General Electric Co.

National Labor Relations Board - Board Decisions

Oct 10, 1968

173 N.L.R.B. 164 (N.L.R.B. 1968)

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Electric Company and International Union of
Electrical Radio and Machine Workers, AFL-CIO,
and Local 182 , International Union of Electrical,
Radio and Machine Workers , AFL-CIO. Cases
11-CA-3133 and 11-CA-3272
October 10, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 20, 1968, Trial Examiner Melvin Pollack
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint and recommended dismissal as to
them. Thereafter, General Counsel, Charging Party,
and Respondent filed exceptions to the Trial Exam-
iner's Decision together with supporting briefs, the
Charging Party also filed a brief in answer to
Respondent's exceptions, and Respondent filed a
reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein:
1. For the reasons fully set forth in his Decision,
we agree with the Trial Examiner that Respondent
violated Section 8(a)(5) and (1) by refusing the
Union's request to allow a union timestudy engineer
to examine company timestudy data relating to
production standards concerning which grievances
had been filed under the applicable collective-
bargaining agreement; and by failing or refusing to
I Fafnir Bearing Company, 146 NLRB 1582 , enfd . 362 F.2d 716
(C.A. 2).
2 Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, 1412.
See also The Timken Roller Bearing Co ., 138 NLRB 15 , enfd . 325 F.2d
746 (C.A. 6).
3 As we noted in The Fafnir Bearing Company case, supra , at 1587,
an independent time study might well lead to the Union 's refusal to
173 NLRB No. 22
furnish the Union with information concerning Re-
spondent's wage surveys.
2. We do not agree with the Trial Examiner's
finding that Respondent did not violate Section
8(a)(5) and (1) by refusing the Union's requests to
allow a union timestudy engineer to enter Re-
spondent's Hickory plant to conduct independent
timestudies on jobs involved in the above-mentioned
grievances.
We find, as did the Trial Examiner, that the time
study information sought by the Union was relevant
and necessary for intelligent processing of grievances,
and that the Union had a statutory right of access to
Respondent's plant for such purpose.' We do not,
however, adopt the Trial Examiner's further finding
that the Union waived such statutory right by signing
a collective-bargaining contract which retained article
XIII 2(b)(2) of the Parties' National Agreement.
As we have previously stated:
Although a statutory right ... may be waived by
collective bargaining , a waiver, if it is to be found,.
must be clearly and unmistakably established and
is not lightly to be inferred.'
Article XIII 2(b)(2) of the contract concerns the
second step of the grievance procedure and states as
follows:
Meetings between representatives of the Local
and local management shall be arranged at mutual-
ly agreeable times for the purpose of discussing
such grievance. In those cases where it is mutually
agreed by Management and Local representatives
that an inspection of the job would be helpful in
settling the case, a sub-committee of the Local
with Management representatives shall be allowed
to make an inspection of the job. Local representa-
tives may include the Business Agent or his
Assistant or officers of the Local.
This second step joint inspection of the job is for the
stated purpose of helping to settle the grievance. This
bilateral procedure for settling a grievance is quite
different from the Union's need for information so
that it might itself evaluate the grievance and de-
termine upon future action.'
Accordingly, we do not find that the express
language of article XIII 2(b)(2) standing alone consti-
tutes the clear and unmistakable waiver by the Union
of its statutory right to access to information neces-
sary to assess the validity of a grievance. Neither
apparently did the Trial Examiner, for before finding
waiver, he found it necessary to consider the bargain-
ing history of the 1966 negotiations between the
process a grievance, or to an amicable agreement at an early stage of the
grievance procedure.
See also N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 437, where
the Court noted the distinction between the union's statutory right to
information relevant to a grievance, and the merits of the union's
grievance under the contract.
GENERAL ELECTRIC COMPANY 165
parties. We do not find that this bargaining history,
either standing alone, or taken in conjunction with
article XIII 2(b)(2), supports a finding of waiver.
As the Trial Examiner found, during the 1966
negotiations the Union unsuccessfully proposed a
revision to this article, specifically permitting the
Union to bring in industrial engineers and specialists
to assist it in studying or inspecting the job or work
involved in a grievance. However, the Union con-
tinuously and consistently asserted its statutory right
to make its own timestudies prior to the 1966
negotiations, during the negotiations, and subsequent
to the negotiations. At no time during the negotia-
tions did the Union indicate to Respondent that it
was conceding on this point. The question of union
timestudies was discussed generally at the September
21, 1966, meeting of the National Negotiating Com-
mittee, which committee alone had the power to
commit the parties. At that meeting Irving Abramson,
the Union's chief counsel, contested Respondent's
contention that the Union did not have the right to
make timestudies, citing the Fafnir Bearing case4 as
controlling on the issue.'
