The National Labor Relations Board petitions in Case No. 89-4003 for enforcement of its order finding respondent cross-petitioner, United Technologies Corporation, in violation of 29 U.S.C. § § 158(a)(1) and (a)(5) by excluding certain employees from bargaining unit. Respondent cross-petitions for review. Lodge 700, International Association of Machinists and Aerospace Workers, AFL-CIO, petitions for review in Case No. 89-4009 of the National Labor Relations Board's order that found United Technologies Corporation not to have violated 29 U.S.C. § § 158(a)(1) and (a)(5) when it unilaterally altered its system of progressive discipline. Enforcement is granted in Case No. 89-4003, the cross-petition is denied. The Board's decision in Case No. 89-4009 is affirmed, the petition for review is denied.
Kearse, Cardamone, and Pierce, Circuit Judges.
We have before us two cases, Case No. 89-4003 and Case No. 89-4009, from the National Labor Relations Board (NLRB or Board) that have been consolidated for purposes of appeal. We deal with each case separately.
In Case No. 89-4003, the Board petitions for enforcement of its order that found respondent United Technologies Corporation (employer or company) in violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA or Act), 29 U.S.C. §§ 158(a)(1) and 158(a)(5) (1982), for having failed to include production control coordinators in the certified and agreed upon bargaining unit. Respondent cross-petitions for review.
United Technologies manufactures aircraft engines and parts at North Haven, East Hartford, Middletown, and Southington, Connecticut. Each facility has its own collective bargaining agreement with the same bargaining unit that includes
[All] production and maintenance employees . . . including inspectors, crib attendants, material handlers, factory clerks and working leaders, but excluding . . . salaried office and clerical employees, . . . foremen, assistant foremen, group supervisors . . . and all other supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees. . . .
The Middletown bargaining unit includes "plant clerical employees" as well. Each collective bargaining agreement contains the following Management Functions Clause
It is recognized that in addition to other functions and responsibilities, the company has and will retain the sole right and responsibility to direct the operations of the company and in this connection to determine the number and location of its plants; the product to be manufactured; the types of work to be performed; the assignment of all work to employees or other persons; the schedules of production; shift schedules and hours of work; the methods, processes and means of manufacturing; and to select, hire, and demote employees, including the right to make and apply rules and regulations for production, discipline, efficiency, and safety.
Prior to the subject dispute, the company employed "expediters", union-covered employees, who were responsible for ensuring that certain parts critical in the manufacturing process were always available. This involved the expediters in moving around the plant, following parts to their necessary destination. They also kept an inventory of the parts for which they were responsible by counting them. Expediters' duties included investigating delays, allocating parts where needed and where shortages were likely to occur. In performing these tasks the expediters exercised their judgment. In addition to time on the floor, some time was spent behind a desk and at a computer terminal, compiling daily status reports of parts on the shortage list. They reported to plant foremen and were directed in their activities by "working leader" expediters. As of July, 1982 there were about 235 expediters spread in unequal numbers throughout the company's four facilities.
The employer also employed "production inventory clerks" (inventory clerks) who were salaried, non-union employees. Their function was to prepare reports, control records and chart the flow of parts on a large scale. Typically, inventory clerks worked at computer terminals tracking the allocation of parts within specific departments. There were 76 of them at the four facilities.
This system of production and inventory control was imperfect. For example, inventory-clerk-generated information was often a day old and unreliable. Needing up-to-the-minute rather than stale information, the company in 1982 set in motion a plan to change the system by creating "production control coordinators" (control coordinators) the characterization of whose duties is the sole subject of the dispute in 89-4003. Creation of the control coordinators effectively reduced and mostly eliminated the jobs of union expediters and non-union inventory clerks. According to the company, by late Fall 1983, 77 expediters and 58 inventory clerks had become control coordinators. The company admits that it is phasing out expediters and replacing them with the new positions that it considers salaried non-union employees. The employer's refusal to recognize the union as the control coordinators' bargaining representative is what precipitated the instant litigation.
A rough description of control coordinators' duties is that they are a modern amalgam of the inventory clerks and the expediters. Like expediters, control coordinators are primarily responsible for ensuring that critical parts are allocated correctly and efficiently. It is their duty to chart the progress of parts throughout the plants. This function is performed principally through the use of computers. Control coordinators only occasionally walk the floors of the plant actually following parts, as the expediters did. They still continue the basic task of physically counting parts that was previously performed by the expediters.
Ultimately, grievances were filed by the union. The Board's final decision -- issued after its initial petition for enforcement was withdrawn from this Court without prejudice -- held that the company's exclusion of the control coordinators from the covered bargaining unit violated §§ 8(a)(1) and 8(a)(5) of the Act and ordered that they be included in that unit. In so holding, the Board rejected the Administrative Law Judge's (ALJ) analysis -- though not necessarily his conclusions as a whole -- that the company's decision to implement its new production control system was not a mandatory subject of bargaining and that the company would have to ...