Brown Shoe Co.

National Labor Relations Board - Board Decisions

Sep 21, 1993

312 N.L.R.B. 285 (N.L.R.B. 1993)

285
312 NLRB No. 65
BROWN SHOE CO.
1 The Respondent thereafter filed a motion to reopen the record
and the General Counsel and the Charging Party filed responses in
opposition to the motion. The Respondent then filed a motion and
a second motion to supplement its motion to reopen and/or a motion
for judicial/official notice to which the General Counsel and the
Charging Party filed responses in opposition. We deny the Respond-
ent’s various motions as lacking in merit.
2 The Respondent argues in its exceptions that the complaint
should be dismissed because of the judge’s ‘‘prejudicial rulings and
conduct at the hearing.’’ After a careful examination of the entire
record, we are satisfied that this allegation is without merit. We find,
contrary to the Respondent, that the judge did not demonstrate bias
and prejudice towards the Respondent’s position by the comments
and rulings he made during the course of the hearing.
The judge stated in both the 6th and 14th paragraphs of his
‘‘Statement of Facts’’ that under the parties’ collective-bargaining
agreement machine operators had a ‘‘120 day’’ trial period in which
they received 100 percent of their former hourly wages as they ad-
justed to the installation of new machinery at the Respondent’s facil-
ity. However, the contract actually provides, as the judge noted in
the 4th paragraph of this section, that the operators receive 100 per-
cent of their former pay for only the first ‘‘120 hours.’’ We do not
find that correction of these misstatements is sufficient to affect the
result here.
3 We note that the judge erroneously stated that NLRB v. Babcock
& Wilcox Co., 351 U.S. 105 (1956), and its progeny, including
Lechmere, Inc. v. NLRB, 112 S.Ct. 1513 (1992), are ‘‘inapposite’’
here. Contrary to the judge, the Board expressly relied on Babcock
in articulating the Holyoke test. In Holyoke, citing Babcock, the
Board agreed ‘‘with the [employer] [r]espondent’s contention that an
employer’s right to control its property is a factor that must be
weighed in analyzing whether an outside union representative should
be afforded access to an employer’s property.’’ Under the Holyoke
test, however, we analyze an incumbent union’s entitlement to an
employer’s premises as opposed to a union’s attempt to organize an
employer’s employees as in Babcock. The Holyoke test, which all
parties agree applies here, ‘‘is a balancing test under which access
is to be granted if ‘responsible representation of employees can be
achieved only by the union’s having access to the employer’s prem-
ises’ and under which access can be lawfully denied if ‘a union can
effectively represent employees through some alternative means
other than by entering on the employer’s premises.’’’ Exxon Chemi-
cal Co., 307 NLRB 1254 (1992), quoting Holyoke, 273 NLRB at
1370. As we have stated, however, the judge properly found that the
Union had no alternative means for gathering the timestudy informa-
tion.
4 This provision provides, inter alia, that:
Where a new job, a new machine, or a new method is intro-
duced into the factory, and, after a reasonable learning period,
the operators thereon fail to reach their former line average, the
Company and Union shall make a joint investigation to deter-
mine the cause of such failure.
Brown Shoe Company and Amalgamated Clothing
and Textile Workers, Southwest Regional Joint
Board, Cape Girardeau District. Case 14–CA–
21796
September 21, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 6, 1992, Administrative Law Judge
George F. McInerny issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party Union
filed answering briefs.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order.
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to grant the Union’s timestudy engineer access to its
plant in order to conduct timestudies on new machin-
ery the Respondent had installed. In finding this viola-
tion, the judge inferred that the Respondent either had
conducted these timestudies itself and had failed to re-
port the results to the Union or had erroneously led the
Union to believe, through its written correspondence,
that management officials had done such timestudies
when the data actually did not exist.
