Worthington Pump and Machinery Corp.

In the Matter Of WORTHINGTON PUMP AND MACHINERY CORPORATION and TIME AND MOTION STUDY ASSOCIATION Case No. 1-C-2874.-Decided December 29, 1947 Mr. Thomas H. Ramsey, for the Board. Mr. Howard H. Lichtenstein, of New York City, and Mr. Andrew S. Ormsby, of Harrison, N. J., for the respondent. Mr. James C. Higgins, of Holyoke, Mass., for the Union. DECISION AND ORDER' On November 27, 1946, Trial Examiner Martin S. Bennett issued his Intermediate Report 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 copy of the In- termediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. Oral argument, originally granted, was subsequently cancelled, at which time the parties were notified of a further opportunity to file a supple- mental brief or written argument, setting forth the matters which would have been covered in the oral argument. None of the parties has filed such supplemental brief or written argument. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudical error was committed. The rul- ings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief of the respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions here- inafter set forth. The Trial Examiner found that the respondent violated Section 8 (5) of the Act, and thereby also violated Section 8 (1), by refusing ' The power of the Board to issue a Decision and Oider in a case such as the instant one, where the charging union has not compiled with the filing requirements specified in Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended, was decided by the Board in Matter of Mar shall and Bruce Company, 75 N L It B 90. 75N L R. B, No. 80. 678 WORTHINGTON PUMP AND MACHINERY CORPORATION 679 to bargain with the Union as the duly designated bargaining repre- sentative of its time-study and standards employees.2 We agree. The respondent admitted that it refused to bargain with the Union, but contends that such refusal was not an unfair labor practice. In sup- port of this contention, the respondent asserts that time-study and standards employees are management representatives and are not employees within the meaning of Section 2 (3) of the Act, and con- sequently that they may not constitute an appropriate bargaining unit within the meaning of the Act. The same contention was re- jected in the representation case 3 wherein the Union was certified as the statutory representative. We have reexamined our position in the representation case, together with further evidence introduced in the present proceeding concerning the duties and responsibilities of the respondent's time-study and standards employees. We conclude that the principal function of these employees is, by utilizing their training and experience, to determine the factual basis for the operation of the respondent's incentive wage plan. They are, therefore, essentially fact finders. Although it ap- pears that they exercise considerable judgment and discretion in the performance of their duties,4 they do not do so to any substantial degree in the formulation, determination, or effectuation of manage- ment policies. We therefore affirm our earlier conclusion that the in- dividuals here in question are employees within the meaning of Section 2 (3) of the Act, and that they may properly constitute an appropriate unit for the purposes of collective bargaining. We also find that time-study employees are employees within the meaning of Section 2 (3) of the Act, as amended, and that such em- ployees, by reason of their training and responsibilities, are profes- sional employees within the meaning of Section 2 (12) of the amended Act. The legislative history of the Labor Management Relations Act, 1947, reveals that the Congress gave specific consideration to the "em- ployee" status of time-study employees, professional employees, guards, foremen, and others, and that while doing so, it was conversant with the Board's decisions according bargaining rights to such em- ployees.' Time-study personnel were originally included within the 2 Those -provisions of Section 8 (1) and (5) of the National Labor Relations Act, which the Tnal Examiner found were violated, aie reenacted in Sections 8 (a) (1) and 8 (a) (5) of the Labor Management Relations Act, 1947. 3 66 N L R Ii. 1351. "Especially- in regard to the computation of time standards from stop-watch readings, the preparation of so-called "bogie" or non-standard production costs, and the processing of grievances under the giievance procedure contained in the respondents bargaining agreement with its production employees. 5 See House Report No 245, SOth Cong 1st Sess , pp 13-17 , Senate Report No 105, 80th Cong. tat Sess , pp. 3-5 , 11 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory category in the House Bill and, as supervisors, were de- nied employee status; however, they were not included within such supervisory classification in the final Conference Bill.- The Conference Report indicates that, at the very least, time-study employees may be regarded as professional employees, subject to the statutory qualifica- tions respecting a unit of such employees.e Thus, although the Act, as ultimately amended, excluded supervisors from the classification of individuals who are to be considered employees for the purposes of the Act,7 and imposed limitations respecting units of guards and professional employees,8 it nonetheless included professional em- ployees within the statutory definition of employees. Finally, the statute itself refutes the respondent's contention that employees like the ones in question are to be deprived of employee status because of "Conference Report (House Report No 510, 80th Cong, 1st Sess , pp 35. 36) (8) Supervisors.