General Electric Co.

1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. By interrogating and threatening its employees concerning their union mem- bership and activities, by advising its employees that it would not sign a contract with Local 230, and by attempting to persuade its employees, by threats of reprisal or promises of benefit, to cease engaging in a lawful strike, picketing, or other concerted activities, Respondent Intergraphic has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. By recognizing New York Local 10, International Brotherhood of Production, Maintenance and Operating Employees, under the circumstances heremabove described, Respondent Polygon has committed unfair labor practices within the meaning of Section 8(a)(2) of the Act. 10 By including a union-security provision and a dues check-off provision in its unlawfully executed contract with said Local 10, Respondent Polygon has com- mitted unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 11. Respondent Intergraphic has not engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act by its termination of Richard Marsh. [Recommended Order omitted from publication 1 General Electric Company and International Brotherhood of Electrical Workers, Local 1198, AFL-CIO. Case 9-CA-3538. September 27, 1966 DECISION AND ORDER On May 16, 1966, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Charging Party filed a brief in support of the Decision. Pursuant, to the provisions of Section 3(b) of t.lie National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 160 NLRB No. 103. GENERAL ELECTRIC COMPANY 1309 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above -captioned matter was held before Trial Examiner Robert Cohn on January 5, 1966, at Cincinnati , Ohio, on complaint of the General Coun- sel of the National Labor Relations Board against General Electric Company, herein called the Respondent or the Company . The sole issue litigated was whether Respondent violated Section 8(a)(5) and ( 1) of the National Labor Relations Act, as amended , herein called the Act, by refusing to allow a nonemployee representa- tive of the Charging Party access to the production area of Respondent's plant for the purpose of being present during a job rating review. At the close of the hearing , counsel for the General Counsel argued orally on the record. Subsequent to the hearing , all parties filed helpful briefs which have been duly considered. Upon the entire record, and from my observation of the demeanor of the wit- nesses while testifying , I make the following findings of fact: 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events Respondent, at its Blue Ash, Ohio, plant, is engaged in the manufacture of elec- trical distribution equipment, hiring approximately 475 production employees, who are represented for purposes of collective bargaining by the Union . The Union and the Respondent have been in contractual relations for a number of years, and it appears that such relationship has been generally amicable and free of serious disputes. Prior to May 22, 1964, Respondent had in its employ for a number of years a spot- welder named Kenneth Bolton , who was also a leader of the Union , being its president for a number of years. The reason given by the Company for discharging Bolton was that he sanctioned and encouraged a slowdown in production (includ- ing engaging in such conduct himself ), and interfered with the work of other employees in violation of articles 3 and 14 of the collective -bargaining agreement existing between the Company and the Union.2 On the Sunday evening following the Friday on which Bolton was discharged, some employees of the Company commenced a strike and picketing of the plant which lasted approximately 91/2 weeks . There appeared to be little doubt, as the Trial Examiner stated in the previous proceeding , that the strike was "initially at least in protest over Bolton's discharge ." However, the Charging Union claimed that at the time there were in existence several unresolved grievances and that Bolton's discharge "triggered a strike over the unsettled grievances ." In any event, there is no substantial evidence that Bolton instigated the stoppage ; his claim that he initially instructed the men and officers of the Union to return to their jobs is undenied on the record , although he conceded none of them did.3 Bolton subsequently became a paid representative of the Union , the evidence showing that he was present on behalf of the Union at various grievance meetings with the Respondent on some 14 different occasions during the period from Septem- ber 1964 through October 1965.4 1 There is no issue as to the Board 's jurisdiction or labor oreanization . The complaint alleges sufficient facts, duly admitted by answer , upon which I may , and do hereby, find that Respondent is engaged in commerce , and, that the International Brotherhood of Electrical Workers, Local 1198 , AFL-CIO ( herein called the Union ), is a labor organi- zation within the meaning of the Act. 3 This discharge was the subject of an unfair labor practice proceeding before the Board in Case 9-CA-3229 After a hearing, a Trial Examiner found and concluded that the General Counsel had failed to meet his burden of proof that the Respondent 's termi- nation of Bolton on May 22 was discriminatorily motivated , and therefore recommended dismissal of the complaint . This finding and recommendation was affirmed by the Board ( see General Elect> c Company, 155 NLRB 208). 