Hercules Motor Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1962

136 N.L.R.B. 1648 (N.L.R.B. 1962)

1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the above, we find that Local 638 was not and is not
entitled by means proscribed by Section 8(b) (4) (D) to force or re-
quire All-Born to assign the work of connecting refrigeration equip-
ment on the Bikers Island project to its members rather than to All-
Boro's employees who are presently represented by Local 295.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in the
case, the Board makes the following Determination of Dispute pur-
suant to Section 10(k) of the Act:
1. Employees engaged in installing refrigeration equipment cur-
rently represented by Operating Engineers, Local 295, are entitled to
connect this equipment by means of the pipe on All-Boro's Rikers
Island project.
2. Enterprise Association of Steam, Hot Water, Hydraulic, Sprin-
kler, Pneumatic Tube, Ice Machine and General Pipefitters of New
York & Vicinity, Local Union No. 638, of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, is not and has not
been lawfully entitled to force or require All-Boro Air Conditioning
Corp. to assign to Local 638 members the work of connecting air-
conditioning and refrigeration equipment.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Enterpirse Association of Steam, Hot Water, Hydraulic,
Sprinkler, Pneumatic Tube, Ice Machine and General Pipefitters of
New York & Vicinity, Local Union No. 638, of the United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO, shall notify the
Regional Director for the Second Region, in writing, whether or not
it will refrain from forcing or requiring All-Boro Air Conditioning
Corp. by means proscribed by Section 8 (b) (4) (D) to assign the work
in dispute to its members rather than to the employees of All-Boro
Air Conditioning Corp. represented by Local 29,5.
MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.
Hercules Motor Corporation and International Union , United
Automobile , Aircraft and Agricultural Implement Workers of
America, AFL-CIO, and its Local 161. Case No. 8-CA-2094.
April 30, 1962
DECISION AND ORDER
On May 9, 1961, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
136 NLRB No. 145.
HERCULES MOTOR CORPORATION 1649
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and for the reasons set forth below has decided to dismiss the
complaint in its entirety.'
The Trial Examiner found that Respondent violated Section
8(a) (5) and (1) of the Act by refusing, between February 10 and
March 3, 1960, to furnish the International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
AFL-CIO, and its Local 161,2 certain time-study and job evaluation
data regarding operations which were the subject of a grievance, and
by refusing, since February 10, 1960, to permit the Union's industrial
engineer to enter the plant for the purpose of conducting independent
time studies of the operations which were the subject of the afore-
mentioned grievance. As indicated above, we do not adopt these un-
fair labor practice findings of the Trial Examiner.
The critical facts in the case are not in substantial dispute. In
March 1959, the International was certified as bargaining representa-
tive of Respondent's employees. On May 12, 1959, Respondent and
the Union met for the first time to negotiate a bargaining contract.
Since 1958, Respondent had been endeavoring to convert a "piece-
work" system into a "standard hours plan." At the meeting on
May 12, the Union presented a proposed contract which would have
required piecework so as to enable employees to earn 20 percent or
more over' the hourly job class rates if they produced according to
established standards. If a pieceworker could not earn 20 percent
above the job class rate, he and his shop steward could, under a de-
tailed procedure contained in the proposed contract, report this fact
to his foreman and, if the foreman found that a new time study was
necessary, one would be made in the presence of the foreman, opera-
tor, and shop steward. A grievance procedure was also included in
the proposed contract for the purpose of settling any differences as
to its meaning, interpretation, and application.
After May 12, approximately 25 additional bargaining meetings
were held. On numerous occasions during the meetings, the Union
requested a contract provision giving it right of access into the plant
'The Respondent 's request for oral argument is hereby denied inasmuch as the record,
including exceptions and brief , adequately present the issues and positions of the parties
2 The International and Local are collectively referred to herein as the Union.
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of making time studies and investigating grievances.
Provisions of a contract between the International and another com-
pany were also urged upon Respondent by the Union which would
have required the establishment of "fair and equitable" production
time standards; granted a union time-study man the right to study a
job where a production rate was alleged to be inequitable; and, where
a grievance was filed, given the Union the right to a copy of all the
data which the Respondent had in relation to the particular grievance
and the right to time study the disputed operation.
Throughout negotiations, the Respondent rejected the Union's pro-
posals described above. In lieu thereof, it offered a wage proposal
which called for the continuance of the existing wage structure, but
which also granted Respondent the right to continue its practice of
installing and revising incentive and evaluated daywork rates as well
as the right to establish new rates, or adjust existing rates from time
to time, "in accordance with its practice for development and installa-
tion of new and changed rates in effect on the date of the signing" of
the contract. Respondent's proposals also gave employees a right,
after a 15-day trial period of a rate fixed by it, to file a grievance in
connection with the rate, and its proposed grievance procedure only
permitted an employee representative of the Union to participate in
the adjustment of the grievance.
On August 3, 1959, the parties reached agreement and executed a
collective-bargaining contract containing grievance and arbitration
provisions. None of the Union's aforementioned proposals were in-
cluded in the contract. On the other hand, Respondent's proposals
were incorporated into the contract. The contract also specifically
provides that the grievance and arbitration procedures thus set forth
in the contract "provide adequate means for the adjustment of any
disputes, differences, complaints, or grievances." 3
On January 26, 1960 , a grievance was filed claiming that certain
standard hours unit rates were too low and requested that rates be
The pertinent contract provisions read as follows:
V Wages
SEC 4. Procedure for Establishing New Rates
(a) whenever the Company establishes a new or changed rate . It will develop
and install such rate in accordance with its practice for development and installation
of new and changed rate in effect on the date of the signing of this agreement.
(b) Prior to the installation of any new or changed rate the Company will explain
the rate to the employee or employees involved and will announce an effective date
(c) The employees will be required to give such rate a fair trial for a period of
at least fifteen ( 15) days on which product is produced under such rate by any
employee Any grievance as to such rate must be filed within thirty ( 30) calendar
days after the expiration of said trial period . If any rate is adjusted pursuant to
such grievance , the adjustment will be made effective as of the effective date of the
rate.
XIII. Adjustment of Grievances
SEC. 1 The parties agree that the provisions of this Article provide adequate
means for the adjustment of any disputes, differences, complaints or grievances.
HERCULES MOTOR CORPORATION 1651
raised so as to permit a "fair and agreeable wage." Thereafter, a
new time study of the operations involved was ordered pursuant to the
contract's grievance provisions. By letter dated February 10, Re-
spondent notified the Union that the grievance was denied for the
reason that "the standards had been correctly set and according to our
procedures."
Also on February 10, the Union asked that a union time-study man
be permitted to examine Respondent's data pertaining to the grievance
and that he be allowed in the plant to observe the particular operations
involved. Respondent rejected these requests. It took the position
that the Union's grievance was improperly instituted and that the
Union was not entitled to the data and access sought in connection
therewith on the ground that the purpose of the grievance, and the
data and access, was to protest the fairness of the rate set by Respond-
ent whereas the Union's right under the contract was to question only
whether the rate was fixed in accordance with Respondent's practice
of fixing rates which was in effect on the date of execution of the
contract. It suggested that the Union take the matter to arbitration
and promised to comply with any decision of the arbitrator. The
Union chose, however, on February 12, to file unfair labor practice
charges.
On these facts, and the record as a whole, we do not believe that we
should hold Respondent in violation of Section 8(a) (5) for not com-
plying with the Union's request of February 10. The Union's griev-
ance involved a dispute concerning interpretation of the contract
provisions quoted in footnote 3 herein, the Union interpreting the
contract as giving it the right to grieve over the equity of Respond-
ent's rates, and the Respondent insisting that the Union was incor-
rectly interpreting the contract. On its face, the contract provides
machinery devised by the parties themselves for settling such a dis-
pute. Yet, instead of exhausting this procedure and proceeding within
the framework of its contract, the Union elected to file charges asking
the Board to intervene and resolve the dispute. While, under Section
10(a) of the Act, the Board is not bound as a matter of law by private
agreements, we are of the opinion that it would not effectuate the
policies of the Act for us to thus intervene in the case.