-As heretofore stated, both the House bill and the Senate amendment excluded supervisors from the individuals who are to be considered emplovees for the purposes of the Act The House bill defined as "supervisors," however, certain categories of employees who were not tieated as supervisors under the Senate amendment. These were generally ( A) certain personnel who fix the amount of wages earned bt other employ ees, such as inspectors , checkers , weighmasters , and time-study personnel . . The Senate amendment confined the definition of "supervisor" to individuals generally regarded as foremen and poisons of like or higher rank The conference agreement, in the definition of "supervisor" limits such term to those individuals treated as supervisors under the Senate amendment * * * The conference agreement does not treat time- stud y personnel of guards as supervisors , as did the House bill Since , however, time- study employees may qualifv as professional personnel, the special provisions of the Senate amendment (hereafter discussed) applicable with respect to professional employees will cover many in thi', category * * * (9) The House bill does not contain any, definition of the terns "professional employee" but section 9 (t) (2) thereof gave professional personnel and other distinguishable groups of employ ees an opportunity to exclude themselves fi oni larger bargaining units in which it was proposed that they be included The Senate amendment accorded a similar treat- ment to professional employees and defined the term This definition in general covers such persons as legal, engineering, scientific and medical personnel together with their junior professional assistants The conference agreement contains the same definition of "professional emplovee" as that contained in the Senate amendment, and accords to this category the same treatment which was provided for them in Section 9 (f) (3) of the House hill "Section 2 (3) of the Labor Managenient Act reads as follows "The term 'emplovee' shill include ant employee but shall not include any individual emploved as a supervisor " 8 Section 9 (b) of the Labor Management Act provides • "The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof; Provided, That the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional emploiees and emplovees who are not professional'enrplotees unless a majority of such professional employ ees vote for inclusion in such unit , * * * or (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employ ees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises, but no labor organization shall be certified as the repiesenta- tive of emplovees in a bargaining unit of guards if such organization admits to member- ship, or is affiliated directly or indnecthv with an oigamration which admits to niemhe' hiip, employees other than guards WORTHINGTON PUMP AND MACHINERY CORPORATION 681 the nature of their duties; for, by express language, a professional employee is defined, in part, as any "employee engaged in work . . . ,involving the consistent exercise of discretion and judgment in its performance." 9 The bargaining unit in the present case is comprised solely of time- study and standards employees and the labor organization represent- ing the employees herein is unaffiliated, admitting only such personnel to membership. For purposes of this case, therefore, it is unnecessary to determine the propriety of a mixed unit of time-study and other employees; nor is it necessary to decide whether we would reach the same conclusion if the labor organization herein admitted to member- ship, or was affiliated with other labor organizations admitting to. membership, employees other than time-study personnel.10 We con- clude, therefore, as the Trial Examiner found, that by refusing to bargain with the Union as the certified bargaining representative of its time-study personnel, the respondent violated Section 8 (5) and (1) of the Act. THE REMEDY The Trial Examiner recommended , in accordance with established policy, that the Board order the respondent , upon request, to bargain with the Union as the exclusive representative of the employees in the unit herein found to be appropriate. However, in view of the policy which we have adopted in Matter of Marshall and Bruce Company," with relation to bargaining orders under the amended Act, we shall condition this portion of our remedial order upon compliance by the Union with Section 9 (f), (g), and (h) of the Act, as amended , within 30 days from the date of the Order as hereinafter set forth 12 "Section 2 (12) of the Labor Management Relations Act defines the term "protessmnal employees" as follows ` (a) anv employee engaged in work ( i) predominantly intellectual and varied in char- acter as opposed to routine mental , manual , mechanical , or physical work , ( u) involving the consistent exercise of discretion and )udginent in its performance , (in) of such a char- acter that the output produced or the result accomplished cannot be standardize(] lit rela- tion to it giyen peuod of time. (iv) requiring knowledge of an advanced type m a field of science of learning customarily acquiied by it prolonged course of specialized intellectual instruction and stuck lit an institution of higher learning or a hospital as distinguished from a general academic education or from an apprenticeship or from training in the pci- forniance of routine mental, manual, or physical processes , of (b) any employee, who (i) has completed the courses of specialized intellectual instruction and study desciibed in clause (iv) of paragraph ( a) and (ii ) is performing related work under the supervision of it professional person to qualify himself: to become a professional employee as defined in paragraph (a) " [Italics added I 1° The respondent contended that, although the Union is now unaffiliated, these is a like- lihood that it will be engulfed by a nationally affiliated union There