General Electric Co.

National Labor Relations Board - Board Decisions

Nov 21, 1969

179 N.L.R.B. 662 (N.L.R.B. 1969)

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Electric Company ( Ohio Lamp Plant) and
International Union of Electrical , Radio and
Machine Workers, AFL-CIO-CLC. • Case
8-CA-5376
November 21, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS -
On September 9, 1969, Trial Examiner Samuel
M. Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial, Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondent,
General Electric Company (Ohio Lamp Plant);
Warren, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified.
1. Delete from paragraph 1(a) that part thereof
which reads "relevant or necessary to the processing
of employee grievances or complaints," and
substitute "relevant and necessary to the processing
of employee grievances."
2. Delete from paragraph 2(a) that' part thereof
which reads "or complaints."
3. Delete from the first indented paragraph of the
Appendix that part which reads "relevant or
necessary to the processing of employee grievances
or complaints" and substitute "relevant and
necessary to the processing of employee grievances."
TRIAL EXAMINER'S DECISION
SAMUEL M SINGER, Trial Examiner: This proceeding
was tried before me at Warren, Ohio, on June 19, 1969,
pursuant to a charge filed on March 6 and complaint
issued on April 18, 1969 The issue litigated was whether
Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act, by refusing to permit the
Charging Party, as representative of its employees, to
timestudy an operation which was the subject of a
grievance. All parties appeared and were afforded full
opportunity to be heard and to examine and
cross-examine witnesses Briefs were received from
Respondent and Charging Party.
Upon the entire record in the case' and from my
observation of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I BUSINESS OF RESPONDENT AND LABOR
ORGANIZATION INVOLVED
Respondent, a New York corporation, manufactures
and sells lamps and related products at its plant in
Warren, Ohio Its annual interstate sales there exceed
$50,000. I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
The Charging Party (the Union) is and has at all times
been a labor, organization within the meaning of Section
2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A Sequence of Events
1. Introduction
The issues here are similar to those considered by the
Board in General Electric Company, 173 NLRB No' 22,
affd 414 F 2d 918 (C A 4), involving Respondent's
Hickory, North Carolina, plant S The national agreement
covering that plant also covers the production and
maintenance employees at the Warren, Ohio, plant
involved in this proceeding One of the issues in Hickory
- the Union's right to conduct an independent timestudy
at the plant to enable the Union to assess the accuracy of
Respondent's timestudies of an operation involved in a
grievance - is also involved here
2 The change in piecework rate based on Company
timestudies
The Warren lamp plant manufactures, among other
products, 300-and 500-watt rough service lamps, or light
bulbs Part of the process of making the inside of the bulb
is the putting together of the "stem" (containing the lead
wires) and the "button" (containing the wire supports for
the filament coils) by heating the "cane" (inner end of the
glass stem) so that a piece of music wire extending out of
the button may be inserted into the glass in the cane end
of the stem This operation is known as "arboring" and
the combined piece (stem and button) as an "arbor "
'Transcript corrected by my order on notice dated August 19, 1969
'That decision will hereafter be referred to as Hickory At the parties'
request I have taken official notice of the record in that case, portions of
which have been physically incorporated here
179 NLRB No 122
GENERAL ELECTRIC COMPANY 663
The arboring is a piece-work job and during the period
here involved was assigned to only one operator who
worked at it on a part-time basis. The job was classified
as R-9, with an anticipated earned rate (A.E.R.) or
expected production per hour price two "R" levels above
the job rate, or R-1l This means that the operator would
make the equivalent of two steps above the R-9 rate if she
attained expected production and for production above the
rate she would earn additional compensation over the
R-1 1 rate. The R-1 l rate was $2.525 per hour prior to
October, when it was increased as part of a general wage
increase to $2 645 per hour
During the period here involved Sophie Peck, an R-l I
classified worker, performed the arboring operation, along
with day-work fobs.' Because of her R-I1 classification
she was in effect guaranteed a minimum equal to the
A E R , i.e , the R-1 l rate If she exceeded the expected
production level, she could earn far in excess of that rate.
Company records show that during August 5-October 4,
1968,' Mrs. Peck never exceeded an average production of
142 arbors an hour, except once - well below the
expected production rate of 220 per hour S At the hearing
Mrs. Peck explained that during this period she was
"quality-conscious," concentrating on quality at the
expense of production It is undisputed that quality was
indeed a problem at that time, both Peck and General
Foreman Robinson testifying that when production was
speeded up too much the glass end of the stem (the cane)
would be heated too rapidly, causing strain cracks to
develop Between October 7 and 16, however, Peck
drastically increased production - averaging as much as
300 per hour, but sacrificing quality because, as she put it,
"I was told I was going to be changed in my
classification," possibly dropping as, many, as two steps,
unless her production improved 6 This increased output
resulted in considerable quality deterioration, with as
many as 10 cracked pieces in a tray of 50.
Because it became "clear that the limiting factor on
production of arbors 'was a quality problem" (Resp. br.