Title II of the Act 4 states in Section 201 (a) that "sound and stable
industrial peace and the advancement of the . . . best interests of
employers and employees can most satisfactorily be secured by the
settlement of issues between employers and employees through the
processes of conference and collective bargaining between employers
and the representatives of their employees."
4 This title of the Act concerns itself wtih conciliation of labor disputes in industries
affecting commerce and in national emergencies
641795-63-vol. 136-105
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It further 'states in Section 203 (d) that "Final adjustment by a
method agreed upon by the parties is hereby declared to be the desir-
able method for settlement of grievance disputes arising over the
application or interpretation of an existing collective-bargaining
agreement." These declarations of policy are of course equally valid
guidelines for our administration of Title I of the Act, whose stated
policy is to encourage the practice and procedure of collective bar-
gaining. As was said by the Supreme Court of Section 203(d) quoted
above, "That policy can be effectuated only if the means chosen by
the parties for the settlement of their grievances under a collective
bargaining agreement is given full play." 8 If, instead of requiring
the Union in this case to give "full play" to the grievance procedure,
we were to permit the facilities provided by the Act to be used in
avoidance of the bargaining agreement, we would be frustrating the
Act's policy of promoting industrial stabilization through collective-
bargaining agreements.6
The dissent asserts that Respondent has denied data to the Union
which it needed to function properly as a bargaining representative,
and has withheld "the best evidence of the nature and validity of the
grievance" from the Union by refusing it access to the plant for time-
study purposes, thereby impairing further the Union's ability to ful-
fill its statutory duty. We believe our colleague misconstrues the
underlying basis for our action.
This is not a case where a union simply sought, and was denied,
information which was relevant to its task as bargaining agent in
negotiating a contract, or policing or administering a contract, or
adjusting a grievance. In this case, as we have already attempted to
make plain, the Union sought information to support a grievance over
a matter which the Respondent maintained could not be the subject of
a grievance under the contract, namely, whether certain rates fixed by
Respondent were fair and equitable. There thus arose a dispute be-
tween the parties as to the interpretation of their contract, the issue
dividing them being whether the contract permitted the Union to
grieve over the equity of rates established by Respondent. This was
a dispute for whose resolution the contract specifically provided
machinery and the Respondent properly insisted that it be settled
within the agreed-upon grievance procedure. Under the contract, it
was a dispute which had to be so settled, and in the Union's favor,
before the Union could grieve over the equity of rates. Manifestly,
the information which the Union sought, and to which our colleague
says it was entitled, could have no bearing upon the resolution of this
6 United Steelworkes of America v. American Manufacturing Co , 363 U S 564, 566
6It has long been Board policy to recognize and honor arbitration awards in order to
promote the "desirable objective of encouraging the voluntary settlement of labor dis-
putes." Spielberg Mauufactuuang Company, 112 NLRB 1080, 1081.
HERCULES MOTOR CORPORATION 1653
dispute over contract interpretation. And we consider, therefore,
that the precedents cited in the dissent are inapplicable to such facts as
these.
In view of these considerations, including the fact that Respondent
sought not to curtail the bargaining process during the critical periods
involved, but to channel the process within the framework agreed
upon by the parties in their agreement, and as there is no showing
that Respondent's efforts were in bad faith, we conclude, contrary to
the Trial Examiner, that Respondent has satisfied its obligation to
bargain under the Act.'
Accordingly, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER FANNING, dissenting :
The facts in this case are not in dispute. In the spring of 1959 the
Respondent Company and the Charging Union entered into negotia-
tions for a bargaining contract. During these negotiations one of the
Union's demands was that the contract specifically include a provision
giving its industrial engineer access to the plant for the purpose of
studying jobs being operated and access to all time-study data in the
possession of the Respondent. The Respondent would not agree to the
inclusion of a contractual right of this nature. Thereafter, on August 3,
1959, the parties executed a bargaining agreement, which did not
include such a clause. At no time, however, did the Union waive its
statutory right to be furnished with information in the possession of
the Respondent which was necessary to permit it effectively to exercise
its duty of representing employees under Section 9 (a) of the Act. On
the other hand, the Respondent made no commitment that it recog-
nized any obligation on its part to furnish the Union with such in-
formation or to grant the Union the right to make an independent
time study of any particular job. On this disputed point the contract
is silent. With respect to the establishment of new rates, the contract
provides that the Company "will develop and install such rate in
accordance with its practice for development and installation of new
and changed rate in effect on the date of the signing of this agreement."
The contract also provides for the "adjustment of any disputes, dif-
ferences, complaints or grievances" by a three- step grievance pro-
cedure, leading finally to arbitration of the dispute. On January 26,
1960, grievance No. 153, among others, was filed on the ground that
"standard hours unit rates" were too low for the jobs involved. On
February 10, the Union requested and the Respondent denied permis-
sion to the Union's representative to see the Respondent 's standards
' Cf. Timken Roller Bearing Co. v. N.L.R B., 161 F. 2d 949 (C.A. 6). We find it un-
necessary to pass upon the validity of other grounds advanced by Respondent for dis-
missing the complaint.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
development data on these jobs and also denied him permission to
enter the plant to run his own time studies. Respondent took the posi-
tion that it would turn over to the Union only such data as an arbi-
trator should rule was relevant and necessary in processing the griev-
ance. The Union took the position that it needed the information and
the time study to determine whether it had a case to take to an arbi-
trator. Subsequently, on March 17, after charges had been filed in
this case, the Respondent did, in fact, provide the Union with a photo-
static copy of the pertinent time-study sheet, but continued to refuse
to permit the Union's industrial engineer to see the operation of the
job involved. By this date the time for processing the grievance
through arbitration had expired under the terms of the contract.
I agree with the Trial Examiner that the ruling precedents in this
case are J. I. Case Company (Rock Island, Illinois), 118 NLRB 520,
521-522, enfd. 253 F. 2d 149 (C.A. 7), and Otis Elevator Company,
102 NLRB 770, enfd. as modified 208 F. 2d 176 (C.A. 2). In my opin-
ion, the majority's conclusion in the instant case that the Respondent
was under no duty to furnish the Union with wage information neces-
sary for the proper functioning of a bargaining representative is a
reversal of these precedents. Moreover, the impact of this decision is
contrary to long-established Board and court decisions extending as
far back as 20 years when the Board held in Aluminum Ore Company,
39 NLRB 1286,1297, enfd. 131 F. 2d 485,487 (C.A. 7), that an employ-
er's refusal to furnish a union with wage information was a violation
of Section 8(5) of the Act because "the Union could not intelligently
discuss the very matters raised by the respondent in their confer-
ences." The long list of Board and court decisions upholding this
rule of labor law should not require extended discussion. See, e.g.,
J. H. Allison & Company, 70 NLRB 377, enfd. 165 F. 2d 766 (C.A. 6),
cert. denied 335 U.S. 814; Yawman d Erbe Manufacturing Company,
89 NLRB 881, enfd. 187 F. 2d 947 (C.A. 2) ; Whitin Machine Works,
108 NLRB 1537, enfd. 217 F. 2d 593 (C.A. 4), cert. denied 349 U.S.
905; The Item Company, 108 NLRB 1634, enfd. 220 F. 2d 956 (C.A.
5) ; Boston Herald-Traveler Corporation, 110 NLRB 2097, enfd. 223
F. 2d 58 (C.A. 1) ; Utica Observer-Dispatch, Inc., 111 NLRB 58; cf.
International News Service Division of The Hearst Corporation, 113
NLRB 1067, where two Members of the Board found that the union
had waived its statutory right, with a third Member concurring in the
result only ; but see dissenting opinion at page 1072.
