United Technologies Corporation

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1430 (N.L.R.B. 1982)

DD.ECISIONS OF NA IIONAL LABOR RELATIONS BOARD
United Technologies Corporation and Lodge 1746,
International Association of Machinists and
Aerospace Workers, AFL-CIO and District 91,
International Association of Machinists & Aero-
space Workers, AFL-CIO. Cases 1-CA-12015,
1-CA-12102, 1-CA-12137, 1-CA-15877, and
I-CA-16152
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, ANID
ZIMMERMAN
On November 25, 1980, Administrative Law
Judge Arthur A. Herman issued the attached Deci-
sion in this proceeding. Thereafter, Respondent,
Charging Party, and General Counsel filed excep-
tions and a supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
In the absence of exceptions thereto we adopt, pro forirma, the Admin-
istrative Law Judge's recommendation to dismiss the allegation of the
complaint involving interrogation of employees colncernilng their unilon
and other protected concerted activity In so doing, however, we dis-
avow the Administrative I aw Judge's gratuitlous and unwarranted sug-
gestion that a basis for dismissing such an allegation might be affllrded hb
the physical or intellectual limitations of employees who were the target
of the alleged interrogations We also disavso(' the Administrative I aw
Judge's suggestion that an allegation of 8(a)(l) interrogations may be dis-
missed because the interrogations occurred at a single plant and were
therefore "isolated" and because the interrogations did not result in repri-
sals or "repercussions." See. generally, PPG Industries, Inc. ILexington
Plant, Fiber Glass Division, 251 NLRB 1146 (1980), and Centre Engineer-
ing. Inc., 253 NLRB 419 (1980) We also will not pass on the facial valid-
ity of Respondent's no-solicitation rule since that issue was not contested
at the hearing
Member Zimmerman agrees with the Administrative Law Judge that
Respondent unlawfully denied its employees their right under .VL.R.R.
v. J. Weingarten, Inc., 420 U.S. 251 (1975), to the assistance iof their union
steward in interviews which they reasonably believed might result in dis-
cipline by restricting the role of the steward to that of an observer who
could not participate in the interview In reaching this conclusion,
Member Zimmerman finds it unnecessary to rely on Clinmax Molyvbdenum
Company. a Division of Amax, Inc., 227 NLRB 1189 (1977). enforcement
denied 584 F.2d 360 (10th Cir. 1978), which involved the issue of wheth-
er employees have the right to consult with their union representative
prior to the interview. Rather. he relies on Texaco, Inc. 251 NLRB 631
(1980), enfd. 659 F.2d 124 (9th Cir 1981). wherein the Board held that a
respondent violates Sec 8(a)(1) by requiring an emplioyee's union repre-
sentative to remain silent during a Weingarten interview Member Fan-
ning and Jenkins agree with Member Zimmerman that lixaco, Inc.
supra, is applicable to the facts of the case. They aslo, however. agree
with the Administrative Law Judge's reasoning and continue to rely on
Climax Molybdenum Company. supra.
260 NLRB No. 196
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United Tech-
nologies Corporation, East Hartford and Windsor
Locks, Connecticut, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
APPENDIX
Nol-lC To EMPI.OYIES
PoSTEII BY ORDER OF THE
NATIONAI. LABOR RiHATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through
sentatives of their own choice
repre-
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WIl.t NOT threaten our employees with
reprisals for engaging in union activities.
WEI. Wi l. NOTI discourage membership in
Lodge 1746 or District 91, International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization by
suspending or otherwise discriminating against
our employees because they engage in union
activities.
WlI WILL NOT maintain and enforce an in-
valid no-distribution rule.
WEL Wil. NOT order our employees to cease
engaging in union activities.
WI; Wi.L. NO1' deny any employee, repre-
sented by a union, the assistance of a union
representative when the employee is being in-
terrogated by management agents about al-
leged misconduct.
WE W1i.L NOT suspend any employee, repre-
sented by a union, who refuses to answer ques-
tions during an interrogation by management
agents after the employee has been denied the
assistance of a union representative.
1430
UNITED TECHNOILOGIES CORPORATION
WE WII.. NOT issue disciplinary warnings to
any of our employees or suspend any of our
employees for engaging in union activities.
WE WII.L Nor in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section
7 of the Act.
WE Wll. make whole the following-named
employees for any loss of pay, plus interest,
they may have suffered as a result of the dis-
crimination against them:
Thomas Bothur
Dawn Carney
Robert Garry
Bruce Easter
John McCormack
Henry Savioli
George Steele
Joseph Orzoler
William Dwyer
WE Wit I remove from the personnel rec-
ords of employees all references contained
therein, in the form of disciplinary warnings or
notices of suspension, which issued against said
employees that pertained to the incidents
found in this case to be violative of the Act:
George Steele
Steven Merrick
Conrad Lloyd
Dennis Brandt
John McCormack
Norman Swanson
Joseph Orzolek
Anthony Scionti
John Shields
Bruce Easter
Robert Garry
Francis Englehart
Earl Evans
Earl Schofield
Robert Kyle
Edward
Ciccaglione
William Rudis
Ralph Allen
Nino DiGregorio
William Milewski
Delia Dwyer
Stephen Bennet
John Shields
John Mulligan
Andrew Tomko
Charles Teasley
Peter Hatch
Jere Dyer
Roger Rowley
James Parent
Charles MacNeil
Charles Beaulieu
Wayne Coyle
Raymond Jelinas
Francis Clark
Robert Brown
Joseph Bison
John Johnston
Marcos Cortez
William Dwyer
David Grondin
Gassie Mae Newsome
Delbert Baskerville
Francis Caswell
Carl Balanoff
William Pagani
Thomas Bothur
Michael Cote
John Francis
Llewellyn Priest
Dennis Sardi
Joe Sienna
John Bolduc
John Sweatt
Paul Burns
Bernard Plummer
Earl Davies
George Spencer
Dave Balon
Jack Dolce
John Pelkey
Paul Dinardo
George Contois
Raymond Durette
George Arsenault
Charles Scully
William Houlberg
Dawn Carney
Dave Meikle
Roland Smith
Roger Surprenant
Henry Savioli
UNITI:I) TECHNOI.OGII:FS CORPORA-
T ION
DECISION
STAri. M NT OF THEI CAS}'
ARHtIUR A. HERMAN, Administrative Law Judge: The
charge in Case I-CA-12015 was filed on July 15, 1976,
by Lodge 1746, International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called Lodge
1746. On August 12, 1976, Lodge 1746 filed a charge in
Case 1-CA-12102, and on August 20, 1976, Lodge 1746
filed its third charge in Case 1-CA-12137. An amended
charge to Case 1-CA-12137 was filed by Lodge 1746 on
August 8, 1978. An order consolidating cases' and com-
plaint and notice of hearing issued on August 30, 1978,
alleging two suspensions of Thomas Bothur and the dis-
charges of Thomas Bothur and Vincent Nash, all in vio-
lation of Section 8(a)(1) and (3) of the Act. A further
order consolidating cases and amended complaint and
notice of hearing issued on February 20, 1979, which in-
cluded all three charges, and in addition to the allega-
tions stated above, alleges that the Respondent threat-
ened to discharge employees for distributing union litera-
ture, ordered employees to cease distributing union lit-
erature, issued disciplinary warnings to employees be-
cause they distributed union literature, and suspended
employees because they distributed union literature.
On April 3, 1979, District 91, International Association
of Machinists & Aerospace Workers, AFL-CIO, herein
called District 91, or collectively with Lodge 1746, the
Union, filed a charge in Case 1-CA-15877, and a first
amended charge was filed on May 17, 1979. This result-
ed in a further order consolidating cases and amended
complaint and notice of hearing which issued on June 4,
1979, and which, in addition to incorporating all of the
allegations in the prior complaint. added allegations of
interrogation of employees about their protected concert-
ed activities, and suspension of employees who sought
assistance during investigatory interviews. On the same
day, June 4, 1979, District 91 filed an additional charge
in Case l-CA-16152, and a first amended charge was
filed on July 20, 1979. Once again, on July 24, 1979, a
further order consolidating cases and amended complaint
and notice of hearing issued and added an allegation that
the Respondent denied a solicitation request in order to
discourage union activity. A final further amendment to
the amended complaint issued on October 10, 1979, and
alleged that the Respondent maintained and enforced an
unlawful distribution of literature rule in violation of the
Act. The Respondent filed answers and affirmative de-
fenses to the consolidated complaint and to all subse-
' Only Cases I-CA-12015 and I-CA 12137 were consolidated in this
Order
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quent consolidated amended complaints and denied the
commission of the alleged unfair labor practices.
The hearing was held before me on October 22, 23, 24,
and 25, 1979, at East Hartford, Connecticut.2 Briefs were
timely filed by the General Counsel, by the Charging
Party, and by the Respondent, and have been duly con-
sidered.
Upon the entire record, including my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, a Delaware corporation, is engaged
in the manufacture, sale, and distribution of aircraft en-
gines, helicopters, aircraft accessories and parts, and re-
lated products in its plants located in Connecticut, Flor-
ida, New York, California, and Pennsylvania. In connec-
tion with its operations in Connecticut, the Respondent
annually sells and ships goods from its plants in Con-
necticut valued in excess of $1 million directly to cus-
tomers located outside the State of Connecticut. The Re-
spondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
I1. THE LABOR ORGANIZATION INVOLVED
The parties agree, and I find that the Union has been
at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
The following facts in this section are based on admis-
sions in the pleadings, stipulations of the parties, 3 and
documentary evidence:
As stated above, the Respondent has plants in several
States of the United States. Involved herein, however,
are two plants in Connecticut-the Pratt-Whitney plant
in East Hartford, and the Hamilton-Standard plant in
Windsor Locks. The Pratt-Whitney plant is comprised of
many buildings over a large expanse of ground surround-
ed by a fence.' All entrances are manned by security
guards to control ingress and egress. The Respondent
employs approximately 35,000 production and mainte-
nance employees on three shifts at the Pratt-Whitney
2 Subsequent to the close of heanng herein, separate motions to reopen
the hearing were filed with me by the Charging Party and the Respond-
ent. By order dated January 10, 1980, both motions were denied. By
letter dated February 4, 1980, the Respondent advised me of an arbitra-
tion decision regarding the discharge of two of the Respondent's employ-
ees and enclosed a copy of the decision "for [my] information." Inasmuch
as their discharge was not the subject of the instant proceeding, I am re-
jecting the decision as an exhibit, and am advising the parties hereto that
I have not perused the document.
I One of the principal issues in this proceeding concerns the arbitration
awards issued by Arbitrator Marcel Mallet-Prevost on August 27, 1977,
in the Bothur case and on November 10, 1977, in the Nash case, both
discussed infra. At the instant hearing, the parties stipulated to the arbi-
trator's findings of fact but not to his conclusions of law.
4 This conclusion is based on my observation of the area during an
onsite inspection of the premises, accompanied by representatives of all
parties involved herein.
plant; 20,000 to 25,000 of these employees work between
7 a.m. and 5 p.m., and about 12,000 of them are repre-
sented by the Union. The Hamilton-Standard plant, lo-
cated adjacent to Bradley Field, consists of three princi-
pal buildings housing 9,000 employees of whom 4,500 are
in the bargaining unit represented by the Union. Building
3, the building involved herein, is devoted entirely to
electronic work; it employs approximately 600 employ-
ees, of whom about 400 are in the bargaining unit.
