Textron, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1974

214 N.L.R.B. 15 (N.L.R.B. 1974)

W. A. SHEAFFER PEN COMPANY
W. A. Sheaffer Pen Company, a Division of Textron,
Inc. and United Automobile , Aerospace and Agri-
cultural Implement Workers of America (UAW),
Local 1551. Case 38-CA-1874
October 10, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On May 22, 1974, Administrative Law Judge Sid-
ney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions -of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge , as modified
below, and hereby orders that the Respondent,
W. A. Sheaffer Pen Company , a Division of Tex-
tron , Inc., Fort Madison , Iowa, its officers , agents,
successors , and assigns , shall take the action set forth
in the said recommended Order , as modified herein:
1. Substitute the following for paragraph 1(a):
"(a) Refusing to bargain collectively with United
Automobile, Aerospace , and Agricultural Implement
Workers of America, (UAW), Local 1551, as the ex-
clusive bargaining representative of its employees in
the appropriate bargaining unit described below; re-
fusing or failing to furnish to the Union or its agents,
upon request , Respondent's timestudies or other data
relevant to the incentive wage systems for its punch
press and packaging wheel operations; or refusing or
failing to permit qualified union representatives to
enter Respondent 's plant premises for the purposes
of studying incentive rates and operations of its
punch press operations at reasonable times during
working hours. The appropriate unit is: ,
15
All tool and die department employees includ-
ing tool and die makers, tool room machinists,
tool crib attendants, apprentices and helpers,
production and maintenance employees includ-
ing product engineering lab assistants and tech-
nicians, and development technicians, quality
assurance employees, stock clerks, shipping
clerks, pen point vault keeper, part time clerks
and production operators, stock and warehouse
employees, and janitors at the Company's Plant
# 1, #2, and #5 located at Fort Madison, Iowa;
excluding all cafeteria employees, administrative
clerks, general clerks, service correspondence
clerks, pen point inventory clerks, watchmen,
guards, professional employees and supervisors
as defined in the Act.
2. Substitute the following for paragraphs 2(a) and
2(b):
"(a) Furnish the Union, upon request, Re-
spondent's timestudies or other data relevant to the
incentive wage system for its punch press and pack-
aging wheel operations.
"(b) Permit, upon request, qualified union repre-
sentatives to enter Respondent's plant premises for
the purpose of studying incentive rates and opera-
tions of its punch press operations at a reasonable
time during working hours."
3. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
1 In a broadly worded recommended Order, the Administrative Law
Judge required the Respondent to cease and desist from refusing to furnish
the Union with data relevant to its incentive wage systems. to furnish such
data to the Union upon request, and to permit union representatives to
study Respondent's incentive rates and operations However, as the Admin-
istrative Law Judge found, the Union's request for information upon which
the Respondent's 8(a)(5) violation was predicated related solely to data con-
cerning the packaging wheel and punch press operations Furthermore, al-
though the Respondent's refusal to allow the Union to conduct independent
timestudies of the punch press was found to constitute a violation of Sec
8(a)(5). its subsequent denial of the Union's request at the hearing to also
study the packaging wheel operation was not found violative of Sec 8(a)(5)
Consequently, we have modified the Administrative Law Judge's recom-
mended Order to conform to his findings and conclusions which we herein
adopt
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
United Automobile , Aerospace , and Agricultur-
al Workers of America (UAW), Local 1551, as
the exclusive bargaining representative of our
214 NLRB No. 7
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the appropriate unit described be-
low; refuse or fail, upon request, to furnish the
Union with our timestudies or other data rele-
vant to the incentive wage systems for our pack-
aging wheel and punch press operations; or re-
fuse or fail, upon request, to permit a qualified
union representative to enter our plant's prem-
ises for the purpose of studying incentive rates
and operations of our punch press operations at
reasonable times during working hours. The ap-
propriate unit is:
All tool and die department employees in-
cluding tool and die makers, tool room ma-
chinists, tool crib attendants, apprentices and
helpers, production and maintenance employ-
ees, including product engineering lab assis-
tants and technicians, and development tech-
nicians, quality assurance employees, stock
clerks, shipping clerks, pen point vault keeper,
part time clerks and production operators,
stock and warehouse employees and janitors
at the Company's Plant #1, #2, and #5 lo-
cated at Fort Madison, Iowa; excluding all
cafeteria employees, administrative clerks,
general clerks, service correspondence clerks,
pen point inventory clerks, watchmen, guards,
professional employees and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in
the exercise of rights guaranteed in Section 7 of
the National Labor Relations Act.
WE WILL, upon request, furnish the Union
with our timestudies or other data relevant to
the incentive wage systems for our packaging
wheel and punch press operations.
WE WILL, upon request, permit a qualified
union representative to enter our plant's prem-
ises for the purpose of studying incentive rates
and operations of our punch press operations at
reasonable times during working hours.
W. A. SHEAFFER PEN
COMPANY, A DIVISION
OF TEXTRON, INC.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge : This mat-
ter was heard at Burlington , Iowa, on March 12 and 13,
1974, upon a complaint issued on February 7, 1974 (based
on charges filed on December 20, 1973, and February 5,
1974). The complaint alleges that the Respondent violated
Section 8(a)(1) and (5) of the Act by refusing and failing to
furnish to the above-named Charging Party (herein "the
Union") requested data relating to employee productivity
and wages and timestudy information , and by refusing and
failing to grant the Union 's request that a union timestudy
engineer be permitted to make a timestudy of certain of
Respondent 's operations.
Respondent 's answer denies the commission of the al-
leged unfair labor practices , but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board (Respondent, in a
recent year , shipped products made at its Iowa manufac-
turing operations of a value in excess of $50,000 , ininter-
state commerce), and to support a finding that the Union is
a labor organization within the meaning of the Act.
Upon the entire record in this case , from observation of
the witnesses and their demeanor , and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent, I make the following-
FINDINGS AND CONCLUSIONS
1. SUMMARY OF THE FACTS AND ISSUES
The Union is and has been at all times material herein
the duly designated bargaining representative of Re-
spondent 's employees in an appropriate bargaining unit.'
Since 1968, Respondent and the Union have been parties
to two successive collective -bargaining agreements, the last
running from November 22, 1971, to November 22, 1974.