3), Respondent's "glass specialist" was given the task' "to
analyze the crack problem" and bring in
recommendations As a result of his report, Respondent,
at the end of October or early November, added an
annealing operation to the arboring process. Explaining
this change, Mrs. Peck testified
Well, before the change I took a stem from the
.,table and held it in a fire and held it until I would insert
it in what is called an arbor . Now, -I must take the
stem from the table, place it on a pre-heating fire which
we call annealer and it must pre-heat this arbor. Then I
take . it from the annealer, place it into the inserting
• fire and heat it the rest of the way and then insert the
wire the same as before
On December 23, after timestudying the arboring
operation with the new added annealer, the Company
placed into effect a revised expected production rate '
'Mrs Peck also was the department Union steward
'All dates refer to 1968 unless otherwise indicated
'Actually, 1959 timestudies under the Company ' s system known as
Motion Time Survey (MTS), established an average , expected production
of 251 per hour Respondent in its brief ( p 3) defines MTS as "a General
Electric system consisting of predetermined time values applied to specific
motions , predetermined from numerous tests under numerous conditions
The values are preprinted on the M T S forms " See also the , Hickory' case
supra, fn 2
'General Foreman Robinson admitted that " From time to time,
[employees ] are talked to about their low production and the make-up pay
we are giving them "
Respondent's timestudy engineer (Smith) testified that at
first he attempted a stopwatch timestudy of only the new
annealing process; but, finding that he- could not
accurately separate this from the whole arboring job, he
decided to restudy the entire operation. Representing the
Union at this timestudy were Chief Steward-Greenfield
and Department Steward Peck (the observed operator),
but Greenfield had to leave after Smith made some
preliminary observations. General Foreman Robinson also
was present.
Smith testified that he began to time by his watch as
the operator picked up a stem, and ran it until 79 arbors
were completed by placing them in the rack. This took
20 93 minutes. He jotted down the time (seconds) it took
to complete each arbor consecutively, noting ' such
movements as getting more stems; changing trays, and
removing cardboard. He then determined the seconds
between each noted reading (the interval' between
completions of arbors), and the total number completed in
3,600 seconds (I hour) and in 3,414 seconds (the-hour, less
allowances for breaks, etc ) coming up with an expected
production level- of 215 per hour based on Peck's
performance.
Smith further testified that in addition to timing the
operation by stopwatch, he made a motion timestudy
(MTS, supra, fn 5). First, he took the new motions and
distances involved because of the annealer addition; i e., in
picking up the stem, placing it on the annealer, removing
it therefrom, and similar movements in handling' the
button He then added 'the predetermined MTS values
shown on the MTS form for "transports" (e.g , 25
seconds or quarter of a second for a 12-inch move, 30
seconds for an 18-inch move - the distance of the move
measured by Smith), for' "gets" (e.g., l l seconds to "grab
ahold of a stem at the table,") for "places" (e g., 26
seconds for placing a stem on an annealer), for
"tolerances" (e.g., 10 'seconds "for time to find the hole"
on the tray where the stem is put), and for
"miscellaneous" moves (e g , fractions of seconds
consumed for twists of hand, fingers, etc ) 8 To the
aggregrate figure for the annealer operation (2 27 seconds)
Smith added the time for completing the arboring
operation without the annealer (13 57 seconds) as
calculated by another Company engineer in 1959 (based
on similar predetermined MTS values), to reach the
conclusion that it took 15 84 seconds to complete one
arbor, or 251 pieces to complete in one hour (3,414
seconds, - 3,600 seconds in an hour less allowances)
According to Smith, the MTS study thus "confirmed" his
stopwatch calculation that with "the addition 'of the
annealer to the fob . [Peck] should be able to do 215 an
hour."
3 The grievance against the new piece rate;
Respondent's refusal to allow a Union timestudy to
check on the accuracy of Respondent's timestudies
On December 16, Peck filed a grievance (under article
XIII of the collective agreement) "in protest of the time
study,the Company has taken," asserting that the "new
rate is unfair and impossible to meet" and asking that
'During the transitional period (early November to December 23), Mrs
Peck was paid on the basis of her average hourly earnings (AHE) during
the 2 weeks ending October 20 (her highest earning period)
'Smith testified that the predetermined MTS values set forth in the MTS
form already account for such factors as fatigue , asserting that` these
"figures [were ] arrived over many , many studies and calculations" as
shown in a company manual
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"this time study be corrected immediately " Answering
this, General Foreman Robinson maintained that the
"new rate is in direct proportion to change in allowed
time for the part of the job affected by the change in
method " On January 16, 1969 (in the second step of the
grievance procedure) the Union refiled the grievance At a
subsequent meeting the Company "advised" the Union
that its study of the job properly established the 215 per
hour expected production level, asserting that "that, was
the rate that we are going to go with " At Chief Steward
Greenfield's request, Peck (the department, steward and
affected employee) was allowed to copy the documents
used by Company Timestudy Engineer Smith to arrive at
the 215 figure, including his stopwatch and, MTS
calculations '
The parties again discussed the grievance on March 4,
1969 - the Union represented at the meeting by Chief
Steward Greenfield, the Local's three department stewards
(including Peck), and the Local's president (Davis); and
the Company represented by Personnel Manager Ruben,
Timestudy Engineer, Smith, and another Company official
When Greenfield was informed that Smith would answer
questions pertaining to the timestudies, Greenfield asked
to bring in International Representative Rmaldi, who had
training and experience in this field,'" to which the
Company agreed When Rmaldi joined the group and
asked "how the rate had been arrived at," Ruben said
that the Company had made MTS and stopwatch studies,
offering him copies of these Rinaldi said," we` would
like to make our own study of the job because these
figures didn't mean anything to us since we weren't a
party to the figures, we didn't know whether all the moves
are there, also whether the times involved were checked
and so on," adding that "evidently" there was "some
problem with this rate" since Peck's earnings "were
substantially higher" previously Ruben replied that
Respondent was willing to discuss the study, to supply any
information it could, and Smith was present to answer
questions, but that "the Company's policy was not to
allow an outside representative to come in the plant" to
timestudy jobs Rinaldi then left, after asking for a copy
of the Company's allowance sheet (reflecting special
allowances for unavoidable delays, etc ), which .Ruben
agreed to furnish (and did furnish) within a day or two.