3 As previously noted , the strike lasted approximately 91/2 weeks, and was resolved without Bolton's being returned to work. ' See Respondent's Exhibit 5. 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Refusals to allow Bolton entry to the production area of the plant The majority of the operations in the production unit represented by the Union were paid on a piece rate or incentive basis. The evidence shows that commencing in September 1960 and extending to March 1965, the Company instituted in its plant, department by department, a new incentive program called the "Norwood Wage Payment Plan" commonly referred to as "NWPP." 5 In November 1964, an employee in the Fabrication I department (the depart- ment in the plant where Bolton was previously employed), requested that Bolton come into the plant on the production floor to stand by during management's review of his job rate, which he was protesting. This request was made pursuant to an established procedure under the collective -bargaining agreement. Thus, the agreement provides in article XIX, subparagraph (c) (3), in part: The Company will establish and maintain accurate time standards and will conduct periodic audits on such standards to assure operator conformance to the planned method of operation. And, in subparagraph (4), it is provided that: On piece-work jobs on which the employee fails to attain 100%, employees shall have the privilege to request Management's review of the established rates during which review a Union Representative may be present. Respondent refused to allow Bolton to go on the production floor on that occa- sion for that purpose, and so notified the Union. The Union filed a grievance under the grievance procedure of the contract and carried it through the third level thereof, but dropped it at that juncture, explaining to the Company that they did not consider it a "good legal case" because the grievance was filed by a non- employee, i.e., Bolton, rather than the job operator. The Union's president (Witte) continuing, however, stated that the first opportunity which presented itself to file a case "getting Mr. Bolton in here to stand by on a rate review, we are going to do it." 6 At that time, the Company gave the Union a letter explaining why it was refusing Bolton access into the plant for the purpose of making a wage rate check. The letter stated, in essence, that Respondent did not consider Bolton a proper person based upon his prior conduct as an employee and union representative in the plant.? The parties stipulated to the following statement of facts, which lead to the filing of the charge in the instant matter: During the period of February and March, 1965, E. H. Baker, an employee of the Respondent, General Electric, employed in Hardware in the Respond- ent's A-3 Plugs Department, was allegedly failing substantially to work at 100 percent efficiency during the time of jobs prior to implementation of the new Norwood Plan in that department. Baker received several verbal reprimands for allegedly failing to apply sufficient effort to make the 100 percent efficiency. The Norwood plan was implemented in A-3 Plugs on March 15, 1965. On March 30, 1965, Baker asked Sam Wheeler, unit steward of A-3 Plug Department, for a rate review of one of his jobs. Wheeler and Baker then requested this rate review from Goeffrey Langford of A-3 plugs, and Lang- ford informed them that he did not feel that Baker was putting forth enough effort in order to make the 100 percent efficiency, but that he would have a rate review made on Baker's job. Later that same day Baker told Wheeler that he wanted the rate review of his job made by Kenneth Bolton. The following day, March 31, 1965, Baker again informed Wheeler that he wanted a rate review made of his job and again requested that Bolton make this rate review. While this conversation was still in progress , Langford approached them and Wheeler again told Langford that Baker wanted a rate review made of his job and that Baker wanted Bolton to make this rate 5 The Trial Examiner in the previous case found that this plan replaced a former piece- work system called "The G-Plan," and that the Norwood Plan was a "more involved incentive system, based upon time and motion computations." 6 The foregoing findings are based on the undenied testimony of Respondent's man- ager, the president of the Union not being called as a witness. , 7 These activities of Bolton upon which Respondent based its position , will be more fully detailed , infra. GENERAL ELECTRIC COMPANY 1311 review. Langford stated that he could not tell Baker or Wheeler at that time it Bolton would be allowed to make this review, but Langford stated that he personally believed that Bolton would not be allowed on the floor. Langford informed Baker and Wheeler that he would check with higher management and give them his answer at a later time. Later the same day, at 3:35 p.m., as Wheeler was leaving the plant, he asked Langford if Langford had checked to see if Bolton could represent Baker in the rate review of Baker's job. Langford replied, `Bolton will never be allowed in this building for that purpose.' Whereupon Wheeler replied, "Never is a hell of a long