We find it unnecessary in this case to rely on the
judge’s unwarranted speculation as to whether the Re-
spondent had conducted the relevant timestudies. We
note that the Union filed two grievances in April 1991
alleging that following installation of new machinery
employees who operated that machinery had suffered
a decline in wages under the Respondent’s piece rate
system. Then, on December 2 and 20, 1991, after an
arbitrator had been requested on these grievances, the
Union requested that the Respondent grant its time-
study engineer access to the plant to conduct time-
studies pertaining to the Union’s grievance. The Re-
spondent effectively denied these requests on Decem-
ber 9 and 27, 1991. As the judge found, the timestudy
was clearly relevant to the processing of the grievance,
and the Union had no other reasonable means of ob-
taining the information. Thus, the judge properly found
that the Respondent’s refusal to grant access violated
Section 8(a)(5) under the test set out in Holyoke Water
Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49
(1st Cir. 1985), cert. denied 477 U.S. 905 (1986).3
In so concluding, we reject the Respondent’s conten-
tion that the Union’s failure to invoke article III, sec-
tion 6 of their collective-bargaining agreement and re-
quest a joint investigation of the employees’ alleged
wage losses barred the finding of a violation here.4 We
stress that this contractual provision did not specifi-
cally preclude the Union from using other means to
address these grievances and that, as the Union noted
in its answering brief, any such request would have
been futile based on the Respondent’s denial that any
problem existed regarding employees’ piece rates on
the new machinery.
Further, the ‘‘joint investigation’’ envisaged by arti-
cle III, section 6 is no substitute for an actual time-
study of the machine in question. Article XIII, section
5 of the contract provides for such a timestudy. How-
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever, two points are critical in this respect. First, al-
though the study is to be done by the Company, the
Union can be present during such a study. Thus, the
Respondent has implicitly recognized that union access
is necessary during a study. Second, on February 11,
the Union invited the Respondent to perform such a
study. In the alternative, the Union asked to do its own
study. The Respondent never replied. Thus, the
Union’s request for access to perform a study was
made only because the Respondent declined the
Union’s reasonable request that the Respondent per-
form its own study. In these circumstances, we con-
clude that union access was necessary in order for the
timestudy to be accomplished.
Finally, the Respondent asserted that the judge im-
properly ignored the parties’ record stipulation that
during calendar years 1989–1991 they had resolved 68
grievances relating to employees’ piece rates without
the Union ever conducting a timestudy. The Respond-
ent, while further noting that before the instant hearing
the parties also resolved one of the two grievances
here without conducting a timestudy, argued that the
judge should have permitted the parties to resolve the
remaining grievance themselves under the relevant pro-
cedures set out in the contract. Because there is no evi-
dence regarding the nature of the 68 grievances the
parties handled without a timestudy, we find that they
are immaterial to our resolution of this case. Further,
the Union’s past failure to request timestudies in re-
solving grievances does not prejudice its right to de-
cide that such information would advance the process-
ing of later grievances. Regarding the evidence that the
parties settled one of the grievances filed here, we note
that this grievance was pending at the time the Union
sought access and that the parties’ later resolution of
it did not cure the Respondent’s unlawful conduct.
Thus, we adopt the judge’s finding that the Re-
spondent’s refusal to grant the Union access to its
premises in these circumstances violated Section
8(a)(5) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brown Shoe Company,
Caruthersville, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Kathleen C. Fothergill, Esq. and Robert Seigel, Esq, for the
General Counsel.
Terry L. Potter, Esq. and James N. Foster Jr., Esq.
(McMahon, Berger, Hanna, Linihan, Cody and McCarthy),
of St. Louis, Missouri, for the Respondent.
Carl Bush, Esq., of St. Louis, Missouri, for the Charging
Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
on a charge filed on January 29, 1992, by Amalgamated
Clothing and Textile Workers, Southwest Regional Joint
Board, Cape Girardeau District (the Union), the Regional Di-
rector for Region 14 of the National Labor Relations Board
(respectively, as the Regional Director), and the Board,
issued a complaint on February 25, 1992, alleging that
Brown Shoe Company (Respondent or the Company) had
violated and was continuing to violate certain provisions of
the National Labor Relations Act, 29 U.S.C. § 151 et seq.
(the Act). The Respondent filed a timely answer in which it
denied the the commission of any unfair labor practices. Pur-
suant to notice given by the Regional Director, a hearing was
held before me in St. Louis, Missouri, on April 13, 1992, at
which all parties were represented by counsel, and had the
opportunity to present testimony and documentary evidence,
to examine and cross-examine witnesses, and to argue orally.
Following the close of the hearing, all parties filed briefs,
which have been carefully considered. The General Coun-
sel’s brief has been corrected as requested in a motion dated
June 12, 1992.