Throughout the long and sometimes bitterly fought
history of labor-management relations between the Re-
spondent and the Union,5 no collective-bargaining agree-
ment had ever contained a union-security clause. For this
reason, the Union has for years distributed union litera-
ture by posting union stewards and employees at the sev-
eral plant entrances where employees would enter the
plant to go to work.6 Generally, these union adherents
stood outside the plant entrance (point D) to make their
biweekly distribution, but sometimes, in inclement weath-
er, they would stand inside the plant doors.' In early
1974, Bothur, a union steward, and other employees de-
cided to move inside the plant door and up an aisleway
to where it met a cross-aisle adjacent to a working area
(point A). When told by management that they were dis-
rupting working employees, Bothur and the other distrib-
utors moved down the aisle away from the work floor
and toward the door, to the next cross-aisle, which is on
the fringe of a work area (point B). When told by man-
agement that this too was causing disruption, the union
adherents moved down the aisle to the exit doors and
continued to distribute in this corridor which is closed
on both sides by walls so that it is cut off from the work
areas (point C). From time to time security guards would
ask the distributors not to use point C for distribution,
but never ordered them to leave.8 This situation contin-
ued until the spring of 1976.9 On March 18, 1976, the
Respondent, without consultation with the Union, issued
a revision of its general employee rules, including, inter
alia, rule 7 which prohibited:
Posting, displaying, or distributing unauthorized
pictures, posters, or literature, including union, po-
litical and discriminatory material on company
property.
Shortly thereafter, during the next union distribution
in April 1976, Bothur and the other distributors were or-
dered to cease distribution at point C and threatened
with discipline if they did not move their distribution ac-
tivities outside the plant doors to point D. Despite these
5 I take administrative notice of the Board's decisions in United Aircraft
Corporation (Pratt & Whitney Division), 168 NLRB 480 (1967), 179 NLRB
935 (1969), 180 NLRB 278 (1969), and United Aircraft Corporation (Pratt
& Whitney and Hamilton Standard Division), 204 NLRB 879 (1973).
6 The parties stipulated that said distributions were accomplished on
nonworktime.
Up until early 1974, Bothur did his distributing at the entrance to
gate 2, standing on the sidewalk of Willow Street.
It is the Union's contention that point C is a nonwork area.
From 1974-76, the parties engaged in negotiations in an attempt to
agree upon acceptable areas for the distributors to stand. In September
1974, a grievance was resolved on the basis that distribution would be
permitted "inside the gate and not inside the plant." The Union accepted
this without waiving any "statutory rights."
1432
UNITED TECHNOLOGIES CORPORATION
orders and threats, Bothur and his cohorts continued to
distribute at point C. Finally, on June 29, 1976, Respond-
ent issued "employee reports" to Bothur and to 29 other
distributors. 0 The next distribution of union literature
occurred on July 21, 1976, at point C, and once again the
distributors refused to move to point D when ordered to
do so by management. This resulted in a 3-day suspen-
sion for Bothur and six others who had earlier received
"employee reports," and 40 other employees who had
not received employee reports were issued such employ-
ee reports.
Subsequently, on July 22, 1976, Bothur became em-
broiled in some unfinished union business involving a
grievance. While Bothur and Roberts were so engaged, a
company supervisor requested that they "break it up";
one thing led to another, and the altercation resulted in
Bothur accompanying the guards to their headquarters. "
While Bothur was on military leave and/or vacation
from July 23 to August 16, 1976, he was notified by the
Respondent of an additional 30-day suspension for his in-
subordination on July 22, 1976.
Vincent Nash, a union steward, was discharged on
July 12, 1976, for admittedly violating a company rule
which prohibited solicitation of union membership
during working hours, when he solicited two employees
to join the Union on June 21, 1976. While the General
Counsel concedes that the act was in contravention of
article IV of the collective-bargaining agreement, 12 he
contends that the discharge of Nash was nonetheless dis-
criminatory because the Respondent does not discipline
other employees who engage in similarly proscribed con-
duct under its no-solicitation rules. 3
As a result of the aforementioned incidents, the Union
filed the initial three charges in this proceeding during
July and August 1976. This eventually culminated in a
complaint issued on August 30, 1978. The reason for the
2-year delay in the issuance of a complaint is best ex-
plained by the following recitation of what occurred
after the three charges were filed:
On September 17, 1976, the parties agreed to resolve
certain issues raised in the three charges by submitting
' The reports stated:
"Having been requested and then directed to distribute union institu-
tional literature at those company property locations historically
used for such distributions, and having refused to do so and submit
your disagreement to the established grievance procedure, you are
hereby warned that your future persistence in such conduct swill
result in more severe disciplinary action."
" A more detailed account of what transpired appears infra, in my dis-
cussion of the arbitrator's ruling.
Art. IV of the contract provides in pertinent part as follows:
There shall be no solicitation of employees for union membership or
dues conducted upon the premises of the company during working
hours by the union, its representatives or by employees; nor shall
there be any distribution, or collection of payroll deduction assign-
ment cards for union dues and the initiation fee conducted upon the
premises of the company dunng working hours by the union, its rep-
resentatives or by employees.
'' Company general rule 5 states that the "following practices are
strictly forbidden":
"5. Gambling, taking orders, selling tickets, soliciting or contributing
money for any unauthorized cause This prohibition includes em-
ployees, during their working time. conducting union business, solic-
iting union membership, or distributing or collecting assignment
cards for union dues on company property "
them to arbitration to be heard by Arbitrator Marcel
Mallet-Prevost. The agreement read as follows:
The parties agree to expedite the arbitration of the
Nash, Bothur and Roberts grievances which are
subjects of the Union's charges filed with the
NLRB in Case Nos. I-CA-12,015; 1-CA-12,137;
and I-CA-12,102, respectively, by submitting the
grievances to Arbitrator Marcel Mallet-Prevost in
hearings to commence before said Arbitrator on
November 4, 1976. The Union agrees to withdraw
the aforesaid charges insofar as they relate to the
subject matter of said grievances, without prejudice,
reserving its right to refile after the decision of the
Arbitrator is rendered, subject to "Collyer" stand-
ards. 14
On September 22, 1976, the Union requested of the Re-
gional Office a withdrawal without prejudice of its
charges in the numbered cases to the extent that they
allege violations with respect to Nash, Roberts,' 5 and
Bothur, and attached a copy of the aforesaid agreement.
The Regional Director for Region I approved the with-
drawal request in Case 1-CA-12137 on October 6, 1976,
and in Case 1-CA-12015 on May 18, 1977. 6
On October 11, 1976, the Respondent discharged
Bothur allegedly for the same conduct which previously
resulted in his 30-day suspension; i.e., insubordination for
refusing to break up a grievance meeting on October 6,
1976, after being instructed to do so. No unfair labor
practice charge was filed by the Union over this dis-
charge; rather, the parties agreed to bypass the steps in
the grievance procedure and add Bothur's discharge to
the issues the parties agreed to present to the arbitrator
in their agreement of September 17, 1976.
Arbitration proceedings over Bothur's suspensions and
discharge were held in November and December 1976,
and the arbitrator's award upholding the suspensions and
discharge issued on August 27, 1977. Nash's discharge
was arbitrated in December 1976, and the arbitrator sus-
tained the discharge in a decision issued on November
10, 1977. In resolving the Bothur and Nash issues, the ar-
bitrator, in effect, resolved the ongoing dispute between
the Respondent and the Union concerning the distribu-
tion of union literature, the solicitation for union mem-
bership during working hours, and the dispute regarding
discussions between a union steward and an employee
prior to filing a grievance.
On February 16, 1978, the Union filed a charge in
Case 1-CA-14133, alleging its belief that the arbitrator's
decisions were repugnant to the Act that they did not
4 Although the agreement refers to "Collyer standards" (Collyer-lnsu-
lared Wire, A Gulf and Western Systems Co.. 192 NLRB 837 (1971)), what
was clearly meant was "Spielberg standards" (Spedberg Manufacturing
Company, 112 NLRB 1080 (1955)), since that is the standard of review
applied to arbitration awards. Any future reference in this Decision to
this agreement will contain the phrase. Spielberg standard
'H Inasmuch as the arbitrator found Roberts' suspension unjustified.
there is no issue in this proceeding regarding Roberts
" In addition to approving the withdrawal of the Nash allegation and
an 8(a)(5) allegation regarding a refusal to discuss certain grievances, the
Regional Director for Region I issued the standard "Collyer" letter in
which he deferred, to the arbitral process, certain allegations discussed
infra as part of his Nosemher 20, 1978, letter
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
satisfy the Board's Collyer-Spielberg standards, and that,
therefore, the Union wishes to exercise its right under
the agreement with the Respondent dated September 17,
1976, and requests Region I to reassert jurisdiction. On
August 15, 1978, the Regional Director for Region I re-
voked his approval of the Union's request for withdraw-
al in Case 1-CA-12137, and on August 16, 1978, he ap-
proved the Union's withdrawal request in Case 1-CA
14133. On August 28, 1978, the Union filed an amended
charge in Case 1-CA-12137 adding an allegation relating
to Bothur's discharge. As stated above, the first com-
plaint that issued in this proceeding issued on August 30,
1978, and alleged the two suspensions of Bothur and the
discharges of Bothur and Nash."t During the pendency
of the Respondent's Motion for Summary Judgment
before the Board, the Regional Director for Region 1, on
November 20, 1978, advised the parties to this proceed-
ing that in the event the motion would be denied it was
his intention to include in an amended complaint all of
the matters in Cases 1-CA-12015, 12102, and 12137 that
had been deferred in his letter of May 18, 1977, relating
to the alleged threats to discharge employees for distrib-
uting union literature, and disciplinary warnings and sus-
pensions issued to employees for such distribution. And
so, on February 20, 1979, the complaint was amended to
include the above allegations. Thereafter, a charge filed
on April 3, 1979, and amended on May 17, 1979, and a
charge filed on June 4, 1979, and amended on July 20,
1979, resulted in further amendments to the complaint
herein. These last amendments are totally unrelated to
the 1976 charges. 8 One further amendment followed on
October 10, 1979, which is related to the 1976 charges in
that it alleges the maintenance and enforcement of an un-
lawful distribution rule in 1976-77.'9
7 On October 19, 1978, Respondent filed a Motion for Summary Judg-
ment with the Board, and, on December 12, 1978, the Union filed a
Cross-Motion for Summary Judgment Both motions were denied on
February 9, 1979.
'6 These allegations shall be dealt with, n/fra, after all of the issues re-
lating to the 1976 charges are discussed.