As we said in Cloverleaf Division of Adams Dairy
Co., supra, 1413, "The fact that the Union attempted
unsuccessfully to include in its contracts a statement
of its statutory right ... is not evidence that the
Union waived its statutory right ...."6 Further
evidence of the Union's firm intent not to waive its
statutory right is the fact that on September 20,
1966, the day before the above meeting, the Union
signed the initial unfair labor practice charge in this
case, and filed the charge with the Board on Septem-
ber 22, 1966, the day after the meeting. This
contemporaneous filing of the charge is at variance
with any waiver intent.?
Accordingly, we find that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
permit the Union to make independent time studies
of disputed operations at Respondent's Hickory
plant.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that Respondent General
Electric Company, Hickory, North Carolina, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Delete paragraph 1(a) and substitute the follow-
ing:
(a) "Refusing to bargain collectively with Inter-
national Union of Electrical, Radio and Machine
Workers, AFL-CIO, and its Local 182, as the
statutory bargaining representative of the production
and maintenance employees at the Company plant at
Hickory, North Carolina, by refusing to permit the
Union, through its own experts, to examine the
Company's time study materials pertaining to jobs
involved in grievances arising under the parties'
collective-bargaining agreement, by refusing to permit
the Union to perform independent timestudies
through its own experts on jobs involved in grievances
arising under the parties' collective-bargaining agree-
ment, and by refusing to furnish the Union with
information concerning the Company's area wage
surveys to enable the Union to process intelligently
grievances over the Company's hourly rates of pay."
2. Delete paragraph 2(a) and substitute the follow-
ing:
(a) "Upon request, permit the Union, through its
own experts, to examine the Company's timestudy
materials and to perform independent timestudies
pertaining to jobs involved in grievances arising under
the parties' collective-bargaining agreement."
3. Substitute the following for the first indented
paragraph of the Appendix attached to the Trial
Examiner's Decision:
WE WILL NOT refuse to bargain collectively with
International Union of Electrical, Radio and
Machine Workers, AFL-CIO, and its Local 182,
by refusing to permit the Union, through its own
experts, to examine the Company's time-study
materials and to perform independent time studies
pertaining to jobs involved in grievances arising
under our collective-bargaining agreement, and by
refusing to furnish the Union with information
concerning our area wage surveys to enable the
Union to process intelligently grievances over
hourly rates of pay.
4. Delete the last paragraph of the Recommended
Order.
4 Fafnir Bearing Co., supra.
5Willis Robinson, president of the Hickory Local, and Leo Jandreau,
a union member of the National Negotiating Committee , both testified
that Abramson , in referring to this case , said that the Union did not
need a contract provision to conduct its own time studies, that it had
the statutory right to do so, and that it intended to exercise that right.
Elmer J . Ritter, the Company's manager of Union Contract Administra-
tion, who was also present at the meeting , testified that he did not
remember any such statement , but he did not deny that it was made.
The Company 's notes of the meeting , cited by the Trial Examiner, were
admittedly only selective notes , and Ritter admitted that the notes did
not represent everything said by Abramson at the meeting The Trial
Examiner, in admitting the notes , stated that . " I am not receiving them
for the [ sic] completeness and accuracy, I am receiving them for the
limited purpose of evaluating the credibility of the witness ' testimony."
6 See also The Timken Roller Bearing Company, supra, 16
7 See C & C Plywood Corporation, 148 NLRB 414, 417, reversed
351 F.2d 224 , reversed and enfd, 385 U.S 421
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner This proceeding was
heard in Hickory, North Carolina, on November 14 to 17, 1967,
pursuant to a consolidated complaint issued on July 18, 1967,
upon charges filed on September 22, 1966, and March 20, 1967,
by the International Union of Electrical, Radio and Machine
Workers, AFL-CIO, herein called the Union The complaint
alleges in substance that Respondent General Electric Com-
pany, herein called the Company, violated Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended, by
withholding from the Union time study and wage information
necessary for the intelligent processing of grievances filed in
behalf of employees represented by the Union at the Com-
pany's plant in Hickory, North Carolina After the hearing, all
parties filed briefs, which I have carefully considered
Upon the entire record in the case,' and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company manufactures distribution transformers at its
plant in Hickory, North Carolina. The Company' s annual
interstate purchases and sales at the Hickory plant each exceed
$100,000. I find that the Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Machine
Workers , AFL-CIO, and its Local 182, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Dispute Over Timestudies
1 The grievances
employees for failing to meet production standards, filed
under National Agreements for 1963-66 and 1966-69 2
The National Agreements establish a 3-step grievance
procedure. The grievance is first considered by the shop
steward and the foreman of the department involved, next by
local management and local union officials, and finally by
Company officials and National officers of the Union Some
unresolved grievances, such as those challenging disciplinary
action against employees, are subject to compulsory arbitra-
tion, other grievances, such as those over the setting of
production standards, are subject to voluntary arbitration. The
grievances described below were processed to the second or
third step of the grievance procedure.