Based on the entire record, including my observations of
the witnesses, and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Brown Shoe Company is a corporation authorized to do
business in the State of Missouri. It maintains a number of
facilities engaged in the manufacture of shoes and other arti-
cles of clothing in Missouri and in other States, including the
plant in question here, located in Carruthersville, Missouri.
The complaint alleges, the answer admits, and I find that the
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union here is alleged to be a labor organization with-
in the meaning of Section 2(5) of the Act. The answer ad-
mits this, and I so find.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Statement of Facts
The Union has represented the employees of this Company
at its plant in Carruthersville, Missouri, since at least 1964.
The bargaining unit as described in the latest collective-bar-
gaining agreement effective from September 20, 1990, to
August 27, 1993 (the contract) includes ‘‘all employees of
the Company’’ excepting the ‘‘Plant Manager, Assistant
Plant Manager, Foremen, Assistant Foremen, Instructors,
Floorladies, Commissary Clerks, Upper Leather Clerks,
Nurse, Clerical, Office Force and Record Writers.’’
This unit, as so described in the complaint, is admitted in
the answer, and I find it to be an appropriate unit for collec-
tive bargaining within the meaning of Section 8(b) of the
Act.
The contract provides, in article III, section 6 that
287BROWN SHOE CO.
1 Whether the decision was based on the studies made before the
purchase, or on new studies made in this grievance process.
2 The last part of this sentence in the denial letters continues: ‘‘and
is sufficient to return the expected earnings for this operation.’’ It
is not clear whether the Company is referring to employee earnings
or its own earnings from the operation in question, but the word
‘‘expected’’ is another clue pointing to a management study of the
operation, which examined the relationship of time to production and
piece rate wages.
where a new job, a new machine, or a new method is
introduced into the factory, and, after a reasonable
learning period, the operators thereon fail to reach their
former line average, the Company and the Union shall
make a joint investigation to determine the cause of
such failure.
Section 9 of the same article provides that
when an operator is required to move to a new type
machine where new work habits must be learned, he
shall be compensated for a period of the first 120 hours
at 100 percent of his former hourly average or at his
earnings on the new machine, whichever is the greater.
The facts in this case are substantially undisputed. Early
in 1991 new machines were introduced in the bottoming de-
partment (where the bottoms of shoes are made and soles
and heels attached), and the lasting department (where uppers
are formed onto shoe lasts). The new machines affected par-
ticularly the rough and cement section in the bottoming de-
partment, and the simple sidelast section of the lasting de-
partment.
In April 1991, some of the employees in these two sec-
tions, rough and cement, and Simple sidelast, came to Kath-
leen Lee, an employee at the Carruthersville plant and the
president of the Union’s Carruthersville local. The employees
complained to Lee that when methods were changed and new
machines were installed in their sections, they were unable
to keep up their average production. Lee testified that she
checked the Company’s payroll records (which were made
available to her without limitation) showing wages before the
new methods and machines, and the wages after 120-day
trial period. She discovered that, in fact, the employees in the
rough and cement and simple sidelast section were indeed
averaging substantially less earnings than they had before the
introduction of the new machines and methods.
Lee thereupon prepared two grievances, one for each af-
fected section, requesting piece rate increases because of fail-
ure to maintain employee averages, together with backpay.
The grievances were then submitted by the respective shop
stewards to their foremen in accordance with contractual
grievance procedures.
The grievances were denied, in writing, by Jarol Smith, a
representative of the Company’s labor cost analysis unit. The
reasons for the denial were worded identically in both griev-
ances, stating:
Investigation reveals that the piece rate in question is
correctly applied from the standard and established
piece rate list. This rate compensates the operators for
all work steps required and is sufficient to return the
expected earnings for the operations.
The Company presented no witnesses in this case, prefer-
ring to rely on the testimony of the General Counsel’s wit-
nesses, which was substantially undisputed, the documentary
evidence, and the Company’s own legal theories. Without
testimony, for example, on the letters concerning and deci-
sions on grievances, I am left with the bare wording of the
documents, and actions taken by the parties to the grievance
process, to draw what inferences seem to me to be warranted
by these documents and actions.
At this point, then, I think that I can draw two inferences
based on the Company’s actions in installing new machinery
in the simple sidelast and the rough and cement sections.
