for Region 34, 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 "