is nothing in the i ecord to support this "likelihood ," and we find no merit in the contention 1175 N L R B 90 12 As to what constitutes compliance in this respect , see Matter of Northern Virginia Bioadcasteis,Inc, 75 N L R. B 11. (682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Worthington Pump and Machinery Corporation, Holyoke, Massachusetts, and its officers, agents, successors and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Time and Motion Study Association, unaffiliated, if and when said" labor organization shall have complied, within 30 days from the date of this Order, with Sec- tion 9 (f), (g), and (h) of the Act, as amended, as the exclusive bar- gaining representative of all time-study and standards employees at its Holyoke, Massachusetts, plant, excluding all supervisors ; (b) In any manner interfering with the efforts of Time and Motion Study Association, unaffiliated, if and when said labor organization shall have complied with the filing requirements of the Act, as amended, in the manner set forth above, to bargain collectively with it in behalf of the employees in the aforesaid appropriate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act, as amended : (a) Upon request, and upon compliance by the Union with the filing requirements of the Act, as amended, in the manner set forth above, bargain collectively with Time and Motion Study Association, unaffiliated, as the exclusive representative of all its employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement ; (b) Post at its plant at Holyoke, Massachusetts, copies of the notice attached hereto marked "Appendix A." 13 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being signed by the respondent's representatives, be posted by the respondent immediately upon receipt thereof and maintained by it for thirty (30) consecutive days thereafter and also for an addi- tional thirty (30) consecutive days in the event of compliance by the Union with the filing requirements of the Act, as amended, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respond- ent to insure that said notices are not altered, defaced, or covered by any other material; 13 in the e% ent that this Older is enfori ed b^ decree of a Cii cult Couit of Appeals tinte shall be insetted, before the ooords "A DECISION AND ORDER," the Rotds "A DECREE 017 THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " WORTHINGTON PUMP AND MACHINERY CORPORATION 683 (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, and again within ten (10) days from the future date, if any, on which the respondent is officially notified that the Union has met the condition hereinabove set forth, what steps the respondent has taken to comply herewith. MEMBER REYNOLDS, concurring specially : I concur in the Decision and Order. However, my concurrence is predicated upon the fact that the Union is an independent organiza- tion with no apparent connection with any labor organization repre- senting rank and file employees. The record is eminently clear that the time-study and standards men play an essential role for manage- ment in the maintenance and improvement of efficiency in this highly mechanized industry. It is imperative that these employees who represent management not only in the conduct of time studies but in grievance procedure should not be represented by the same organiza- tion which represents rank and file employees. There must be no room for compromise in loyalty on the part of such employees, and the Board therefore should not create or perpetuate a bargaining re- lationship which places them in a position where their obligations as fellow union members of rank and file employees come in direct con- flict with their primary duty to management. I am of the opinion that only so long as the Union maintains its present independent character should its certification continue to be effective.14 MEMBER GRAY, concurring : I am of the opinion that time-study employees as employed in this business are management representatives and for that reason should not be included in any unit for the purposes of collective bargaining. Discussing managerial and confidential employees, the House Confer- ence Report (No. 510, pp. 35-36) states that it was not thought neces- sary to specify such categories in the Act because the Board has been treating such employees outside the Act and will presumably continue to do so. Inasmuch, however, as the legislative history of the Labor Management Relations Act, 1947, indicates that the whole Congress intended to include time-study personnel within the category of "em- ployee" under the Act, and, as such,-to accord them bargaining rights, and because the intent so disclosed is binding upon me, I concur in the majority opinion that under the Act, as amended, a unit of such em- ployees in this case is appropriate for the purposes of collective bargaining. 14 See my concurring opinion in Matter of Chicago Pneumatic Tool Company, 72 N L R B. 7, 11 `1684 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is my belief that, although time-study employees are professional =employees as the Congress has classified- them, they are also an integral part of management. The Congress, in my view, did not give adequate consideration to the essential functions performed by such employees in the profitable and efficient operation of a business. . So far .,is the legislative history reveals, the relationship of time-study people to ^rnanagement was treated only in terms of their similarity to supervisors .and whether, for that reason, they should be excluded from the cover- -age of the Labor Management Act. However, it is not in the capacity of "supervisors" that I consider them to be management representatives. The duties of time-study employees require that they select, weigh, .and determine, in