First, the installation of the machinery itself leads to the in-
ference, which I draw, that the purchase of expensive equip-
ment would logically have been the subject of cost analysis,
including labor cost analysis, to determine whether the cost
of the machinery would be justified by its value to the Com-
pany. Labor cost analysis must consider the time which each
operator spends, if not on every operation in the process, cer-
tainly in the whole production process. Whether labor cost
analysis is called a wage study or a timestudy, it involves
calculations and projections of production time spent, hourly
rates, and the ability of employees to utilize the new ma-
chines efficiently.
Turning then to the letter denying the Union’s grievances,
it is evident to me, in the absence of contrary testimony, that
the word ‘‘investigation’’ refers to investigations made by
the author of the letters, Jarol Smith, or by some other mem-
bers of the labor cost analysis staff. Further, such an inves-
tigation must have been concerned with the same consider-
ations as those which preceded the purchase of the machines.
Thus, I infer and find that matters of labor costs, produc-
tively, effectiveness, and profitable use of machines must
have been considered by the Company in coming up with its
decision that ‘‘the piece rate in question is correctly applied
from the standard and established Piece Rate List.’’1 The
grievance denial letters went on to say that: ‘‘This rate com-
pensates the operators for all work steps required . . . .’’
The use of the phrase indicates, clearly, that some sort of
study was made which evaluated time and productivity and
the relation between these factors and piece rates received by
employees before and after the introduction of new methods
and new machines.2
Finally, on this issue, I infer and find that the cost analy-
ses made either in the evaluations of the purchase of new
machines, as in the decision on the grievances here, are
equivalent to timestudies made to determine the applicability
of established piece rates to changed working conditions.
At this point, if the preceding analysis is correct, the Com-
pany has made changes in the methods and machinery used
in the rough and cement and simple sidelast operations. The
changes have resulted in substantially lower earnings or em-
ployees. The Company had analyzed these changes but had
given the Union no notice beforehand, nor any opportunity,
as provided in article XIII, section 5 of the contract, to par-
ticipate in any studies made in connection with the grievance
process.
Moreover, the Company did not, as mandated by article
III, section 6 of the contract, make a ‘‘joint investigation’’
to find out why operators were failing to reach their former
line average, after the changes, and after the 120-day adjust-
ment period.
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Unless these are words of art in the timestudy profession, but
there is no translation in this record.
Returning to the chronology of the grievance procedure,
Bobby Joe Carr, an International representative for the
Union, assigned to the Carruthersville area, testified that he
was called in to handle the next step of the procedure. On
August 20, Carr met with local union representatives and
company representatives. The latter group included, at the
meeting on the simple sidelast grievance, Cost Analysis Rep-
resentatives Mike Davis and Mike Willyard, with Plant Man-
ager Alton Phillips, and Senior Vice President for Manufac-
turing Gene Flowers. At the rough and cement meeting, only
Davis and Willyard were present.
After these meetings, on August 27, the rough and cement
and simple sidelast grievances were denied in an unsigned
note addressed to Plant Manager Phillips, using exactly the
same language as had been used in the previous denial at the
shop floor level.
The local union executive board then voted to request arbi-
tration. This request was approved by Carr, and by Jeryl W.
Slinkard, district manager of the Cape Girardeau office of the
Union. On November 18, Slinkard wrote to R. J. Wargo,
manager, labor cost analysis, at the Company’s headquarters
in St. Louis, informing him that the Union wished to go to
arbitration on these grievances.
Then, on December 2, Slinkard wrote to Wargo stating:
In order to prepare for arbitration for grievances (in-
cluding Rough and Cement, and Simple Sidelast) the
union is requesting dates for the union time study engi-
neer to study the operations involved.
Slinkard gave a number of dates in January 1992 when the
Union’s engineer would be available.
Wargo answered on December 9 in the following manner:
I have received your request for a time study and in
light of our pattern of handling previous grievances I
am surprised, as was the case when you requested per-
formance of time studies at Piedmont. I am concerned
that operations could be seriously disrupted by your
time study. Again, as in that case, you offer no assur-
ances that such a study would have sufficient repetition
or duration to have any validity. Before I can further
evaluate your request for a time study. I would need
your specific proposal in this regard.
In addition to my concerns above, I have inves-
tigated the grievances at the Carruthersville facility and
can find none which are pending which involve a time
study. I would appreciate if you would further explain
the purpose and nature of your request. I look forward
to your prompt response in this regard.