On February 12, 1966, the Union filed Grievance 66.11,
alleging that time standards for a "Globe" winding machine
were being improperly used for a "Sidney" winding machine
and requesting that studies be made "on both these machines
so time standard may be applied fairly." Foreman Rummage
informally told Steward Wrightsell that day that he would not
hold a winder to 100 percent efficiency on the Sidney machine
and, on February 22, formally advised Wrightsell, "We will
investigate the basic work place differences and their impact
on the time standards " About April 24, President Willis
Robinson of Local 182 discussed Grievance 66.11 with Donald
Doulong, Manager of Employee and Community Relations at
the Hickory plant Robinson suggested that the Union "should
be allowed to have a time study engineer to come into the
plant to make his own time studies." Doulong replied that the
Company was under no obligation to do that but added that
the Company had "always been willing to allow you to come
in, or any of the stewards, to examine our data." Robinson
replied that would be "useless to do, because we are not
familiar with the MTS.i3 On April 25, Robinson requested in
writing that a Union timestudy engineer be permitted into the
Hickory plant "to make time studies of coil winding" so that
the Union could "intelligently process" Grievance 66 11
Doulong replied that same day, turning down the Union's
request because he considered that "setting standards on jobs
is a responsibility of management" and because "your request
seeks to extend the terms of the GE-IUE National Agreement
during the life of the contract " A Company third step answer
dated October 20, 1966, stated, "It is the Company position
that in the instant grievance there is no violation of the
National Agreement." It does not appear that subsequent to
the filing of Grievance 66.11 any employee was reprimanded
or disciplined for failing to meet a standard on the Sidney
machine.
Grievance 66 42, filed on May 12, 1966, complained that
the Union could not properly represent its members "without
being present when time studies are being made" and
requested the Company to "permit Union representatives to
participate when making all time standards." Foreman Rum-
mage told Steward Wnghtsell it would be "unreasonable" for
him to be present at the setting of a standard which sometimes
The Company and the Union are parties to a National
Agreement which is applicable to approximately 750 hourly
rated production and maintenance employees at the Hickory
plant. Many of these hourly rated employees, including coil
winders, are subject to production standards established by
time studies made pursuant to a Company system known as
Motion Time Survey (MTS). The MTS system differs from stop
watch time studies in that it involves the use of predetermined
time values for body motions and movements. This proceeding
is principally concerned with grievances over production
standards, and disciplinary notices issued to coil winding
1 The General Counsel 's unopposed motion to correct the transcript
is granted
2 The Union filed grievances with respect to production standards as
early as January 1962 , a few months after the Board certified it as the
collective-bargaining agent of the Hickory production and maintenance
employees . It also filed such grievances subsequent to the grievances at
issue in this case.
3 Sometime in 1963, Robinson and a steward were shown timestudy
data relevant to a grievance that was being processed . Robinson could
not "make heads or tails out of the study"and asked permission to bring
in an "expert " The Company refused permission Robinson testified
that in 1965, he asked Doulong 's predecessor, Bradford , to give union
members courses in MTS so that the Union would be able to process
time study grievances intelligently . He said that Bradford "never would
follow through with it" and that Doulong also gave a "negative" reply
when the Union complained to him "about refusing to give us the MTS
course "
GENERAL ELECTRIC COMPANY 167
took a Company analyst a month and, on May 18, advised
Wrightsell that the Company's time standards were available to
him "for any checking or review you care to conduct,
therefore, I do not see the need for you to be present when the
standard is being set." President Robinson thereafter requested
that a steward be allowed to be present when a job was being
retimed Doulong replied on June 24, "It is the Company's
position that it is unnecessary to have the steward present
during these studies and that there is no contractual basis for
this demand 4
Grievances 66.50-66.72, filed from the end of May 1966 to
June 6, 1966, complained that insufficient time was allotted
for various coil winding operations and requested that the
Company "Make full and complete study of this coil giving full
credit to worker for all work performed. The steward or union
officer must be present when this study is made." On June 1
and 8, Foreman Rummage gave the following first step reply
to Steward Wnghtsell-
As you know, part of making an MTS study is an intensive
study of and the actual design of the work place This can
only be done at the work place.
Our winding time standards are also checked at the work
place and this is being done on a continuous basis. However,
due to an increasing number of standards you feel are
incorrect, I will add more manpower to this area to provide
additional auditing of our standards.
As to the matter of allowing you or a union official to be
present during the studies, I again point out our time
standards are always available to you for any checking or
review you care to make, therefore, I do not see the need
for a union representative to be present at these studies.