'9 During the course of the hearing the Respondent mosed toi strike
and dismiss this amendment to the complaint, alleging that subsequent to
the Regional Director's "Collyer' letter of May 18, 1977, in which he de-
termined that absent settlement, a complaint would issue with regard to
certain allegations of the charge in Case 1-CA-12015, the parties entered
into a settlement agreement on June 27, 1977, in which the Union agreed
"to withdraw the remaining portions of its charge upon the Company's
representation that it will agree promptly to negotiate in good faith (sub-
ject to traditional 8(a)(5) standards) with representatives of the Union
over the revised rules which the Company announced on March 18, 1976
and which formed the basis for the Union's charge in the case." Respond-
ent argues that said withdrawal removed the 8(a)(1) allegation relating to
rule 7 from the context of the charge and that the Regional Director
erred in resurrecting it in amendments to the complaint in 1979Y, more
than 6 months after the rule had been revised in November 1977. to the
satisfaction of the Union The General Counsel and Union contend that
there never was any intent to withdraw the 8(a)(l) allegation or in fact, a
withdrawal of same, that the agreement to withdraw only extended to
the 8(a)(5) allegation, that the charge in Case I CA 12102. which was
never withdrawn, reiterates the allegation regarding the involved rule;
and that, as further proof of the viability of the allegation, it was fully
litigated before the arbitrator. For all of the reasons advanced by the
General Counsel and the Union, I find that the allegation charging the
invalidity of rule 7 continued to survive throughout the entire period
from March 1976 to November 1977 and is a proper addendum to the
complaint. The Respondent's motion is denied
B. The Parties' Major Contentions
Thus, having laid out all of the administrative and pro-
cedural ramifications contained in this case, and before
proceeding to the substantive issues that have been
raised, it is incumbent upon me at this time to direct my
attention to the parties' major contentions.
1. The Respondent contends that the 6-month limita-
tion imposed by Section 10(b) of the Act bars the issu-
ance of a complaint based on a timely filed charge which
with the approval of the Regional Director, had been
withdrawn, but which, almost 2 years later, was reinstat-
ed by the Regional Director when he revoked his prior
approval of the withdrawal.
The Board's general rule is that where a charge has
been filed, withdrawn, and later refiled, the 6-month lim-
itation period in Section 10(b) of the Act commences
from the filing and service of the new charge. See Gla-
cier Lincoln-Mercury, Inc., 189 NLRB 640, 643 (1971);
Koppers Company, Itc., Forest Products Division, 163
NLRB 517 (1967); Olin Industries Inc., Winchester Re-
peating Arms Company Division, 97 NLRB 130, 133
(1951). Thus, a withdrawn charge cannot be reinstated to
revive liability for a violation which occurred more than
6 months prior to the reinstatement of the charge. How-
ever, where equitable considerations were found to exist,
the Board has permitted the Regional Director to rein-
state a withdrawn charge so that the 10(b) period is
measured from the date the charge was initially filed.
See Public Services Planning and Analysis Corporation,
d/b/a Airport Connection, 243 NLRB 1076, 1077 (1979);
Silver Bakery Inc. of Newton, 150 NLRB 421 (1964), en-
forcement denied 351 F.2d 37 (Ist Cir. 1965).
In Airport Connection, supra, an employee, Barrett
Shames, filed a charge on March 27, 1978, alleging that
the employer had discharged him on March 23, 1978, in
violation of Section 8(a)(3). The Regional Office errone-
ously concluded that it did not have jurisdiction over the
employer and solicited a withdrawal of the charge from
the employee. The charge was withdrawn without preju-
dice on April 13, 1978, and the employer was so notified.
In September 1978, another employee filed a similar
charge, and this time the Regional Office concluded that
it did have jurisdiction. Whereupon, in November 1978,
Shames contacted the Regional Office requesting that it
reinstate his charge in light of their recent determination
to assert jurisdiction over the employer. The Region did
reinstate the charge and notified the employer. On Feb-
ruary 28, 1979, a complaint issued on Shames' charge.
The employer contended that Section 10(b) prohibited
the reinstatement of the withdrawn charge more than 6
months beyond the date of the alleged unfair labor prac-
tice. However, the Board rejected this argument noting
that:
[T]he General Counsel, pursuant to Section 3(d) of
the Act, has virtually unlimited discretion to pro-
ceed on such timely filed charges as he deems fit
and, in the absence of a showing of abuse of this
discretion, the Board will not interfere with the
General Counsel's exercise thereof. This discretion
clearly includes the authority to reinstate timely
1434
UNITED TECHNOLOGIES CORPORATION
filed charges which have been withdrawn.... (In
addition,] the Board will not overrule the General
Counsel's decision to reinstate a timely filed charge
unless Respondent can show that the equities of the
case compel such a result.
In reviewing the "equities of the case" in Airport Con-
nection, supra, the Board noted two factors which it
found significant in permitting the reinstatement of the
charge. First, the charging party had been "prompt and
diligent" in pursuit of his remedy by promptly filing the
initial charges and immediately requesting reinstatement
when he learned of the Region's error. Second, the re-
spondent could not allege that it relied to its detriment
on the withdrawal of the charge, since the respondent
was notified that the charge was withdrawn "without
prejudice," and the respondent had consented in a unre-
lated settlement agreement to the right of the General
Counsel to proceed to hearing on the reinstated charge.
Id. at 1077. In light of the Board's opinion in Airport
Connection, supra, the issue in the case at bar is whether
or not such "equitable considerations" exist to allow the
reinstatement of the previously withdrawn charges. An
examination of the facts indicate that such equitable con-
siderations are present.
In the instant case, the charges were withdrawn "with-
out prejudice," and the parties had agreed that the with-
drawal of the charges would not prevent the refiling of
those charges by the Union. Clearly, then, the Respond-
ent had contemplated the possibility of the refiling of the
withdrawn charges if the arbitration awards failed to
comply with the Spielberg criteria. Thus, as in Airport
Connection, supra, the respondent could claim that it had
relied to its detriment on the withdrawal.
Similarly, it appears that the Union had been "prompt
and diligent" in the pursuit of its remedy. The Union
filed charges for Nash's discharge (Case 1-CA-12015)
within 3 days of the incident; and within several weeks
of Bothur's suspensions, the charges in Case l-CA-12137
were filed. In addition, the Union claims that shortly
after receiving the arbitration awards on August 27 and
on November 11, 1977, it had notified the Regional
Office by phone of its intention to appeal the awards
under Collyer-Spielberg. The Union also contends that
shortly after each call it submitted its appeal to the
Region. (See the Union's response to the Respondent's
Motion for Summary Judgment at pp. 6-7.)
The Respondent contends that its first hint that the
Union intended to challenge the awards came in Febru-
ary 1978 when the Union filed its charge in Case 1-CA-
14133. The Respondent also argues that the Board's deci-
sion in Collyer Insulated Wire, 192 NLRB 837 (1971), im-
plies, in footnote 18, that a party seeking to appeal an ar-
bitrator's award for failing to meet Spielberg standards
must do so within 20 days or such further time as the
Board may allow (Respondent's Motion for Summary
Judgment at pp. 14-15); and therefore the Union's appeal
was untimely. However, the Respondent's contentions
do not sufficiently counteract a showing of prompt and
diligent action by the Union for several reasons.
First, the Union contends, and it is not contradicted,
that a Board attorney had contacted the Respondent's
counsel sometime prior to February 16, 1978, regarding
the Union's intention to appeal (Union's Response to Re-
spondent's Motion, p. 7). More importantly, it appears
that where a case has been "Collyered" the Regional
Office will take the initiative to contact the parties,
rather than requiring the party who is dissatisfied with
the arbitrator's award to file objections. However, even
if one accepts the Respondent's interpretation that the
Board in Collyer, supra, adopted the time limits of Sec-
tion 102.48(d)(2) for appealing arbitration awards, that
section states "20 days, or such further period as the
Board may allow. " 2" Thus, it is conceivable that the
Region had decided to extend the period in this instance.
In addition to the equitable consideration raised in Air-
port Connection, supra, the case at bar has one element
that estops the Respondent from raising Section 10(b) as
a defense, and that is the agreement between the parties
which reserved to the Union a right to refile. Although
no case involving such an agreement has come before
the Board, it is analogous to those cases where parties
have agreed to stay the bringing of a suit. In one such
case, Robinson v. City of New York, 265 N.Y.S.2d 566
(lst Dept. 1965), the court noted that "where the agree-
ment, representations or conduct of a defendant have
caused a plaintiff to delay suit on a known cause of
action until the statute of limitations has run, the courts
will apply the doctrine of estoppel to prevent an inequi-
table use by defendant of the statute [of limitations]." Id.
at p. 569-570. Thus, this doctrine of equitable estoppel
would seem to apply to the agreement between the par-
ties in the instant case.
In addition to the doctrine of equitable estoppel, I
view the agreement between the parties in still another
way which would prevent the raising of a 10(b) defense.
Their agreement was essentially a deferral, albeit be-
tween the parties and not Board sanctioned, under the
Collyer standard. The parties, by approaching the Region
and requesting a withdrawal of the charge so the dispute
could be resolved through arbitration, and by further
stipulating that the Union had the right to refile the
charges if the awards did not comport with Spielberg
standards, in essence had asked the Region to "Collyer"
the case. While the procedure and form was not that of a
true Collyer deferral, it is indistinguishable in substance.
Viewed in this light, the Board had retained jurisdiction
over the matter as it does in any "Collyered" case, thus
eliminating the 10(b) question. Under all the circum-
stances stated above, the Respondent's motion to dismiss
the complaint on the grounds that it is time-barred is
denied.
2. The Respondent further contends that inasmuch as
Bothur's discharge was never the subject of a timely
filed charge, i.e., no charge was filed on Bothur's behalf
within 6 months of the date of his discharge, the allega-
tion relating to his discharge should be stricken from the
complaint.
It is well established that a complaint can only issue
where a timely charge has been filed. See Minnie E.
Vash v. Florida Industrial Commission, et al., 389 U.S.
235 (1967). However, it is equally well settled that the
' I-he BIoard's Rules anid Regulations. Series 8. as amended. Sec
102 48(d))(2)
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel is not confined in issuing his complaint
to the allegations enumerated in the charge. See
N.L.R.B. v. Globe Wireless, Ltd., 193 F.2d 748, 752 (9th
Cir. 1951). See McGuiness, "How To Take A Case
Before The National Labor Relations Board," 257-258
(4th ed. 1976). Although the complaint may not allege a
violation which occurred more than 6 months from the
filing of a charge, the General Counsel may include in
the complaint violations which have occurred subsequent
to the filing of a charge, provided that these violations
are related to or "grow out of' the timely filed charges.
See N.L.R.B. v. Fant Milling Company, 360 U.S. 301, 309
(1959); National Licorice Company v. N.L.R.B., 309 U.S.
350 (1940).
