United Technologies Corp.

National Labor Relations Board - Board Decisions

May 20, 1994

313 N.L.R.B. 1303 (N.L.R.B. 1994)

1303
313 NLRB No. 234
UNITED TECHNOLOGIES CORP.
Hamilton Standard Division of United Technologies
Corporation and Local Lodge #743, District
#91, International Association of Machinists
and Aerospace Workers, AFL–CIO. Case 34–
CA–5567
May 25, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
Upon a charge filed by Local Lodge #743, District
#91, the General Counsel of the National Labor Rela-
tions Board issued a complaint and notice of hearing
dated May 29, 1992. The complaint alleges that the
Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the National Labor
Relations Act by threatening its employees with loss of
employment because the Union filed an unfair labor
practice charge and opposed the Employer’s establish-
ment of work teams. On July 10, 1992, the Respondent
filed an answer to the complaint denying that it vio-
lated the Act and affirmatively pleading that it had en-
gaged in protected free speech under Section 8(c) of
the Act.
On October 8, 1992, the parties jointly filed a mo-
tion to transfer the proceeding directly to the Board
and a stipulation of facts. The parties waived a hearing
before an administrative law judge, the making of find-
ings of fact and conclusions of law by an administra-
tive law judge, and the issuance of an administrative
law judge’s decision. The parties agreed that the
charge, complaint, the Respondent’s answer, and the
stipulation of facts with exhibits attached constitute the
entire record in this case and that no oral testimony is
necessary or desired by any of the parties. The parties
submitted this case for findings of fact, conclusions of
law, and order directly to the Board.
On March 11, 1993, the Board issued its Order ap-
proving the stipulation and transferring the proceeding
to the Board. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed briefs in sup-
port of their respective positions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the stipulation, the briefs,
and the entire record in this proceeding and makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an unincorporated division of a
Delaware corporation with an office and place of busi-
ness in Windsor Locks, Connecticut, and is engaged in
the manufacture and nonretail sale and distribution of
space suits, jet fuel controls, propellers, various elec-
tronic equipment for use in commercial and military
aircraft, and related products. During the 12-month pe-
riod ending April 30, 1992, the Respondent, in the
course of its business operations, purchased and re-
ceived goods valued in excess of $50,000 directly from
points outside the State of Connecticut. The parties
stipulated, and we find, that the Respondent is now,
and at all times material has been, an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The parties stipulated, and we find, that the Union
is now, and at all times material has been, a labor or-
ganization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Since about December 31, 1968, the Union, by vir-
tue of Section 9(a), has been the exclusive representa-
tive of the Employer’s employees for collective-bar-
gaining purposes in the following appropriate unit:
All production and maintenance employees of
UTC, Hamilton Standard Division at its
Schoenposter Road and Hamilton Road, Windsor
Locks, Connecticut plants; 17 Bradley Park Road,
East Granby, Connecticut plant; 5 Firestone
Drive, Suffield, Connecticut plant; 1101 Kennedy
Road, Windsor, Connecticut plant; and 97
Newberry Road, East Windsor, Connecticut plant,
including trainees, working leaders, and all hour-
ly-rated technicians in the chemical, rubber, met-
allurgical, vibration, and electronics laboratories;
but excluding apprentices, executives, professional
employees, salaried technicians in the Engineering
Department, foremen’s clerks who have access to
confidential information, draftsmen, plant protec-
tion employees, Medical Department employees,
salaried timekeepers, salaried office and salaried
factory clerical employees, outside servicemen,
truck drivers, watch engineers, group supervisors
and all other supervisors as defined in the Act
employed at the above Connecticut plants.
The parties have executed a series of collective-bar-
gaining agreements, one of which was effective from
May 1, 1989, to May 3, 1992. The most recent agree-
ment became effective on May 4, 1992, and expires on
April 30, 1995.