time." The following day Wheeler informed Paul Witte, president of Local 1198 of the IBEW (the charging party herein), that Langford had told Wheeler that Bolton would not be allowed inside the building to make a job review. Thereafter, that same day, both Witte and Wheeler went to see Langford in the latter's office. Witte asked Langford if he, Langford, had told Wheeler that Bolton would not be allowed in the plant to make a rate review of Baker's job. Langford admitted that he had made this statement to Wheeler, whereupon Witte asked Langford if the latter had been directed to say this by someone higher up in management than himself. Witte relates that Langford failed to reply to the latter question, whereas Langford has no recollection of this portion of the conversation. Witte thanked Langford and left, and thereafter had the charge filed in the instant case. At all times material herein, and since July of 1964, the said Kenneth Bolton is and has been vice-president of Local 1198 of the IBEW.8 C. Bolton's conduct as an employee and union representative As previously noted, Bolton, during his period of employment with the Company, worked as a spot welder in the Fabrication I department. Also, as president of the Union, he was the leading union spokesman on matters vis-a-vis the Company. As pointed out above, commencing on 1960, the Company began instituting the Norwood Wage Payment Plan in its plant on a department-by-department basis, thereby replacing the existing incentive wage payment plan. Implementation of NWPP among the spotwelders and fabricators in the Fabrications I unit com- menced around March 1, 1964. Bolton opposed introduction of the plan at that time on the ground that the Company had not made sufficient preparations and study of the jobs as a prerequisite thereto. He told company representatives at a meeting on February 28, 1964 (held to explain the new plan to the spot-welding employees), that the problems which the Company encountered in introducing the plan in the motor control unit (department) would look like a picnic compared to those it would face in introducing the plan in his unit .9 In spite of Bolton's protestations, the Company proceeded to implement NWPP in the Fabrication I unit as planned. Respondent points to the following alleged conduct of Bolton from that time until his discharge on May 22, 1964, both as rea- sons for the discharge and as factors which the Company considered as a basis for subsequently denying him access to the plant for the purpose of standing by on wage rate reviews both in November 1964 and March 1965: 1. He encouraged other employees to slow down in production: (a) In February, Bolton threatened another employee (Bacon) that he would bring charges against the latter under the Union's constitution if Bacon reported "loose" rates to the Company; (b) In March, Bolton warned Welder Van Auken that the latter had "better slow his welder down" and threatened to beat him up; 81t was further stipulated that the "Langford" referred to in the stipulation is a supervisor within the meaning of the Act. It is also undisputed that the Union did not file a grievance following the Company's refusal in March 1965, to allow Bolton access to the production area for the purpose of standing by during any rate review performed on Baker's job. O Apparently, coincident with and subsequent to the introduction of NWPP in the motor control unit of the spring of 1963, the Company experienced substantial lowering of pro- duction which required extensive negotiations between the Union and the Company to alleviate the situation. Bolton was a principal negotiator for the Union during these meetings which resulted in the Company 's agreement to modify the plan in some respects. 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In May, Bolton requested of a new employee , Vernon Smith (who appar- ently had a phenomenally high production ) to cut down his rate; (d) Bolton sought to slow down his two co-workers (Allen and Peace) on the night shift during May. 2 Bolton engaged in a slowdown of his own during the latter days of his employment. 3. Bolton expressed hostility to the Company in a conversation with Bacon in February 1964, stating that "you have got to fight fire with fire . These people [Respondent ] fix prices , they are crooks, and we have to fight them . " 10 Commencing Sunday, May 24, following Bolton's discharge on May 22, a work stoppage , including picketing , commenced at Respondent 's plant, which lasted some 91/2 weeks The Trial Examiner in the previous proceeding found that the strike was ". . initially at least in protest over Bolton's discharge." 11 Bolton tes- tified in the instant proceeding that he sought to have the picketers return to work, but that none did apparently because, as Respondent 's manager testified, ". . . they [the picketers ] didn't like the idea of their president being fired." D. Analysis and concluding findings That employees generally have the right to select their own representatives for purposes of collective bargaining is a basic principle beyond dispute . 