The allegation of Bothur's discharge clearly meets the
test of being "closely related" to the timely filed charges
in Case 1-CA-12137 which allege his suspensions. The
charges therein allege, inter alia, that the Respondent's
30-day suspension of Bothur for the July 22, 1976, inci-
dent violated the Act. Arbitrator Mallet-Prevost found
that the October 6, 1976, discharge of Bothur, which has
never been alleged in any charge, "poses the same issue
as that posed by the July 22 incident. They constitute, in
fact, simply an add-on to that complaint. " 21
Moreover, the doctrine of equitable estoppel once
again must come into play in this situation. It is readily
conceded by the Respondent in its "Memorandum of
Law in Support of its Motion for Summary Judgment"
at p. 6, that "the Union requested, and the Respondent
agreed, that the propriety of [Bothur's] discharge . . . be
decided by Arbitrator Mallet-Prevost." It must be con-
cluded then that the Union considered Bothur's dis-
charge as part and parcel of the prior actions taken
against Bothur, and that no further charge need be filed
on Bothur's behalf. For all of these reasons, I conclude
that the complaint may properly include the allegation of
Bothur's discharge since it is related to the timely filed
charge involving Bothur's 30-day suspension.
3. The General Counsel and Union contend that the
arbitrator's awards are repugnant to the purposes of the
Act and ought not be deferred to. The Respondent con-
tends that Board policy, as promulgated in Spielberg
Manufacturing Company, 112 NLRB 1080, 1082 (1955),
requires that the Board defer to the arbitrator's conclu-
sion that Bothur's suspensions and discharge were for in-
subordination, and Nash's discharge was for violating the
parties' collective-bargaining agreement and the Re-
spondent's rules by soliciting union membership during
working hours.
As part of its efforts to advance the arbitral process,
the Board has long deferred to arbitration awards in
cases in which the criteria as laid down in Spielberg, i.e.,
(1) the arbitration proceedings appear to have been fair
and regular; (2) the parties agreed to be bound by arbi-
tration; and (3) the arbitration award is not clearly re-
pugnant to the purposes and policies of the Act, have
been met. Since the Spielberg decision, the Board has
added a fourth criteria, i.e., that the issue involved in the
11 The arbitrator's conclusion was that Bothur's 30-day suspension was
the result of his general behavior on July 22, 1976, primarily for refusing
to terminate a grievance meeting when requested, and the discharge on
October 6, 1976, was also for refusing to terminate a grievance meeting
unfair labor practice case before the Board must have
been presented to and considered by the arbitrator.
Raytheon Company, 140 NLRB 883 (1963). However, the
mere existence of an arbitration award does not oust the
Board of its jurisdiction to adjudicate claims of unfair
labor practices based on the same subject matter as the
award. N.L.R.B. v. Joseph T. Strong d/b/a Strong Roof-
ing & Insulating Co., 393 U.S. 357, 360-361 (1969). It is
well established that the Board has considerable discre-
tion in deciding whether to respect an arbitration award
where it comports with the fundamental aims of the Act,
or to reject it where it violates the intent of the Act's
provisions.
In the instant proceeding, it is agreed by the parties
that the arbitration proceedings before Mallet-Prevost
were fair and regular, that the parties agreed to be bound
by the arbitration, and that the issue before me had been
presented to and considered by the arbitrator. In fact, as
stated previously, the parties, at the hearing, stipulated to
accept and be bound by the arbitrator's findings of fact
in both proceedings. Query: Was the arbitrator's conclu-
sions of law repugnant to the purposes of the Act?
1. The legality of the March 1976 no-distribution
rule
The basis for the repugnancy contention is grounded
in the belief by the General Counsel and the Union that,
insofar as Bothur is concerned, the arbitrator failed to
conclude that rule 7, the no-distribution rule promulgat-
ed by the Respondent on March 18, 1976, discussed
supra, was unduly broad in scope and, therefore, viola-
tive of Section 8(a)(l) of the Act. The Board has long
held that a no-distribution rule is presumptively invalid
on its face, as applied to employees who may wish to
distribute union literature, if its reach is not limited to
working time and to working areas of the plant. Stod-
dard-Quirk Manufacturing Co., 138 NLRB 615 (1962).
Certainly, therefore, it is clear in the instant case that
rule 7 which purports to prohibit all distribution of "un-
authorized pictures, posters, or literature, including
Union, political and discriminatory material on company
property" is overly broad, and I find that the Respond-
ent has violated Section 8(a)(l) of the Act by maintain-
ing such a no-distribution rule. 22 We look now to see
how the arbitrator chose to view rule 7 in its relationship
to Bothur's two suspensions and his later discharge.
2. The 3-day suspensions
Following the institution of rule 7, the Company took
a stronger position in "ordering," rather than "asking,"
the employees not to distribute inside the plant. Between
March and June 1976, several confrontations on this
issue occurred. Finally, on June 29, 1976, the Company
issued employee reports to Bothur and 29 other employ-
ees for distributing union material inside the plant and re-
fusing to move when ordered. On July 21, 1976, Bothur
and some other employees were distributing at point C.
Personnel advisor Bryka asked them to move outside in
"2 See N.L.RB. v. Magnavox Company of Tennessee, 415 US 322
(1974)
1436
UNITED TECHNOLOGIES CORPORATION
accordance with the prior "agreement" reached in 1974,
but they refused. As a result of this incident, Bothur and
six other employees received a 3-day suspension on July
24, 1976, and 40 other employees were issued employee
reports.
After noting that the Union's contention is "that the
new Rule 7 is an unlawful no-distribution rule and that
Bothur was disciplined for violating the Rule," the arbi-
trator concluded that "[the rule] is a limitation upon the
kinds of material that may be distributed on Company
property. It has nothing to do with places of distribution
on Company property-which was the whole point of
Bothur's confrontation with management representatives.
I find that Bothur's 3-day suspension had nothing to do
with Rule 7." Arbitrator Mallet-Prevost determined that
Bothur's suspension was a result of his ignoring the
Company's warning and persisting to distribute at point
C. He indicated that if Bothur believed that the agree-
ment did not require him to leave, he should have
obeyed the order and submitted a grievance. The arbitra-
tor noted that:
The Union seems to argue that if there were an
agreement as to acceptable places to distribute, it
would be unenforceable because it would be in the
nature of a waiver of employee rights. 23 This would
reduce the whole course of the 1974 negotiations
between the Company and the Union to a complete
charade. I think it represents an altogether unrealis-
tic view of the negotiations and their result.
The arbitrator also rejected the Union's argument that
the facts in the instant case fall within that line of cases
"holding that an employee cannot be disciplined for in-
subordination because he refuses to obey in order to
cease a protected activity when the order is based upon
such a rule, or upon some other whim of the employer."
He also noted that:
this is not a situation where Bothur's statutory right
to distribute at point C is so clear that no considera-
tion of balancing need enter the picture.... [I]n
the 1974 negotiations the Company interposed rea-
sonable statements of concern that distribution at
Point C interferes with the effectiveness of its oper-
ations. The Union, on the other hand has neither
shown nor claimed any practical reasons why distri-
bution at Point D (outside) renders the Stewards'
efforts to distribute any less effective than at Point
C (inside).
The arbitrator then concluded that Section 7 rights are
not absolute [citing Magnavox, supra], and that the Board
could conclude that considerations of production or dis-
cipline may make control necessary [citing N.L.R.B. v.
Republic Aviation Corporation, 324 U.S. 793 (1945)].
With all due respect for Arbitrator Marcel Mallet-Pre-
vost, I must disagree with his conclusion. As the Board
U No doubt the Union was well aware of the Supreme Court's ruling
in Magnavox. supra, wherein it was held that a union cannot waive. in a
bargaining contract, the employee's rights to distribute material during
nonworktime in nonwork areas.
stated in Daylin Inc., Discount Division d/b/a Miller's Dis-
count Dept. Stores, 198 NLRB 281 (1972):
. . . where a no-solicitation rule goes beyond [valid]
limits . . . it is an unlawful infringement upon the
employee's freedom to solicit their fellow employ-
ees for (or against) union representation. The rule in
such case can provide no justification for the [sus-
pension] of an employee who violated it. Therefore,
if an employee is [suspended] for soliciting in viola-
tion of an unlawful rule, the [suspension] also is un-
lawful unless the employer can establish that the so-
licitation interfered with the employees' own work
or that of the other employees, and that this rather
than violation of the rule was the reason for the
[suspension].
Such was not the case herein. The facts, by which I am
bound by stipulation of the parties, do not reveal an in-
terference with production or a desire to maintain disci-
pline, either of which may make controls necessary. The
mere assertion that the rule has this purpose is insuffi-
cient to establish that it is actually "necessary" for the
employer to prohibit union handbilling by his own em-
ployees. I do not find that such necessity has been shown
here. Under the circumstances, I find that the arbitrator's
determination in this regard was repugnant to the pur-
poses of the Act, and I conclude that the Respondent's
attempt to enforce an unlawful no-distribution rule by
imposing a 3-day suspension on Bothur and six other em-
ployees, and by disciplining 69 employees with its issu-
ance of employee reports against them, was a violation
of Section 8(a)(1) and (3) of the Act. 2 '
3. Bothur's 30-day suspension and discharge25
When Bothur came to work on July 22, 1976, he
spoke with his foreman about his intention to go to the
:4 During the course of the hearing, as stated supra, I viewed and went
through the Respondent's premises and buildings, inside and outside in
the company of attorneys DiCiero, Kestell, and Wells This onsite inspec-
tion was requested by the General Counsel to aid me in my determina-
tion as to whether point C, discussed supra, is a work area or a nonwork
area, and the Respondent acquiesced in that request I stated on the
record at that time that this inspection "may or may not prove helpful in
reaching the conclusions I will reach in my decision." My inspection en-
compassed seven gates at the Pratt-Whitney plant in East Hartnford, and
one gate at the Power Systems Division in South Windsor. In each in-
stance I observed the area outside the particular entrance at which point
the union stewards had been handbilling employees, and the area inside
the entrance doors, better known as point C, from which point Bothur
and the others attempted to handbill employees but were prevented from
doing so and disciplined for their efforts. In light of my foregoing find-
ings that the Respondent had violated the Act by maintaining and enforc-
ing an unlawful no-distribution rule, it is of little moment at this time for
me to decide whether the area involved is or is not a work area. Howev-
er, for the sake of thoroughness, I forthrightly state for the record that,
based on my observation, the areas viewed by me are passageways and
entranceways giving access to work areas by employees, but are not
work areas per se In each instance, a distance of approximately 60 feet
must be traversed before a true work area is reached: and, in at least one
area, the Respondent has placed a bulletin board for company notices to
be viewed by employees, thereby designating an area as a gathering place
for employees, and not a work area. I find, therefore, that at all times
material herein, the union stewards were leafletting on nonworktime, as
stipulated by the parties, in nonwork areas.
2s The events detailed, infra, are gleaned from the arbitrator's findings
of fact by which I am bound by stipulation of the parties
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South Windsor plant in order to complete some unfin-
ished business involving a grievance. Initially, Bothur
was told he could go, but that he would have to wait
until the afternoon. However, Bothur was eventually
told that he could not go on that day.
At this point, Bothur requested to see his shop ste-
ward, Danny Brandt, in order to discuss the problem of
Bothur going to South Windsor. Bothur specifically
asked for Brandt because Bothur also wished to discuss
the confrontation he had the day before regarding the
distribution, and Brandt was familiar with the "flier dis-
tribution problem." However, Shop Steward Steve Rob-
erts was sent.