It appears that a substantial proportion of Respondent's
workforce is paid on an incentive basis by a piecework or
daywork incentive method. On February 15, 1973 (all dates
hereinafter in 1973 unless otherwise stated ), a grievance
was filed on behalf of five employees in Respondent's
packaging wheel operation, alleging that their incentive
earnings were being improperly reduced by the method
Respondent used to compensate them for the time their
machines were not in operation . On May 24 , June 26, and
June 30, grievances were filed on behalf of employees in
Respondent 's punch press operations alleging that after
Respondent made certain changes or modifications on
their machines or in their operations , Respondent set the
rates or standards of production (numbers of pieces to be
produced per hour) too high, thus affecting their incentive
earnings.
The Respondent rejected all of these grievances. It ap-
pears that each of them was taken through the first three
steps of the grievance procedure, up to the point at which
It is admitted that the following employees constitute a unit appropriate
for collective bargaining within the meaning of Sec 9 ( b) of the Act All tool
and die department employees including tool and die makers , tool room
machinists , tool crib attendants apprentices and helpers, production and
maintenance employees including product engineering lab assistants and
technicians, and development technicians , quality assurance employees
stock clerks, shipping clerks, pen point vault keeper , part time clerks and
production operators stock and warehouse employees, and janitors at the
Respondent's Plant #I. #2 , and #5 located at Fort Madison. Iowa ex-
cluding all cafeteria employees, administrative clerks , general clerks, service
correspondence clerks pen point inventory clerks . watchmen , guards, pro-
fessional employees and supervisors as defined in the Act
W. A. SHEAFFER PEN COMPANY 17
the Union might request arbitration. During the processing
of these grievances, in September and October, the Union
requested certain information with respect to timestudies
on the packaging wheel and punch press operations, the
definition and rates paid for down time, and requested that
a union timestudy engineer be allowed to make a timestu-
dy of the punch press operations in dispute, for the purpos-
es of evaluating the grievances for possible arbitration, of
administering the current contract, and of preparing for
the next bargaining negotiations? The Union's request for
Respondent's timestudies and for an opportunity to inde-
pendently check the standards developed by Respondent
in regard to the punch presses was denied.
Respondent's asserted reasons for refusing the Union's
requests as developed at the hearing and in its brief, in
summary, are as follows.
1. The request for the information for the purpose of
preparing for contract negotiations was premature, on the
ground that the current bargaining agreement does not ex-
pire until November 1974, more than a year after the re-
quest.
2. The request for timestudy information in regard to
the punch press grievances, and for an opportunity to inde-
pendently check that data, was premature because Respon-
dent contends, in essence, that these grievances over rates
are not ripe for arbitration. Respondent contends that un-
der the bargaining agreement, as interpreted in a previous
arbitration proceeding, grievances over rates assertedly set
by Respondent must be decided in two stages: the Union
must first obtain a decision from an arbitrator that Re-
spondent was required in the situation in dispute to estab-
lish new rates, and only then would the issue as to whether
the Respondent had properly set the rates be ripe for deci-
sion in a subsequent arbitration proceeding. Respondent ar-
gues that the Union has not satisfied this asserted condi-
tion precedent to any need for information.
3. The issues raised by the grievances have been decided
against the Union in previous arbitrations, and thus the
information sought was not necessary for the purpose of
intelligently determining whether to process the grievances.
4. Because the Union previously sought certain changes
in the bargaining contract provisions with respect to incen-
tive pay procedures but finally agreed to continue the pro-
visions of the prior contract on this subject, "the language
of the agreement, although it may not constitute a waiver
of the Union's statutory right to information . . . does pro-
vide a limitation on that right, which must be interpreted
and applied by an arbitrator."
In summary, Respondent contends that prior arbitrators
have decided the "identical issues raised by the grievances"
against the Union, and by extension of the doctrine set
forth in Spielberg Manufacturing Co, 112 NLRB 1080
(1955), it should be held that the Union has no need for the
data sought; or in the alternative, that under the doctrine
of Collyer Insulated Wire, 192 NLRB 837 (1971), the issues
herein should be "deferred to arbitration ... to allow an
2 Respondent raises certain issues as to whether the Union adequately or
clearly made these requests to Respondent, which will be dealt with herein-
after . However, it is noted that these requests , alleged in detail in the com-
plaint, are specifically admitted in Respondent 's answer
arbitrator to determine whether the provisions of the
Agreement should be applied in the manner applied by the
two previous arbitrators."
ii. THE FACTS
A The Grievances
As noted, we are here concerned with two grievances of
Respondent's employees: one filed on behalf of the pack-
aging wheel employees on February 15 (herein referred to
as the "packaging wheel grievance" ); and a second filed
on behalf of the punch press employees and, in essence,
repeated on various dates from May 24 through July 30
(herein referred to as the "punch press grievance" ). It ap-
pears that the packaging wheel employees, who are paid an
incentive or bonus in accordance with the number of
pieces they package, are classified by Respondent as day-
work incentive workers.3 The punch press operators, as the
name indicates, punch out pieces on various presses. It is
indicated that these employees are likewise paid on a day-
work incentive basis. According to Respondent's manager
of industrial engineering, Otto Podlaha, a production stan-
dard (which he also referred to as a production rate) is set
for these operations, and "for every piece that [the employ-
ee makes] over the production standard, [he is] compensat-
ed at the full value." Podlaha stated that "The operator
punches in [clocks in] on the job, runs his pieces and then
he clocks out . . he puts on his time card the number of
pieces he produced . . . the time clock records the number
of minutes or hours that he worked, and the calculation is
made using the production standards. Now the production
standard is converted into hours. There are some algebraic
formulas . . . and you end up with the pay for that period
of time." However, it appears that the employees do not
receive a statement of Respondent's computation of their
incentive pay.
1. The Packaging Wheel Grievance This grievance
states: "Packaging wheel workers were not allowed to
punch out when the wheel had to be changed causing them
to lose bonus earnings. The Union requests that the com-
pany compensate those involved for the earnings lost &
that the incident not be repeated." 4 In essence, the
Union's complaint is that by not permitting the worker to
punch out while the machine or operation was "down" and
not producing, and thus counting nonproductive time
against the number of pieces produced (compare Podlaha's
testimony that incentive pay is tied in to the time the em-
ployee is on the clock), Respondent is thus enabled to re-
p From certain notes of negotiating sessions and from Respondent's com-
ments attached to the grievances it is clear that Respondent considers its
daywork incentive system unique, and distinct from its piecework pay sys-
tem Neither counsel made any real effort to explain Respondent's opera-
tions here involved At least one text in the field states the author's opinion
that, generally speaking, "there is little fundamental difference between the
two types of systems [piecework and daywork incentive], and that such
differences are only a matter of degree in the application of certain basic
principles" See Michael, Wage and Salary Fundamentals and Procedures p
180 (McGraw-Hill, 1950)
4 The grievance relies on art XXXVI of the bargaining agreement which
provides in pertinent part "When an incentive day worker is not producing.
fails to make incentive premium. or is not on incentive work, his rate shall
be his regular hourly rate of pay "
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duce the worker's incentive earnings made while the ma-
chine (or operation) was producing, perhaps reducing the
worker's earnings to his base hourly rate for much of the
workday and not for just the employee's down time. The
Union contended that this constitutes an impermissible at-
tempt "to average out down time." Respondent rejected
the grievance through the third step of the grievance proce-
dure (up to arbitration) on the ground that the agreement
does not require that the workers be permitted to punch
out on down time, and on the basis that a "parallel" griev-
ance submitted to arbitration had been decided in
Respondent's favor. (This arbitration will be considered
hereinafter.)