12 This right carries with it the necessary correlation that the opposing party treat with the chosen representative , and no other . As the court said in N.L.R.B. v. International Ladies' Garment Workers Union: Each party to the collective bargaining process has a right to choose its rep- resentative, and there is a correlative duty on the opposite party to negotiate with the appointed agent.13 Of course , this doctrine , like most others in law, is not absolute , and the Board and courts have carved out exceptions where unusual circumstances are presented. Thus, in the Garment Workers' case, the court refused to make bargaining obli- gatory on the union where the employers ' bargaining representative was a former, highly placed union official who was privy to confidential information of the union The court cited other exceptions such as N.L R.B. v. Kentucky Utilities Company 14 (where the court upheld the company 's refusal to negotiate with a union 's repre- sentative who had expressed hostility to it ), and Bausch & Loinb Optical Coni- puny 15 (where the Board absolved an employer of a refusal -to-bargain charge where the union was conducting a competitive business). The Respondent here , while recognizing its obligation under law and under its collective-bargaining contract to treat with the Union and to allow a representa- tive of the Union to be present during a wage rate review seeks to bring itself within an exception to the general rule primarily because, it asserts , the person designated by the Union is offensive , repugnant, and dangerous to it. The Com- pany cites other reasons in support of its position such as the Union's lack of good faith , failure to exhaust the grievance procedure in the contract , and avail- ability of other qualified personnel . However, for reasons hereinafter discussed, I do not find the Company's arguments persuasive , and conclude that by refusing Bolton access to the plant for the stated purpose it violated Section 8(a)(5) of the Act. 10 The foregoing recitation respecting Bolton 's conduct as an employee was received in evidence in the instant proceeding solely, as proof in support of the Respondent 's conten- tion that Bolton was not a suitable person to come into the production areas of the plant, and not for the purpose of proiing the truth of the matters asserted ( the named empl)y- ees other than Bolton not appearing as witnesses in the instant proceeding ). In this regard , I note that in the prior proceeding , the Trial Examiner did not deem it necessary to resolve credibility issues in any conversation between Bolton and the other employees except that of Smith He did, however , discredit Bolton vis-a-vis Smith , and, based upon the record in that case , did determine that Bolton ' s discharge did not violate the Act. As previously noted , this finding was upheld on appeal to the Board. ' 11155 NLRB 208, 212 12 Section 7 of the Act states in relevant part Employees shall have the right to self-organization , . . . to bargain collectively through representatives of their own choosing . . . 13 274 F 2d 376 , 378 (C.A. 3). 11182 F2d 810 (CA. 6). 15108 NLRB 1555. GENERAL ELECTRIC COMPANY 131,3 I assume for the purposes of this Decision that Bolton made the statements respecting slowdowns, crookedness of company officials, etc., attributed to him by fellow employees, hereinabove cited, during the last few months of his employment. Although the employees did not testify before me, and I note that the Trial Exam- iner in the period proceedings did not resolve credibility in any of these conver- sations other than the Smith-Bolton matter, I will assume that information con- cerning these matters came to Respondent prior to the decision to refuse Bolton access to the plant, and that Respondent's officials believed then to be true. This misconduct of Bolton, Respondent vigorously argues, coupled with his strong lead- ership qualities which resulted in a 9-week strike upon his discharge, made the risk too great that another walkout or disturbance in the plant would result if he were allowed inside again. In support of this argument, Respondent relies heavily on such cases as Garment Workers and Kentucky Utilities, supra, where the courts excused one party from bargaining altogether with a particular representative of the other party because the unsuitability or unsavory nature of the individual would make •'any attempt at good faith bargaining a futility" (182 F.2d 810, 813). The factual situation here is distinguishable because Respondent has, in fact , met and negotiated with Bolton many times in grievance sessions subsequent to his discharge . As disclosed by the record, and as Respondent stated in its brief ( page 23) : It is undisputed that the Employer has met and bargained with Union repre- sentative Bolton many tunes subsequent to Bolton's discharge in May of 1964, and has never refused to meet and confer with Bolton outside the production areas of the plant. [Emphasis supplied.] In the light of these circumstances, Respondent' s argument , that Bolton was so personally offensive because of his past misdeeds that his presence inside the pro- duction area of the plant could not be tolerated, is both illogical and specious. The nature of the grievance sessions in which Bolton participated was quite varied (see Respondent's Exhibit 5),16 and it would not seem that his supposed untrustworthiness would render him more (or less) capable of fair dealing with the Company on those matters than on the particular subject matter at hand Accord- ingly, Respondent's defense based upon Bolton's