Wargo, of course, did not testify, nor did the Company
offer any explanation as to the meaning of this letter. I re-
marked at the hearing that it was difficult of understanding,
particularly the stated need for ‘‘assurances that such a study
would have sufficient repetition or duration to have any va-
lidity.’’3 Wargo’s demands for a ‘‘specific proposal’’; for
‘‘further’’ explanations of ‘‘the purpose and nature of your
request’’; and his investigations of the Carruthersville griev-
ances which turned up ‘‘none which are pending which in-
volve a time study’’; all strike me as disingenuous and de-
signed not to clarify matters, but to obfuscate and delay.
But Slinkard persisted, without comment, replying to
Wargo on December 20, and stating:
An arbitrator has been requested for the listed griev-
ances that involve a challenge to the adequacy of the
piece rate the company is now applying. The grievances
concerning piece rates are the same as listed in the let-
ter of December 2, 1991 . . . .
The Collective Bargaining Agreement, Article XIII,
in addition to labor laws, grant the privilege of a union
representative presence during a time study. It also per-
mits the review of such study.
Slinkard went on to renew his request for a union timestudy
on one of the dates previously offered, and enclosed the
Company’s rejections of the grievances.
In response to this, Wargo wrote Slinkard on December
27, setting out, in full, section 5 of article XIII, which states:
In the event that a time test is made by the Company
as a result of a grievance submitted by the Union, it is
understood and agreed that a representative of the
Union shall be permitted to be present during the mak-
ing of such test and shall be permitted to view the re-
sults of the test. The Company in the foregoing cases
shall furnish to the President of the Local Union a
signed copy of the timestudy summary sheet and shall,
if requested, permit the Union representative to see the
complete data sheets pertaining to the timestudy.
Wargo went on to say that ‘‘none of these cases pending in-
volve making a timestudy by the Company,’’ and he offered
to notify the local union representative if it did make such
a study. He concluded by offering a number of dates for ar-
bitration.
Slinkard did not reply to this until February 11, 1992,
when he wrote to Wargo setting out two alternative propos-
als, either the Union would observe the Company’s time-
study engineer perform the studies, or the Union’s engineer
would conduct his own study with or without the assistance
of the Company’s engineer.
There was no further correspondence on contact between
Slinkard and Wargo which is noted on the record of this
hearing.
B. Analysis and Conclusions
The testimony of Kathleen Lee, that the employees in the
rough and cement, and simple sidelast sections suffered sub-
stantial losses in their averages after the new machinery was
installed, is undenied in the record. To be sure, the Com-
pany, in its responses to the grievances filed over those lost
wages, maintained that the prior existing wage rate was suffi-
cient ‘‘to return expected earnings’’ in the operations. But no
evidence was introduced as to why that would be so, and no
evidence of the ‘‘investigation’’ showing the merit of that
company position was forthcoming.
As I have found above, if any investigation took place, it
would necessarily have considered as a most important factor
in responding to the grievance, the time elapsed either in the
steps, or in the totality of the manufacturing process.
289BROWN SHOE CO.
4 Although we do not have the two-tiered grievance problem which
was present in American National Can.
It is for this reason that I find either that some sort of
timestudy was conducted, of which the Union was not in-
formed, and the fact of which has been denied throughout
this proceeding; or that no timestudy was performed, and the
answers to the grievances filed by the Union were a sham,
and that the ‘‘investigations’’ used as the basis for the deni-
als of the grievances just did not take place.
Either way, the Company has not been candid with the
Union, and, in equity, I do not believe that the Company can
use the provisions of article XII, section 5 as a contractual
defense to the Union’s statutory rights, as discussed below.
A timestudy such as that requested by the Union in this
case, and the refusal of which request is the sole issue in the
case, differs from the ordinary request for information case
in that here the Union seeks to obtain the necessary informa-
tion by sending a nonemployee employed by the Union onto
the Company’s premises to perform his functions. The Com-
pany in its defense seeks to show that the access to the em-
ployer’s premises must be controlled by cases following
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and
most recently Lechmere, Inc. v. NLRB, 112 S.Ct. 1513
(1992), which line of cases sets up standards and guides for
access to the employer’s premises by nonemployee union or-
ganizers.