As the Trial Examiner indicated, the precedents with regard to the
statutory right of a labor organization to be permitted access to the
plant for the purpose of making its own time study are not as con-
clusive. In the Otis Elevator case the Board held that the employer
was obligated "to permit the Union to conduct its own time study in
order to intelligently appraise the merits of the dispute." The Board
HERCULES MOTOR CORPORATION 1655
was unimpressed with the argument that the union had an effective
means under the grievance procedure of the contract to obtain such
a study by an arbitrator. The Board noted that the contract there,
as in the instant case, was silent with respect to any right of the union
to obtain a time study at any stage of the grievance procedure, includ.
ing arbitration. Nor was it sufficient, the Board held, that the re-
spondent, while denying the union's legal right to such a study, would
have been willing to abide by an order of an arbitrator. While the
court of appeals was unanimous in enforcing that part of the Board's
order requiring respondent to make available to the union certain
time-study data in the company's possession, the court was divided
over the right of the union to have access to the plant to make its own
time study. A majority of the court refused to enforce this part of the
Board's order. Judge Clark, dissenting, pointed out that the data in
the company's possession may well have been inadequate to give the
union a complete picture of the facts involved in the grievance. He
held that the union "should not be stopped short of the most useful
data it can develop ; nor should it be forced to grope somewhat blindly
through the very stages of the grievance procedure, where adequate
information is most likely to lead the parties to amicable agreement,
to await an arbitrator-conducted study to the same end." Not until
the instant decision has the Board reversed its opinion as to this issue.
With due respect for the views of the court majority in Otis Elevator,
I agree with Judge Clark and the Board's decision in that case. No
party engaged in collective bargaining should be deprived unreason-
ably of first-hand information with respect to a disputed issue. It
seems clear tome that the Union in this case could not adequately fulfill
its statutory duty to represent these employees in collective bargaining
without the best evidence of the nature and validity of the grievance.
In the absence of any contention that the presence of the Union's in-
dustrial engineer in the plant would disrupt production or place an
otherwise undue burden on the Respondent, I believe the Respondent
was under a legal obligation to permit the Union access to the plant for
this purpose.
It is the position of the majority, however, that these precedents
are "inapplicable" to the facts of this case. The majority refuses to
pass upon or even consider the allegations of the complaint apparently
on the ground that the charge of a refusal to furnish information has
been filed untimely. What the majority seems to be saying is that the
Respondent did not have a duty to furnish information in this case
because of its contention that grievance No. 153 was not a proper
grievance under the contract. Taking this contention at face value,
the majority finds that it gave rise to a "dispute," which could be
settled under the "agreed-upon grievance procedure." If this is the
law, then any employer is now free to deny necessary information to
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union on the unsubstantiated assertion that a particular grievance
is not grievable under the contract. Turning the grievance procedure
of the contract, which the Union attempted to use, against the Union,
the majority holds that the wrong grievance was filed. According to
the majority, before coming to the Board the Union should have insti-
tuted and carried through the entire grievance procedure the question
whether grievance No. 153 was grieva'ble. As the Trial Examiner
found, the actual grievance filed by the Union states only that "stand-
ard hours unit rates are too low on part Nos. 285200, 285206, 255205,
and 263200." While the Union admittedly requested an adjustment
for a "fair and agreeable wage," the majority incorrectly finds that
the subject matter of the grievance was "whether certain rates fixed by
the Respondent were fair and equitable." Certainly, the rate fixed
for these particular jobs may have been too low even if, as the Respond-
ent contends, the only proper grievance under the contract was
"whether or not a new rate was set in accordance with the procedure
in existence on the date of the contract." I take it the existing pro-
cedure included a time study by the Respondent, which the Respondent
would not permit the Union to see unless ordered to do so by an
arbitrator.
It seems to me the majority is in some confusion as to the nature
of the dispute that the Respondent desired to arbitrate. At no time
did the Respondent suggest that the Union file a new grievance over
its right to grieve. Indeed, it seems clear from the record that the
Respondent was perfectly willing to process grievance No. 153 and
did so through step 2 of the grievance procedure. The Respondent's
position with respect to its duty to furnish the Union with information
is stated as follows in its brief. "The Company's position on the re-
quest for information [pertaining solely to grievance No. 153] was
that it would produce the information if directed by an arbitrator
so to do. (R. 35, 84, 114 and 153.)" Thus, it would seem clear that
the actual dispute in this case related to the insistence by the Union
that it had a legal right to the information requested and access to the
plant, a rejection by the Respondent of this position accompanied by
an offer to submit this dispute to an arbitrator as a part of the pro-
ceedings involving grievance No. 153. As indicated above, the offer
was not acceptable to the Union because it believed the information
was necessary to determine whether or not it had a case to take to an
arbitrator. This was the dispute between the parties, the dispute that
forms the basis of the complaint in this case, the only dispute litigated
at the hearing and resolved by the Trial Examiner. For my part, I
see no reason to manufacture a new dispute undreamed of by the
parties, the General Counsel, or the Trial Examiner. The Board's
authority under the Act is limited to Title I and does not extend to the
enforcement of Title II, which is concerned with matters of concilia-
HERCULES MOTOR CORPORATION 1657
tion rather than unfair labor practices. Although it is most desirable
that the parties to a collective-bargaining contract voluntarily agree
to settle their disputes through a grievance procedure, that is hardly
an answer to a charge under Section 8 (a) (5) of the Act that one of
the parties cannot fulfill its bargaining role because it lacks informa-
tion in the possession or control of the other. Certainly, United Steel-
workers of America v. American Manufacturing Co., 363 U.S. 564,
does not purport to discuss or determine the merits of such a charge.
That case was a proceeding to compel arbitration of a grievance under
a collective-bargaining contract. The Employer defended on the
ground that it had not contracted to arbitrate a dispute of that nature.
The court of appeals found that the dispute was a frivolous one, not
subject to arbitration. The Supreme Court, however, reversed on the
ground that the lower court should not attempt to determine whether
or not a particular grievance was meritorious, but was "confined to
ascertaining whether the party seeking arbitration is making a claim
which on its face is governed by the contract." Nothing said by the
court in that case is remotely related to the Employer's duty to furnish
the Union with information or access to its plant.
I am well aware, and agree, that arbitration is a most valuable
adjunct to the collective-bargaining process. In my view, however,
arbitration is machinery which operates for the benefit of both parties.
It is not a substitute for the ingredients each party needs adquately to
prepare and advance its separate interests. More importantly, ar-
bitration is not a substitute for the resolution of serious charges, such
as those in the instant case, which have been entrusted by Congress to
the exclusive jurisdiction of this Board.
INTERMEDIATE REPORT
This case involves allegations that Hercules Motor Corporation , Canton, Ohio,
herein called the Respondent , refused from on or about February 10, 1960, to on or
about March 3, 1960, to provide International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, AFL-CIO, herein called the In-
ternational , and its Local 161, herein called the Local,' the Charging Parties, with
time-study data and standards development information pertaining to grievance
No. 153, a grievance filed by employees of the Respondent in the appropriate bar-
gaining unit referred to below, although requested by the Union to do so, and that
at all times since on or about February 10, 1960, the Respondent has refused to grant
the Union 's request that the Union's time-study expert be permitted 'access to the
Respondent 's plant to view the equipment involved and /or to conduct his own time
study, although the Union was then, and has at all times since been, the exclusive
bargaining representative of the Respondent 's employees in a unit appropriate for
the purposes of collective bargaining . It is alleged that this conduct violated Section
8(a)(1) and (5) of the National Labor Relations Act, as amended (61 Stat. 136),
herein called the Act. After the filing of a complaint by the General Counsel,2 the
Respondent filed an answer admitting certain jurisdictional facts, the appropriateness
of the unit, and that the Union was the exclusive bargaining representative of the
employees in the appropriate unit for the purposes of collective bargaining , but deny-
ing the commission of any unfair labor practices . A hearing was held before Sydney
1 The International and the Local will be referred to collectively as the Union
2 The term General Counsel includes the General Counsel of the National Labor Relations
Board and his representatives at the hearing.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. Asher, the duly designated Trial Examiner, in Canton, Ohio, on May 16, 1960.
All parties were represented and participated fully in the hearing. At the close of
the General Counsel's case the Respondent moved to dismiss the complaint. Ruling
on this motion was reserved. It is now denied for reasons stated herein. After the
close of the hearing, all parties filed briefs, which have been duly considered.
Upon the entire record in this case,3 and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found, that the Respondent is,
and at all material times has been, engaged in commerce within the meaning of the
Act and its operations meet the Board's jurisdictional standards,4 and that the Inter-
national and the Local are, and at all material times have been, labor organizations
within the meaning of the Act.
