Operations In Fiscal Year 1988 - National Labor Relations Board

82 Fifty-Third Annual Report of the National Labor Relations BoardIn United Technologies Corp., 64 the panel majority, reversingthe administrative law judge, held that the employer did not violateSection 8(a)(5) when it unilaterally altered its system of progressivediscipline for absenteeism.The employer had a practice of using progressive discipline todeal with employees who had attendance problems. Under thispractice, an employee would receive an oral warning, a writtenwarning, and a 3-day disciplinary suspension prior to being discharged.A long-term employee might receive an additional 5-day suspension before being discharged.In June 1983, however, the employer posted a notice statingthat it was changing its system of progressive discipline in casesof poor attendance by omitting suspensions from the disciplinarysteps. The notice explained that imposition of additional time offin the form of a suspension was counterproductive as disciplinefor poor attendance. After the notice was posted, the union sentthe employer a letter contending that the progressive disciplineprocedure was a mandatory subject of bargaining and requestingthat the employer negotiate. The employer denied the request,relying on the management functions clause of the contract.The majority agreed with the employer that the managementfunctions clause plainly waived the union's right to bargain overthis change. The clause granted the employer the "sole right andresponsibility. . . to select, hire, and demote employees, includingthe right to make and apply rules and regulations for production,discipline, efficiency, and safety" (emphasis added). The majorityreasoned that the characterization of the employer's actionas changing a rule, rather than as making a rule, was merely asemantical difference and did not take the employer's action outsidethe scope of the management functions clause.The majority also noted that there was no bargaining historyindicating that the contract language in issue was intended tomean something other than that which it plainly stated. Five or 6years earlier the employer had attempted to change unilaterallycertain other rules but ultimately agreed to bargain over thechanges as part of a settlement of unfair labor practice charges.The majority found that the employer's failure to insist on exercisingits right to make the changes unilaterally on that one occasiondid not nullify the union's express contractual waiver of itsright to bargain over the making of rules for discipline.Member Johansen, dissenting, found that the managementfunctions clause did not constitute a waiver of the union's rightto bargain over a change in disciplinary rules in view of the employer'sprior unsuccessful attempt to assert that interpretation ofthis provision. In Member Johansen's view, the employer's previousagreement to bargain when the union had challenged the employer'sattempt to make a unilateral rule change led the union"287 NLRB No. 16 (Chairman Dotson and Member Stephens Member Johansen dissenting).