On the next day (March 5), the Union prepared and
signed (and the following day filed) the unfair labor
practice charges herein."
On April I or 2, 1968, Smith made a second stopwatch
study of the arboring job in the presence of Mrs
Greenfield and Peck According to Smith, "this study
showed that [Peck] should do at the time 214 an
hour." Ruben so informed Mrs Greenfield and Peck at a
meeting held on April 10, telling them that the outcome
'Based on the credited testimony of Personnel Manager Ruben
'°Rmaldi had taken timestudy courses ( including on MTS and stopwatch
studies ) in two schools , he had also studied the MTS system at a General
Electric facility None of the Union's employee officials (e g stewards) had
similar training While disclaiming knowledge as to whether Chief Steward
Greenfield "has had experience ," Personnel Manager Ruben recalled her
remarking that she "had read a book or two on the subject " Peck had no
training "whatsoever " Timestudy Engineer Smith testified that apart from
formal instruction , he had been doing timestudies for 7 or 8 years Smith
conceded that he "wouldn ' t expect" a person without training to be able to
analyze his NITS findings , adding, however , that "they could [do so] with a
small amount of training" and without personally seeing the operator
perform
The above findings are based largely on testimony of Rinaldi, in
essential respects consistent with that of Ruben
"was in line with the first study and there was no
basis on which to change the rate " A dispute developed
over whether or not the rate should have been based on an
8-hour or 7-1/2-hour day, the later favored by the Union. 13
B Conclusions
The question presented is whether Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to allow the
Union to conduct an on-the-job timestudy of the arboring
operation Except for a brief time in October, the operator
assigned to this operation (Mrs Peck) did not attain the
expected production rate (220 units per hour). Although
she had not been perialized for her low production (she
was guaranteed the minimum earning for her job grade),
she could be reprimanded and "talked to about the
make-up pay," also, she could more readily make
incentive pay with a' low expected production rate. On
December 23, Respondent added the new annealing
process to the arboring operation As a result of
timestudies conducted by an experienced industrial
engineer, Respondent set a new expected production rate
of 215 units per hour - a drop of only 5 units to
compensate for the added annealing process Peck
thereupon filed a grievance, protesting that "this new rate
is unfair and impossible to meet " In the second step of
the grievance procedure, International 'Representative
Rinaldi who had schooling and training in timestudies,
asked "to make our own study of the job because these
figures [in the Company timestudy sheets] didn't mean
anything to us " Respondent denied the request because
"the Company's policy was not to allow an outside
[Union] representative to come in the plant " It did allow
two employees - Peck as the operator and department
steward and Greenfield as chief steward - to participate
in and observe the Company studies, but neither had
training and experience in this field In issue is whether
Respondent's refusal to permit Rinaldi (or any other
nonemployee Union expert) to conduct an independent
timestudy - for purposes of verifying the accuracy of the
studies used by Respondent in setting its revised piece
rate, the subject of the grievance - was unlawful For the
reasons stated below, I find that it was
I The Supreme Court has stated that "There can be no
question of the general obligation of an employer to
provide information that is needed by the bargaining
representative for the proper performance of its duties "
N L R B v Acme Industrial Co . 385 U S 432, 435-436
See also Timken, Roller Bearing Company v. N L R B,
325 F 2d 746, 750-751 (C.A 6) This "general obligation"
includes the duty to allow the employees' statutory
representative to make timestudies on employer premises
when necessary to enable it to make an intelligent decision
as to whether to initiate or process a grievance Fafnir
Bearing Company v. N L R B, 362 F.2d 716, 720-722
(C A 2), Waycross Sportswear, Inc v. N L R B, 403
F.2d 832, 835-836 (C.A. 5), Hickory, supra, fn 2 The
basic criterion for determining whether the employer
breached this duty is whether the requested timestudy is
relevant and reasonably necessary for the discharge by the
Union of its representative role (ibid) Obviously, the duty
to allow such union study no more obligates the employer
to abide by its results than the duty of an employer to
substantiate his claim of inability to pay a requested wage
"The findings in the above paragraph are based on the testimony of
Ruben and Smith
GENERAL ELECTRIC COMPANY
increase (N L R B v Truitt Mfg Co , 351 U S 149, 153)
obligates him to the union's contentions in that regard It
is clear, however, that a union timestudy could persuade
the employer to modify a new rate unilaterally determined
through the employer's own study Indeed, giving the