Roberts and Bothur began discussing the flier distribu-
tion problem around 1:30 p.m. Since Roberts was unfa-
miliar with the flier distribution problem Bothur "spent a
lot of time filling him in" on the matter. They were also
able to discuss the South Windsor situation. At approxi-
mately 2 p.m., Foreman Spafford told the two men that
they had "ten more minutes." However, at this point,
Bothur had not discussed his grievance concerning his
not getting the steward he asked for. At or about 2:20
Spafford returned and told the two to break it up and
return to work. "Bothur told foreman Spafford he did
not feel this interruption of the grievance discussion was
proper procedure on the part of the Company, adding,
. . under Section 8(a)(2) of the NLRA . . . I consider
this an interference with the administration of the
Union."' Since the grievance procedure was being
broken up, Roberts attempted to proceed with the griev-
ances Bothur had, by handing Spafford an "Oral Step
Fact Sheet." However, Spafford declined to proceed at
that point and said he would discuss the grievances on
the next day.
Spafford eventually returned with General Foreman
Christensen who told the men to return to work. Chris-
tensen testified that he wanted the pregrievance discus-
sion ended because he had to issue the 3-day suspension
to Bothur that afternoon and wanted to do it before 3
p.m. that day. Sometime after Christensen's request to
terminate the meeting, Roberts did return to work.
After Roberts returned to work, Spafford called
Bothur over to his desk to give him the 3-day suspension
for the July 21 incident. Bothur looked at it, threw it
down, and walked away. In accordance with plant prac-
tice, Spafford attempted to read the suspension notice to
Bothur in front of another supervisor. Bothur refused to
meet with them in this "2 on I" situation unless he had
his shop steward. After much discussion on the issue,
Christensen asked the guards to remove Bothur. Al-
though Bothur initially refused to follow the request of
the guards he did accompany them to their headquarters
and clocked out at 3:30 p.m.
Bothur was to begin a 2-week military leave assign-
ment the next day, July 23, 1976, and then take his vaca-
tion until August 16, 1976. During his vacation he re-
ceived the following letter:
Because of your grossly insubordinate conduct on
Thursday, July 22, 1976, when you were being ad-
vised of a three-day suspension extending from
August 16 through 18, 1976, 1 have been requested
by your supervisor to inform you of an additional
suspension of one month starting August 16, 1976.
You will be allowed to return to work at the begin-
ning of your regular shift on Monday, September
20, 1976, with a clear understanding that a further
repetition of your previous conduct will result in
more severe disciplinary action, including dismissal.
Arbitrator Mallet-Prevost found that Bothur's 30-day
suspension was based on the whole course of his conduct
on July 22, 1976, and not just because of his conduct
when he was being advised of the 3-day suspension. The
arbitrator expressly did not find that the time allotted for
the pregrievance discussion was reasonable or unreason-
able. He felt that this was not the issue; rather, the issue
was whether Bothur's refusal to return to work was in-
subordination. He concluded that unless the foreman has
assumed a patently extreme position in his estimate of
"reasonable" time for the discussion, the steward and the
employee should comply with the order and file a griev-
ance if they disagree with the foreman.
Bothur returned to work on September 20, 1976. On
October 5, the Company distributed merit ratings to the
employees. Bruce Easter, who had a complaint about his
rating, called Bothur as his shop steward. They began
discussing the problem about 2:50 p.m., but stopped at
3:15 p.m., since they decided to clean up and punch out
for the day. Before leaving, Bothur told Foreman Roy
that he still needed more time and would meet with
Easter the following morning. The foreman felt he had
given them enough time already, and that 10 minutes
more should be sufficient.
The next morning, on October 6, Bothur and Easter
resumed their discussion. However, after approximately
15 minutes, Foreman Roy came over and indicated that
they were taking too much time. The foreman told them
that he would give them another 5 or 10 minutes, and,
after that time elapsed, he returned and requested that
they terminate their discussion. Bothur responded that
they were "negotiating equals" 26 while Bothur was
acting as a shop steward, and Roy could not order them
to break up their grievance discussion. When Bothur re-
fused to go back to work Roy informed him that he was
suspended indefinitely. Eventually, Bothur was escorted
out of the plant, and was discharged on October 11,
1976.
The arbitrator found that the facts of the October 6 in-
cident "pose the same issue as that posed by the July 22
incident. They constitute, in fact, simply an add-on to
that incident." For the same reasons, he found that Both-
2b The following is a quote of fn 20 in the arbitrator's decision:
With respect to the "negotiating equal" principle, a grievance con-
cerning the interruption of a grievance discussion between Steward
Bothus and a grieving employee was settled in June 1976 at Step-1
with this notation;
The company recognizes that you as a steward are a negotiating
equal, therefore interruptions will be limited to reasonable requests
This settlement reflects the substance of the Article VII, Section 8,
of the Contract relating to the Grievance Procedure, i.e that inter-
ruptions of shop stewards' work assignments "be as infrequent and of
as short duration as the grievance or complaint reasonably requires."
1438
UNITED TECHNOLO(iES CORPORATION
ur's conduct was insubordinate and that he was properly
discharged.
I view Bothur's 30-day suspension and subsequent dis-
charge in an entirely different light from his 3-day sus-
pension. In the latter situation, Bothur was being disci-
plined, in violation of the Act, for engaging in a protect-
ed union activity. Such was not the case in the former
situations. While the events of July 22 and October 6,
1976, involving Bothur, began in the context of good
labor-management relations, it did not progress in that
vein. And the fault lies strictly on Bothur's side. The ar-
bitrator found, and rightly so, that the Respondent was
not short-timing either pregrievance discussion, but was
merely attempting to hold the discussion down to a rea-
sonable time. In each case, additional time was granted
by the Respondent, but to Bothur that was not enough.
"He undertook to turn the plant floor into a forum for a
pseudo-legal debate .... " (The arbitrator's words.)
Under the circumstances, the Respondent had no other
choice but to discipline Bothur for his grossly insubordi-
nate conduct, and such discipline was in no way viola-
tive of the Act. I, therefore, am dismissing that portion
of the complaint which alleges the 30-day suspension and
discharge of Bothur as violations of the Act.
4. The Nash discharge
As stated above, the General Counsel and the Union
do not dispute the fact that Nash engaged in union solici-
tation proscribed by article IV of the collective-bargain-
ing agreement and company general rule 5. Their con-
tention is that the Respondent disparately enforced its
no-solicitation rule against union adherents. The question
before the arbitrator was whether the Respondent could
properly enforce those provisions more stringently
against Nash than it enforced the same provisions against
other employees who engaged in other kinds of work-
time solicitations which were similarly proscribed. Em-
ployee witnesses testified that the rule was regularly vio-
lated by employees who engaged in solicitation of a per-
sonal nature, i.e., collections for flowers for a funeral or
for sick employee, but these employees were never disci-
plined. Management personnel testified that except for
public service appeals such as United Way, the Company
did not countenance any other type of solicitation on
worktime and dealt harshly with it to the point of dis-
charge. Inasmuch as these are the findings of fact by the
arbitrator leading to his conclusion that the testimony
presented was not of sufficient weight to support the
proposition that the Respondent has a policy of discrimi-
nating against union solicitors, it is not for me to over-
rule said findings and I must defer to his award. I find
that all of the criteria and standards required for deferral
under Spielberg have been met; that, on its face, the arbi-
tration was fair and regular; that the arbitration was
reached by a procedure to which the parties agreed to
be bound; and that the award is not repugnant to the
policies of the Act. 1, therefore, conclude that the allega-
tion in the complaint pertaining to Nash's discharge be
dismissed. 27
a2 United Parcel Service, Inc., 232 NLRB 1114 (1977).
C. The 1979 Events
Paragraphs 8(d) through (h) of the amended com-
plaint, which issued on July 24, 1979, allege various vio-
lations of the Act supposedly committed by the Re-
spondent at its Hamilton-Standard plant during January
and February 1979. The background for these allegations
is as follows: On January 12, 1979, the Respondent dis-
charged two employees, Michael Londraville and Gerald
Gregoire, for allegedly soliciting union membership
during working hours. 28 Commencing shortly thereafter
and continuing practically on a daily basis for the next
couple of weeks, a series of incidents occurred involving
costly damage to the Respondent's products. 29 Also,
damage was inflicted on automobiles owned by foremen
in the Respondent's parking lot, and one foreman
claimed that he had been run off the road by another car
while on his way home from work. The Respondent,
suspecting sabotage, assigned two investigators from its
International Security Investigation Department (ISID),
Thomas Fischer and Frank Collins, to conduct an inves-
tigation of the incidents. The record shows that between
January 15 and March 15 1979, approximately 100 em-
ployees were interviewed by the two investigators. It
was these interviews which broadened out into matters
other than the suspected sabotage, that sparked the filing
of charges resulting in the following allegations in the
complaint:
1. The Respondent discriminatorily denied a
solicitation request for the families of Londraville
and Gregoire in order to discourage union activity.
(Par. 8(d) of the complaint.)
On January 18, 1979, Richard Lay, an employee, filled
out a preprinted solicitation request, requesting permis-
sion to make a solicitation for funds to help out the fami-
lies of Londraville and Gregoire, and turned it in to
General Foreman Fitzgerald. Fitzgerald advised Lay on
January 22, 1979, that his request had been denied by Ed
Hotchkiss, Respondent's superintendent, with Hotchkiss'
note attached, "Gene Fitzgerald solicitation request will
be approved only for present employees for such occa-
sions as retirement, deaths." In questioning Fitzgerald
about the refusal, Lay pointed out that, to his knowl-
edge, this was the first time that a solicitation request
had been denied, and that he would like to see a written
response. Fitzgerald stated that the Company was within
its rights to forbid a solicitation, that he would comply
with Lay's request for a written response, but "wasn't
Lay sticking his neck out, and hadn't Lay told him that
he was going to avoid situations like that."3 0 Whereupon,
2, On August 23, 1979, Arbitrator Mallet-Prevost issued a decision in
this matter finding the Respondent in violation of the Act, and ordered
reinstatement of the two employees.
29 During the entire year of 1978, only one similar incident was ever
reported
', Lay was referring to some prior discussions he had had with Fitz-
gerald regarding the atmosphere in the plant and Fitzgerald had assured
him that his employment was not endangered but that he vwas concerned
with the company Lay was keeping. After identifying on direct examina-
tion the employees he associated with, Lay stated that none of them were
at that tine officlally connected with the Uinion
1439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lay agreed to withdraw his request. At this point, Lay's
testimony veers off to an entirely different line of ques-
tioning concerning three interviews that Lay is subjected
to by the ISID agents. Although the interrogation at
these interviews involved Lay's solicitation request along
with questions regarding the possible acts of sabotage
that had occurred at or about that time, nowhere in the
complaint are these interviews alleged to be violative of
the Act, nor do I find them to be. The crux of the alle-
gation, therefore, lies in the denial of the solicitation re-
quest for discriminatory reasons in order to discourage
union activity. Yet, at no time did Lay state that he was
soliciting on behalf of the Union for the benefit of two
union activists. His testimony states clearly that he had
known Londraville and Gregoire for a number of years,
that they were coworkers of his, and that, on "[his] own
initiative," he had "submitted the application to defray
any hardship due to the families of Mr. Gregoire and
Londraville following their dismissal." While the Gener-
al Counsel seeks to establish that the denial of the re-
quest was for discriminatory reasons, the evidence pre-
sented in that vein is only Lay's statement "[T]hat this
was the first time to my knowledge that a solicitation re-
quest had been denied." No concrete evidence was of-
fered by General Counsel to show this to be true, and
even when Lay was asked on direct examination wheth-
er he had ever made a request for solicitation before, his
response was "I believe I had," but no followup question
was asked as to whether the request or requests were
granted or denied. Certainly the burden of proving dis-
criminatory motivation in denying the request lies with
the General Counsel, especially in the face of Fitzger-
ald's statement to Lay that the Company was within its
rights to forbid a solicitation. The mere fact that a pre-
printed request form requiring approval is available to
employees shows that the Company is amenable to solici-
tations but reserves the right to reject them.31 In the ab-
sence of evidence to the contrary, I find that the General
Counsel has failed to ascribe a discriminatory motive to
the Respondent's actions in denying Lay's solicitation re-
quest, and, therefore, I am dismissing this allegation of
the complaint.3 2
2. The Respondent suspended two employees for
refusing to respond during an investigatory
interview after denying them the assistance of a
shop steward. 33 (Pars. 8(e) and (f) of the complaint.)