the light of their training and experience, the basic time-study elements; that they apply these components to the jobs .and workers being studied; and finally that they determine a set of` time standards for the various productive processes, which standards in turn are determinative of production costs. The discretion and -judgment exercised by them in the performance of these duties, be- cause of the intimate relationship to costs, have a direct and substantial effect upon everything the company does, including the amount of -business which the company can obtain, and thus are ultimately re- flected in the profit and loss statement of that business. This is true in -much the same way that the judgment of a sales manager in lowering -prices to obtain a particular order, or the judgment of a treasurer in deciding to expend certain funds to provide proper financing, affects the operations and financial returns of a business. In addition, the basic and unchanged findings of time-study employees regarding time standards often become the basis of the company's position with respect to grievances arising out of the setting of such standards. It is imperative, therefore, in view of their duties, that time-study personnel be enabled to serve their employer with undivided allegiance. I believe that membership by these employees in any labor organization, even an unaffiliated one, would tend to influence their judgment in making time studies and computing time standards, where the figures computed affect the earnings of other employees who are also members of a labor organization, even though there may be no affiliation or other relationship between said organizations and although the employees are grouped in separate units. There have been numerous cases that have held time-study employees to be managerial and confidential, especially where the duties have been so well spelled out as to indicate the employees naturally falling -within the exempt classifications. That they be regarded as pro-' fessional employees under the Act not only disregards the latitude of their managerial functions but does great violence to the Board's WORTHINGTON PUMP AND MACHINERY CORPORATION 685 previous reasoning and findings, because I believe the Board then would have no right to exclude this group from the production and maintenance employees' unit, if the employees should decide that they did not prefer a separate certification. This result would tend to dis- rupt labor relations and work contrary to the principles for which the present Act was designed. The whole Congress, however, has decided the issue. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 upon request with TIME AND MOTION STUDY ASSOCIATION, unaffiliated, as the exclusive bargain ing representative of all employees in the unit described herein with respect to wages, rates of pay, hours of employment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; provided said labor organization complies with thirty (30) days from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is: All time-study and standards employees at the Holyoke plant excluding all supervisory employees. WE WILL NOT ill any manner interfere with the efforts of the above-named Union to bargain with us, and WE WILL NOT ref use to bargain with said Union as the exclusive representative of all our employees in the above-described appropriate unit; pro- vided said Union complies with the filing requirements of the Act, as amended,, in the manner set forth above. WORTHINGTON PUMP AND 1\'LACHTNERY CORPORATION, Employer Dated ------------------ By --------------------------------- (Representative) (Title) This notice must remain posted for 30 days from the date hereof, and also for an additional 30 days in the event of compliance by the Union with the requirements- of Section 9 (f), (g), and (h) of the Act, as amended. This notice must not be altered, defaced, or covered by any other material. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Thomas H. Ramsey, for the Board. Alr Howard H . Lichtenstein , of New York , N. Y, and 1[r Andrew S. Ormsby, of Harrison , N. J , for the respondent. Mr. James C Higgins , of Holyoke, Mass. , for the Union. STATEMENT OF THE CASE Upon a first amended charge duly filed on October 3, 1946, by Time and Motion Study Association, unaffiliated, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the First Region (Boston, Massachusetts), issued its complaint dated October 10, 1946, against Worthington Pump and Machinery Corporation, herein called respondent, alleging that respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (5) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that respondent, on or about July 26, 1946, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in,an appropriate unit, although a majority of the employees in said unit, in an election conducted by the Board on or about May 1, 1946, had desig- nated the Union as their representative for the purposes of collective bargaining, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act On October 21, 1946, respondent filed an answer wherein it admitted the allega- tions of the complaint with respect to the nature of its business and its business operations ; admitted that on or about July 19, 1946, the Union requested respond- ent to bargain collectively, and that on or about July 26, 1946, and at all times thereafter, respondent refused: denied that the Union had any status as a collec- tive bargaining iepresentative within the meaning of Section 9 (a) of the Act; and denied the commission of any unfair labor practices The answer further alleged that (1) time study and standards employees of respondent are manage- iial representatives and not employees within the meaning of Section 2 (3) of the Act, and (2) respondent was denied a full and fair hearing in the representation proceeding upon which the instant proceeding is based,' as prescribed in the Administrative Procedure Act.2 Pursuant to notice, a hearing was held on November 4, 1946, at Springfield, Massachusetts, before the undersigned Trial Examiner, Martin S. Bennett, duly designated by the Chief Trial Examiner. The Board and respondent were repre- sented by counsel and the Union by its representatives, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues was afforded all parties. The parties were advised that they might file briefs and/or proposed findings and conclusions with the undersigned. Briefs have been received from respondent and from counsel for the Board. After the close of the hearing, and upon joint motion by counsel for the Board and for respondent, certain corrections were ordered made in the transcript of the record. 