character traits, or statements to particular employees, is unpersuasive and rejected, and its reliance on the cited cases is misplaced. Respondent's next argument is that because a 9-week strike occurred on the occasion of Bolton's discharge, it is likely that his mere presence in the plant would cause a disturbance or, indeed, that Bolton was sufficiently lacking in char- acter to lead a walkout The evidence in this record, in my judgment, does not warrant the making of such an inference. Thus, while it is true that a walkout by the employees followed Bolton's discharge, there is no substantial evidence that Bolton instigated it. To the contrary, he testified undeniably that he initially sought to persuade the picketers to return to work. Subsequently, the Union authorized a strike based upon a number of unsettled grievances existing at the time, and in this connection, it is noteworthy that the strike was settled without Bolton's returning to work Moreover, Bolton's appearance on the witness stand did not leave me with the impression that he was such an explosive, magnetic, or volatile individual whose mere presence in the plant would lead other employees to cease work and cause an interference with production . His, presence at the rate review would not require his speaking to any other employee in the plant with the possible exception of the engineer who was performing the review. Respondent's manager testified that the union representative might question the technician's judgment in applying a certain amount of time to a given motion, but that the "real review of data after a job is studied can be accomplished . in an office . . [or] in the grievance procedure." Under these circumstances, it would appear that Respondent could police the situation sufficiently to make certain that Bolton did not conduct him- self untowardly while in the production area. Considering all of the foregoing, in addition to the fact that Bolton had not been in the plant for a period of approximately 6 months prior to the first refusal by Respondent in November, convinces me that Respondent's fears in this regard are at best conjectural and speculative and 'were advanced not in good faith but as a consequence of its personal vendetta toward Bolton emanating from his conduct while an employee and his opposition to Respondent's policies, particularly with 16 Indeed, two of the cases were review cases similar to the ease at bar. 257-551-67-vol. 160-84 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to the implementation of NWPP. This, of course, is not a sufficient defense in the face of the affirmative statutory directive that the employees have the right to choose their own representative for this purpose. The Respondent next argues that it was under no duty to grant Bolton. as a non- employee, a right of access to the production areas of the plant, citing such cases as N.L.R.B. v Babcock & Wilcox Company, 351 U.S. 105; Westinghouse Electric Corporation, 113 NLRB 954; N.L.R.B. v. Otis Elevator Co., 208 F.2d 176 (C.A. 2); cf. The Fafnir Bearing Company, 146 NLRB 1582 (now pending before the United States Court of Appeals for the Second Circuit). But all of the cited cases are distinguishable from the instant matter since in none of them did there exist a contractual provision which granted a right to a union representative's presence during a rate review. Whatever may be the present state of the law regarding a right of access to an employer's private property by a non- employee union representative for organizational purposes,17 or where the union is the collective-bargaining representative but has no contractual right to enter the employer's production area,18 the factual situation here is distinguishable because of the collective-bargaining agreement here clearly gives the right to a union repre- sentative to be present during a rate review.19 The Respondent argues that ". . . there is no contractual provision in General Counsel Exhibit 2 [the Collective Bargaining Agreement] which grants to non- employee union representatives the right to enter the manufacturing areas of the plant for grievance investigating or processing purposes or for other union repre- sentation purposes. Neither was a practice established whereby non-employees were given such access." (Respondent's Brief, page 20.) I would agree with Respondent that the evidence herein does not establish a prac- tice whereby nonemployees were given access to the production areas of the plant; however, I am unable to agree that article XIX 5(c)(4), hereinabove quoted, does not grant the right to the Union of having a representative present during man- agement's review of the established rate. Respondent apparently argues that the term "union representative" contained in that provision refers solely to employee union representatives, and therefore grants no right to nonemployee representatives like Bolton to enter the production area. I find no basis in the record to limit the plain language of the contract in this regard, accordingly, I must reject this argu- ment of Respondent as unsupported by the evidence. In Fafnir Bearing, respondent denied the union's timestudy engineers access to the production area for the purpose of making a timestudy on a disputed rate which was the subject of a grievance, the union taking the position that without