2. The Punch Press Grievance. This grievance is fairly set
out in the complaint of Rhonda Chamblee, dated May 24,
which states in pertinent part (as in the original): "The
company has installed new Safety devises on ten (10) ma-
chines in the penpoint Dept. Has changed the rates; but
the rates are far to high to be fair and realistic in this case
... There are twelve (12) girls affected by this change;
They have tried to make these new rates without success.
The Union asks that the rates be lowered on these 12 jobs.
The Union feels that a fair amount of time has been [given]
these new rates . . . These new safety devises are unhandy
and more [exertion] is needed on some machines." A simi-
lar grievance was filed by Eloise Gaibel on June 26, and by
Darlene Helweg on July 30, complaining that the rates
were set too high, and after a fair and reasonable trial, the
"girls have tried without success to make these rates." 5
These grievances grew out of certain alterations that
were made to the equipment operated by these employees
for the purpose of conforming with safety standards im-
posed by OSHA. After the changes were made, Respon-
dent restudied the punch press operations and set the rates
which the employees are grieving. After the grievances
were filed, Respondent further reviewed the rates, and ac-
cording to Podlaha, during the period from July 31 to Jan-
uary 1974, a majority of them were reduced. One or two
rates have since been increased. No further grievances on
the subject have been filed.
These grievances, as noted above, have also advanced to
the third step of the grievance procedure without settle-
ment by the parties.
B. The Requests for Information
The complaint alleges and the answer admits that on
September 17, and on October 8 (in writing), the Union
requested that the Respondent "furnish to the Union data
and information relating to employee productivity and
wages," "data relating to the time study information re-
5 The grievances rely on art IV, sec 3(h) of the agreement which pro-
vides "Whenever a new job is created or two or more jobs are combined,
which requires the establishment of a new wage rate, the Company will set
a wage rate and production standard reasonably in line with other jobs in
the bargaining unit If the Union is dissatisfied with the wage rate or pro-
duction standard, a grievance may be processed in accordance with the
grievance procedure Should the matter require arbitration, the arbitrator
shall set a fair wage rate and production standard, reasonably aligned with
otherjobs in the bargaining unit Such wage rate shall be retroactive to the
date the job was created "
garding the punch press operations and the packaging
wheel," and "also requested that a Union time study engi-
neer be allowed to make a time study of the said punch
press operations." The parties nevertheless litigated the cir-
cumstances of these requests at some length, and
Respondent's brief asserts, though without much argu-
ment, that there are issues as to whether these or other
requests were made of Respondent by the Union. In the
circumstances, it appears advisable to set out these matters
in some detail.
1. The September 17 meeting
In July 1973, Cecil Qualls, an international representa-
tive of the UAW assigned to assist the Union, telephoned
William Metzinger, personnel manager of Respondent, re-
questing a meeting to discuss the punch press and packag-
ing wheel grievances. Qualls stated that the Union had had
difficulty with a similar grievance in the past in which the
parties had gone to arbitration because the Union had not
had sufficient information. He asserted that the Union was
entitled to certain information in order that it might be
determined whether these grievances should be taken to
arbitration, that the Union wanted timestudies on both
jobs and information on the data "that goes into the com-
puter on down time allowances."
Qualls, together with Douglas Brothers, a UAW indus-
trial engineer, and William Baker, president of the Union,
met with Metzinger on September 17. The Union's presen-
tation was made by Brothers. Brothers asked for the time-
studies Respondent used in setting the standards for the
packaging wheel operation and for the punch press opera-
tions. He explained the necessity of data which would show
the extent to which allowance for down time were built
into standards by which the packaging wheel operation
was paid.' With respect to the punch press operations,
Brothers told Metzinger that he "would like to see the old
standard and the new time standard that they used in
changing the job." Brothers also asked for records of the
earnings of the employees for 30 days "prior to the time I
was into the plant." Brothers also explained that he would
want to make an independent timestudy in the plant to
verify the Respondent's data and observe the workers' per-
formance in attaining the standards set by Respondent. He
asserts that Metzinger indicated approval of this and stated
that he would make the information requested available to
the Union the next day.
Brothers' testimony with respect to this meeting was sub-
stantially corroborated by Qualls, although Qualls states
that the union timestudy was "to check against the [Res-
pondent's] old time study ... as to the accuracy on the
punch presses." Qualls also states that the Union specifi-
6 Brothers ' testimony was somewhat elliptic He stated that with respect
to the down time issue on the packaging wheel, "1 explained to [Metzmger]
that to arrive at a standard you have two basic views that you follow one,
the cyclic, and the non-cyclic elements, and we [wanted] to see what those
elements were " Allowances are often made for constant (recurring)
interruptions to production in setting pay standards, allowances may not he
made for variable (nonrecurring) factors See Michael, Wage and Salary
Fundamentals and Procedures, supra at p 227 Obviously, if factors for down
time were built into the packaging wheel standards this might affect the
packaging wheel grievances
W. A. SHEAFFER PEN COMPANY 19
cally asked for "information on how this went into the
computer , breaking down . . . incentive versus day rate
and the definition of down time rates paid for . . . on these
specific operations .... " (This seems to be another way
of expressing Brother's request for data on the cyclic and
noncyclic elements involved in the packaging wheel stan-
dards.) Qualls does not refer to Metzinger 's alleged agree-
ment to furnish the materials sought.