A. The appropriate unit
The complaint alleges, the answer admits, the Board has found,5 and it is now
found that all production and maintenance employees of the Respondent at its
Canton, Ohio, plant, including plant clerical employees, but excluding all office
clerical employees, professional employees, time clerks, time checkers, all material
control department employees, all experimental and development department em-
ployees, guards, and supervisors as defined in the Act, constitute a unit approprite
for the purposes of collective bargaining within the meaning of the Act.
B. The Union's majority status
,On March 17, 1959, the Board certified the International as the exclusive bargain-
ing representative of the employees in the above-described unit (Case No. 8-RC-
3348). The complaint alleges, the answer admits, and it is found that the Inter-
national and the Local are, and at all times since on or about March 17, 1959, have
been, the exclusive representative of all employees in the above-described unit for
the purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
C. The Union's demand and the Respondent's refusal
1. Sequence of events
Since 1958 the Respondent has been engaged in a plantwide effort to convert its
former piecework system of wage payment into a new "standard hours plan" or
"incentive plan." This project was under the direction of William Burton, then the
Respondent's chief industrial engineer.
In May 1959, within 2 months after the Union's certification referred to above,
the Respondent and the Union began negotiations for a collective-bargaining con-
tract. There were approximately 24 to 30 such bargaining meetings, at least 1 of
which was attended by Burton, for the Respondent, and Kermit K. Mead, an indus-
trial engineer employed by the Union. During negotiations, the Respondent invited
the Union's industrial engineer to visit the plant, but he did not accept this invitation.
In addition the Respondent offered to the Union, for inspection, its procedural manuals
which presumably set forth the procedure used by the Respondent in establishing
incentive rates. Throughout the negotiations the Union continually pressed for the
right of its industrial engineer to have access to time-study data and access to the
plant for the purpose of time-studying jobs being operated. The Respondent, how-
ever, consistently took the position that it would not grant access to the plant to any
representative of the Union other than an employee. At no time during the negotia-
tions did any representative of the Union expressly abandon the Union's request for
8 On April 12, 1961, after the close of the hearing the transcript was corrected in cer-
tain specified respects.
4 The Respondent Is an Ohio corporation, with its principal office and place of business
In Canton, Ohio, where it is engaged in the manufacture, sale. and distribution of internal
combustion engines The Respondent annually ships products valued at more than
$1,000,000 from its Canton, Ohio, plant to points outside the State of Ohio The Board
has previously exercised jurisdiction over the Respondent's operations Hercules Motor
Corporation, Decision and Direction of Election issued February 16, 1959 (not published
in NLRB volumes).
5 Hercules Motor Corporation, supra.
HERCULES MOTOR CORPORATION 1659
access to time-study data and for access to the plant , nor did any representative of the
Respondent expressly agree to such access.
On August 3, 1959, the parties reached agreement and executed a collective-
bargaining contract to become effective August 10 , 1959 , and to continue in effect
until August 8, 1960, renewable thereafter from year to year, unless either party
gave to the other 60 days' written notice of termination. The contract contained,
among others, the following provisions:
* * *
V. Wages
SEC. 4 . Procedure for Establishing New Rates.
,(a) Whenever the Company establishes a new or changed rate . . it will
develop and install such rate in 'accordance with its practice for development
and installation of new and changed rate in effect on the date of the signing
of this agreement.
( b) Prior to the installation of any new or changed rate the Company will
explain the rate to the employee or employees involved and will announce an
effective date.
(c) The employees will be required to give such rate a fair trial for a period
of at least fifteen (15) days on which product is produced under such rate
by any employee. Any grievance as to such rate must be filed within thirty
(30) calendar days after the expiration of said trial period. If any rate is
adjusted pursuant to such grievance, the adjustment will be made effective
as of the effective date of the rate.
* * * * * * *
XIII. Adjustment of Grievances
SECTION 1. The parties agree that the provisions of this Article provide ade-
quate means for the adjustment of any disputes , differences, complaints or
grievances.
SEc. 2. Any employee who believes that he has a complaint concerning the
interpretation or application of this agreement which directly affects him at the
time of such complaint shall discuss the matter verbally with his immediate
foreman within five (5) working days after its occurrence (except as provided
in Article V, Wages, Section 4(c)) in an attempt to adjust it and the employee
may, if he so chooses, have a Union Steward present at such discussion. Any
complaint not so adjusted shall become a grievance within the meaning of this
agreement and such grievance shall be handled in the following manner:
Step One: The grievance shall be reduced to writing on forms provided by
the Company , signed by the employee , and presented in quadruplicate by the
employee to the General Foreman of his department within three ( 3) working
days after the discussion with his immediate foreman . The grievance shall be
discussed by the employee, his steward and the General Foreman at a meeting
to be held within three ( 3) working days after the filing of the grievance and
the disposition of said General Foreman shall be made within three (3) work-
ing days after such discussion.
Step Two: Any grievance not settled in Step One may be appealed to the
Industrial Relations Manager by delivering written notice thereof to said
Manager within five (5 ) working days after the final disposition made in Step
One. A meeting shall be held between the employee and his steward and the
Industrial Relations Manager, or his duly designated representative , within
five (5 ) working days after said appeal, at which meeting an International
Representative of the Union may be called in. The answer of the Industrial
Relations Manager must be given within five ( 5) working days after the meet-
ing of representatives above set forth.
Step Three: In the event any grievance involving the interpretation or appli-
cation of this agreement or disciplinary action is not settled in any of the preced-
ing steps, and the Union wishes to appeal the disposition of the grievance to
arbitration, the President of the local Union shall serve written notice, . of
the desire to appeal the grievance to arbitration upon the Industrial Relations
Manager within ten (10) calendar days after the receipt by the representative
of the International Union of the disposition made in Step Two.
SEC. 3. The arbitration of any grievance so appealed to arbitration shall be
handled in the following manner:
(a) Within ten (10) calendar days after the receipt of such notice of appeal
of a grievance to arbitration the parties shall meet for the purpose of endeavor-
1 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to select an impartial arbitrator by mutual agreement. In the event the
parties are unable to agree upon an arbitrator within fifteen (15) calendar days
from the date of the notice of appeal of a grievance to arbitration, they shall
immediately request the Federal Mediation and Conciliation Service to submit
to the parties a list of seven (7) prospective arbitrators. . . . If either party
fails to join in the request for . . . the . . . list, the other party may make the
request, provided that if neither party requests the . list within twenty (20)
calendar days from the date of the notice of appeal of a grievance to arbitra-
tion . the grievance shall be considered to be accepted on the basis of the
last disposition.
(e) Any grievance not appealed from the written disposition of the Com-
pany's representatives in any of the steps of the grievance procedure within
the times and in the manner specified herein shall be considered as having been
accepted by the employee and the Union on the basis of the disposition last
made and shall not be eligible for further appeal.
On October 28, 1959, Mead and other representatives of the Union met with
William M. Ward, the Respondent's industrial relations manager, and other repre-
sentatives of the Respondent at the plant's main gate. Mead requested the Respond-
ent's representatives to turn over to him time-study information on specific jobs
which were running at the time. Thereupon Ward asked Mead if any grievances
had been filed with respect to these jobs. Mead then asked the other representatives
of the Union if grievances had been filed, and said to them: "You must go around
and file grievances for me to get ahold of standard data or information on this." 6
On January 26, 1960, four employees of the Respondent 7 filed with the Respond-
ent a formal grievance, designated grievance No. 153, that "standard hours unit
rates are too low on part Nos 285200, 285206, 255200, 255205, and 263200." 6
The specific adjustment requested was stated to be: "raise unit rates a proper amount
to enable anyone on this job to earn a fair and agreeable wage for the particular
work produced." On January 27 9 the general foreman made the following disposi-
tion of the grievances: "Requested retime study on parts listed on grievance." This
ended the "step one" phase of the grievance. It was then apparently appealed.
On February 3 the four grievants, their department steward, and Julius M.