In my opinion, these case are inapposite in the situation
we have here where the access is sought for a nonemployee,
not to organize, not to proselytize the unorganized, but to at-
tempt to secure contractual rights for employees who are al-
ready organized and members of the Union. In Babcock and
Lechmere the nonemployee organizers are strangers to the
company. In this case the union representatives are part of
a contractual family composed of the Company, the employ-
ees and the Union.
In Holyoke Water Power Co., 273 NLRB 1369 (1985), the
Board set out certain standards governing access to the em-
ployer’s premises by employee statutory representatives:
Where it is found that responsible representation of em-
ployees can be achieved only by the Union’s having ac-
cess to the employer’s premises, the employer’s prop-
erty rights must yield to the extent necessary to achieve
this end. However, the access ordered must be limited
to reasonable periods so that the union can fulfill it rep-
resentation duties without unwarranted interruption of
the employer’s operations. On the other hand where it
is found that a union can effectively represent employ-
ees through some alternate means other than by enter-
ing on the employer’s premises, the employer’s rights
will predominate and the Union may properly be denied
access. [273 NLRB at 1370.]
In American National Can Co., 293 NLRB 901 (1889), in
a factual situation similar to this case,4 the Board found that
the Union was entitled to have access to the employer’s
premises to obtain data concerning heat conditions within the
plant.
The Board stated in American National Can, 293 NLRB
at 904:
It is well settled that an employer has a duty to supply
requested information to a union that is the collective
bargaining representative of the employer’s employees
if the requested information is relevant and reasonably
necessary to the Union’s performance of its responsibil-
ities.
Citing NLRB. v. Acme Industrial Co., 385 U.S. 432 (1967),
and NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
In the instant case there is really no question that the in-
formation sought is relevant and reasonably necessary to the
Union’s performance of its responsibilities. Article III, sec-
tion 6, quoted above, makes it clear that the introduction of
new machinery and methods was recognized by the parties
to the contract as potentially affecting earnings. Section 6
provides that after the 120-hour transitional period noted in
article III, section 9, ‘‘if the operations fail to reach their
former line average’’ then the Union and management ‘‘shall
make a joint investigation to determine the cause of such
failure.’’ There is no evidence in this record as to why such
a joint investigation was not made. I have found, as noted
above, that, in fact, the Company did make an investigation
of the problem, unilaterally, and without sharing the bases
for its findings with the Union. The information sought by
the Union here, the time which operators must spend in order
to reach the line averages which they were earning before is
clearly relevant and necessary to the Union’s presentation to
an arbitrator hearing the grievances the Union has filed here.
I find, therefore, that the information sought is relevant and
reasonably necessary in this case, in accordance with the
standards laid down by the Board.
In American National Can, supra, having established the
relevance and reasonable necessity for the union there to ob-
tain the information, the Board went on to hold that the
union was entitled to enter on the employer’s premises to ob-
tain that information, in that case heat-measurement data.
The Board said:
The health and safety of employees are terms and con-
ditions of employment, and thus mandatory subjects of
bargaining about which an employer’s obligated to bar-
gain with the collective-bargaining representative of its
employees. Therefore, acquiring the heat-measurement
information in question is clearly relevant to and nec-
essary for the Unions’ performance of (1) their general
collective bargaining responsibilities, and also (2) their
particular representational responsibilities in question
here, i.e., (a) to evaluate and if warranted) pursue intel-
ligently the Local’s grievance . . . . [293 NLRB at
904–905.]
The Board in American National Can went on to discuss
the Holyoke Water Power test for permitting union access to
the employer’s premises and found that permitting access to
the Union was the only way the union could obtain relevant
and necessary information in order to process its grievance
in that cases.
In this case, as well, I think it is clear that the timestudy
data is essential for the Union adequately to prepare for arbi-
tration of the wage-loss questions. The Company has, by its
failure to document its assertion that the existing wage scale
was sufficient, even after the new methods and machinery
were introduced, left the Union with only the Company’s de-
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Or, possibly, the invalidity of its grievance.