On or about January 31, 1979, Henry Savioli, an em-
ployee at Hamilton-Standard, was called down for ques-
'' There was evidence to the effect that an unauthorized collection for
the two employees was conducted by Andrew Sullivan, discussed infra.
" The cases cited in the Union's brief are inapposite in that in each
case cited a direct relationship existed between the union activity en-
gaged in by the employees involved and the employer's actions therein.
No such causal relationship was shown in the instant case between Lay,
who was not seeking to engage in union activity, and the Respondent,
who denied the request, albeit for a spurious reason.
s" Allegations 8(e) and (f) of the amended complaint state that the em-
ployees "sought the assistance of' union stewards. The General Counsel's
motion at the hearing, to amend the language to read "was denied the
assistance," was granted.
tioning by ISID agents Collins and Fischer. They ad-
vised him that they were investigating possible sabotage
at the plant and also an unauthorized collection for Lon-
draville and Gregoire. Savioli did not request union rep-
resentation. When asked by the agents whether he knew
of the collection, and whether he contributed to it, and
to whom, Savioli refused to answer. They told him that
he was not cooperating with an official investigation and
that he would be called down again. With that, they
ended the interview. On February 7, 1979, Savioli was
advised by his foreman that the agents wanted to see him
again. This time he told the foreman that he wanted a
union steward to be present, and when he arrived at the
ISID office, the agents introduced him to union steward
Dave Coach. At this point the agents advised Coach that
he was present merely as an observer and could not par-
ticipate.34 They then proceeded to question Savioli in the
same manner as previously, and Savioli told them that he
had no knowledge of the collection and he did not con-
tribute to it. The agents then asked Savioli to sign a
statement and he refused. Savioli was then escorted to
General Foreman Fitzgerald's office and told that he was
being suspended indefinitely for not cooperating in the
investigation. 3" The next day, Savioli requested permis-
sion to come back to work and it was granted. Upon ar-
rival at the plant, he was brought to the ISID office and
questioned once again. Coach was present but again ad-
vised of the "ground rule." The same answers were
given to the same questions, and again Savioli refused to
sign a statement. Upon completion of the meeting, Sa-
violi returned to work.
On February 8, 1979, Dawn Diduk (nee Carney) was
called down for questioning by Fischer and Collins.
When they informed her that she would be questioned
about suspected sabotage and unauthorized collection,
Carney told them she wanted a union steward present.
Coach was brought down and in Carney's presence, he
was told by the agents that he was there only to observe
and not to talk to Carney. 36 It appears that Carney's re-
sponses did not satisfy the agents and so she was advised
that disciplinary action would be taken against her. After
dismissing Coach, the agents escorted Carney to the gen-
eral foreman's office and he told her that she was sus-
pended indefinitely for not fully cooperating. The next
day Carney returned to the plant, and in a meeting with
the agents and Coach, in the ISID office, Carney an-
swered the agent's questions. However, when Carney
was asked to sign a statement, she refused, and the
agents threatened her with a more severe disciplinary
action. They advised her to speak to Coach, and directed
them to an area outside the door to the office to discuss
" On cross-examination, Savioli testified that he wanted to have a con-
versation with Coach before he went in for questioning, but because of
what was said by the agents to Coach, he felt he did not have a chance
to do it.
35 Although Coach accompanied Savioli to Fitzgerald's office, he did
not enter the office with Savioli The agents told him that he was no
longer needed and he went hack to work
36 At one point in the interview, Carney sought to ask Coach a ques-
tion but Fischer reminded her that Coach was there only to observe.
1440
UNITED TECHNOLOGIES CORPORATION
it.
:
3 When they returned to the office, Carney still re-
fused to sign the statement for the reason that her father
told her not "to sign anything I didn't know all about
it." Said refusal ended the interview and Carney re-
turned to work. No further discipline was meted out to
her.
In N.LR.B. v. J. Weingarten. Inc., 420 U.S. 251 (1975),
the Supreme Court upheld the Board's determination
that Section 7 of the Act gives an employee the right to
insist on the presence of his union representative at an in-
terview which he reasonably believes will result in disci-
plinary action. And, in Climax Molybdenum Company, a
Division of Amax. Inc., 227 NLRB 1189 (1977), the Board
states that the employee's right to representation at such
an interview includes the right of the employee to confer
with the union representative before the interview. The
General Counsel and the Union contend, therefore, that
when the Respondent placed restrictions on the union
steward's presence, this constituted a violation of the em-
pioyee's Section 7 rights. I agree. Despite the Respond-
ent's protestations that a union steward was provided to
both Savicli and Carney, and that Carney was permitted
to converst with Coach during her last interview, it ap-
pears quite ticQvs that the Respondent's resort to the ob-
structionist tactics at the very inception of the interviews
was calculated to prevent the union steward from offer-
ing any assistance whatsoever to the employee. It cer-
tainly did not vatisfy the Supreme Court's hope that
when an employee is confronted by an employer con-
ducting an investigatory interview which may result in
disciplinary action, he should be permitted the assistance
of a union representative so that all the salient facts sur-
rounding the incidet,, vh:ch occasioned the interview
could be brought to the- , !ac-. The mere presence of a
union steward does not aid s.Tficiently to elicit all of the
required information. I am firmly convinced that the Re-
spondent's effort to preclude b .,h an advanced discus-
sion and an intermittent discussion during the interview
between the employee and a union !.teward is an attempt
to thwart one of the purposes apprLved in Weingarten.
As stated in Climax Molybdenum CompFany, supra, "The
right to representation clearly embraces the right to prior
consultation." The mere fadct, as the Respondent points
out, that Carney was permitted to confer with Coach
toward the end of the interview does not detract from
the issue. TiN4 conference, outside the open door of the
ISID office, Was urged on Carney and Coach by the
ISID agents for the purpose of getting Carney to sign
the statement. And, to pro.ve the value of such discussion
as hoped for in Weingarten, Carney's subseque nt response
to the agents was acceptable, albeit she did nct sign the
statement. Accordingiy, I find that the Respolrdent's
statements to the union steward, that he was merely, an
observer and could not participate in the interviewv.
which the employees reasonably believed might result,
s" The General Counsel tried to show that the Respondent's agents
were engaged in surveillance of the conversation by demonstrati' :how
close they were to Carney and Coach and that they kept the doo open
and constantly walked past them No surveillance is alleged in th. com-
plaint, and I do not find it necessary to draw any conclusions regarding
that phase of the incident
and in fact did result, in disciplinary action, violated Sec-
tion 8(a)(l) of the Act.
3. The Respondent, by its ISID agents, interrogated
employees in violation of their Section 7 rights.
(Par. 8(g) of the complaint.)
The crux of this allegation lies in the investigatory in-
terviews of employees conducted by the Respondent to
determine whether Richard Durkin, an employee, had
been soliciting union membership on working time in
working areas, and, whether he was using his position as
leadmanJs to discriminate against employees who did not
join the Union. The investigation was conducted by
ISID agents Fischer and Collins, either singly or togeth-
er, and they interviewed numerous employees in Dur-
kin's department, generally female. According to
Fischer's testimony, he would identify himself to the em-
ployee, tell the employee the purpose of the interview
(as stated above), then ask the employee if he or she had
any knowledge of the matters being investigated, and if
the employee admits to having been solicited by Durkin,
where and when did the solicitation take place, and did
the employee join the Union. The interview then was re-
duced to writing and offered for signature to the em-
ployee. Fischer further testified that the Durkin investi-
gation came about because part of Fischer's responsibili-
ty as a corporate investigator was to investigate viola-
tions of company rules, as they came to his attention.
The General Counsel contends that these interroga-
tions were inherently coercive in that they were con-
ducted in an atmosphere of union animus and demon-
strated disparate enforcement of the Company's no-solici-
tation rule against union activity. Its witnesses were
Pushplata Heda, Sheila Rossi, and Geraldine Anderson.
Heda testified that Fischer assured her at the outset of
the interview that as long as she answered truthfully no
disciplinary action would be taken against her. Fischer
also told her that he was interested in knowing whether
Durkin ever asked her to join the Union and whether
she felt that Durkin was giving preferential treatment to
union members over nonunion employees. When Heda
responded to Fischer that Durkin had asked her on sev-
eral occasions, both on working time and after work to
join the Union, Fischer then asked her if she did join.
Her response to Durkin was always "No," and that is
what she told Fischer. She also testified that she felt
Durkin favored union member employees over others.
She was then asked to sign a statement to that effect, and
she did. Rossi testified that Fischer told her that he was
investigating the damaged car in the parling lot,"
9 and
that he was also investigating Durkin.4 And so, accord-
" The parties stipulated that Durkin was not a supervisor. and that he
was a member of the bargaining unit
a" Rossi's response to this was that she knew nothing about that inci-
dent
Io On direct examination the General Counsel refreshed the witness'
recollection of what she testified to at Durkin's arbitration, and that was
'hat Fischer had told her that he was investigating the Union and that
Liurkin was involved Yet on cross-examination, in response to the ques-
tiol. "He neser told you, did he, that they were investigating the union.
Rossi said. "They told me that they were investigating Dick Durkin" In-
Continued
1441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Rossi, Fischer wanted to know whether Durkin
solicited union membership on working time and did he
favor union members over nonunion employees. When
Fischer asked her about her union affiliation, Rossi told
him that she became a union member 2 weeks after she
started working at the plant in 1978, and that Durkin
was the one who signed her up. Rossi also stated that,
when she came in for the interview, Fischer told her that
she had nothing to fear at all and that nothing was going
to happen to her; that all the ISID agent wanted was in-
formation. Anderson testified that she was interviewed
by Fischer and Collins; that at the commencement of the
interview they advised her that nothing would happen to
her as a result of the interview; that they wanted to
know if Durkin had asked her to join the Union and did
Durkin "treat the nonunion members [sic] better than he
did the union members"; and did she join. Her response
was that Durkin had asked her to join on the first day
she came to work in September 1976, but she did not
join; that she believed Durkin did discriminate against
nonunion employees; and that she signed a statement at
the conclusion of the interview.