At a second step meeting on these grievances, President
Robinson complained that the Union could not process these
grievances intelligently so long as the Company refused to
permit a union timestudy expert to make his own studies at
the plant. As with Grievance 66 42, Robinson asked that a
steward be allowed to observe the Company's retiming of the
disputed production standards. On June 24, Doulong formally
replied.
The Company has already agreed at Step I to make studies
and standard reviews of the various coil catalogue numbers
mentioned in these grievances. It is the Company's position
that it is unnecessary to have the steward present during
these studies and that there is no contractual basis for this
demand.
The disputed standards were reviewed by Darrel Yount, a
newly appointed time standards clerk, who had 9 years'
experience as a coil winder and had just completed the
Company MTS course.5 Yount checked the winding specifica-
tions on each job to see that all the necessary work elements
were correct and then, aided by an MTS specialist, made
movies of these jobs. Each movie was reviewed "frame by
frame" by Yount, the time standard instructor, the operator,
and also at times the shop steward and the Company's winding
technician. As a result of these reviews, more time was allotted
to 14 of the 23 disputed jobs.
On November 3, 1966, the Union filed Grievances
66 125-66.130, protesting the issuance of "contacts"-dis-
ciplinary notices for consistent failure to meet production
standards-to six employees. The Union claimed the contacts
were "unjustified" because based on "inaccurate and uni-
laterally imposed" time studies and requested as relief that the
contacts be removed from each employee's record. In a first
step answer dated November 9, Foreman Rummage offered to
check "any specific standards you believe are in error" and
said he would have production studies made "to find out
precisely what [each employee's] problems are and assign our
instructor to helping him with these problems s6 At a second
step meeting with Doulong, Robinson stated for the Union
that "we had no choice except taking sides with the men who
received the contacts . until we could get an engineer to
make his own studies." Doulong, on December 12, 1966, sent
Robinson a second-step answer stating that the contacts were
"proper" and that the Company would continue to make
efforts "to insure that the standards on coil winding are
accurate and to assist the grievants with any problems they
may have in performing their work " At a third step meeting
on January 12, 1967, the Union representatives took the
position that they could not discuss the grievances intelligently
so long as the Company denied the Union the right to have its
own timestudy engineer make studies The Company repre-
sentatives replied that the Union "had already filed charges"
and that "they still held to the same position " The Company's
third-step answer, dated January 17, 1967, stated that "there
was no violation of the National Agreement involved in the
issuance of the Contact Memos in question."
On January 18, 1967, the Union filed Grievance 67.7
concerning the removal of Charles Rollins, a trainee, from his
coil winding job The grievance charged that Rollins had been
removed from coil winding "without just cause because the
time standards are incorrect and unilaterally imposed by the
Company" and requested as relief that Rollins be returned to
coil winding and paid "wages lost since his removal " The
Company's first-step answer stated that Rollins had been
removed from winding for "continued failure to meet mini-
mum production standards " At a second-step meeting on
February 6, the Union representatives asked for permission "to
have our time study engineer come in and make studies " The
Company countered with an offer to give Rollins "another
opportunity to meet the same standards." The Union rejected
this offer, arguing that if Rollins "was unable to meet the
standards prior to this, he would also be unable to meet the
standards if given another opportunity." By letter dated
February 8, 1967, President Robinson requested Manager
Doulong to allow a union timestudy engineer to examine the
Company's timestudy data On February 13, Doulong offered
to give Rollins "another opportunity to meet the training
curve in winding" and to give hum backpay "providing
[Rollins] does return to winding,"7 and, on March 8, Doulong
advised Robinson that it would be "inappropriate" as an
extension of the National Agreement to allow a union
timestudy engineer to examine coil winding study data but
4 Robinson had relied on article VI(4)(e) of the 1963-66 contract
which permitted a steward to be present for the retuning of a job
"where the piece price is in dispute between the Company and the
Local." As previously noted, the employees at the Hickory plant are
paid by the hour.
5 The course is given 2 hours a day, 3 times a week, for 3 months.
6 Timestudy clerk Yount subsequently reported to Rummage that
8-hour production checks on 3 men showed that 2 were able to better
production standard even though each lost 4S minutes because of
mistakes but that the third man did not have the "knack" for coil
winding and had only achieved 93 percent efficiency. No checks were
made on the other grievants because their efficiency had become
satisfactory
7 On February 17, Rollins declined Foreman Rummage's offer to
return him to winding
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "we have always been willing to allow examination of coil
winding time standards data by the area steward and, when
appropriate, by your union's executive committee, provided it
is done on our premises." At a third-step meeting on the
Rollins grievance in New York City on April 3, the Union
representatives complained that they had no way to confirm
their feeling that "the studies were inaccurate" because they
had been denied a "right to have a time study engineer come in
and examine these studies and make his own studies." On
April 7, the Company filed its written answer "that Mr. Rollins
was properly removed from the job in question, under the
circumstances, and that there was no violation of the National
Agreement as alleged." The Company's third-step reply was
followed by a walkout.