1 i1fatte' of Woi lhington Pump and Machuie y Corporationn , 66 N L R B 1351. 2 Public 404, 79th Congress , approved June 11, 1946 WORTHINGTON PUMP AND MACHINERY CORPORATION 687 Upon the entire record in the case and fiom his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Worthington Pump and Machinery Corporation is a Delaware corporation with its principal office at Harrison, New Jersey. Respondent operates plants in many States of the United States and has district sales offices and representa- tives throughout the United States and foreign countries. The instant proceed- ing is concerned solely with respondent's plant at Holyoke, Massachusetts, where it manufactures compressors, and air conditioning and refrigeration equipment. During the 6-month period immediately preceding February 8, 1946, the-value of raw materials used by respondent was in excess of $1,000,000 in value, more than 90 percent of which was received from points outside the Commonwealth of Massachusetts During the same period, respondent manufactured finished products valued in excess of $1,000,000, more than 80 percent of which was shipped to points outside the Commonwealth of Massachusetts. Respondent admits that it is engaged in commerce within the meaning of the Act. IT. THE ORGANIZATION INVOLVED Time and Motion Study Association is an unaffiliated labor organization which admits to membership employees of the respondent.3 III. THE UNFAIR LABOR PRACTICES 4 A. The refusal to bargain 1 The appropriate unit and representation by the Union of a majority therein On March 28, 1946, the Board issued a Decision and Direction of Election in Case No. 1-R-27095 wherein it found that all time study and standards em- plo^ ees at the Holyoke, Massachusetts, plant of respondent, excluding all super- visory employees with authority to hire, promote, discharge, discipline, or other- iuse effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act e On May 1, 1946, pursuant to said Direction of Election, an election by secret ballot was conducted under the supervision of the Regional Director for the First Region The Tally of Ballots showed that of approximately 17 eligible voters, 17 cast valid votes, of which 15 were for the Union and 2 against. No objections were filed by any of the parties within the time provided therefor, and on May 22, 3 While respondent denies that the Union is a labor organization, the Boaid has previously found that it is. Matter of Worthington Pump and Machinery Corporation, supra. In addition, respondent admitted that no additional facts or circumstances had arisen subse- quent to the finding by the Board on this point 4 Except where otherwise indicated , the findings herein are based upon admitted facts and upon testimony which the undetsigned credits. 5 See footnote 1 "'Che Boaid, on April 19, 1946, denied a motion by counsel for respondent that the Board reconsider its Decision and Direction of Election and dismiss the petition in Case 1-R-2709 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1946, the Board certified the Union as the exclusive repieseitative, for the pur- poses of collective bargaining, of the employees in the unit hereinabove described. Respondent contends herein , as it did in the representation proceeding, that time study and standards employees are "managerial'' representatives and are not employees within the meaning of Section 2 (3) of the Act Respondent's collective bargaining contract with the union which represents production employees in the plant' prescribes and regulates hourly rates of pay for Such employees. Under the incentive wage plan in effect, these hourly rates of pay are broken down into piece-work rates by means of time studies, thus supplying the necessary factual data for the operation of the plan. The function of determining time standards for each operation is the primary responsibilit3 of time study and standards men s By use of a stop watch and by the applica- tion of their experience they initially fix the time standard for an operation This function, although mechanical, does require the use of judgment, particularly with respect to the making of corrective allowances.' Although the tune standal d arrived at in this manner has no effect upon the hourly base rate of pay, by expending greater effort and by completing the operation ni less than the time allotted by the time standard, the operator can produce more units of work for which lie then receives an incentive bonus . Thereby, his earnings will be in excess of his base rate of pay. In addition to the above, time study men clear time allow antes previously granted to a production worker by a foreman. These allowances are actnall} granted by the foreman to compensate for additional time required by the w-oiker in the performance of an operation because of nru-standard conditions which may have arisen in the work The examination by be time study man of these allowances, which takes place on a later