There can be no question but that an employer has the
right to establish rules to govern the conduct of its em-
ployees on company time in a work area. Equally true is
the maxim that an employer has the right to investigate
to determine whether such rules have been violated by
employees. And, so long as the rule, whose breach is the
subject of the investigation, is a valid one. and the em-
ployees who are interviewed are advised at the outset of
the purpose of the interview, and assured of no reprisals,
then it cannot be said that such investigations are inher-
ently coercive. It is also an accepted fact that any action
engaged in by any employee on company time in a work
area which is detrimental to the efficient operation of the
plant is subject to investigation by an employer.
In the instant case, such an investigation was conduct-
ed, and the uncontroverted evidence revealed that all of
the safeguards listed above were complied with. Thus, I
do not find that the interviews were conducted in an at-
mosphere of union animus. Also, while the General
Counsel does not contend that the no-solicitation rule in
effect in 1979 was involved, his argument is that it was
discriminatorily applied; i.e., the investigation only
sought to inquire about union activity. Yet, no evidence
was offered by any of the three witnesses as to any other
type of solicitation engaged in by other employees in
violation of the rule. In these circumstances, I do not
find that Heda, Rossi, and Anderson were interrogated
in violetion of their Section 7 rights, and I shall dismiss
that allegatio: of the complaint.
4. The Respondent, by its agent Ray Marcotte,
interrogated an employee and thereby interfered
with his Section 7 rights. (Par. 8(h) of the
complaint.)
Andrew Sullivan, an employee in department 331 at
the Hamilton-Standard plant, testified that on February
asmuch as neither Heda nor Anderson testified that the ISID a, -n ts
stated they were investigating the Union, I find that Fischer's inquires of
Rossi were limited to Durkin's suspected wrongdoings and :!id not
extend to other union matters
9, 1979, while at work, he was approached by Ray Mar-
cotte, a foreman and an admitted supervisor, and told
that an investigation was going on about an unauthorized
solicitation that Sullivan had engaged in on behalf of
Gregoire and Londraville. Marcotte said, according to
Sullivan, that he did not want to see Sullivan get in trou-
ble, and, if Sullivan were willing to go down and talk to
the ISID agents and give them information concerning
the suspected sabotage at the plant and the damage to
the cars in the parking lot, discussed supra, Sullivan
could save his job. Sullivan further testified that a couple
of weeks later he was called down to the ISID office;
agents Fischer and Collins advised him that he was ac-
cused of having engaged in an unauthorized solicitation
of funds for Gregoire and Londraville, and that they
would appreciate it if he would cooperate and give the
agents information about the suspected sabotage; they
then proceeded to interview Sullivan during which time
Sullivan admitted the solicitation" but denied any
knowledge of the sabotage.
Marcotte testified that Sullivan had approached him' 2
to ask if Marcotte could help him because he., Sullivan,
was in trouble regarding an unauthorized solicitation.
Marcotte volunteered to try, and he then approached the
ISID agents who confirmed the fact that Sullivan was
under investigation for the solicitation. When Marcotte
asked the agents "What do you want out of this guy,"
the agents told Marcotte that they wanted the truth
about the solicitation and the suspected sabotage, but
that they could make no deal. It was then, according to
Marcotte's testimony, that he, Marcotte, approached Sui-
livan and told Sullivan what the agents knew about the
solicitation and what thev wanted to know about the
sabotage According to \larc-:: . no "deal" was offered.
Although the parties to this dispute appear to place a
heavy emphasis on the o-aestion of whether a "deal" was
in fact offered to Sullivan, I do not find that to be of any
great import. What I do find Important is whether the
Respondent by interrogating Sullivan regarding both the
solicitation and the sabotage was in some way interfering
with Sullivan's Section 7 rights. If the purpose of the Re-
spondent's que'stioning was to inquire into the union ac-
tivity or protected concerted activity of Sullivan's ac-
tions, it might very well have exceeded the bounds of
proper interrogation and been violative of the Act. But, I
do not find that such was :he case here. AA stated previ-
ously, an employer has the right to establish legitimate
rules to govern the conduct of its employees and to in-
vestigate violations of those rules. In the instant case, the
Respondent became aware of an unauthorized solicita-
tion engaged in by Sullivan and certainly had the ;ight
to investigate it. At the same time, the Respon.dent was
anxious to unearth whatever informa.fln it could gather
regarding the suspected sabotage at the plant, certainly
ilot a protected concerted activity, and certainly not a
protected union activity. Under the circumstances, the
Respondent sought to interrogate many employees re-
garc ng the sabotage, including Sullivan. Whether it
"' Jo disciplinary action was taken against Sullivan as a result of his
allegec unauthorized solicilation.
': Sullihan and Marcotte worked very closely for about 5 or 6 years.
1442
UNITED TECHNOLOGIES CORPORATION
it.37 When they returned to the office, Carney still re-
fused to sign the statement for the reason that her father
told her not "to sign anything I didn't know all about
it." Said refusal ended the interview and Carney re-
turned to work. No further discipline was meted out to
her.
In N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975),
the Supreme Court upheld the Board's determination
that Section 7 of the Act gives an employee the right to
insist on the presence of his union representative at an in-
terview which he reasonably believes will result in disci-
plinary action. And, in Climax Molybdenum Company, a
Division of Amax, Inc., 227 NLRB 1189 (1977), the Board
states that the employee's right to representation at such
an interview includes the right of the employee to confer
with the union representative before the interview. The
General Counsel and the Union contend, therefore, that
when the Respondent placed restrictions on the union
steward's presence, this constituted a violation of the em-
pioyee's Section 7 rights. I agree. Despite the Respond-
ent's protestations that a union steward was provided to
both Savicli and Carney, and that Carney was permitted
to convers- with Coach during her last interview, it ap-
pears quite cL;Air that the Respondent's resort to the ob-
structionist tactics at the very inception of the interviews
was calculated to prevent the union steward from offer-
ing any assistance whatsoever to the employee. It cer-
tainly did not satisfy the Supreme Court's hope that
when an employee is confronted by an employer con-
ducting an investigatory interview which may result in
disciplinary action, he should be permitted the assistance
of a union representiltive so that all the salient facts sur-
rounding the incidei.t which occasioned the interview
could be brought to the set-face. The mere presence of a
union steward does not aid sufficiently to elicit all of the
required information. I am firmly convinced that the Re-
spondent's effort to preclude bcth an advanced discus-
sion and an intermittent discussion during the interview
between the employee and a union s'teward is an attempt
to thwart one of the purposes apprtved in Weingarten.
As stated in Climax Molybdenum Comi7ny, supra, "The
right to representation clearly embraces the right to prior
consultation." The mere fact, as the Respondent points
out, that Carney was permitted to confer with Coach
toward the end of the interview does not detract from
the issue. That conference, outside the open door of the
ISID office, was urged on Carney and Coach by the
ISID agents for the purpose of getting Carr,ey to sign
the statement. And, to prove the value of such discussion
as hoped for in Weingarten, Carney's subseque nt response
to the agents was acceptable, albeit she did net sign the
statement. AMcordirgiy, I find that the Respolident's
statements to the union steward, that he was merely) an
observer and could not participate in the interview.
which the employees reasonably believed might result,
" The General Counsel tned to show that the Respondent's agents
were engaged in surveillance of the conversation by demonstrati t how
close they were to Carney and Coach and that they kept the dox) open
and constantly walked past them. No surveillance is alleged in the com-
plaint, and I do not find it necessary to draw any conclusions regarding
that phase of the incident.
and in fact did result, in disciplinary action, violated Sec-
tion 8(a)(l) of the Act.
3. The Respondent, by its ISID agents, interrogated
employees in violation of their Section 7 rights.
(Par. 8(g) of the complaint.)
The crux of this allegation lies in the investigatory in-
terviews of employees conducted by the Respondent to
determine whether Richard Durkin, an employee, had
been soliciting union membership on working time in
working areas, and, whether he was using his position as
leadman 3" to discriminate against employees who did not
join the Union. The investigation was conducted by
ISID agents Fischer and Collins, either singly or togeth-
er, and they interviewed numerous employees in Dur-
kin's department, generally female. According to
Fischer's testimony, he would identify himself to the em-
ployee, tell the employee the purpose of the interview
(as stated above), then ask the employee if he or she had
any knowledge of the matters being investigated, and if
the employee admits to having been solicited by Durkin,
where and when did the solicitation take place, and did
the employee join the Union. The interview then was re-
duced to writing and offered for signature to the em-
ployee. Fischer further testified that the Durkin investi-
gation came about because part of Fischer's responsibili-
ty as a corporate investigator was to investigate viola-
tions of company rules, as they came to his attention.
The General Counsel contends that these interroga-
tions were inherently coercive in that they were con-
ducted in an atmosphere of union animus and demon-
strated disparate enforcement of the Company's no-solici-
tation rule against union activity. Its witnesses were
Pushplata Heda, Sheila Rossi, and Geraldine Anderson.
Heda testified that Fischer assured her at the outset of
the interview that as long as she answered truthfully no
disciplinary action would be taken against her. Fischer
also told her that he was interested in knowing whether
Durkin ever asked her to join the Union and whether
she felt that Durkin was giving preferential treatment to
union members over nonunion employees. When Heda
responded to Fischer that Durkin had asked her on sev-
eral occasions, both on working time and after work to
join the Union, Fischer then asked her if she did join.
Her response to Durkin was always "No," and that is
what she told Fischer. She also testified that she felt
Durkin favored union member employees over others.
She was then asked to sign a statement to that effect, and
she did. Rossi testified that Fischer told her that he was
investigating the damaged car in the parting lot,39 and
that he was also investigating Durkin."4 And so, accord-
"3 The parties stipulated that Durkin was not a supervisor, and that he
was a member of the bargaining unit
a9 Rossi's response to this was that she knew nothing about that inci-
dent
'o On direct examination the General Counsel refreshed the witness'
recollection of what she testified to at Durkin's arbitration, and that was
'hat Fischer had told her that he was investigating the Union and that
D) irkin was involved Yet on cross-examination, in response to the ques-
tion, "He never told you, did he, that they were investigating the union."
Rossi said, "They told me that they were investigating Dick Durkin." In-
Continued
1441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Rossi, Fischer wanted to know whether Durkin
solicited union membership on working time and did he
favor union members over nonunion employees. When
Fischer asked her about her union affiliation, Rossi told
him that she became a union member 2 weeks after she
started working at the plant in 1978, and that Durkin
was the one who signed her up. Rossi also stated that,
when she came in for the interview, Fischer told her that
she had nothing to fear at all and that nothing was going
to happen to her; that all the ISID agent wanted was in-
formation. Anderson testified that she was interviewed
by Fischer and Collins; that at the commencement of the
interview they advised her that nothing would happen to
her as a result of the interview; that they wanted to
know if Durkin had asked her to join the Union and did
Durkin "treat the nonunion members [sic] better than he
did the union members"; and did she join. Her response
was that Durkin had asked her to join on the first day
she came to work in September 1976, but she did not
join; that she believed Durkin did discriminate against
nonunion employees; and that she signed a statement at
the conclusion of the interview.