Burkett, president of the Local, met with Ward and James Pierotti, the Respond-
ent's senior industrial engineer. This was presumably the beginning of the "step
two" phase. Pierotti stated that he had time studied the jobs involved in grievance
No. 153 three times and could not find anything wrong with the rates. He invited
Burkett to go out to the line and go over the operations with him. Burkett declined,
stating that in view of his lack of experience in time-study matters this would not
do any good. However, Burkett suggested that he would contact Mead "and have
him come down and go over this with us at a later date." The Respondent's repre-
sentatives agreed to this.'°
On February 10 a meeting was held relating to grievances Nos. 169 and 153. The
Union was represented by Peter Costello, one of its International representatives,
Mead, and Burkett; the Respondent by Ward, Burton, and Pierotti.ii With regard
to grievance No. 169, Ward stated that the time limit had run out and the Respond-
ent would not consider it further.12 There was no subsequent discussion of grievance
No. 169.
With respect to grievance No. 153, Mead asked to see the Respondent's standards
development data on the jobs involved, and for permission to enter the plant to run
The findings of fact with respect to this meeting are based upon the undenied testi-
mony of Ward.
7 The complaint alleges, the answer admits, and it is found, that these four employees
were within the above-described bargaining unit.
8 The rates referred to in grievance No. 153 were developed after August 10, 1959, the
effective date of the collective-bargaining agreement.
e All dates hereafter refer to the year 1960 unless otherwise noted.
10 The findings of fact with regard to this meeting are based upon the uncontradicted
testimony of Burkett.
U The record indicates that Pierotti may not have been present during the entire
meeting.
>a There is a conflict as to whether Mead made any request for data or asked for access
to the plant respecting grievance No 109 As the Respondent's refusal to further con-
sider grievance No 169 is not in issue herein, no useful purpose would be served by re-
solving this conflict. I therefore decline to do so
HERCULES MOTOR CORPORATION 1661
time studies on them.13 Ward declined to supply the requested data at that time,
stating that, as a grievance had been filed, the Respondent would turn over to the
Union only such data as the arbitrator should rule was relevant and necessary in
processing the grievance. Mead pointed out that the Respondent, by its refusal,
was committing an unfair labor practice. Ward suggested that the Union take the
matter to arbitration. Burkett replied that the Union did not know if it had a case
to take to arbitration without first checking the job to see whether it had been time
studied correctly. Ward promised to give a more definite answer to the Union later
that day, and the meeting ended.14 About 4 p.m. Ward telephoned to Burkett and
informed him that the Union could neither see the requested data nor have access
to the plant for the purpose of time studying the jobs.15 On the same day Ward
wrote to the four grievants as follows:
This letter is in answer to your grievance No. 153 regarding certain standards.
These operations have been studied and we are of the opinion that the
standards has [sic] been correctly set and according to our procedures. It is
therefore necessary to deny this grievance.
On February 12 the Union filed the instant charges.
Burkett served written notice on Ward that the Union desired to appeal grievance
No. 153 to arbitration. It was understood that, as in the past, Ward would write
to the Federal Mediation and Conciliation Service for a list of arbitrators. There-
after Burkett orally requested Ward to delay writing for the list of arbitrators "as
long as possible" because the matter was pending before the Board. Ward agreed
to do so. Sometime in February Ward informed Burkett that time was running
out; that he would have to send for the list of names. Burkett told Ward to go
ahead and do so. However, the list of names was never sent for and the time limit
specified in the contract expired.18 Neither the General Counsel nor the Union
contends that Ward's failure to request the list of arbitrators constituted a violation
of the Act.
On the morning of March 17 Burkett advised Ward that the Union would like to
hold another meeting with the Respondent regarding grievance No. 153. Ward
agreed to schedule such a meeting, adding that the Union would not be permitted
to see the time-study data because it had not withdrawn its charges pending before
the Board.17 The meeting took place that day, the participants being the same
individuals who had attended the meeting of February 10. Mead renewed his demand
to see standards development data on the jobs involved in grievance No. 153. He was
shown the Respondent's time-study sheet (standards rate sheet) relating to part
No. 255200, which indicated that three cycles of that particular job had been time
studied. As Mead was copying some of the information, one of the Respondent's
representative said: "Why waste all that time? We will give you a photostatic
copy." Thereupon Mead was furnished with a photostatic copy of the time-study
sheet relating to part No. 255200.18 Burton explained to Mead how the Respondent
develops standards. Mead then requested permission to see the operation; Ward
13 Burkett testified that Mead might have indicated that he wanted to start the time
studies at 9 a.m the following day Mead, however, denied that he requested access for
a specific day and time I deem it unnecessary to resolve this conflict
14 The findings of fact regarding this meeting are based upon a synthesis of the testi-
mony of Costello, Mead, Burkett, Ward, and Burton
15 The findings of fact regarding this telephone conversation are based upon Burkett's
testimony Mead testified* "I think the only question I answered that afternoon was the
matter of entering the plant." As the issue of the availability of time-study data had
been prominent in the discussion at the meeting earlier that day, it would seem highly
unlikely that Burkett would have been satisfied with a reply which ignored that issue and
was confined only to a refusal of access to the plant I therefore credit Burkett's version
as the more accurate. It should be noted that, even under Ward's version, there is no
evidence that Ward reversed his refusal, earlier that day, to provide the requested data;
he simply remained silent on the matter
19 The findings of fact respecting the appeal of grievance No 153 to arbitration are
based upon a synthesis of the testimony of Burkett and Ward.
17 The findings of fact respecting this conversation are based upon Burkett' s uncon-
tradicted testimony.
is Ward testified that the Respondent's representatives granted Mead's request for data
because "we felt that giving this data would settle this entire request of the Union to get
into the plant."
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied this request. Mead stated that in view of the Otis Elevator decision 19 he did
not expect to get to see the job.20 The meeting then ended 2r
On March 29 Mead called Ward on the telephone and stated that he would still
,like to come into the plant to do a time study.22 Ward replied that any time Mead
"would like to come through the plant . . . we would be glad to take him through"
but that as far as making time studies was concerned, the Respondent had not
changed its position expressed at previous meetings, and still felt that Mead "didn't
have the right" to do so.23
2. Time-study procedures usually employed
In order fully to understand the issues raised by the foregoing facts, it is helpful
to look briefly into time-study procedures usually employed.
The function of a time-study engineer is to evaluate an operation and to ascertain
the time which, in his opinion, is necessary for an operator working at a normal
pace to produce a unit of goods. First the engineer explains to the operator why
he is there and what he intends to do. Then the engineer observes the opera-
tion and lists the "conditions and circumstances" under which the operator works.
These include such matters as the speed of the machine, the type and characteristics
of material being worked on (such as the hardness of metal), the type of tools used,
the source of the material, the method of feeding the material into the machine,
lighting conditions, and atmospheric conditions. Then the engineer breaks down
the total work cycle into component parts, called elements. Next, the engineer times
several complete cycles (usually three) with a stopwatch and records the time elapsed
for each element. It is important that this timing take place under conditions pre-
vailing at the time the "conditions and circumstances" were listed. The engineer
then determines either the average or the mode time for each separate element
of the cycle, applying to each a "normalizing factor" indicating his opinion of the
relation between the observed performance and normal performance. Thus if an
element were actually timed at an average or mode of 2 minutes, if the normalizing
factor were 100 percent, the result would be 2 minutes; if the normalizing factor were
120 percent the result would be 2 40 minutes; if the normalizing factor were 90 per-
cent the result would be 1.80 minutes, etc. Finally, the engineer makes allowances
for fatigue (inability of the human body to maintain a given pace), personal needs
(servicing the body), and inherent delay. If the time study is made by a union
engineer, the Company's engineer usually accompanies him, and they consult.
It can be seen from the above that a time study includes many subjective judgments
by the engineer, such as the "normalizing factor" and the various allowances. There-
fore time studies of the same operation under identical conditions may bring dif-
ferent final results when conducted by different engineers. It is also obvious that
the employee involved, being untrained in such procedures and occupied with the
production task, could not conduct a meaningful time study on his own operation.
Further, it is clear that one engineer cannot make a reliable analysis of a time study
conducted by another engineer without running an independent time study himself.