occasion at his desk, is perfunctory, and his approval of an allowance is invariably a matter of form because of his inability to check whether or not the additional time allowed by the foreman was actually required. A time study man may not, on his own initiative, change a time standard which has been previously established; lie is so instructed when lie commences his employment with respondent Such changes, in accordance with the col- lective agreement of respondent with the union representing production workers, require mutual agreement by the signatories thereto. Authority to make such changes is passed on to the time study man by the supervisor of the Time Study and Standards Department. As a general proposition, the time study sub- mitted by the time study man is final , and cannot be changed by any employee of the company 10 When objections are raised thereto, he may recompute his previous liguies on his own initiative. He may, on occasion, be requested by his supervisor to recompute his figumes, but his computations are not changed by the latter In essence, then, the time study is in the nature of a report by an employee with specialized ability. ' United Electrical, Radio and Machine Workers of America, C I 0 8 Respondent employs both time stndv and standards men Time stmiv men time an operation in the plant with a stop watch Standards men set a time standard at their desk through the use of data fiom similar operations which have previously been timed by time study men The time study man, in rating the operator whose work is the subject of the study, will giant an effort rating which is designed to bring the time used in the operation by a rapid or slow operator in line with that which an average operator would require to perform the operation 10 According to Janies Higgins, a time study man, a time study lie had prepared was changed, on one occasion , during the grievance procedure outlined in the contract with the production workers. WORTHINGTON PUMP AND MACHINERY CORPORATION 689} Occasionally, the time study department will prepare figures in connection. with it special piece of work or a repair job. The time study man will then record certain costs in connection therewith upon an estimated cost card; these,- however, are obtained from records in the cost and other departments, and lie merely transposes them." The Conti act between respondent and the production workers umon- sets forth- live steps for the adjustment of grievances. The first two steps are informal, with conferences involving foremen on the department and division levels re- spectively, the third step is a formal meeting between the union and management grievance- boards, the fourth a formal meeting between union representatives and the general management of the plant, and the fifth is arbitration Time study men may be present during the first two steps when grievances involve a dispute concerning it time standard, but there appears to be no set practice of- their participation - Although foremen, when a grievance is at these levels, can- not change the time standard, they can adjust the grievance Time study men do not participate in the third and fourth steps of the grievance' procedure,'"- although the supervisor of that department is present at,the third step. It is. clear that the time study men do not participate in the grievance procedure as a matter of requisite and that they have no authority to adjust disputes In the final analysis, and independently of the foregoing, the Board has found- in a similar situation, that time-study employees are employees within the mean- ing of the Act and that the statute does not empower a finding that they belong in no appropriate bargaining unit" Accordingly, and in view of the- foregoing, respondent's contention herein is rejected. The undersigned finds, in accordance with the Board's previous determination in the representation case, that all time study and standards employees of- respondent at its Holyoke, Massachusetts, plant, excluding all supervisory em- ployees with authority to hire, promote, discharge, discipline, or- otherwise- effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act The undersigned further finds that on and at all times after May 1, 1945, the Union was the duly designated bargaining representative of a majority of the employees in the aforesaid bargaining unit and that, pursuant to the pro-- visions of Section 9 (a) of the Act, the Union was on May 1, 1946, and at all times thereafter has been, the exclusive representative of all employees in the- aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions ofemployment. 2. The refusal to bargain The complaint alleges and respondent's answer admits that on or about July- 19, 1946, the Union requested respondent to bargain collectively with respect to rates of pay, wages, hours of employment and other conditions of employ- ment, and that on or about July 26, 1946, respondent refused and' is now refusing to bargain collectively with the Union. 11 This finding is based upon the clear and forthright testimony of Higgins and Earl' Walker, a time standards man, which the undersigned credits Supervisor Pike of the Time Study Department-testified that these costs were computed in his depaitnient 12 Higgins and walker so testified According to walker, he was once summoned to a meeting at the third step of the grievance procedure and was asked to give an opinion. 