Metzinger 's testimony with respect to the meeting was
most general . He stated that the parties discussed the
UAW request for "certain information regarding jobs,"
that he took notes , and that he told the Union "that I
understood at that point in time for the first time what they
were really asking for and that I would have . . . to de-
termine which of this information they were entitled to and
which we could get for them and that we would meet the
following day to determine those things." Thus the only
conflict in the testimony concerns whether Metzinger told
the Union that he would provide the information requested
at the meeting on the next day. The resolution of the prob-
lem is not critical to the decision of the issues in this mat-
ter. However, though Metzinger did not reject the Union's
requests, and seems to have indicated some favorable re-
sponse , I doubt that a commitment was made to supply the
material the following day.
2. The written request
On September 18, the parties did not meet as planned
because Metzinger was occupied with an arbitration pro-
ceeding which took longer than anticipated. At the end
Respondent's counsel and Brothers seem to have engaged
in some sharp exchange of words . The following day,
Qualls called Metzinger to set up another meeting. At this
time the latter requested that Qualls put his requests in
writing . Qualls protested that he was getting "the run
around"; that Metzinger had taken notes and clearly un-
derstood what the Union was requesting (as, indeed, he
testified he did). Nevertheless , on October 8, Qualls sent
the following letter to Metzinger:7
In regards to the verbal request of September 17, 1973,
we are putting the request in writing and [would like
to] have [the] original Time Study sheets [on the pack-
aging operation and] on [the] twelve punch presses or
any other pertinent data.
We are requesting the definition of down time and
rates paid for down time , and also that a Union Time
Study Engineer be allowed to make a time study of
punch press operations still in dispute . We are asking
for this information in order to make a proper evalua-
tion of jobs in question for arbitration and for the
coming contract negotiations ; as well as administering
the present contract.
Hoping that you will respond quickly so that we may
7 Words obviously omitted from the first paragraph of the letter through
typographical error are inserted in brackets pursuant to Quall's testimony as
to his intent.
solve this problem and we may have a meeting as soon
as possible on this matter.
By letter dated October 24, Respondent 's counsel an-
swered Qualls' letter , as follows:
This is to acknowledge your letter dated October 8,
1973, requesting the definition of down time and rates
paid for down time, and also that a Union Time Study
engineer be allowed to make a time study of punch
press operations still in dispute , in order to make a
proper evaluation of jobs in question for arbitration
and for coming contract negotiations as well as ad-
ministering the present contract.
As the current agreement does not expire until No-
vember 22, 197[4] and there is no provision within it
abridging management's right to establish piece work
or incentive rates, providing the information you re-
quest would in my opinion, be premature.
The definition for down time and rates paid for down
time is set forth in Article XXXVI of the present
agreement, as the agreement provides, when an em-
ployee is assigned to piece work but is not on incentive
or fails to make incentive premium, or is not produc-
ing, their rate of pay is their base rate. When an incen-
tive day worker is not producing, fails to make incen-
tive premium, or is not on incentive work, their rate of
pay is their regular hourly rate.
The above is in keeping with the position maintained
by the Company during the negotiation of the present
agreement. Should desire to discuss this matter fur-
ther, please contact me at your earliest- convenience.
The letter admittedly does not attempt to deal with ma-
terial indicated in the first paragraph of Qualls' letter,
which counsel states he found "unclear and ambiguous."
However, on the basis of the above facts, the entire record,
and Respondent's answer to the complaint in this matter, it
is found that at the time of counsel's response to the
Union, Respondent was well aware that the Union was
requesting (in addition to the items acknowledged by coun-
sel) the time studies and other materials discussed with
Metzinger on September 118
C. The Prior Arbitration Proceedings
As has been noted, Respondent justifies its refusal to
piovide the information requested by the Union, to a sub-
s During the hearing Respondent stated that it would supply the Union,
upon request, the employee pay sheets which had been requested of Met-
zinger. Also during the hearing, the Union made an oral request on the
record of the Respondent to be allowed to make an independent time study
of the packaging wheel operation (which had not been requested in the
October 8 letter). Respondent , on the record, would not agree that the
Union had served it that morning with a written copy of that request and
vigorously objected to the Union making the oral request on the record. On
the basis of Respondent's prior rejection of the similar request in the Octo-
ber 8 letter , its strenuous objection to the request, and the record as a whole.
it is inferred that Respondent rejected this oral request as well
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial degree, on certain prior arbitration awards, one
rendered on January 10, 1973, by Arbitrator Harold W.
Davey, on grievances filed November 9, 1971, by certain
hourly rated incentive workers, and two awards , issued on
March 20 and July 27, 1973, by Arbitrator Robert L. Gib-
son, on grievances filed on June 15 and 16, 1972.
1. The Davey decision
In this case , the Union , in essence , requested the arbitra-
tor to construe , in the abstract , a clause in the then current
contract between the Respondent and the Union identical
to that set forth in footnote 4 above. The Union contended
that the clause should be construed as imposing an obliga-
tion upon the Respondent to permit its incentive-paid em-
ployees to punch out "when not on incentive for whatever
reason" and to prohibit Respondent from "averaging out"
the compensation of such employees on a daily or other
basis . The case was submitted on stipulated facts. There
was no showing that the contract had been applied to any
employee in the manner asserted by the Union. Thus, the
arbitrator states he was being asked "to sustain , in blanket
fashion, the Union's interpretation of how the pertinent
contract language should be construed in the admitted ab-
sence of any evidence to show a contractual violation on
the Company's part and in the face of a flat denial of any
violation on the Company's part."
During the course of his decision, Arbitrator Davey
made the following critical assessments of the Union's po-
sition:
I am mystified frankly as to why the Union let the
entire three-year contract period go by without doing
some "bird-dogging" of its own on the administration
of the incentive system , as applied both to piece work-
ers and to incentive workers... .
The UAW is a sophisticated, knowlegeable labor or-
ganization . If it had good reason to believe that the
Company was not adhering to the applicable provi-
sions of the Agreement at any time and then made a
formal request for data that would either confirm or
refute ,its suspicions, and if the Company thereupon
had refused to supply such data, the Union had a clear
choice of remedies . It could have grieved over the re-
fusal to supply. Alternatively, it could have filed
8(a)(5) charges with the NLRB. So far as the record
shows, the Union did neither during the three-year
term of the first contract. It now seeks a sweeping
contract interpretation in its favor , notwithstanding
the admitted absence of any evidence of violation to
support its contentions and allegations.