2. Analysis and conclusions
Section 8(a)(5) of the Act requires an employer, upon
request, to furnish all information relevant to a bargaining
representative's intelligent performance of its functions, in-
cluding information which the representative may need to
police and administer existing agreements J I Case Company
v N.L R.B., 253 F 2d 149 (C.A. 7), The Timken Roller
Bearing Company v. NL.R B., 325 F.2d 746 (C.A 6). The
Union's requests to permit a union timestudy expert to
examine the Company's time-study data and to conduct his
own time studies on challenged standards were in the nature of
requests for such information. Wilson Athletic Goods Mfg Co,
Inc, 169 NLRB No. 82. The Company therefore violated
Section 8(a)(5) by turning down the Union's timestudy
requests unless, as it contends, (1) the information sought
thereby by the Union, in the circumstances of this case, was
unnecessary for the intelligent processing of the grievances
relating to the production standards, or (2) the Union has
waived any statutory right to have its expert examine company
timestudy data and conduct his own timestudies on the
production standards in issue. The Fafnir Bearing Company,
146 NLRB 1582, enfd. 362 F.2d 716 (C.A. 2).
a. The need for union timestudies
The Company responded to the Union 's grievances by
reviewing the disputed time standards and by increasing the
time allowances in some instances . It offered to show and
explain the pertinent MTS data, including movies of the
disputed operations , to the Union 's local representatives but it
refused to permit a union industrial engineer to examine the
MTS data and to check the time standards based upon such
data by conducting his own timestudies . The Company
defends its refusal on the ground that the fairness and accuracy
of the standards based upon MTS data can be checked from
such data without on -the-job timestudies and that the Union's
local representatives are qualified to make such a check
Bertram Gottlieb, a qualified AFL-CIO industrial engineer,
testified to the contrary. His uncontradicted testimony may be
summarized as follows
Gottlieb examined during recesses in the hearing a specifica-
tion which the parties stipulated to be representative of the
coil winding operations in issue. He could not tell from his
examination of this document whether "the stan-
dard ... would be fair and equitable ." The document contains
references to work elements not found in the document itself.
Other work elements are not described in sufficient detail. For
example, the specification notes that the operator is to get a
crate but it does not show the size, weight, or composition of
the crate, the precise distance to be walked, or how the crates
are packed The time allowed under MTS for such a movement
as picking up a crate-a "get"-depends on the classification-
from "A" to "F"-assigned to the movement Each type of get
under MTS "has certain definitions and certain characteristics"
and the MTS analyst must use "a combination of what he sees
and what he knows" in order to "make a determination of
which class get should be applied to . a particular move-
ment." The MTS analyst must make other "subjective"
judgments such as whether a motion with one hand should be
considered performed "simultaneously" with the movement of
the other hand so that time would be allowed only for the
movement of one hand. He must also determine how much
additional "retarded" time must be allowed "when movements
cannot be performed normally." The Company's MTS Manual
points out "Unfortunately, it is impossible to outline hard
and fast rules to apply when such conditions arise, and the
only way in which they can be analyzed is by having the
analyst exercise his judgment in applying time for retarded
movement." For these reasons, Gottlieb could not advise the
Union on the adequacy of the coil winding specification he
had examined "without observing the job as it is being
performed in this plant, under the working conditions that
exist, and under the methods that are being used "
If permitted to make a timestudy at the plant on the coil
winding specification he had examined, Gottlieb initially
"would observe ... the operator performing the work," note
"significant interruptions in the work," and check to see "if
the worker was in fact meeting the company standard." If the
worker was meeting the standard, Gottlieb would determine in
his "own mind" whether he met the standard "by working at a
below-normal pace, normal pace, or above-normal pace " If the
worker met the standard working at an "approximately
normal" pace, Gottlieb would report his finding to the worker
and his union representative and advise them to drop the
grievance. On the other hand, if Gottlieb felt that the standard
could not be met by "a normal operator working at a normal
work pace," he would check the Company's MTS analysis data
to see if the operator was in fact following "the method on
which the standard was based " If not, he would inform the
Company so it could decide whether or not the prescribed
method should be altered If the operator was following the
prescribed method, Gottlieb would seek a "clue" to the
difficulty by asking him and other operators what part of the
job "was giving them the most trouble." If Gottlieb could not
determine that particular work elements were allotted insuf-
ficient time, he "would set up and do the normal job of
stop-watch time study." His "study would be of work
elements" and not of the "several motion elements [which]
normally go into the performance of a work element." Both
MTS and stop-watch timestudies are "methods of arriving at a
standard for performing work ... used by industrial engi-
neers ... in the United States and other parts of the world "
Many writers on timestudy recommend a stop-watch check on
standards set under a predetermined motion time system
because "every use of a predetermined system involves its
application to work performed removed from the conditions
and the place under which the original data was de-
veloped ......