6 I note that the rough and cement grievance has settled, so that
actual entry, to that section of the plant may not be required. But
the refusal to permit access still stands, and I will leave to the com-
pliance stage of the proceedings what access, if any, is necessary to
that section.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
nial, and the workers’ individual and probably anecdotal ex-
periences, to support its arbitration claims. The Company’s
argument that the Union should seek out the manufacturer of
the machinery is at best facile and unhelpful, and at worst
cynical and misleading. The manufacturer would know about
the machines, but not the workers, or the conditions of em-
ployment of the machines. In the end, the Union has no way
other than conducting an actual timestudy of the operations
in question to establish the validity of its grievances.5
The Respondent here has presented no evidence that there
is any alternative method of obtaining the required informa-
tion. Indeed, even in its arguments, Respondent has not
shown that the data requested could be obtained from talking
to employees, contacting the manufacturer of the new ma-
chinery, or in any other way making any determination of
the critical time elements here.
Moreover, there is no indication in this record, beyond the
bare assertion in Wargo’s letter of December 9, 1991, that
the Company’s operations ‘‘could be seriously disrupted’’ by
the Union’s timestudy. Indeed, article III, section 6 plainly
contemplates that the Union will participate in just this kind
of study.
Finally, in all the circumstances of this case, I cannot find
any justification for an application of the principle of inclusio
unius, exclusio alterii, to bar any entering of union represent-
atives to the Company’s plant except in the constrained cir-
cumstance set out in article XIII, section 3, of the contract.
Accordingly, in accordance with the principles of Holyoke
and American National Can Co., I find that the Respondent’s
property rights, on balance are outweighed here by the em-
ployees’ rights to be responsibly represented by the Union in
processing the rough and cement and the simple sidelast
grievance. Thus I find that the Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by refusing to permit the
Union to enter on its premises to conduct a timestudy in the
rough and cement6 and the simple sidelast sections.
THE REMEDY
Having found that Respondent here has failed and refused
to bargain in good faith by denying the Union the right to
conduct a timestudy in the plant, I shall recommend that Re-
spondent cease and desist therefrom, and that it shall, on the
Union’s request grant, access to union representatives at its
Carruthersville, Missouri, at reasonable times and under rea-
sonable conditions plant in order to permit the Union to con-
duct a timestudy concerning the effect on average piece-rate
earnings in the rough and cement section of the bottoming
department, and the simple sidelast section of the lasting de-
partment.
CONCLUSIONS OF LAW
1. The Respondent, Brown Shoe Company, is an employer
engaged in commerce within the meanings of Section 2(2),
(6), and (7) of the Act.
2. The Union, Amalgamated Clothing and Textile Work-
ers, Southwest Regional Joint Board, Cape Girardeau Dis-
trict, is a labor organization within the meaning of Section
2(5) of the Act.
3. At all material times, the Union has been the designated
and recognized collective-bargaining representative of a unit
of Respondent’s employees described above in section III,A
of this decision and as set out in article I of the parties’ Sep-
tember 20, 1990–August 27, 1993 collective-bargaining
agreement.
4. By denying the Union access to the Respondent’s
Carruthersville plant to conduct timestudies on losses of
wages to employees, the Respondent has failed and refused
to bargain with the Union in good faith in violation of Sec-
tion 8(a)(5) and (1) of the Act.
5. The above violation of the Act is an unfair labor prac-
tice affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Brown Shoe Company, Caruthersville,
Missouri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith with
Amalgamated Clothing and Textile Workers, Southwest Re-
gional Joint Board, Cape Girardeau District by refusing to
permit the Union to conduct timestudies at its
Carruthersville, Missouri plant.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request of the Union, permit the Union to enter on
the Company’s premises at the Carruthersville plant at rea-
sonable times and under reasonable conditions to conduct
timestudies in connection with grievances filed on May 7
and 21, 1991.
(b) Post at its facility in Carruthersville, Missouri, copies
of the attached notice marked ‘‘Appendix.’’8 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
291BROWN SHOE CO.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with Amal-
gamated Clothing and Textile Workers, Southwest Regional
Joint Board, Cape Girardeau District by denying its request
for access to its Carruthersville, Missouri plant to take the
timestudies which are relevant and necessary for the Union’s
performance of its collective-bargaining and representational
responsibilities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on the request of the Union, grant it access to
our Carruthersville, Missouri plant for reasonable periods of
time at reasonable times in order to permit it to make time-
studies which are relevant and necessary for the Union’s per-
formance of its collective-bargaining and representational re-
sponsibilities.
BROWN SHOE COMPANY