On July 31, 1990, a complaint issued based on the
first of several union charges concerning the Respond-
ent’s establishment and use of ‘‘Continuous Improve-
ment Teams’’ (CITs). Thereafter, a settlement agree-
ment was entered into by the Respondent and the Re-
gion, over the objection of the Charging Party, resolv-
ing these complaint allegations associated with the
CITs, and was approved by the Regional Director on
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
November 30, 1990. On February 19, 1991, the Gen-
eral Counsel denied the Union’s appeal of the Regional
Director’s approval of the settlement agreement. After
the settlement agreement was entered into, the Union
filed other unfair labor practice charges related to simi-
lar issues, including a charge on January 10, 1992, al-
leging that the Respondent had violated Section
8(a)(1), (2), and (5) of the Act by dealing directly with
unit employees concerning terms and conditions of
employment, unilaterally establishing employee teams,
and forming a labor organization among its employees.
The General Counsel ultimately did not issue a com-
plaint in that case.
On January 20, 1992, while the latter unfair labor
practice charge discussed above was pending, the Re-
spondent distributed an internal correspondence memo-
randum to its employees, including unit employees.
During the almost 2-year period in 1990 through 1992
in which the parties were in disagreement regarding
the Respondent’s work team approach, both parties
communicated with bargaining unit employees through
a series of written communications. The Union distrib-
uted 14 flyers at the Respondent’s plants that were
submitted into evidence. Similarly, the Respondent
communicated with its employees through a series of
letters, memoranda, and bulletins, 10 of which were
submitted into evidence.
The Respondent’s January 20, 1992 memo was
signed by its president and was addressed to ‘‘Fellow
Hamilton Standard Employee(s).’’ It stated as follows:
The International Association of Machinists and
Aerospace Workers has filed an unfair labor prac-
tices charge against Hamilton Standard with the
National Labor Relations Board. The charge ac-
cuses the company of unlawful use of work teams
as an alternative to the union.
Many employees have expressed concern about
the future of continuous improvement and team
work at Hamilton Standard because of the union’s
stance. Many of you feel the latest charge is an
attempt to block your efforts to help improve our
business. If it is, I am confident the attempt will
not work.
We all know we must become more competi-
tive to succeed in today’s highly competitive
global markets. Our employees’ interest in this ac-
tion confirms that Hamilton Standard has no fu-
ture unless we make the fundamental process
changes required by our customers around the
world. They, along with our state and federal
elected representatives, have urged us to embrace
continuous improvement to ensure quality in our
products and services. In fact, an increasing num-
ber of business agreements with our major cus-
tomers require it.
We will go forward with continuous improve-
ment at Hamilton Standard. I have seen the suc-
cess of our core work teams and process improve-
ment teams, which are legal within the definition
of the National Labor Relations Act. I am person-
ally committed to establishing more teams, not to
violate the terms of our collective bargaining
agreement, but so that we can make Hamilton
Standard an investable, competitive force in the
global market and a secure place for all to work.
We will continue to promote values that em-
power people and encourage the success and sur-
vival of our company. But this charge could slow
our progress. It could delay needed improvements
and end up costing us business and jobs at one of
the most difficult times in our history. I assure
you that, while we will abide by the decision of
the Board on this issue, we will, with your help,
pursue our case and defend our right to improve
our business aggressively—for the good of us all.
B. Contentions of the Parties
The General Counsel and the Charging Party con-
tend that the January 20, 1992 memorandum of the
Respondent’s president, set forth above, interferes
with, restrains, and coerces employees in their exercise
of Section 7 rights in violation of Section 8(a)(1) of
the Act. They note that the memorandum specifically
addressed the filing of the unfair labor practice charge
and stated that the charge could slow the Respondent’s
progress, delay improvements, and cost jobs. They
maintain that, under Board law, the free speech rights
of an employer must be balanced against the employ-
ees’ Section 7 rights and that neither coercive state-
ments nor threats of reprisal are protected. In this con-
nection, they assert that the Board will find unlawful
statements if they imply that union action would put
employees out of work or tend to dissuade employees
from filing unfair labor practice charges. Applying
these principles, the General Counsel and the Charging
Party argue that the Respondent’s memorandum, by
predicting, without objective supporting evidence, that
the Union’s pursuit of its latest charge could result in
job loss—thus linking the Union’s pursuit of its unfair
labor practice charges to job security—crossed the line
from protected to unprotected speech. They further
contend that the natural consequence of the Respond-
ent’s prediction would be to dissuade employees from
filing unfair labor practice charges or from cooperating
in the Board’s investigation of charges.