union permission to observe-a company on-the-job study
through a qualified observer might lead it to conclude that
the employer's study was proper, obviating necessity for a
separate union study "The ultimate goal. of, industrial
peace, upon terms voluntarily accepted by both sides, may
thus be achieved " P. R Mallory & Company, Inc v
NLRB,422F.2d757(CA 7)
2 The above principles were recently given effect by the
Board and Court of Appeals for the Fourth Circuit As
noted, one of the issues in Hickory (supra, fn 2) involved
the right of the union at Respondent's Hickory, North
Carolina, plant to timestudy an operation which there also
was the subject of a grievance There, as here, Respondent
offered to show and explain to the union the pertinent
timestudy data (in that case also movies of the disputed
operation), but refused a union timestudy. (In addition,
Respondent there also refused a union request to examine
MTS' data.) In rejecting Respondent's defense that the
propriety of its new standards and rates could be checked
from the MTS data without on-the-job timestudies and
that the Union's local representatives (employees) were
qualified to make such check, the Court stated (71
LRRM at 2564)
We think that there was substantial evidence to support
the finding that in order intelligently to participate in
the grievance procedures established by the contract the
union should be given the opportunity to conduct
independent time studies of production standards, have
its expert inspect General Electric's time study data,
and have its expert conduct independent evaluations by
personal observation
The Court pointed out that the record in Hickory
established that it was impossible to tell "from the MTS
alone whether the standards thereby prescribed would be
fairly and equitably applied in a given case", that it was
evident "that a' person analyzing MTS must make .
subjective judgments", that it was "necessary . to
observe the operator performing the work, noting
significant interruptions in the work to determine if the
employee was in fact meeting the General Electric
standard", that if these steps were still insufficient it
would be necessary to "undertake a stopwatch time study
[which] would be of work elements and not of the several
motion elements", and that "whether an operator can
meet a standard by working at a normal pace is strictly a
subjective determination, arrived at as a result of the
engineer' s training and experience .`including courses
in industrial psychology, physiology and various
mechanical subjects " The Court pointed out that its
conclusion "is fully in accord" with Fafnir Bearing
Company v. N L R B, 362 F 2d 716 (C A 2), quoted
with approval in N L R B v Acme Industrial Co , 385
U.S 432, 438, fn 8, "where, unlike,the present (Hickory)
case, the company provided the union's time study
engineer with its time study data, but refused to permit
the union to conduct `live' studies for assessment and
verification of the company's proposed piece rates " It
then concluded (414-F 2d at 923)
The only limitation on the scope of the Fafnir rule
suggested in the opinion in that case is the caveat that
each case requires a weighing of the union's need to
make the studies balanced against any inconvenience
which might be caused to the company in the process,
665
or the violation of any right of privacy that the
company may possess In the case at bar, there is no
serious suggestion that the studies in question would
interfere with production, nor can we say that the
prerogatives of management to the private conduct of
its business should outweigh the union's demonstrated
need to the information and inspections that it sought
to enable it to administer its interest and the interest of
its employees in and under the contract to which it had
agreed In this connection, we are, of course, influenced
by the strong public policy to make the grievance
procedures established by the parties the means for
accomplishing industrial peace. See, e g , United Steel
Workers of America v. Warrior and Gulf Nav Co.,
363 U S 574' (1960) Access to the information to
make them fully effective is in the interest of an
enlightened employer, as well as the union
3. As in Hickory, Respondent's MTS - set standards
(with its built-in subjective factors and judgments) were
utilized in establishing the new piece rate for the arboring
operation. MTS (and to a lesser extent, a' stopwatch
study) were the engineering techniques used in fixing the
rate before the addition of the annealing process in
December 1968. The annealing portion of the arboring,
operation - which gave rise to the present dispute - was
timestudied by stopwatch and verified by MTS I cannot
accept Respondent's contention that the stopwatch
technique is so simple a process that even an untutored
rank-an-file factory employee could conduct and verify the
results revealed by Respondent's expert industrial
engineer " To begin with, even assuming, arguendo, that a
stopwatch study is as simple and routine as depicted, it
would appear that the Union was entitled to verify the
stopwatch study by the allegedly more complicated and
subjective MTS, as was done by Respondent.