The arbitrator denied the grievances and the union con-
tentions on the grounds that (1) the contract clause "on its
face" did not support the Union's broad contentions, and
the Union had "acquiesced" in the manner of administra-
tion of the contract for 3 years, (2) the grievances complain
that the contract has not been correctly applied to incen-
tive day workers and the Union, in its arguments, sought
"to expand the case to embrace piece workers as well," (3)
the contract language does not ipso facto require that the
Respondent permit incentive workers to punch out "when
not on incentive for whatever reason," or prohibit Respon-
dent from "averaging out," as contended by the Union,
and (4) "There is not a scintilla of evidence that any piece
worker received less than his base rate when not on incen-
tive or failed to make his incentive premium , nor is there
any evidence that an incentive day worker received less
than his hourly rate."
2. The Gibson decisions
A second decision relied upon by Respondent was issued
by Arbitrator Robert L. Gibson on March 20, 1973. The
grievances involved allege , in effect , that because of added
responsibilities given the grievants , new jobs had been cre-
ated for which new wage rates should be set in accordance
with the provisions of article IV, section 3(h) of the con-
tract (set forth in fn . 5, above). Briefly , the Respondent had
decided that certain high wage rated operators were per-
forming a number of low skilled tasks on machines to
which they were assigned , which low skilled tasks could
just as well be performed by a low wage helper, thus
freeing the operator to perform highly skilled tasks on
more machines than previously . Respondent therefore as-
signed each operator a helper to do low skilled tasks and
assigned the operators to take care of a larger number of
machines . The operators wanted more money. Respondent
denied that a new job had been created within the meaning
of article IV, section 3(h) and refused to set a new wage
rate.
After finding that the change in the operator 's duties did
constitute a new job within the meaning of the contract,
Arbitrator Gibson stated the following (the material in par-
entheses is mine , not the arbitrator's):
Article IV, Section 3(h) of the contract states, quite
plainly, that if a new job is created, the Company will
set the rate. Then, once the rate is established, if the
Union is dissatisfied with that rate, the complaint may
be processed in accordance with the grievance proce-
dure. (Article IV, section 3(h) further provides, as the
arbitrator had previously set forth, that "Should the
matter require arbitration, the arbitrator shall set a
fair wage rate and production standard, reasonably
aligned with other jobs in the bargaining unit. Such
wage rates shall be retroactive to the date the job was
created." )
The contract does not authorize the Arbitrator to es-
tablish the rate for the new job. Only the Company
can do that, subject to the Union's right to grieve if
they are not satisfied.
The arbitrator must base his Decision and Award on
the specific provisions of the agreement. He may not
add to, substract from, or amend the agreement in any
manner . Therefore he cannot establish the wage rate.
All the Arbitrator can do, under these circumstances,
is decide if a new job was created. If so, the Company
must set the rate.
W. A. SHEAFFER PEN COMPANY 21
F. Decision and A ward
It is the decision of the Arbitrator that the duties per-
formed by the Screw Machine Operator, while work-
ing in tandem with a Helper in the team concept, con-
stitutes a newly created job within the meaning of Ar-
ticle IV, Section 3(h) of the contract.
It is also the decision of the Arbitrator that he cannot
set the wage rate for the newly created job, that power
being reserved by the Company, subject to the rights
of the Union, as set forth in Article IV, Section 3(h) of
the contract.
The Company is, therefore, directed to establish forth-
with a wage rate for the Screw Machine Operator
while he is working in tandem with a Helper in the
Team concept, in accordance with the standards set
forth in Section 3(h) of Article IV. Said rate for the
new job shall be effective at the start of the first shift
on Monday, March 26, 1973, for all such work per-
formed by Screw Machine Operators.
It appears that after this decision and award by Arbitra-
tor Gibson, Respondent raised the wage rate of the screw
machine operators by 10 cents per hour effective March 26.
The Union grieved on the basis that the raise should have
been to the next rate range set by the agreement, and that
under the agreement the new rate should be "retroactive to
the date the job was created." The issues were appealed to
Arbitrator Gibson, who held in his second decision that the
rate set by the Respondent conformed to the requirements
of the agreement, and that the Respondent correctly made
the increase retroactive to the date directed by the Arbitra-
tor in the first decision, "not only because that decision is
binding, but also because the new job was not effectively
created until the Arbitrator decided that question in the
earlier case."
D. The Prior Negotiations
During the negotiations for the current bargaining agree-
ment between the Union and Respondent, the Union made
certain proposals with respect to the establishment and ad-
ministration of incentive standards which Respondent op-
posed. These were eventually dropped and the Union
agreed to continue the provisions of article IV, section 3(h)
from the prior agreement. Respondent contends that
"[a]ccordingly, the language of the Agreement, although it
may not constitute a waiver of the Union's statutory right
to information, it does provide a limitation on that right,
which must be interpreted and applied by an arbitrator."
In support of its position, Respondent relies upon typewrit-
ten notes of several of the bargaining sessions , taken by a
secretary employed by Respondent, which were introduced
into evidence. These notes have been carefully studied.
At the outset it is noted that although the Union propos-
als are referred to throughout the notes of the several ses-
sions, the text of these proposals, or their wording, is no-
where set forth. The two major proposals involving incen-
tives discussed were union demands (1) that Respondent
use a different method for establishing incentive stan-
dards,9 and (2) that Respondent agree to train a "time-
study steward" in its methods and pay- the steward for a
certain amount of time for the purpose of assisting the
Union in the processing of incentive grievances. In the ear-
ly stages of the negotiations, the parties concentrated on
the Union's proposal that Respondent abandon its MTM
system. Respondent stated that this proposal was critical,
but at first indicated little opposition to the timestudy stew-
ard if the Union paid for the time he spent during working
hours. 11 Later, the Union dropped its proposal that the Re
spondent abandon its MTM system. The notes of the last
negotiation session in evidence indicates that at that point,
in respect to the incentive issue , only the timestudy steward
was in dispute.
In considering the notes of the bargaining sessions, par-
ticular attention has been given to those factual assertions
upon which Respondent relied in its brief. At pages 14-15
of its brief, Respondent makes these assertions: that in the
negotiations "the Union attempted to replace Article IV,
Section 3(h) of the Agreement" with a provision requiring
the "MTM procedure to be replaced with a stop watch
procedure," providing for a union timestudy steward
"trained in all phases of the Company's method," and pro-
viding that grievances filed on incentive disputes be pro-
cessed through the grievance procedure and, if not settled,
"be turned over" to the timestudy steward, paid by Re-
spondent, for further processing. Respondent contends
that the Union procedure would "open the grievance pro-
cedure to any and all incentive rates established by the
Company," and states that the parties were " in dis-
agreement with regard to the Union's proposed time study
procedure and right to grieve incentive rates through arbi-
tration." Respondent refers to this as a "continuous proce-
dure," or "continuous right" to grieve incentive rates which
the Union disputed.