It follows, and I find, that a union faced with a grievance similar to the one involved
in the instant case could not adequately criticize the validity of a given rate merely
18 N L R.B v. Otis Elevator Co, 208 F 2d 176 (C A. 2)
20 The finding of fact regarding this statement of Mead is based upon Burton's testi-
mony Mead denied discussing Otis Elevator, but testified that be might have discussed
J. I Case (J I Case Company v. NLRB., 253 F 2d 149 (C A. 7)) I consider Burton's
testimony, corroborated in part by that of Ward, more accurate on this point than Mead's,
which R as not corroborated by either Burkett or Costello
u The findings of fact regarding this meeting are based upon a synthesis of the testi-
mony of Burkett, Costello, Mead, Ward, and Burton
After examining the time-study data pertaining to part -No 255200 and being refused
access to the plant, Mead did not request similar data wtih reference to the other parts
involved in grievance No 153 He explained. "There was no need for asking for other
information because all I could have done was examine that and, as long as I couldn't
get access to the plant, all the information I examined wasn't going to do me any
good . [in] . preparing for the third step of the grievance procedure There
wasn't any need for nie to examine the material on several jobs if I couldn't complete
one fob "
22 Ward testified that lie was "surprised" because he had received the impression at the
March 17 meeting that the demand for access had been withdrawn. He further testified
that the telephone call of March 29 reversed this impression
73 The findings of fact regarding this conversation are based upon Ward's testimony,
supplemented by that of Mead.
HERCULES MOTOR CORPORATION 1663
by examining the company's data; all it could do in the absence of its own time study
would be to determine if proper procedures had been utilized.
In the instant case Mead estimated that an adequate time study of the operation
involved in the production of part No. 255200 would have required his presence in
the plant for a minimum of 21/2 hours. He was unable to estimate the time neces-
sary for a time study of the other parts. Burton testified that had Mead been
granted permission to time study the jobs involved, his presence would have inter-
fered with production "to a certain extent." This was because, in each job time
studied, it would probably have been necessary to stop the operation and discuss with
the employee what was going to be done.
3. Contentions of the parties
The complaint alleges that, from on or about February 10 to on or about March 3,
the Respondent refused to provide the Union with information and time-study data
pertaining to grievance No. 153. In support of this allegation the General Counsel
contends that, as the information was material and relevant to the grievance and
necessary for its adequate processing, the Respondent's failure to supply it upon
request constituted an illegal refusal to fulfill its statutory bargaining obligation.
The Respondent does not deny that the Union made a timely request for the time-
study data, nor does it maintain that granting this request would have been unduly
burdensome. It argues however that (a) the information was not relevant or
material to the grievance; (b) grievance No. 153 was "baseless"; (c) the Respondent
met with the Union and explained its position and was willing to arbitrate the matter
and to abide by the arbitrator's decision; and (d) in any event, the requested in-
formation was furnished to the Union.
The complaint further alleges that, at all times since about February 10, the
Respondent has refused to grant the Union's engineer "access to the place in the
Respondent's plant where the operations involved in grievance No. 153 are located,
to enable . [him] . to view the equipment . . . [involved] . and/or
permit . . . [him] . . . to conduct his own time study." The Respondent's de-
fenses to this allegation are (a) the requested access was not necessary or relevant to
grievance No. 153; (b) grievance No. 153 was "baseless"; (c) the Union had no
right of access as a matter of law; (d) even if it had such a right, the Union waived
it ';y executing the contract; and (e) even if it had such a right, the Union lost it by
failing to follow through the grievance procedure set forth in the contract. By way
of rebutting the defense of waiver, the General Counsel concedes that the matter of
access to the plant for the Union's engineer was discussed during negotiations But
he urges that this right could only be waived by clear and unambiguous language,
and that such language is absent.
4. Conclusions regarding the refusal to produce data
In my opinion, the General Counsel proved a prima facie case in support of this
phase of the complaint when it was shown that the Union's demand of February 10
for time-study data was refused. An employer's obligation to grant a bargaining
agent's request for time studies and job evaluation data pertaining to particular jobs
is well established 24 This is especially true where, as here,_ such information is
necessary to enable the bargaining agent to determine whether to press a specific
existing grievance. But the Respondent urges that this principle should not be
applied to the instant case for several reasons. Let us turn then to an examination
of these defenses.
The Respondent's first defense to this portion of the complaint is that the material
sought (standards development data regarding parts Nos. 285200, 285206, 255200,
255205, and 263200) was not relevant or material to the grievance. Pointing out
that the violation alleged is failure to bargain only regarding grievance No 153, an
existing specific grievance, the Respondent maintains that, under such circumstances,
the duty to bargain has been "channeled" into an agreed-upon grievance procedure
created by the contract and therefore "the contract provisions relating to the nature
and type of grievances to be processed are controlling." Turning then to the con-
tract itself, the Respondent contends that the equity of fairness of the rates estab-
lished by the Respondent was not a proper subject for a grievance under the con-
tract; that the only type of grievance regarding rates permitted by the agreement
24 Otis Elevator Co., 102 NLRB 770, enfd in this regard 208 F. 2d 176 (CA 2) ; and
J. I Case Company (Rock Island, Illinois ), 118 NLRB 520, 521-522, enfd. 253 F. 2d 149
(C.A. 7).
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was one claiming "that the rates in question were not set in accordance with the
Company's practice for the development and installation of rates." The short answer
to this is that I do not so read the contract. The sweeping language of the first
sentence of article XIII, section 2, does not lend itself to such a limited interpreta-
tion . Certainly an employee who considers that his rate has been unfairly set
would be likely to feel that he has "a complaint concerning the . application of
this agreement which directly affects him." And such a reaction would, in my
opinion, be justified. I conclude that, under the contract, a complaint questioning
the equity or fairness of specific rates set by the Respondent was a proper subject
for a grievance. But even if, contrary to the above, the Respondent's restrictive con-
struction should be adopted, the Respondent would not be aided in this question of
producing data. For the information sought by Mead was necessary to determine
whether the rates involved had been "set in accordance with the Company's practice
for the development and installation of rates." The Respondent argues that "in
order to determine whether or not the standards were properly set under the con-
tract it was only necessary to compare them with the manual" which had been pre-
viously furnished to the Union. I find no merit in this contention. In the absence of
the information requested Mead could not have discovered, for example, whether
more than one complete cycle had been timed, or whether any allowance had been
made for fatigue. It is therefore clear from the record, and I find, that it would
have been virtually impossible for the Union to ascertain with any reasonable degree
of accuracy whether the rates on the jobs involved in grievance No. 153 had been
properly set under the contract "in accordance with the Company's practice" without
first examining the data requested by the Union.
The Respondent further insists that grievance No. 153 was "baseless." If by
this the Respondent means that the grievance lacked merit, the defense must be
rejected. For the Board is not, and cannot properly be in this case, concerned
with the merits of the controversy which lead to the filing of grievance No. 153.
If, on the other hand, the Respondent means by this that the subject matter of the
grievance was not arbitral, this position has already been considered and found
lacking in merit.
Next, the Respondent points to the fact that it met with the Union and was willing
to arbitrate, but complains that the Union, although empowered to do so, failed to
carry the matter through to arbitration by a timely request to the Federal Mediation
and Conciliation Service for a list of arbitrators, and instead permitted the matter to
lapse. It is apparently the Respondent's position that, having slept on its rights, the
Union must, in accordance with the last proviso of article XIII, section 3, of the
contract, accept the grievance "on the basis of the last disposition." This fails to
take into account the specific provision of Section 10(a) of the Act that the Board's
power to prevent the commission of unfair labor practices "shall not be affected by
any other means of adjustment or prevention that has been or may be established
by agreement, law or otherwise." It follows, and I find, that the Union's failure to
carry through grievance No. 153 to arbitration constitutes no impediment to the
Board's determining whether the Respondent has violated the Act. Nor does the
willingness of the Respondent to meet and to arbitrate the dispute provide an
adequate substitute for its statutory duty to turn over to the Union (without the
intervention of any third party) the time-study information requested.25 In sum,
the Respondent's offer of February 10 to provide the data was conditional whereas
the law required it to be unconditional.