Furthermore, since the stopwatch study was made by a
trained and experienced Company industrial engineer, the
Union was entitled to rely on one equally knowledgeable
to conduct its own study. More importantly, however, a
stopwatch study is a recognized engineering timestudy
technique, entrusted for good reasons not to factory hands
but to skilled industrial engineers ' 4 Involved, as this case
illustrates, is the computation of movements in split
seconds and a high rate of speed Involved also is the
capacity and power to observe accurately and record such
matters as the pace with which the operator works,
distance from machine, environmental factors, condition
of machine and products, "unusual" occurrences, etc
Even such "simple" things as how to record readings
dexterously and when to release a watch stop are essential,
not to say how to evaluate what-the analyst sees and to
draw proper inferences and reject selected elements.15 To
"According to Respondent "All that was done here was to run the
watch, note the time if arbor was changed, note unusual things, and stop
the watch at the end Any person observing could note the time of starting,
the time of stopping, the number of pieces completed The only question
would be whether the watch stopped at the time noted and if the count
were correct The rest was pure arithmetic, and the sheet on which
calculations were made was given to the Union "
"See, e g , Mundel, Marvin E , Motion and Time Study, Principles and
Practice (3d ed , Prentice Hall, Inc , 1960), 359-374 See also Fafnir
Bearing Company. 146 NLRB 1582, 1593, enfd 362 F 2d 716 (C A 2),
Tex-Tan Welhausen and Tex-Tan Western Leather Company, 172 NLRB
No 93, fns 15 and 35
"See Mundel, op cit supra, -fn 14, at 371,372, where the author
emphasizes the importance on the part of the stopwatch timestudy analyst
"to watch constantly the performance of the operator to be sure that the
time entries may represent valid performances of the elements," making
appropriate notations for various occurrences - a "fumble" due to "lack
666 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
say, as Respondent suggests , that all that is involved is
"pure arithmetic " is tantamount to saying, by way of
analogy, that anyone with knowledge of arithmetic
qualifies as an accountant . Even "arithmetic" of this type
requires expertise . The fact is, as noted in Waycross
Sportswear , Inc v. N L R B, 403 F 2d 832, 836 (C A 5),
that "Time and motion studies are too sophisticated to be
a matter left to the unskilled observation (and
recollection ) of those [employees ] doing the work " "It
would be a rare coincidence where an employee happened
to be also a qualified industrial engineer and could
adequately conduct time studies on behalf of his union "
Fafnir Bearing Company v N L R B ., 362 F 2d 716, 722
(C A 2), enfg. 146 NLRB 1582.16 That Respondent itself
recognized this is attested by its entrusting the Company's
stopwatch study to an engineer, an expert in this
specialization , and trained to observe industrial operations
from the standpoint of a professional engineer Cf.
Tex-Tan Welhausen and Tex-Tan Western Leather
Company, 172 NLRB No 93
I conclude that the Union-requested timestudy was
relevant and reasonably necessary to intelligently evaluate
the timestudy conducted by Respondent ' s expert. Unless
permitted to obtain an informed opinion from an
individual trained and experienced in timestudies - just
as Respondent itself had done - the Union "would be
forced to grope blindly through . the grievance
procedure " ( Curtiss-Wright Corp v. N L R B , 347 F 2d
61, 71 (C.A 3). See • also Fafnir , supra, 362 F 2d at
721-722 1 find that neither the Union's chief steward
(Greenfield ) nor department steward ( Peck ) - the two
employees and local union representatives who were
permitted to "observe " Respondent 's on-the-job studies -
were qualified to observe , verify, or evaluate them "
of operator skill" or something " inherent in the job," a "false movement,"
a personal movement such as scratching , "minor machine adjustment or
repair," and "faulty work " due to ' "low skill" or "poor material " The
author cautions that the recorded time value of some "unusual
occurrences" (e g , work improperly done ) must be "discarded so as not
to influence the result , while others " inherent in the element" (e g ,
fumbling with tangled material ) should be allowed to remain in the study
Still others, such as faulty material or a machine adjustment occurring at
irregular intervals , "should be evaluated separately and added to the final
time standard in proportion to its rate of occurrence " Finally, the author
stresses the importance of using a "representative or reliable sample"' iii
the test which , for good results , should "be mathematically determined" by
certain enumerated formulae (td at 363-370)
"The Fafnir case involved stopwatch timestudies See 146 NLRB at
1593. and Hickory (TXD), fn 12
"Cf Wrought Washer Mfg Co, 171 NLRB No 85 As previously
noted, International Representative Rinaldi, who had timestudy training
and know-how , was not an employee of Respondent and under Company
policy was barred from conducting on-the-job timestudies
Under the circumstances , I do not credit or accept the opinion elicited
from Respondent 's "Time Standard Specialist for the Lamp Department"
(Webster ) that any "qualified " timestudy man could without seeing the
operator perform the job and personally timestudying it, evaluate the
accuracy of the Company expert's timestudy, provided there were made
available to him Respondent 's computations and data (MTS and'
stopwatch sheets ), the materials used in-the arboring operation (stem and
button ), and the operator for questioning Furthermore , Webster admitted
that in the case of the stopwatch study he "would have to assume" the'
correctness of the " raw data" supplied him, indicating that such data may
not accurately reflect "when the watch stopped, was it stopped-when this'
says it was , and was the count of the number of pieces correct" - matters
which he would not be in a position to gauge unless he himself timed the
job Noting that the operator studied in this case (Peck ) showed a wide
and varied range of speed (from a low of 18 to a high of 34 - and in one
case 47 ) in completing arboring operations , Webster admitted that this,
could be accounted for by such factors as "mistake" in recording , quality
of product worked on, and fatigue ,' he' insisted , however, that the ultimate
result reached ( i e , that 215 units could be produced ) was based on the
4 Respondent contends ' that it "was justified in not
acceding" to the Union's timestudy demand on the ground
that that demand was "not made in good faith," asserting
that it "was obviously made hastily and without any effort
to determine the Union's real need, if any, or even to
really determine its relevancy." In support of its
contention it claims that International Representative
Rinaldi never availed himself of the opportunity given him
to study the Company's timestudy materials and, indeed,
that he never even saw the stopwatch study papers, that
the Union "made no real attempt . . to seek any real or