In the absence of the text of the Union's complete pro-
posal, it is impossible to determine to what extent, if any,
the Union was rejecting the language in the prior contract
contained in article IV, section 3(h). Approximately mid-
way through the negotiations, there is a cryptic statement
attributed to Baker, president of the Union, that the parties
had "not agreed on h. but will be another section." It seems
clear that the Union was seeking additional language in the
agreement with respect to the formulation and administra-
tion of incentive rates, but it does not affirmatively appear
that the Union also sought to change or abandon the spe-
cific wording of article IV, section 3(h) as it appeared in the
previous agreement . It is further not clear how the time-
study steward would fit into the grievance procedure other
than to provide knowledgeable assistance to the Union in
the processing of grievances through the grievance proce-
dure. In particular, it is difficult to determine from the
notes of the negotiations that the Union's proposals would
9 The Respondent apparently uses the MTM system, it would appear that
the Union wished to have the separate operations timed and studied
10 Thus, during the meeting of October 5, 1971, Respondent's counsel is
quoted as saying, "Wouldn't have any objection to a steward but if doing
during working hours, we would expect the union to pay for his wages We
are not about to do it." There is garbled language indicating a similar state-
ment in the prior meeting
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have given it any additional rights to grieve over the for-
mulation or administration of incentive rates beyond those
already provided in article IV, section 3(h) or article
XXXV I.
The essence of the dispute seems to be set forth in the
following exchange between the Respondent and the
Union:
Haynes (for Respondent): It appears we have a basic
disagreement in that the company wishes to maintain
its MTM system and your plan is based on a stop
watch system. Until we get that ironed out, the other
provisions that you proposed really don't mean too
much because they are all based on your proposed
system.
Weed (for the Union): Basically have a disagreement
because we feel the only fair method is the actual stop
watch and don't agree with the MTM because there is
nothing fair about it.
r
Weed: . . . and another thing, we are going to insist
on is having a time study steward and have adequate
time in the contract to function as such.
Haynes: Wouldn't have any objection to a steward
but if doing during working hours, we would expect
the Union to pay for his wages. We are not about to
do it.
Weed: We are a long ways apart because we are going
to insist we have one and he be trained by the compa-
ny in their method of timing and at that point he is
released as a time study steward and we have ade-
quate time for him to perform as a steward paid for by
the Company.
Haynes: If paid by the company, only released for-his
duties if and when the company approved of it.
Weed: Gives us nothing. Our policy is that we agree
on certain contract language, procedure for filing
grievances on incentive disputes, and going through
regular grievance procedure. If not settled during steps
of grievance procedure then it would be turned over to
him.
Haynes: Our option is that the company should retain
the prerogative of establishing the study and determin-
ing the rate from that study from whatever we agree to
in the contract. As far as having a continuous griev-
ance procedure opened up to -the various times we
make a study, if the union disagrees, is very restrictive
to the company's operations.
Weed: You should do a little research as to how [it]
really works with a time study steward. The only time
we process a grievance is if there are elements in the
job and if people feel they have a unfair standard and
certainly wouldn't be every time you apply a standard.
It is likely that if the Union had been able to persuade
Respondent to abandon the MTM system, and retime all
the incentive jobs, the Union would have sought the right
to grieve over any newly established standards or rates sim-
ilar to the procedure set forth in article IV, section 3(h).
This is undoubtedly what Haynes was referring to in the
discussion. But the critical issue under discussion was
whether the Respondent should change its system and
reevaluate all rates and standards in the first instance. Be-
ginning at the very next bargaining session, however, the
Union began indicating its withdrawal of the proposal that
Respondent change its system, but continued to press for a
timestudy steward. Respondent did not thereafter argue
that the Union was seeking to expand the scope of the
grievance procedure with respect to Respondent's incentive
pay programs.
E. Other Contract Clauses
In addition to the contract clauses set forth above in
footnotes 4 and 5, Respondent indicates that it is relying
on the following provisions of the bargaining agreement:
Article XIV
Grievance and Arbitration Procedure
Section 1. Both the company and the Union recognize
the need to continue oral communications with regard
to complaints and to this end it is understood that
employees may present oral complaints to their imme-
diate supervisor. In the event a dispute arises regard-
ing the interpretation or application of a special provi-
sion or provisions -of this agreement, this dispute will
be resolved utilizing the following procedure: -
Section 5. The arbitrator must base his opinion on the
specific provisions of the agreement or shop rules and
he may not add to, subtract from, or amend this agree-
ment in any manner.
Article XXXI
Management Functions
Section 1. . . In addition, the Union recognizes other
rights and responsibilities belonging solely to the com-
pany, common among which, but by no means wholly
inclusive, are the rights of the Company to determine
the products to be manufactured, the location of
plants,, the schedules of production, scheduling the
W. A. SHEAFFER PEN COMPANY
work force, the methods, processes means of manufac-
turing, the standard of quality and workmanship, pro-
duction standards and production schedules.
III. ANALYSIS AND CONCLUSIONS
We are here concerned with Respondent's justification
for its refusal to supply the Union with timestudy data
used by Respondent in establishing rates or standards for
incentive pay in its packaging wheel operation; with the
timestudy data used in setting rates or standards in its
punch press operations both before and after changes had
been made in the operation of those presses for safety rea-
sons ; and Respondent's reasons for refusing to grant per-
mission to the Union to make independent timestudies of
both these operations in order to check Respondent's
data," which information the Union sought for the pur-
poses of assisting it in determining whether to take certain
packaging wheel and punch press grievances to arbitration,
to assist the Union in administering the bargaining agree-
ment, and further to assist the Union in preparing for bar-
gaining negotiations for an agreement to succeed the cur-
rent agreement expiring in November 1974.
It has long been firmly established that the bargaining
representative of employees is entitled under the Act to the
information requested here by the Union, in the circum-
stances presented and for the purposes asserted . See, e.g.,
N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967);
F. W. Woolworth Co., 109 NLRB 196, enfd. per curiam 352
U.S. 938 (1956); The Timkin Roller Bearing Company v.
N.L.R.B., 325 F.2d 746 (C.A. 6, 1963); Waycross Sports-
wear, Inc. v. N.L.R.B., 403 F.2d 832 (C.A. 5, 1968); P. R.
Mallory & Company, Inc., 411 F.2d 948 (C.A. 7, 1969).