According to Gottlieb, all time standards are "strictly a
question of judgment" and no engineer can "prove" a standard
GENERAL ELECTRIC COMPANY 169
is right or wrong. Whether or not an operator could meet a
standard by working at a normal pace "is strictly a subjective
determination. I have a concept of a normal operator which I
carry in my head just as any other industrial engineer does, and
which is based on my own training and experience, and I have
to apply it in that way "
In Gottlieb's opinion, the setting of a production standard
under MTS or any other predetermined time value system is
"professional work" requiring training "equivalent to at least a
bachelor's degree," and including courses in industrial psycho-
logy, physiology, and "various mechanical subjects "8
I am satisfied from Gottlieb's uncontroverted testimony
that the Union's local representatives were not qualified to
evaluate the timestudy data offered them,9 and that the Union
could not make an intelligent decision on how far to press
employee grievances challenging the Company's time standards
without the advice of an expert based on his actual observation
of the operations in question and an opportunity to check his
observations, including timestudies, against the Company's
MTS data.
b. The "waiver"issue
The Company contends that certain contract provisions,
union proposals to change these provisions, and negotiations
over these proposals compel a finding that the Union has
waived any statutory right it may have to observe or make
timestudies in the Hickory plant and to examine the Com-
pany's timestudy data pertaining to the standards in issue.
Article VI 4(e) of the 1963-66 National Agreement permits
a union steward to be present where a job is to be retimed
because a "piece price is in dispute." This article by its terms
applies to piece workers and not to hourly paid employees
such as the Hickory production workers The Company argues
that it follows from the exclusion from this article of a
provision for union observation of the retimmg of hourly rated
jobs, that the Union has waived any right it may have to
observe or make time studies of such jobs. A waiver of a
statutory right "must be clearly and unmistakably established
and is not lightly to be inferred." Cloverleaf Division of Adams
Dairy Co., 147 NLRB 1410. I find that article VI 4(e) does not
support the Company's waiver contention.
Article XIII 2(b)(2) of the 1963-66 contract permits "a
subcommittee of the Local" to inspect a job at the second step
of the grievance procedure "where it is mutually agreed by
Management and Local representatives" that such inspection
"would be helpful" in resolving the grievance. In 1966, the
Union proposed a revision of this section which would have
permitted the Local, where it deemed it "necessary," to
"retain industrial engineers and specialists to assist it in
studying or inspecting the job or work involved in the
grievance."' 0 The Union's proposed revision of the section
was discussed during the 1966 negotiations by the "Sub-
Com uttee on Contract Language" but was not specifically
taken up by the National Negotiating Committee which alone
had the power to commit the parties The question of union
timestudies was discussed by the National negotiators, how-
ever, at a meeting on September 21, 1966 The conversation,
as transcribed by the Company's notetaker,' I was as follows-
Callahan. My delegate from Hickory just handed me a
note. I'll read it to you The Company says that negotia-
tions are the best way to resolve grievances on time studies,
yet in Hickory you won't allow us to observe the time
studies or make our own.
Ritter: There is no language that provides what he is
looking for.
Abramson: This is the first I heard of this. I didn't know
you were refusing the union to view the setting of rates. Are
you familiar with the Bearing Company case9
Hilbert Yes. And it's my assumption that they are using
MTS there ... (Robinson nodded his head in agreement.)
And copies of this are available and were possibly given to
the union
President Robinson of the Hickory local and Leo Jandreau, a
union member of the National Negotiating Committee, testi-
fied to the effect that Abramson, the Union's General Counsel,
in referring to the Fafnir Bearing case, said that the Union did
not need a contract provision to conduct its own timestudies,
that it had a statutory right to do so, and that it intended to
exercise its right.' 2 The Union's initial charge in this pro-
ceeding, which had been prepared on September 20, was filed
the next day. On October 5, 1966, a Federal Mediator
mentioned to the Company's negotiators that the matter of
union time studies was still "one of the issues." The 1966-69
National Agreement retained article XIII 2(b)(2) without
change. It also retained a provision reciting that the Agreement
and certain other 1966 agreements between the parties "are
intended to be and shall be in full settlement of all issues
which were the subject of collective bargaining between the
parties in national level collective-bargaining negotiations in
1966."