meaningful discussion of the data", and that Rinaldi did
not even question in depth the grievant (Peck) concerning
the job According to Respondent, Rinaldi, without taking
"advantage of the • .. material and extensive possibilities
open to him" "summarily" demanded access on the
"erroneous assumptions that the study was M T S and
that Mrs Peck had indeed lost earnings" as a result of
the changed rate
To begin with, the record establishes that prior to
Rinaldi's March 4 timestudy demand, Rinaldi did discuss
the subject with Peck and that this indeed was "the most
outstanding" item taken up at a Union meeting While
Rinaldi apparently saw only a copy of the MTS (before
the March 4 meeting with management), it is clear that he
knew that Respondent's timestudy expert (Smith) also
used a stopwatch study, Personnel Manager Ruben having
advised him of this at the March 4 meeting. The Union's
basic position, as Rmaldi testified, was that Respondent's
data "didn't mean anything to us since we weren't a party
to the figures " As Rinaldi further testified, "I could
not intelligently process the grievance unless I made a
study myself to see whether the information provided to
me was correct." -Under the circumstances, Rinaldi
(according to Respondent, "a schooled timestudy man")
could reasonably conclude that a survey of Respondent's
data would have been futile and meaningless without a
live-job study. Furthermore, there is no evidence that
Respondent's representatives exerted , any effort to
persuade Rmaldi or the Union that a live study was
unnecessary nor that it undertook to demonstrate that its
expert's survey was adequate to enable the Union to
evaluate the appropriateness of the revised piece rate
Respondent met Rinaldi's timestudy demand with the flat
assertion that "the Company's policy was not to allow an
outside representative to come in the plant to make a time
study," demonstrating thereby that its primary concern
was to vindicate naked property rights, rather than to
acquaint the Union with the facts 18
5. Respondent also contends (br 10-13) that, in any
event, under the "present posture" of the record the
correctness of its timestudy is no longer in issue, and
accordingly, that the Union's right, to make a like study
"vanishes " This contention is predicated on the claim
that the original question raised by the grievance turned
on the ability of-the operator (Peck) to attain the new rate
and on the assumption that she was losing money.
However, according'ito Respondent (br. 11) the record
average of the readings which tended to minimize atypical factors (But cf
Mundel, op cit supra , fns 14 and 15 ) Webster's testimony nonetheless
corroborates , in part, the testimony of Rmaldi (who, as noted , had training
in timestudies) that he could not determine whether or not Respondent's
timestudies were accurate by merely examining a set of figures without
also personally observing the job
"At the hearing , Respondent adduced no evidence , nor even claimed,
that a Union-conducted timestudy would disrupt production or impose an
unreasonable burden Its engineer 's (Smith) stopwatch study (79 cycles)
was completed in 2093 minutes
GENERAL ELECTRIC COMPANY 667
shows that "[a]side from 6 days in October, when, for the
first time, the grievant worked to her `fullest capacity,' she
averaged roughly the same number of units per hour
before the change as she did afterward "
I do not agree. Mrs. Peck's production record shows no
consistent pattern before and after the new piece rate was
put into effect (December 23). She had averaged
considerably less than the dxpected production rate of 220
per hour `before the addition of the new annealer (having
'concentrated at that time on quality at the expense of
production) She averaged a much higher figure (300
units) for a brief period in October - still before the
annealer was added She reverted to a lower average
(higher, however than the pre-October average) before the
annealer was added on, December 23 Her production
from December 23 to April 10 (the last date available)
exceeded the revised production rate (215 units) on only
three dates January 3, 6, and 7 Under these
circumstances, I cannot accept Respondent's premise (br
13) that "[s]ince the basis for the claim is gone, the
relevance of a union time study vanishes "" `
6 Finally, Respondent contends (br 28-36) that the
Union "waived any right it might otherwise have to make
time studies of- piecework jobs by nonemployees," by
virtue of two clauses in the collective agreement Section
4(e) of article VI ("Wage Rates") provides that when a
Company representative makes a timestudy of , any
piecework job, the employee and his steward "will be
notified and advised of its purpose " It further provides
that "where the piece -price is in dispute between the
Company and the Local, and is scheduled to be retimed,
the Steward may be present during this retiming and
observe the' conditions under which it is made "20 Section
2(b)(2) of article XIII ("Grievance Procedure") provides
for "an' inspection of the job" by Union representatives at
step '2 of the grievance "where it is mutually agreed" that
an inspection "would be helpful" in resolving the
grievance 21
The law governing the "waiver" of statutory rights,
including the right to information through timestudies in
connection with processing grievances (supra, sec. B, 1), is
well settled. In Hickory, where Respondent 'raised, and
the Board and the Court rejected, an identical waiver
contention (based on Respondent's' reliance on the two
clauses here involved), the Court emphasized that "only
clear and unmistakable language will warrant a conclusion
that waiver was intended [citing cases] " 414 F 2d at 923
See also Timken Roller Bearing Company 'v. N L R B
325 F.2d 746, 751 (C A 6) It must appear that "the
"Moreover , assuming , as Respondent suggests ( but did not prove), that
Peck could , if so disposed, presently produce as many as 215 units,' this
ignores the possibility that she could be making additional (incentive)
earnings if the production rate were reduced
"The full text of sec 4(e), art VI, is "When a Company representative
makes a time study of any job, the employee and his Steward will be
notified and advised of its purpose On jobs where the piece price is in
dispute between the Company and the Local, and is scheduled to be
retimed, the Steward may be present during this retiming and observe the
conditions under which it is made If the Steward requests , the Foreman
will explain to him the data used in making up the piece price from the
time study and/or applicable tables "
"The full text of sec , 2(b)(2), art X111, is "Meetings between
representatives of the Local and local Management shall be arranged at
mutually agreeable times for the purpose of discussing such grievance In
those cases where it is mutually agreed by Management and Local
representatives that an inspection of the job would be helpful in settling the
case , a subcommittee of the Local with Management - representatives shall
be allowed to make an inspection of the job Local representatives may
include the Business Agent or his assistant or officers of the Local
Union knowingly waived" its interest in - the matter.