Finally, the Respondent protests that it ultimately submitted the requested infor-
mation. The fact remains, however, that the demand was originally made on Febru-
ary 10 (while the grievance was still very much alive) but was not complied with
until more than a month later, after charges had been filed with the Board. This
needless delay resulted in the data becoming virtually valueless, for meanwhile the
time limit for seeking a list of arbitrators had expired and the grievance had become
a dead issue.2e
I conclude that the subject matter of grievance No. 153 was a proper subject for
a grievance under the contract, that the Union on February 10 made timely demand
for data in connection therewith, that the demand was not unduly burdensome,
and that the information sought was relevant and material to grievance No. 153.
I5 The Board has consistently held that the collective bargaining requirement of the Act
is not satisfied by a substitution of the grievance procedure of a contract. Ilekman
Furniture Company, 101 NLRB 631, 632, enf. 207 F. 2d 561 (CA. 6) ; Beacon Piece
Dyeing and Finishing Co, Inc., 121 NLRB 953, 961.
2 I deem it unnecessary to, and do not , determine herein the Respondent 's motive in
delaying the submission of the data to the Union.
HERCULES MOTOR CORPORATION 1665
Accordingly, it is found that by refusing the Union's demand for the data from
February 10 to March 3,27 the Respondent illegally refused to bargain in violation of
Section 8 ( a)(5) of the Act. By the same conduct , the Respondent interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act, thereby also violating Section 8(a)(1) of the Act.28
5. Conclusions regarding the refusal to permit access
The parties are in fundamental disagreement as to whether the Respondent, in
addition to furnishing information in its possession , was also on February 10 under
a statutory duty, as part of its obligation to bargain collectively concerning grievance
No. 153, to permit the Union's engineer to enter the production areas of the plant
for the purpose of conducting independent time studies of the jobs involved therein,
at a time when the plant was in operation. In resolving this issue, the rights of the
employer to manage his business and operate his plant efficiently must be balanced
against the Union's right to carry out effectively its function of representing the
employees in grievance matters.
The problem is not a novel one. In Otis Elevator 29 the Board, under circum-
stances strikingly similar to those in the instance case, held that the employer, in
addition to supplying pertinent time-study data, was required by Section 8(a)(5)
of the Act to grant the requested access. A majority of the court of appeals dis-
agreed with the Board on this point 30 Able counsel for the Union correctly points
out in his brief that, as a Trial Examiner, I am bound to follow the Board's ruling,
despite its reversal in the court of appeals, "until the Board either changes its doc-
trines or . . . the matter is decided by the Supreme Court." 31 The question re-
mains, therefore, whether the Board has continued to adhere to the principle
enunciated in its Otis Elevator decision regarding access to the plant.
After the court of appeals reversed the Board's Otis Elevator decision, this case
became the subject of discussion in Westinghouse Electric.32 Two Members of the
Board there indicated that, in their opinion, the Board's decision in Otis Elevator
should be followed; 33 one Member distinguished Otis Elevator on its facts; 34 and the
remaining two failed to mention Otis Elevator at all. In view of the failure of one
Board Member to reach the Otis Elevator issue and the expression by two others
that the Board decision in Otis Elevator should be adhered to, it is doubtful whether
Westinghouse can fairly be viewed as "Board" rejection of its original position, set
forth in Otis Elevator. I conclude-with all due respect-that I am bound by the
Board's decision in Otis Elevator, despite the contrary opinion of the court of appeals.
It follows, and I find, that under the circumstances here present, the Respondent
was after February 10 (when the timely demand was made) under a duty to permit
the disputed access, absent prior waiver thereof by the Union.35
The Respondent vigorously insists that whatever right of access the Union might
previously have had it waived by executing the contract on August 3, 1959. The
General Counsel, however, while conceding that the matter was discussed during
negotiations , maintains that there was no clear and unambiguous waiver. Let us
examine the conduct of the parties during bargaining for the 1959 contract. On
May 22, early in the negotiations, the Union's representatives requested that its
engineer be permitted access to the plant for the purposes of making time studies.
27Although the refusal in fact extended beyond March 3, I shall limit my finding to
the period set forth in the complaint, namely, a terminal date of March 3
281n finding that the Respondent violated the Act in this regard, no reliance has been
placed upon Ward's statement to Burkett that the Union could not see the data because
it had not withdrawn its charges, as that remark was made on March 17-outside the
period set forth in the complaint.
19 Otis Elevator Co, 102 NLRB 770
10 N.L R B. v. Otis Elevator Company, 208 F 2d 176, 177 (C A. 2).
31 Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Com-
pany of America), 119 NLRB 768, 772-773; Novak Logging Company, 119 NLRB 1573,
1575-1576; and Scherrer and Davisson Logging Company, 119 NLRB 1587, 1589.
82 Westinghouse Electric Corporation , 113 NLRB 954
S3lbid , dissenting opinion of Members Murdock and Peterson, pages 967-968.
S4lbid , concurring opinion of Member Leedom, footnote 14 on page 963.
Ss It will be recalled that on March 17 Mead stated that in view of the Otis Elevator
decision he did not expect to see the job I deem it unnecessary to decide whether this
statement constituted a waiver. Whatever the purport of the comment, or the authority
of Mead to bind the Union, this occurred more than a month after February 10, when the
Union first demanded, and was denied, access to the plant for Mead.
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's representatives replied that they would not grant access to the
plant for this purpose to nonemployees. The Respondent's position in this regard
was iterated at the negotiating session of May 27, 1959. At the meeting of June 11,
1959, the parties listed the remaining subjects of disagreement between them; the
right of the Union's engineer to enter the plant to make time studies was among them.
On July 13, 1959, the Respondent submitted its proposals in writing, omitting any
mention of access to the plant. At the session of July 17, 1959, Costello submitted
a number of demands on behalf of the Union, including access to the plant for the
Union's International representative. The Union's representatives proposed that,
on this point, the parties should adopt the wording of a contract dated May 12, 1957,
between Automatic Steel Products, Inc., and the Union. This contained a detailed
provision for on-the-job time studies by the Union's engineer whenever an operator
"questions the practicability of a time standard" and no satisfactory solution is
reached after restudy. Between July 17 and August 3, 1959, when the contract was
executed, no representative of the Union specifically stated that the request for access
to the plant was withdrawn, nor did any representative of the Respondent indicate
that it was receding from its prior refusal to grant access to nonemployees.
In attempting to apply legal precepts to this state of facts, the Act itself furnishes
an appropriate starting point. Section 8(d) of the Act, as amended, provides in
pertinent part as follows:
the duties so imposed [bargaining] shall not be construed as requiring
either party to discuss or agree to any modification of the terms and conditions
contained in a contract for a fixed period, if such modification is to become
effective before such terms and conditions can be reopened under the provisions
of the contract.
The effect of Section 8(d) was discussed by the Board in the Jacobs case 35 In
that proceeding, the details of an existing group insurance plan had been thoroughly
explored during negotiations and the parties had orally agreed to certain changes.
However, the 2-year contract finally executed did not mention the insurance program,
but it did contain a provision permitting reopening for wage rates after 1 year. A
year later the union invoked the reopening clause, demanding not only a wage in-
crease but also that the Company undertake the entire cost of the group insurance
program. When the parties met, the company refused to discuss the insurance pro-
gram. A three-member majority of the Board found no violation of Section 8(a) (5)
in the company's conduct pertaining to insurance. One member of the majority
concluded that Section 8(d) stabilized the rights of the contracting parties with
respect to all bargainable subjects, whether or not specifically set forth in the con-
tract; 37 another based his concurrence on the fact that the union had not requested
bargaining on insurance independently from that on wages, and the reopening clause
was in his opinion limited to the subject of wages; 38 and the third concurred on the
theory that the matter of insurance had been "consciously explored" during negotia-
tions and an agreement reached on this subject, albeit outside the written contract-
he therefore concluded that the agreed-upon insurance changes were part of the
contemporaneous bargain made by the parties which the union could not insist upon
reopening in mid-term.39 Bearing in mind these separate opinions of the majority,
it cannot fairly be said that they all agreed that the signing of the contract constituted
a waiver by the union of its right to demand further bargaining on the subject of
insurance for, in the view of one member of the majority, "the Respondent's willing-
ness to bargain thereon independently was never put to test." 40
Since its decision in Jacobs the Board has on numerous occasions been called upon
to determine whether, in a particular set of circumstances, the union has, by executing
a contract, bargained away its statutory right to make a specific demand for the dura-
tion of the contract term. From a reading of these cases a general principle emerges:
An effective waiver will be found to have been given when it appears in "clear and un-
mistakable" language, either incorporated in the language of the contract itself or
The Jacobs Manufacturing Company, 94 NLRB 1214
Ibid, opinion of Member Reynolds, pages 1231-1234
- Ibid , opinion of Member Murdock, pages 1234-1235
0 Ibid, opinion of Chairman Herzog, pages 1227-1228
40 The court of appeals left open the question whether "mere previous discussion of a
subject without putting any terms and conditions as to it into the contract" relieves the
parties of the duty to bargain during mid-term concerning the subject. NLRB. V.