Article XIII 2(b)(2) of the 1963-66 National Agreement
limits union job specification at the second step of the
grievance procedure to local representatives of the Union and
to instances where the parties are mutually agreed that such
inspections would be helpful in resolving a grievance.' 3 The
Company's refusal to permit union time studies on the ground
that availability of its time standard data to the Union's local
representatives made union time studies unnecessary, accords
with the express language of this article So far as the record
shows, this contract limitation on union job inspection was
voluntarily accepted by the Union as part of the give and take
of collective bargaining Although the Union asserted a
statutory right to make its own time studies during the 1966
8 Time standards clerk Yount testified that he was not qualified to
set a production standard.
9 "It would be a rare coincidence where an employee happened to
be also a qualified industrial engineer and could adequately conduct
time studies on behalf of his Union ." Fafnir Bearing Co. v. N.L R.B.,
362 F.2d 716, 722 (C.A 2)
10 In 1960 negotiations, the Union proposed to substitute "Union
representatives " for "a subcommittee of the Local."
I i The Company 's notetaker took minutes in longhand and made a
selective rather than a verbatim record of the meeting.
12 1 regard Company attorney Hilbert 's reference to the use of MTS
at the Hickory plant as a statement to the effect that he considered
Fafnir Bearing inapplicable because it concerned stop watch time-
studies.
13 The limitation on union job inspection in article XIII 2(b)(2)
would be meaningless if the Union could avoid it simply by processing a
grievance to the third step. The Union in 1966 proposed a revision of
this article which would have given it the right to conduct its own time
studies. I find that the limitations of article XIII 2 (b)(2) are applicable
to grievances processed beyond the second step.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations, it subsequently accepted a contract which re-
tained article XIII 2(b)(2) without change. I find that article
XIII 2(b)(2) constitutes a clear and unmistakable waiver by the
Union of any statutory right it may have to inspect a job in
order to process a grievance intelligently, and therefore that
the Company did not violate Section 8(a)(5) and (1) of the
Act by refusing in the circumstances of this case to permit the
Union to observe or make time studies at the Hickory plant
Cf Shell Oil Company, 93 NLRB 161,Brunswick Corporation,
146 NLRB 1474.
The National Agreements and the bargaining negotiations
show no waiver by the Union of any statutory right to
examine the Company's time study data This data is clearly
relevant and necessary to the Union's processing of grievances
on the Company's production standards as "error in the data
can appear in the objective analysis of the operation,
and . could disclose the source of the grievance." NL.R.B
v Otis Elevator Co, 208 F.2d 176, 179 (C.A. 2). I find that
the Company violated Section 8(a)(5) and (1) of the Act by
refusing to permit a union industrial engineer to examine its
time study materials relating to challenged production stand-
ards at the Hickory plant.
B. The Dispute Over Job Evaluations
and Area Wage Surveys
The Company sets hourly rates at the Hickory plant by
means of a job evaluation system, which consists of 12 factors,
each of which is subdivided into 6 degrees Each degree has a
number of points assigned to it The total number of points is
applied to a point scale to obtain a job rating code number.
This number applied to a wage scale yields the hourly rate. The
scale of hourly rates is based in part on information obtained
by the Ccmpany through area wage surveys
In January and February 1967, the Union filed Grievances
67.2, 67.12, 67.24, and 67.33-67.39, claiming that the jobs in
question were rated too low. The Company's first step answers
were to the effect that the jobs were properly evaluated except
that it would "completely re-evaluate" the jobs concerned in
Grievances 67 33-67.38. By letter dated March 6, President
Robinson of Local 182 requested Manager Doulong to permit
the Union "access to observe the jobs, in order that we may
make up our job analysis with which to bargain from," and to
furnish "the Union the names of the companies it uses in
making area wage rate surveys, and the various jobs compared
at each plant." On March 8, Doulong told Robinson at his
work station that the Company was under no obligation to
permit the Union to observe the jobs in order to make its own
evaluations. Concerning the area wage survey, Doulong said he
would be willing to prepare a chart for the Union showing the
names of the companies and the jobs but which "would not
identify the company with the job " Robinson said if the chart
gave the Union the information it sought, it would withdraw
its request so far as it asked for such identification By letter
dated March 8, Doulong advised Robinson that the Company
did not believe union job inspections "would be helpful in
14 The record does not contain sufficient information for a
determination whether the Company would satisfy its statutory
obligation by supplying the Union with the names of the companies
surveyed and a list of the jobs compared , but not correlating a job to a
particular company . Should such correlated information be necessary
settling cases " At a second step grievance meeting, the
Company offered the Union copies of the job analyses and a
full description of the point values which the Company had
assigned to each job factor but refused to permit the Union to
observe the jobs. Concerning area wage surveys, Doulong said
what he had in mind was furnishing the Union with a chart
based on information to be obtained from a new survey.
Robinson said that the Company had relied on an area wage
survey in excluding certain employees from a general wage in-
crease in June 1966 and that the Union might file a grievance
and "wanted to determine what the survey showed to cause
[the Company] to do this." Doulong did not reply but later
during the meeting said the Company might furnish the Union
with information obtained from a new area wage survey.