The Respondent argues that the Board should look
at the memorandum as a whole and in context to deter-
mine if it contains any unlawful threat. It notes that it
is not unusual for both the Union and the Respondent
to communicate with unit employees through the dis-
tribution of written letters, memoranda, and the like.
1305UNITED TECHNOLOGIES CORP.
Further, the Respondent notes that the unfair labor
practice charge mentioned in the memorandum at issue
was ultimately determined to be meritless, a reference
to the Regional Director’s refusal to issue complaint
on the charge. Finally, the Respondent stresses that its
president took pains in the memorandum to assure em-
ployees that it would continue to act lawfully and
abide by any Board decision.
In light of all the above, the Respondent asserts that
its memorandum was not unlawful but was rather pro-
tected speech under the Act as an expression of its
views, containing no threat of reprisal. The Respondent
notes in this regard that the Union, in its flyers men-
tioned above, was consistently critical of the Respond-
ent’s work team programs, indicating that the employ-
ees’ participation in such programs might be damaging
to the Union’s ability to negotiate improved job secu-
rity for unit employees, and that the Union filed a se-
ries of unfair labor practice charges over the CITs and
related issues. The Respondent further asserts that its
memorandum made no connection between the mere
filing of charges and possible job losses, but instead
reflected its view that if the Union’s charge was suc-
cessful (that is, if the Board ordered the Respondent to
limit its programs), this could adversely affect busi-
ness. Thus, the Respondent argues that, at most, its
memorandum contained mere statements of opinion
concerning the possible effects of third party action,
rather than threats.
C. Discussion
The issue here is whether the Respondent’s January
20, 1992 memorandum distributed to its employees, in-
cluding unit employees, was unlawful because it
threatened employees with reprisals, specifically job
loss, based on the Union’s opposing the Respondent’s
institution of work teams and filing an unfair labor
practice charge concerning this issue. In agreement
with the Respondent’s position, we conclude that it is
not.
In determining the lawfulness of the Respondent’s
conduct, we look not only at the statements alleged to
be unlawful but at the Respondent’s memorandum as
a whole and in context as well. See, e.g., Mantrose-
Haeuser Co., 306 NLRB 377 (1992). We note in this
regard that there are no other unfair labor practices al-
leged and no unfair labor practices found against the
Respondent in this case. Thus, the Respondent’s com-
ments in the memorandum occurred in an atmosphere
free of threats, coercion, or other unlawful activity. We
also find it significant that, as the Respondent points
out, both it and the Union had a history of imparting
information to bargaining unit employees through writ-
ten communications, including their respective strongly
expressed positions concerning the hotly contested
issue of the Respondent’s institution of CITs and work
teams. In this regard, both the Union and the Respond-
ent have made clear their positions, over a long period,
in a series of communications to employees, with the
Respondent taking the position that CITs and work
teams are essential to its future viability while the
Union expressed the view that these approaches ad-
versely affected employees’ job security. Thus, the
statements made in the memorandum did not exist in
a vacuum but were consistent with the ongoing ‘‘war
of words’’ between the Respondent and the Union over
the work team issue.
Regarding the memorandum itself, we note that its
primary thrust is clearly to persuade its employees of
the importance of the use of continuous improvement
teams. In this regard, it is similar to the statement
found lawful by the Board in Crafts Precision Indus-
tries, 305 NLRB 894 (1991). In that case, the Board
considered an employer’s statement to a union rep-
resentative that if the union did not accept its bargain-
ing proposal the employer had other options available,
including eliminating a department. The Board found
the statement was not unlawful but simply an expres-
sion of the employer’s view that its position was es-
sential to increase management efficiency. Thus, the
Board concluded that such a statement, without more,
was insufficient to establish a threat in violation of
Section 8(a)(1).