Respondent here, however, argues that the requests for
information must first be submitted to an arbitrator for a
determination that the Union needs the information which
it seeks. This contention has been considered by the Board
and the courts on various occasions and rejected. Thus, in
Acme Industrial, supra, where the Supreme Court found
that "The only real issue in this case , . . is whether the
Board must await an arbitrator 's determination of the rele-
vancy of the requested information before it can enforce
the union's statutory rights under §8(a)(5)" (385 U.S. at
436), the Court rejected this view, finding "important dis-
tinctions" between those cases favoring a policy of deferral
of disputes to arbitration and the case before it in which
the Board had ordered the employer to furnish the request-
ed information, the Court stating (pp. 437-438):
But even if the policy of the Steelworkers Cases were
thought to apply with the same vigor to the Board as
to the courts, that policy would not require the Board
to abstain here. For when it ordered the employer to
furnish the requested information to the union, the
Board was not making a binding construction of the
labor contract. It was only acting upon the probability
"Although the request for a union timestudy of the packaging wheel
operation was not made until the hearing , it is clear from the record that
Respondent's position as to this was identical to its earlier rejection of the
similar request for a union timestudy of the punch press operations.
23
that the desired information was relevant, and that it
would be of use to the union in carrying out its statu-
tory duties and responsibilities. This discovery-type
standard decided nothing about the merits of the
union 's contractual claims.
Far from intruding upon the preserve of the arbitrator,
the Board's action [in ordering the disclosure of the
information requested] was in aid of the arbitral pro-
cess . Arbitration can function properly only if the
grievance procedures leading to it can sift out unmeri-
torious claims. For if all claims originally initiated as
grievances had to be processed through to arbitration,
the system would be woefully overburdened. Yet that
is precisely what the respondent's restrictive view
would require. It would require the union to take a
-grievance all the way through to arbitration without
providing the opportunity to evaluate the merits of the
claim.e .. .
We hold that the Board's order in this case was consis-
tent both with the express terms of the Labor Act and
with the national labor policy favoring arbitration
which our decisions have discerned as underlying that
law... .
8 See Fafnir Bearing Co. v. N L.R B., 362 F 2d 716, 721 : "By pre-
venting the Union from conducting these studies [ for an intelligent
appraisal of its right to grieve ], the Company was, in essence , regiiir-
ing it to play a game of blind man 's bluff."
See also P. R. Mallory & Company, supra, where the
court, following Acme, states, "Even where an employer
agrees to arbitration, if he refuses to_ disclose information
relevant to the grievance process until the arbitrator first
orders production, upon a finding of arbitrability, the in-
ternal grievance procedure is nullified, and arbitration
would be `woefully overburdened."' (411 F.2d at 954, fn.
3).
No case is cited, and I know of none, in which the
Board, since Acme, has deferred to arbitration on the issue
of whether a union's request for information from the em-
ployer was needed or relevant. In a recent case, American
Standard Inc., 203 NLRB 1132 (1973), where an Adminis-
trative Law Judge recommended deferral in such a situa-
tion on the basis of Collyer Insulated Wire, the Board re-
versed, stating (footnotes omitted): "It is now well settled
that a collective bargaining representative is entitled to in-
formation which may be relevant to its task as bargaining
agent, and this is not a matter for deferral to arbitration
where, as here, the material is sought as a statutory rather
than a contract right. It is clear in the case before us that
there is no contract clause dealing specifically with the fur-
nishing of information necessary and relevant to the -pro-
cessing of grievances or any other clause by which the
Union waives its statutory rights to such information. Un-
der these circumstances we do not agree . . . that this issue
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be deferred to the arbitration procedure under
Collyer." 12
In the present case , as in American Standard, supra, there
is no contract clause dealing specifically with the furnish-
ing of information necessary and relevant to the processing
of grievances or any other clause by which the Union
waived its right to such information . 13 Respondent does
not claim the contrary, but on the authority of Sinclair
Refining, supra, claims that by unsuccessfully seeking in
collective bargaining greater participation in the formula-
tion and administration of incentive rates, the Union limit-
ed its right to the information here sought , which right
Respondent contends must now be "interpreted and ap-
plied by an arbitrator ." This argument , a somewhat altered
version of Respondent 's basic contention that the Union's
need for information must initially be decided by an arbi-
trator and not by the Board, falls for reasons already set
forth . In addition , the evidence does not show that the
Union, by its words or its actions , clearly and consciously
waived its statutory rights to the information here sought.
As the Board recently stated , following long established
precedent (footnotes omitted): "an alleged waiver based on
contract negotiations must be supported by clear and un-
mistakable evidence . . . although a subject has been dis-
cussed in precontract negotiations and has not been specif-
ically covered in the resulting contracts , the employer vio-
lates Section 8(a)(5) of the Act if during the contract term
he refuses to bargain with respect to the particular subject,
unless it can be said from an evaluation of the prior negoti-
ations that the matter was fully discussed or consciously
explored and the union consciously yielded its interest in
the matter ." Magma Copper Company, San Manuel Divi-
sion, 208 NLRB 329 (1974).
Respondent 's further claim that , under the prior arbitra-
tion decisions by Davey and Gibson, the present griev-
ances have no merit, and therefore the Union has no need
for the information sought, stands on no firmer basis. As
the Supreme Court stated in Acme, in determining the rele-
vance or need for the requested information, there is no
necessity ihat the merits of the grievances involved be con-
sidered.14 It is only required that there be a "probability
that the desired information [ is] relevant" to the purposes
for which it is sought (385 U.S. at 437). As has been noted,
the Board and the courts had regularly held that informa-
tion of the nature sought here is relevant to'the processing
of disputes over incentive pay , and for the purpose of ad-
ministering and negotiating agreements . Nor do the cur-
rent grievances appear to be necessarily controlled by the
12 Sinclair Refining Company v. N. L. R. B.. 306 F.2d 569 (C.A. 5. 1962),
relied upon by Respondent here to support a contrary conclusion. has been,
in the words of the court in P. R. Mallory, supra. "specifically disapproved
... in the Supreme Court's opinion in the Acme case" (411 F.2d at 956).
and has not been followed on this point since the Anne decision. although
referred to in the Board's decisions in Collier and Notional Radio. 198
NLRB 527 (1972).
13 Notwithstanding an obirer dictum by Arbitrator Davey in his decision.
it is, indeed, questionable whether an arbitrator has authority to order the
production of the, information sought under the terms of the contract.
which, as Arbitrator Gibson observed, requires that the arbitrator base his
award upon the specific provisions of the agreement without adding to.
subtracting from, or amending the agreement.