N L R B. v. Gulf Atlantic Warehouse Co., 291 F 2d 475,
477 (C.A 5) "Silence in the bargaining agreement on
such an issue does not meet this test " Timkin Roller,
supra, 325 F 2d at 751. See also Fafnir Bearing Company
v. N L R B, 362 F 2d 716, 722 (C A. 2) Nor does the
"fact that the Union attempted unsuccessfully to include
in its contracts a statement of its statutory right
evidence that the Union waived its statutory right .
Hickory (Board Decision), quoting from Cloverleaf
Division of Adams Dairy Co, 147 NLRB 1410, 1413. The
"general philosophy of the Act and the general desirability
of joint participation and responsibility suggest that any ' .
reservations of power, [by an employer respecting
bargaining matters] must be clearly described and
delimited in the contract." (N L R B v Otis Elevator
Co, 208 F 2d 176, 178-179 (C.A. 2) )
As indicated (supra, sec A, 1), the national agreement
which covers the Hickory plant also covers the plant
involved in this case and, by the same token, the
collective-bargaining history considered in Hickory is
applicable here (indeed, that history was physically
incorporated in this record). In Hickory, the Board and
Court found that section 4(e) of article VI did not amount
to a waiver of the Union's statutory right to in-plant
timestudies since that section by its terms related to
pieceworkers and not to the. hourly paid (daywork)
employees involved in Hickory As to section 2(b)(2) of
article XII1, the Board and the Court rejected
Respondent's waiver defense on the ground that neither its
language nor bargaining history supported a finding of
waiver Thus, the Board stated.
This second step joint inspection of the job [referred
to in sec 2(b)(2)] is for the stated purpose of helping to
settle the grievance This bilateral procedure for settling
a grievance is quite different from the Union's need for
information so that it might itself evaluate the
grievance and determine upon future action
[D]uring the 1966 negotiations the Union
unsuccessfully proposed ,a revision of this article,
specifically permitting the Union to bring in industrial
engineers and specialists to assist it in studying or
inspecting the job or work involved in a grievance
However, the Union 'continuously and consistently
asserted its statutory right to make its own timestudies
prior to the 1966 negotiations, during the negotiations,
and subsequent to the negotiations. At no time during
the negotiations did'the Union indicate to Respondent
that it was conceding on this point The question of
union timestudies was discussed generally at the
September 21, 1966, meeting of the,national negotiating
committee, which committee alone had the power to
commit the parties , At that meeting . the Union's
chief counsel, contested Respondent's contention that
the Union did not have the right to make timestudies,
citing the Fafnir Bearing case JsupraJ as controlling on
the issue. (Footnotes omitted )
The Court agreed, stating (4l4 ' F 2d 923), "Clearly
the union did not consciously yield, or , clearly and
unmistakably waive, its interest in the matter The mere
fact that it executed a contract which did not include its
request for a contractual guarantee of its statutory rights
did not constitute an effective waiver of them. Timken
Roller Bearing Co v. N L R B, supra "
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Respondent's basic position is that here, unlike
Hickory, section 4(e) of article V I does control, since here
the disputed job (Peck's arboring operation) involved
piecework expressly covered by that section. It argues that
because this provision names only the steward as the
Union official who "may be present during the retiming"
of a disputed job, it necessarily follows that other Union
representatives (nonemployees) are excluded from
observing or timestudying the job As did the Board and
Court in Hickory, I find that section 4(e) of article V I
does not govern the Union-requested timestudy here in
question Section 4(e) is an integral part' of an article
entitled "Wage Rates " That article sets out a
comprehensive scheme for setting and handling rates and
prices for all workers - hourly paid, piecework, and
salaried It deals with the furnishing of information (sec.
2) concerning job classifications, progression schedules,
and price adjustments As Respondent itself puts it (br.