13 Matter of Brown if Sharpe 11fg Co, 08 N L R B 487, 70 N L R B 709, and cases- cited therein. ' 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that respondent, on or about July 26, 1946, and at all tunes thereafter, has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, restrained, and coerced its.employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COM MERCE The undersigned finds that the activities of respondent, set forth in Section III, above, occurring in connection with the operations of respondent set forth in Section I, above, have a 'close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that respondent has engaged in Unfair labor prac- tices, it will be recommended that it cease and desist theiefrom and take cer- tain affirmative action designed to effectuate the policies of the Act It having been found that respondent has refused to bargain collectively with the Union, it will be recommended that respondent, upon request, bargain collectively with the Union. Because of the basis of respondent's refusal to bargain, as indicated in the facts found, and because of the absence of any evidence that danger of other unfair labor practices is to be anticipated from respondent's conduct in the past, the undersigned will not recommend that respondent cease and desist from the connnission of any othei unfair labor practice. Nevertheless, in order to effectuate the policies of the Act, the undersigned will recommend that, re- spondent cease and desist from the unfair labor practices found and from in any manner interfering with the efforts of the Union to bargain collectively with it.l" Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CoNCLusIONs OF LAW 1 Time and Motion Study Association, unaffiliated, is a labor organization within the meaning of Section 2 (5) of the Act. 2 All time study and standards employees excluding all supervisory em- ployees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 8 Time and Motion Study Association, unaffiliated, was on May 1, 1946, and at all times thereafter has been, the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on July 26, 1946, and at all times thereafter, to bargain collec- tively with Time and Motion Study Association, unaffiliated, as the exclusive representative of all its employees in the aforesaid appropriate unit, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 14.See N. L. R. B. v. Empress Publishing Company, 312 U S 426. WORTHINGTON PUMP AND MACHINERY CORPORATION 691 5 By said acts, respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act 6 The aforesaid unfair labor practices aie unfair labor practices affecting conuneice within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law and upon the entire record in this case, the undersigned recommends that respondent, Worthington Pump and Machinerv Corporation, Holyoke, Massachusetts, its officeis, agents, successors, and assigns shall: 1. Cease and desist from : (.a) Refusing to bargain collectively with Time and Motion Study Association, unathhated, as the exclusive representative of all time study and standards employees at its Holvoke, Massachusetts, plant, but excluding all supervisory employed with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status o1 employees, or effectively recommend such action; (b) In any manner interfering with the ettorts of Time and Motion Study Association, unaffiliated, to bargain collectively with it in behalf of the employees in the aforesaid appropriate unit. 2 Take the following affil matave action which the undersigned finds will effectuate the policies of the Act. (a) Upon request bargain culls': t ively with Tune and Motion Study Association, unathhated, as the exclusive representative of Al its employees in the aforesaid appropriate unit, and, if an understandingg is reached, embody such understanding in t signed agreement, (b) Post at its plant at Holyoke, Massachusetts, copies of the notice attached to the Intermediate Report and marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being signed by respondent's representative, be posted by respondent for sixty (60) consecutive clays 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 ; (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of receipt of this Intermediate Report, what steps re- spondent has taken to comply herewith It is further recommended that unless on or before ten (10) days from the date of receipt of this Intermediate Report, respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring respondent to take the action aforesaid. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C, an original and four collies of a statement in writing setting forth such exceptions to the Intermediate 'Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with 766972-48-vol. 75-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the original and four copies of a briet in support thereof ; and any party or counsel for the Board may, within the same pei aid, file an original and four copies of a brief in support of the Intermediate Report Immediately upon the filing of ,ucli statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 20365. As further provided in said section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. MARTIN S. BENNLTT, Trial Examiner. Dated November 27, 1946 APPENDIX A NOTICE To AL1, E\IPLOvEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that WE WILL BARGAIN collectively upon request with TIME AND 1[0'110x SruDY ASSOCIATION, unaffiliated, as the exclusive repiesentative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment or other conditions of employment, and if l in under- standing is reached, embody such understanduig in a signed agieeunent. The bargaining unit is. All time study and standards employees at the Holyoke plant excluding all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. WE WILL NOT in any manner interfere with the efforts of the above-nanned Union to bargain with us or refuse to bargain with said Union as the exclusive representative of all our employees in the above-described appropriate unit. WORTHINGTON PUMP AND MACHINERY CORPORATION, Employer. Dated --------------------- By ---------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.