14 It is for this reason that I rejected Respondent's offer to prove by
certain employee grievants that the punch press grievance lacked merit.
prior arbitration awards, as Respondent argues. Though
the packaging wheel grievance involves the same contract
clause which Arbitrator Davey treated in his decision, it is
noted that the present grievance alleges specific violations
of the agreement to the detriment of particular workers
with distinct reasons for their claim that they should be
permitted to punch out when not on production.15 These
were among the principal reasons for Davey's criticism of
the Union's position in the prior case, and might form a
basis of distinction in the present matter. Similarly, crucial
to Arbitrator Gibson's decisions was the fact that in his
opinion the Respondent had not originally set new rates or
standards for the operations being grieved. In the present
matter, the Respondent appears to have set new rates and
standards on the punch press operations being grieved.
However, I do not have to find as a fact that these arbiters,
or others, would make such distinctions. That is, I do not
have to, and I do not pass upon the merits of the present
grievances. I do not find that the circumstances of this case
raise a "probability that the desired information was rele-
vant, and that it would be of use to the Union in carrying
out its statutory duties and responsibilities" in this matter.
See Acme Industrial, supra at 437.
In coming to this conclusion, I have fully considered the
testimony of Union Industrial Engineer Brothers to the ef-
fect that he would not trust Respondent's timestudies on
the packaging wheel operation (he said they would be of no
value to him), unless he could check them out himself by
an independent study. This is the testimony that might be
expected of a conscientious, critical professional not will-
ing to trust any work not his own. However, Brothers also
later agreed that even in the absence of an independent
study, Respondent's data would be useful. Clearly, data
showing how Respondent established and administers its
standards would be relevant and of use in processing the
grievances, in administering the contract, and in preparing
for the coming negotiations, whether or not the Union
trusted the Respondent's data.'6
Respondent, however, also contends that it had no obli-
gation to supply the Union with the timestudy data re-
quested for the purpose of preparing for the coming con-
tract negotiations because the requests were a year in ad-
vance of the expiration of the current bargaining contract
and allegedly therefore premature. I find this completely
without merit. Aside from the fact that the information
requested was clearly relevant to the administration of the
then current agreement, I am convinced that collective bar-
gaining is assisted, and not impeded, by preparation for
negotiations beginning as far in advance as possible in ar-
eas as complicated as the setting and administration of in-
centive pay rates. Collective bargaining should be an ongo-
ing process, not a static exercise engaged in at lengthy in-
tervals under crisis conditions. Indeed, although the time
Thus the record in this case indicates that Respondent has a practice of
computing the employees' incentive pay on the basis of when they punch in
on productive time and when they punch out from production. 'rhis fact
does not appear to have been presented to Arbitrator Davey. It might he
considered a basis for the employees' present claim.
It In any event. at the hearing the Union requested an opportunity to
make the same independent study of the packaging wheel operations which
it had previously requested for the punch press operations. Respondent has
acceded to neither request.
W. A. SHEAFFER PEN COMPANY
now fast approaches when bargaining must start, Respon-
dent continues to resist the Union's request for data.
For the reasons stated, and on the record as a whole, I
find that the Respondent, by failing and refusing to supply
the Union, upon request, Respondent's timestudy sheets on
the packaging wheel operations and on the punch press
operations both before and after the safety changes were
made on the punch presses in 1973, and the employee
paysheets for 30 days prior to the request, and by refusing
to allow the Union to make an independent timestudy of
the punch press operations, violated Section 8(a)(1) and (5)
of the Act.
Though Respondent at the hearing agreed to supply the
Union with the requested employee paysheets, this failure
and refusal was part of the pattern of refusals to provide
the Union with information necessary to the processing of
the grievances and the administration of the contract for
which a complete remedy should be provided. I have not
found Respondent's refusal to agree that the Union might
conduct an independent timestudy of the packaging wheel
operation to be a violation. At the beginning of the hear-
ing, the General Counsel expressly stated he was making
no such allegation. He did not move to amend the com-
plaint after the Union's request of the Respondent during
the hearing. I am, however, completely satisfied that the
facts and Respondent's defense to the request were
thoroughly litigated during the hearing, and it may be that
in such circumstances a finding should be made notwith-
standing General Counsel's position. See Frito Company,
Western Division v. N.L.R.B., 330 F.2d 458 (C.A. 9, 1964).
Nevertheless, I believe that the order in this case will be
sufficient to accomplish the purposes of the Act, leaving
the parties hereafter to cooperatively work out their prob-
lem in collective bargaining.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The bargaining unit set forth in footnote I herein-
above is a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material to this proceeding, the Union
was and continues to be the exclusive representative of the
employees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. Respondent, by failing and refusing to supply the
Union, upon request, Respondent's timestudy sheets on the
packaging wheel operations and on the punch press opera-
tions, both before and after the safety changes were made
on the punch presses in 1973, and employee paysheets, as
found hereinabove, and by refusing to allow the Union to
make an independent timestudy of the punch press opera-
tions, violated Section 8(a)(I) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
25
It having been found that the Respondent violated the
Act by its refusal and failure to supply the Union with
certain timestudy and other data, and by refusing to allow
the Union to make certain timestudies of Respondent's op-
erations, which data is relevant and necessary to the
Union's obligation to represent Respondent's employees in
the appropriate bargaining unit, upon the foregoing find-
ings of fact, conclusions of law, on the entire record, and
pursuant to Section 10(c) of the Act, I issue the following
recommended:
ORDER I'
W. A. Sheaffer Pen Company, a Division of Textron,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), in the appropriate bargaining unit set
forth in footnote I hereinabove, by refusing or failing to
furnish to the Union or its agents, upon request,
Respondent's time studies or other data relevant to the
structure and administration of Respondent's incentive
wage systems, or by refusing or failing to permit qualified
Union representatives to enter Respondent's plant prem-
ises for the purpose of studying incentive rates and opera-
tions at reasonable times during working hours.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Furnish, upon request, Respondent's timestudies or
other data relevant to the structure and administration of
Respondent's incentive wage systems.
(b) Permit, upon request, qualified union representatives
to enter Respondent's plant premises for the purpose of
studying incentive rates and operations at reasonable times
during working hours.
(c) Post at its operations at Fort Madison, Iowa, copies
of the attached notice marked "Appendix." 18 Copies of
said notice, on forms provided by the Officer-in-Charge for
Subregion 38, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to en-
n In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations. he adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall he
deemed waived for all purposes.
is In the event that 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."
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sure that said notices are not altered, defaced, or covered (d) Notify the Officer-in-Charge of Subregion 38, in
by any material. writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.