The wage rate grievances were processed through the third
step where they were denied on the ground that the jobs were
properly evaluated.
The Company's job evaluation system includes assigning
point values to such factors as working conditions, job safety,
and mental and physical effort, and, as in the case of
timestudies, its application to a particular job necessarily
reflects the personal judgment of the person observing the job.
I find that the Union had a statutory right to make its own job
inspections in processing grievances over the fairness of hourly
wage rates. The Company, however, in accordance with article
XIII 2(b)(2), refused to permit union job evaluations. As I
have found that the Union waived its statutory right to job
inspection by voluntarily accepting the limitations of article
XIII 2(b)(2), I find that the Company did not violate Section
8(a)(5) and (1) of the Act by refusing to permit the Union to
make its own job evaluations in connection with the processing
of grievances over hourly wage rates.
I find, however, that the Company violated Section 8(a)(5)
and (1) of the Act by refusing to furnish the Union with the
names and jobs of area companies it had surveyed.' 4 As the
record shows that the Company uses such information in
setting its range of hourly rates, and also that such information
was a factor in the Company's decision to exclude certain of
its highest and lowest paid employees at the Hickory plant
from a general wage increase in June 1966, the information
was plainly relevant to the Union's intelligent processing of
grievances over wage rates. General Electric Company, Battery
Products, Capacitator Department, 163 NLRB No. 30
CONCLUSIONS OF LAW
1. By refusing the Union 's requests to allow a Union time
study engineer to examine company timestudy data relating to
production standards concerning which grievances had been
filed, and by failing or refusing to furnish the Union with
information concerning its area wage surveys, the Company
has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a)(5) and (1) of the Act
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
for the intelligent processing of grievances by the Union, the Company
would not be warranted in withholding it from the Union because it
may have been given such information on the understanding that it
would not be disclosed Cf. Ingalls Shipbuilding Corp., 143 NLRB 712,
717
GENERAL ELECTRIC COMPANY
THE REMEDY
Having found that the Company engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action which I
find necessary to remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue the
following
RECOMMENDED ORDER
Respondent General Electric Company, its officers, agents,
successors, and assigns , shall-
1. Cease and desist from
(a) Refusing to bargain collectively with International
Union of Electrical, Radio and Machine Workers, AFL-CIO,
and its Local 182, as the statutory bargaining representative of
the production and maintenance employees at the Company
plant at Hickory, North Carolina, by refusing to permit the
Union, through its own experts, to examine the Company's
timestudy materials pertaining to jobs involved in grievances
arising under the parties' collective-bargaining agreement, and
by refusing to furnish the Union with information concerning
the Company' s area wage surveys to enable the Union to
process intelligently grievances over the Company's hourly
rates of pay
(b) In any like or related manner interfering with the
efforts of the Union to bargain collectively with it in behalf of
the production and maintenance employees at? the Hickory
plant.
2. Take the following affirmative action
(a) Upon request, permit the Union, through its own
experts, to examine the Company's time study materials
pertaining to jobs involved in grievances arising under the
parties' collective-bargaining agreement.
(b) Upon request furnish to the Union information con-
cerning the Company's area wage surveys or other information
necessary to enable the Union to process intelligently griev-
ances on hourly rates of pay at the Hickory plant.
(c) Post in its offices and plant at Hickory, North Carolina,
copies of the notice attached hereto marked "Appendix."' 5
Copies of said notice on forms to be furnished by the Regional
Director for Region 11, shall, after being duly signed by
Respondent's representative, be posted by Respondent im-
mediately upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places where
notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.' 6
171
IT IS FURTHER RECOMMENDED that the consolidated com-
plaint be dismissed insofar as it alleges violations not found
herein
15 If these Recommendations are adopted by the Board , the words
"a Decision and Order " shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice If the Board's
Order is enforced by a decree of a United States Court of Appeals, the
notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals Enforcing an Order" for
the words "a Decision and Order."
16 If these Recommendations are adopted by the Board, this
provision shall be modified to read . "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE WILL NOT refuse to bargain collectively with In-
ternational Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, and its Local 182, by refusing to permit the
Union, through its own experts, to examine the Company's
time-study materials pertaining to jobs involved in griev-
ances arising under our collective-bargaining agreement, or
by refusing to furnish the Union with information con-
cerning our area wage surveys to enable the Union to
process intelligently grievances over hourly rates of pay.
WE WILL NOT in any like or related manner interfere with
the efforts of the Union to bargain collectively on behalf of
the employees covered by our collective-bargaining agree-
ment.
GENERAL ELECTRIC
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 1624 Wachovia Building,
301 North Main Street, Winston-Salem, North Carolina 27101,
Telephone 723-2911.