There can be no question but that an employer has the
right to establish rules to govern the conduct of its em-
ployees on company time in a work area. Equally true is
the maxim that an employer has the right to investigate
to determine whether such rules have been violated by
employees. And, so long as the rule, whose breach is the
subject of the investigation, is a valid one, and the em-
ployees who are interviewed are advised at the outset of
the purpose of the interview, and assured of no reprisals,
then it cannot be said that such investigations are inher-
ently coercive. It is also an accepted fact that any action
engaged in by any employee on company time in a work
area which is detrimental to the efficient operation of the
plant is subject to investigation by an employer.
In the instant case, such an investigation was conduct-
ed, and the uncontroverted evidence revealed that all of
the safeguards listed above were complied with. Thus, I
do not find that the interviews were conducted in an at-
mosphere of union animus. Also, while the General
Counsel does not contend that the no-solicitation rule in
effect in 1979 was involved, his argument is that it was
discriminatorily applied; i.e., the investigation only
sought to inquire about union activity. Yet, no evidence
was offered by any of the three witnesses as to any other
type of solicitation engaged in by other employees in
violation of the rule. In these circumstances, I do not
find that Heda, Rossi, and Anderson were interrogated
ip i,'lation of their Section 7 rights, and I shall dismiss
that allegatio: of the complaint.
4. The Respondent, by its agent Ray Marcotte,
interrogated an employee and thereby interfered
with his Section 7 rights. (Par. 8(h) of the
complaint.)
Andrew Sullivan, an employee in department 331 at
the Hamilton-Standard plant, testified that on February
asmuch as neither Heda nor Anderson testified that the ISID age ItS
stated they were investigating the Union, I find that Fischer's inqui.res of
Rossi were limited to Durkin's suspected wrongdoings and , id not
extend to other union matters.
9, 1979, while at work, he was approached by Ray Mar-
cotte, a foreman and an admitted supervisor, and told
that an investigation was going on about an unauthorized
solicitation that Sullivan had engaged in on behalf of
Gregoire and Londraville. Marcotte said, according to
Sullivan, that he did not want to see Sullivan get in trou-
ble, and, if Sullivan were willing to go down and talk to
the ISID agents and give them information concerning
the suspected sabotage at the plant and the damage to
the cars in the parking lot, discussed supra, Sullivan
could save his job. Sullivan further testified that a couple
of weeks later he was called down to the ISID office;
agents Fischer and Collins advised him that he was ac-
cused of having engaged in an unauthorized solicitation
of funds for Gregoire and Londraville, and that they
would appreciate it if he would cooperate and give the
agents information about the suspected sabotage; they
then proceeded to interview Sullivan during which time
Sullivan admitted the solicitation4 but denied any
knowledge of the sabotage.
Marcotte testified that Sullivan had approached him42
to ask if Marcotte could help him because he, Sullivan,
was in trouble regarding an unauthorized solicitation.
Marcotte volunteered to try, and he then approached the
ISID agents who confirmed the fact that Sullivan was
under investigation for the solicitation. When Marcotte
asked the agents "What do you want out of this guy,"
the agents told Marcotte that they wanted the truth
about the solicitation and the suspected sabotage, but
that they could make no deal. It was then, according to
Marcotte's testimony, that he, Marcotte, approached Sul-
livan and told Sullivan what the agents knew about the
solicitation and what they wanted to know about the
sabotage. According to Marc':._, no "deal" was offered.
Although the parties to this dispute appear to place a
heavy emphasis on the question of whether a "deal" was
in fact offered to Sullivan, I do not find that to be of any
great import. What I do find important is whether the
Respondent by interrogating Sullivan regarding both the
solicitation and the sabotage was in some way interfering
with Sullivan's Section 7 rights. If the purpose of the Re-
spondent's que itioning was to inquire into the union ac-
tivity or protected concerte I activity of Sullivan's ac-
tions, it might very well have exceeded the bounds of
proper interrogation and been violative of the Act. But, I
do not find that such was he case here. As stated previ-
ously, an employer has tht right to establish legitimate
rules to govern the conduct of its employees and to in-
vestigate violations of those ru'es. In the instant case, the
Respondent became aware of an unauthorized solicita-
tion engaged in by Sullivan and certainly had the .ig'"l,
to investigate it. At the same time, the Resporident was
anxio'Ls to unearth whatever informa!!.3. it could gather
regarding the suspected sabotage at the plant, certainly
',ot a protected concerted activity, and certainly not a
protected union activity. Under the cir, umstances, the
Respondent sought to interrogate many employees re-
gar(' ng the sabotage, including Sullivan. Whether it
N Jo disciplinary action was taken against Sullivan as a result of his
alleged unauthorized solicitation
"4 Sullivan and Marcotle w(orked \cry closely for about 5 or 6 years.
1442
UNITED TECHNOLOGIES CORPORATION
chose to offer Sullivan a "deal" is not an action in viola-
tion of the Act, for its purpose was not to, in any way,
inquire into union activities, but rather to enable it to
bring to justice the culprits who had engaged in a crimi-
nal activity, whether they were union adherents or not. I
do not find such interrogations violative of the Act, and
I, therefore, shall dismiss this allegation.
5. The Respondent, by its agent, Larry Brown,
interrogated employees about their protected
concerted activities. (Par. 8(c) of the complaint.)
Doreen Martin and William Boccalatte, employees in
department 420 at the Pratt-Whitney plant, testified that
they were called down to the ISID office, separately,
and questioned by an agent. 43 Both stated that they were
asked questions about a female employee; 44 that the agent
wanted to know if they were solicited for union member-
ship by steward Hipkins, a shop steward, during working
hours; and did they belong to the Union. Both testified
that Hipkins did not solicit them during working hours.
Martin said she was a union member, but Boccalatte said
he was not. Martin was not given a statement to sign,
but Boccalatte was, and he signed it. This is the extent of
the testimony of these two witnesses. Neither Brown nor
any other agent was called by the Respondent to rebut
their testimony.
Normally, this reviewer of facts, when faced with un-
controverted evidence of interrogation of employees in-
volving their union predilections, comes to the conclu-
sion that such actions on the part of an employer consti-
tute interference with the Section 7 rights of employees
and are violative of Section 8(a)(1) of the Act. However,
in the instant case, while I am well aware of the unstable
labor relations that exist and have existed for many years
between the Union and the Respondent, I find it difficult
to resolve this particular issue in favor of the Union. In
my analysis I have taken into consideration several fac-
tors; namely, the immensity of the plant, the limitations
of this allegation, and the relationship of this allegation
to the other allegations in the complaint. First the Re-
spondent employs approximately 35,000 persons at the
Pratt-Whitney plant, and only 2 were called to testify re-
garding interrogation of their union preferences. In that
vein, I must state that I am in a quandary as to why
these two were selected to testify; in my observation of
the witnesses, I found one to be of a limited capacity to
understand fully the implications of the questioning, and
the other to have a speech impediment which quite natu-
rally would not allow him to be a force majeure on the
o'de of the UniGli. Secondly, while the allegation claims
t, cover "several occasions in January and February,
[$979," actually only two incideits are offered in evi-
dence, each lasting about 20 minutes, with no repercus-
sions occurring. And, thirdly, whereas all of the other al-
legations in paragraph 8 of the compiLint, except for
those relating to the distribution of union literature, refer
to incidents allegedly occurring at Hamilton-Standard,
i Boccalatte recalls the agent to be L.arry Brown. but Martin does not
remember the agent's name.
" This line of questioning was not pursued by the General Counsel.
and is wholly unrelated to any other testimony, and so I draw no conclu-
sions from it at all.
this and this alone refers to the Pratt-Whitney plant.
Therefore, in all of the circumstances surrounding this
allegation, I find that these two incidents are so isolated
in nature as to be insufficient to warrant the finding of a
violation of the Act. I shall, therefore, dismiss this allega-
tion of the complaint.
CONCLUSIONS OF LAW
I. The Respondent is, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Lodge 1746, International Association of Machinists
and Aerospace Workers, AFL-CIO, and District 91, In-
ternational Association of Machinists & Aerospace
Workers, AFL-CIO, are, and have been at all times ma-
terial herein, labor organizations within the meaning of
Section 2(5) of the Act.
3. By maintaining and enforcing an invalid no-distribu-
tion rule, Respondent violated Section 8(a)(l) of the Act.
4. By threatening to discharge employees for distribut-
ing union literature and by ordering employees to cease
distributing union literature, while attempting to enforce
an invalid no-distribution rule, the Respondent violated
Section 8(a)(l) of the Act.
5. By denying employees the assistance of union repre-
sentatives as they were interrogated in the Respondent's
internal security office, the Respondent violated Section
8(a)(1) of the Act.
6. By issuing disciplinary warnings to employees for
distributing union literature, while attempting to enforce
an invalid no-distribution rule, the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
7. By suspending employees for 3 days for distributing
union literature, while attempting to enforce an invalid
no-distribution rule, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
8. By suspending employees for refusing to answer
questions when they were interrogated in the Respond-
ent's internal security office after they were denied the
assistance of union representatives, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. The Respondent has not engaged in other unfair
labor practices as discussed above.
R MF.MEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having discriminatorily suspended the
employees named in the attached notice marked "Appen-
dix," I find it necessary to order it to make them whole
for any loss of pay sustained by reason of the discrimina-
tion against them computed as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), plus interest as set
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
Also in view of the numerous violations found herein,
and the prior history of unfair labor practices found to
have been committed by the Respondent herein, I find a
broad order warranted and I shall so recommend.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 45
The Respondent, United Technologies Corporation,
East Hartford and Windsor Locks, Connecticut, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining and enforcing an invalid no-distribu-
tion rule.
(b) Threatening employees with discharge for engag-
ing in union activities.
(c) Ordering employees to cease engaging in activities
on behalf of the Union.
(d) Issuing disciplinary warnings and/or suspending
employees for engaging in activities on behalf of the
Union.
(e) Denying employees the assistance of union repre-
sentatives when they are being interrogated by the Re-
spondent's agents.
(f) Suspending employees for refusing to answer ques-
tions during interrogations after they have been denied
the assistance of union representation.
(g) Discouraging membership in the above-named
labor organizations, or any other labor organization, by
suspending or otherwise discriminating against employ-
ees because they engage in union activities.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
" In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole all of the employees named in the at-
tached notice marked "Appendix" for any loss of pay
sustained by reason of the discrimination against them, in
the manner set forth in the section of this Decision enti-
tled "Remedy."
(b) Remove from the personnel records of all the em-
ployees named in the attached notice marked "Appen-
dix," all references contained therein, in the form of dis-
ciplinary warnings or notices of suspension, which issued
against said employees, that pertained to the incidents
found herein to be violative of the Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its East Hartford and Windsor Locks, Con-
necticut, places of business copies of the attached notice
marked "Appendix." 46 Copies of said notice, on forms
provided by the Regional Director for Region 1, after
being duly signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint
in this matter be, and it hereby is, dismissed as to any al-
leged violations of the Act not found hereinabove in this
Decision.
*6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1444