Although the memorandum at issue does speak to
the Union’s charge, it does so in the context of de-
scribing the Union’s latest manifestation of its opposi-
tion to the Respondent’s work team approach. Thus,
the Respondent’s statements about the unfair labor
practice charge are not directed at the Union’s filing
of the charge and the utilization of the Board’s proc-
esses per se, but instead are directed at the charge only
as a potential impediment to its goal of maintaining its
work teams and CITs. In this regard, we note that the
memorandum refers to the possible consequences of
the charge, i.e., the charge could delay improvements
and could result in a loss of business and jobs. In our
view, these statements simply reflect the Respondent’s
position that: (1) its program is designed to bring about
improvements and to foster business and jobs; and (2)
the program would not be maintained if the charges
are not resolved in a manner favorable to the program.
The Respondent promised to defend its legal position
concerning the program and to abide by the Board’s
decision. Thus, the Respondent’s statements, far from
threatening retaliation for resort to the Board, actually
express a willingness to abide by Board processes and
to honor the Board’s decision.
Further, we find that the memorandum is devoid of
any threats, express or implied, directed against em-
ployees or the Union for filing the charge itself and
does not contain any language threatening that the Re-
spondent would retaliate because the charges were
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
filed. In this regard, we view Equitable Gas Co., 303
NLRB 925 (1991), enfd. in pertinent part 966 F.2d 861
(4th Cir. 1991), relied on by the General Counsel, to
be readily distinguishable. In that case, the employer
stated in a speech that it would fight back against the
union for filing so many charges and that unless man-
agement got a more cooperative approach from the
union it would eliminate jobs by automation, exercise
its contractual right to contract out unit work, insist on
the elimination of dues checkoff and union security in
future negotiations, and begin to communicate directly
with unit employees. The Board held these remarks
unlawful because they clearly drew a connection be-
tween the union’s efforts to represent employees vigor-
ously and the employer’s implementation of various
adverse actions. In contrast, here the Respondent’s
memorandum contained no threat that the Respondent
would take adverse action on its own against its em-
ployees or the Union connected with the Union’s filing
of the unfair labor practice charge.
The General Counsel further relies on Harrison
Steel Castings Co., 293 NLRB 1158 (1989). The
Board determined in that case that a statement in a
newsletter, circulated by the employer and suggesting
that if it became unionized it might become non-
competitive with a resulting loss of business and jobs,
had a tendency to coerce employees when viewed
against the background of its other unlawful conduct.
We point out, however, that the Board specifically
noted in that case that in another context devoid of
animus or other unlawful threats, it might well have
found a similar statement to be within an employer’s
rights. Id. at 1159. Therefore, Harrison Steel Castings,
supra, is distinguishable because there, unlike here, the
respondent’s other conduct provided a totally different
context in which to judge the statement at issue. In-
deed, that case actually provides support for our find-
ing here that, in the absence of other unlawful conduct,
the statements made by the Respondent in its memo-
randum are not unlawful.
Finally, in our view, this case is analogous to
Mantrose-Haeuser, supra at 378, in which the Board
found a solitary statement—that during bargaining
wages and benefits ‘‘typically’’ remain frozen—con-
tained in a 19-page document in a context free of other
unfair labor practices was not unlawful. The Board
there particularly noted that the word ‘‘typically’’ re-
duced the possibility that the statement would be per-
ceived by employees as a threat. We find the use in
the Respondent’s memorandum of the word ‘‘could’’
in the phrases ‘‘this charge could slow our progress’’
and ‘‘could delay needed improvements’’ would have
a similar effect on employee perception.
In light of all the above, and considering the particu-
lar facts and the entire context here, we conclude that
the Respondent’s memorandum was simply a legiti-
mate statement of the Respondent’s views, with no
threat or coercion, which is protected under Section
8(c) of the Act. See, e.g., Pincus Elevator & Electric
Co., 308 NLRB 684, 691 (1992). Accordingly, we
shall dismiss the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Hamilton Standard Division of
United Technologies Corporation, is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Lodge #743, District #91, International As-
sociation of Machinists and Aerospace Workers, AFL–
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent has not engaged in the unfair
labor practices alleged in the complaint.
ORDER
The complaint is dismissed.