Jacobs Manufacturing Company, 196 F. 2d 680 , 684 (C.A. 2).
HERCULES MOTOR CORPORATION 1667
expressed at the bargaining table before the contract was signed 41 On the other
hand, a purported waiver will not be lightly assumed or inferred in the absence of
"clear and unequivocal" language. And even where the parties consciously explore
the matter during negotiations and the contract fails to touch upon it, something more
is required before the union will be held to have bargained away its rights, namely,
a conscious relinquishment by the union, clearly intended and expressed 42 The
record herein shows, during negotiations, a conscious exploration of the subject
matter of the right of access to the plant. But there never was any express yielding
by the Union on this point. Moreover, a careful reading of the contract fails to reveal
any language which clearly waived the Union's right to access. Accordingly, I
conclude that there was no effective waiver here.
There remain the other defenses raised by the Respondent to this portion of the
complaint. The contention that the requested access was not necessary or relevant
to grievance No. 153 is lacking in merit. It has already been found that the equity
or fairness of specific rates set by the Respondent was, under the contract terms, an
appropriate subject for a grievance. It has also been found that one engineer cannot
make a reliable analysis or criticism of a time study conducted by another engineer
without running an independent time study himself. In short, it was impossible for
Mead intelligently to evaluate the existing rates which formed the basis for grievance
No. 153 and to decide whether the grievance should be pressed until he had made
his own time study of the jobs involved. I therefore find that the requested access
was relevant and necessary to the proper functioning of the Union as bargaining
agent, and that the Respondent's refusal to grant such access when timely requested
unreasonably impeded such functioning. As to the defense that grievance No. 153
was "baseless" and that, in any event, the Union lost whatever right of access it might
have had by failing to follow through the grievance procedure, these arguments have
been explored above and ruled upon adversely to the Respondent. In view of the
foregoing, it is found that, by refusing on and after February 10, 1960, to honor the
Union's demand for access to the plant for Mead to make on-the-job time studies
of the operations involved in grievance No. 153, the Respondent unlawfully refused
to bargain in violation of Section 8(a) (5) of the Act. By the same conduct, the
Respondent interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, thereby also violating Section 8(a)(1)
of the Act.
The Remedy
In order to remedy the unfair labor practices found above, it will be recommended
that the Respondent cease and desist from failing or refusing to furnish the Union
with time studies or job evaluation data regarding operations which are the subject
of a current grievance or arbitration procedure filed on behalf of an employee or
"The following are examples of cases since Jacobs in which such a waiver was found
Avco Manufacturing Corporation (Lycoming Division), 111 NLRB 729 (union had con-
tractually accepted merit system) ; International News Service Division of The Hearst
Corporation, 113 NLRB 1067 (express oral abandonment of more extensive demand for
information during negotiations, plus execution of contract containing provision for only
limited information) ; Speidel Corporation, 120 NLRB 733 (clear oral understanding be-
tween parties during bargaining that subject of bonuses would remain "management
prerogative") ; and The Berkline Corporation, 123 NLRB 685 (during negotiations union's
representative orally agreed it would not be necessary for company to reduce rules to
writing). California Cotton Cooperative Association, Ltd, also known as Calcot Cotton
Compress, 110 NLRB 1494, cited by the Respondent, is not in point. There the Board
adopted the Trial Examiner's conclusion only because no exceptions were filed thereto, and
did not reach the merits
" The following are examples of cases since Jacobs in which no waiver was found -
California Portland Cement Company, 101 NLRB 1436; Otis Elevator Co, supra, 778 (see
the language of the court of appeals disapproving "the drawing of broad inferences of
waiver from [the parties'] silence," 208 F. 2d 176, 179) ; Nash-Finch Company, 103
NLRB 1695, enfd denied because of court's finding of waiver 211 F. 2d 622 (C.A 8) ;
Boston Record-American-Advertiser Division-The Hearst Corporation, 115 NLRB 1095 ;
Beacon Piece Dyeing and Finishing Co, Inc, supra; and The Press Company, Incor-
porated, 121 NLRB 976. See also Hekman Furniture Company, supra, 632 The same
result is reached where the waiver was clearly expressed but there was a later failure of
consideration American Sugar Refining Company, Chalmette Refinery, 130 NLRB 634
641795-63-vol. 136-106
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.employees in the appropriate unit ,43 or from refusing to permit the Union 's industrial
engineer to enter its plant and conduct independent time studies of any such opera-
tions. I am convinced , and find , that the sole reason for the Respondent 's refusal to
provide the data in question and its refusal to permit access to its plant was its good-
faith but mistaken belief that it was under no statutory obligation to do so, rather than
any opposition to the purposes of the Act. Accordingly, there would appear to be
no danger of the commission of other unrelated unfair labor practices by the Respond-
ent in the future. It will therefore be recommended that Respondent cease and
desist only from the unfair labor practices found , and from infringing upon the
rights of its employees in any like or related manner.
As the time limit for seeking a list of arbitrators has expired with regard to griev-
ance No. 153, and that grievance has therefore become a dead issue, it will not be
recommended that the Respondent be required to furnish information or permit access
to its plant in connection with that specific grievance . However, it will be recom-
mended that, as to any future grievance or arbitration proceeding filed on behalf
of any employee or employees in the bargaining unit, the Respondent shall furnish
to the Union upon timely request time studies and job evaluation data pertaining
to the subject operations, and permit the Union's industrial engineer to enter the
plant and conduct an independent time study of any such operations, at appropriate
and reasonable times.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Hercules Motor Corporation is, and at all material times has been , an employer
within the meaning of Section 2(2) of the Act.
2. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, and its Local 161, are, and at all material times
have been, labor organizations within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the Respondent at its Canton,
Ohio, plant, including plant clerical employees, but excluding all office clerical em-
ployees, professional employees, time clerks, time checkers, all material control de-
partment employees, all experimental and development department employees,
guards, and supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, and its Local 161, were on March 17, 1959, and at
all times since have been , the exclusive representative of all employees in the above-
described unit for the purposes of collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing from February 10 to March 3, 1960, to furnish International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America,
AFL-CIO, and its Local 161, with time studies and job evaluation data regarding
operations which were the subject of grievance No. 153, and by refusing at all times
since February 10, 1960, to permit the industrial engineer of the above-named labor
,organization to enter its plant and conduct independent time studies of the operations
which were the subject of grievance No. 153, thereby refusing to bargain collectively
with the above-named labor organization as the exclusive representative of the em-
ployees in the above-described unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By the above conduct, thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
7. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
13 While it is true that data regarding the operations involved in grievance No. 153 were
ultimately offered to the Union, the cessation of unfair labor practices does not preclude
the issuance of a remedial order. General Drivers, Chauffeurs, Warehousemen and
Helpers Union, Local No 886, AFL-CIO (American Iron and Machine Works Company),
115 NLRB 800, 807-808, enfd 247 F. 2d 71 (CAD C ) , affd 357 U S 93, and Inter-
national Hod Carriers' Building and Common Laborers Union of America, Local No. 83,
AFL-CIO, et al (Consolidated Construction Company, Inc ), 124 NLRB 1131, footnote 3.