37), section 4(e) "provides only for notice of normal time
studies " (emphasis supplied) If retiming is necessary
"the steward may be present during this retiming and
observe the conditions under which it is made " If the
steward requests it, he may also obtain an explanation
from the foreman of "the data used in making up the
piece price from the time study and/or applicable tables."
However, section 4(e) does not purport to cover the
Union's or grievant's right to information, including
timestudies needed in connection with the processing of a
grievance Nor does it preclude resort to an expert when
required It is the "Grievance Procedure" article (XIII)
which comes into play when a grievance is filed That
article applies to the processing of formal grievances by
any and all employees covered by the collective agreement
(piecework, hourly-paid, salaried employees) and
prescribes their rights and obligations thereunder It is
under this article that the Union sought a timestudy to
evaluate Peck's grievance The only provision in that
article which is claimed to defeat the Union's right to the
timestudy (sec 2(b)(2)) already was held by the Board and
Court "not [to] constitute a waiver" (414 F 2d at 923) As
found (supra, sec B, 3), the requested timestudy was
relevant and necessary to appraise intelligently the
appropriateness of Respondent's new rate Without such
study it would be difficult, if not impossible, for the
statutory representative to decide whether the grievant
(Peck) had a valid complaint which should be pressed in
further negotiations and pursued to arbitration 22 As in
Fafnir Bearing, supra, 362 F 2d at 722 (C.A 2), "if the
Company-Union grievance machinery was to work
smoothly, it was essential that the Union obtain the
information necessary for 'a considered judgement " See
also P R Mallory and Company, Inc v N L R B, 422
F.2d 757 (C.A. 7) The Union "would be forced to grope
blindly through the stages of the grievance procedure
unless adequate information were preliminarily available "
(Curtiss- Wright Corp v N L R B, 347 F.2d 61, 71 (C A
3)) This obviously would frustrate the statutory objective
of promoting industrial peace by encouraging the
authorization of contract procedures for the resolution of
labor disputes
Accordingly, I find that the Union did not waive its
statutory right to perform an independent timestudy in
connection with the processing of Peck's grievance I find
and conclude that by refusing to permit the Union access
"As noted in Hickory , the operative collective agreement provides for
"voluntary arbitration" of grievances arising out of the establishment of
production standards (414 F 2d 919 )
to the plant to make such timestudy for the purposes
indicated,, Respondent violated Section 8(a)(5) and (I) of
the Act.
CONCLUSIONS OF LAW
I By refusing to permit the Union , ` through its
International Representative or other designated qualified
agent, to enter its plant for the purpose of conducting a
timestudy relevant and necessary to the processing of a
grievance , Respondent has refused to bargain with the
Union within the meaning of Section 8(a)(5) and ( 1) of the
Act
2 The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that at cease and
desist therefrom and that it take certain affirmative action
necessary to ^ repair and remove the effects of the unfair
labor practices and to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this
proceeding, and pursuant to Section 10(c) of the Act, I
hereby issue the following
RECOMMENDED ORDER
Respondent General Electric Company (Ohio Lamp
Plant), its officers , agents, successors , and assigns , shall.
1. Cease and desist from-
(a) Refusing to bargain collectively with International
Union of Electrical ,- Radio and Machine Workers,
AFL-CIO-CLC, as the statutory bargaining representative
of the production and maintenance employees at its
Warren , Ohio, Lamp Plant, by refusing to permit the
Union through its International Representative or other
expert of its own choosing , to enter and be present in
Respondent ' s , plant for the purpose of conducting
timestudies relevant or necessary to the processing of
employee grievances or complaints.
(b) In any like or related manner interfering with the
efforts of the Union to bargain collectively with it on
behalf of the production and maintenance employees at its
Warren, Ohio , Lamp Plant.
2. Take the following affirmative action necessary to
effectuate the policies of the act
(a) Upon request , permit the Union, through its
International Representative or other expert of its own
choosing , to enter and be present in Respondent ' s Warren,
Ohio, Lamp Plant, for the purpose of making timestudies
relevant and necessary to the processing of employee
grievances or complaints.
(b) Post at its Warren, Ohio, Lamp Plant, copies of the
attached notice marked "Appendix " 23 Copies of said
notice, on forms provided by the Regional Director for.
Region 8, after being duly signed by Respondent's
authorized representative , shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
"In the event that this Recommended Order is adopted by the Board,
GENERAL ELECTRIC COMPANY 669
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith 21
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in'
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
employees at our Warren, Ohio, Lamp Plant, by
permitting the Union, through its International
Representative or other expert of its own choosing, to
enter and remain in our plant for the purpose of
conducting timestudies relevant or necessary to the
processing of employee grievances or complaints.
WE WILL NOT, in any like or related manner,
interfere with the efforts of the Union to bargain
collectively on behalf of our production and
maintenance employees.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate ' the policies of the National Labor
Relations Act, as amended , we • hereby notify our
employees that
WE WILL bargain collectively with International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, as the statutory bargaining
representative of our production and, maintenance
Dated By
GENERAL ELECTRIC
COMPANY (OHIO LAMP
PLANT)
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or•compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1695 Federal
Office Building, 1240 East Ninth Street, Cleveland, Ohio
44199, Telephone 216-522-3715