such a study it was unable to determine whether or not to proceed to arbitration of the grievance. In the absence of a contractual provision granting the union such a right, the Board, nevertheless, held (at page 1585): We are of the opinion that compliance with the good-faith bargaining pre- scribed by the Act required the Respondent to cooperate with the Union by making plant facilities available to the Union for the conduct by the latter of its own time studies, unless the Union's request was improper for some other reason or imposed an unreasonable burden on Respondent. A fortiori, it would seem that a similar result would hold where there is a con- tractual provision granting such a right. But Respondent seeks to bring itself within the above-quoted "unless" clause by arguing that the Union's request was improper and imposed an unreasonable burden on Respondent because of ( 1) Bolton's objectionable conduct while an employee, etc., and (2) the Union brought about the situation in bad faith. I have previously found, supra, contrary to Respondent's contentions respecting (1), and reiterate my conclusion that Respondent's reliance on Bolton's conduct while an employee is not persuasive since Respondent met with Bolton frequently in nonproduction areas respecting grievances. Regarding (2) above, Respondent seeks to extricate itself 11 Compare N.L.R.B. v. Babcock and Wilcox Company, supra, with N.L R B. v. Lake Superior Lumber Corporation, 167 F.2d 147 (C.A. 6), and N.L.R.B. v. Stowe Spinning Company, 336 U.S. 226. i8 See N.L.R B. v. Cities Service Oil Company, 122 F.2d 149 (C.A. 2). -In the Westinghouse case, supra, Chairman Farmer, in his opinion , stated : "In order to sustain this complaint, we would have to hold , as the Trial Examiner did, that the Respondent was under a statutory obligation to allow the Union access to its plant for the purpose of investigating this particular grievance." (Id. at page 956) [Emphasis supplied.] GENERAL ELECTRIC COMPANY 1315 from a finding of violation on the grounds that the Union's insistence upon Bolton carrying out the assignments was motivated by bad faith, and that, therefore, under settled law, it could not be found guilty of a refusal to bargain "if the Union is not itself bargaining in good faith." 20 Respondent seems to base this contention on the statement by Union President Witte at the grievance meeting in November 1964, that "The first opportunity we get . . . to file a grievance, getting Mr. Bolton in here to stand by on a rate review, we're going to do it." This seems much too slender a reed upon which to sustain a finding of the Union's "bad faith" unless that term is broad enough to include the mere awaiting of a better case (in the opinion of the Union) to test the reasonableness or legality of its position. There is no evidence or contention here, as I read the record or Respondent's brief, that the employee requesting the rate review was not doing so in good faith,21 or that the procedure was being otherwise perverted or abused. Under these circumstances, I must reject Respondent's conten- tion that the Union was in bad faith in pressing this matter to a legal disposition.22 Respondent, in its brief (page 25), also relies on another qualification set forth by the Board in the Fafnir Bearing case. The Board there stated: Here the record shows that the time studies were relevant and necessary to the Union's administration of the grievance machinery of the contract and that the needed information was not available to the Union through alternative channels. Moreover, where, as here, there are no adequate alternative sources of information to which the Union may refer, it is clear that Respondent's refusal to permit time studies of the disputed operations constituted an unrea- sonable impediment upon the Union's performance of its statutory function. (Pages 1586-87.) [Emphasis added in Respondent's brief.] Respondent argues, in effect, that since there were other union representatives- employees of Respondent in the plant-who were qualified to stand by during the rate review, Respondent comes within the exception referred to, and therefore com- mitted no violation of the statute.23 I cannot agree for, as previously noted, the situation here, unlike Fafnir, is based not upon a mere statutory right, but includes the contractual obligation to allow a union representative to stand by, upon request, during such a rate review. Thus, it would not seem incumbent upon the Union to seek alternative channels of infor- mation where it has already secured this right within the collective-bargaining framework. Stated another way, in view of the contractual obligation of Respondent, there need be no attempted balancing of Respondent's property rights with the exer- cise of a statutory right. Finally, Respondent urges that the Board should not exercise its jurisdiction in this controversy because there exists in the collective-bargaining agreement between Respondent and the Union a grievance procedure which could have been utilized- but was not-by the Union to resolve the dispute; that under such cases as United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 and Her- cules Motor Corporation, 136 NLRB 1648, reference of these kinds of disputes to 20 Citing Superior Engraving Company v. N.L.R.B., 183 F.2d 783 (C.A. 7), cert denied 340 U.S. 930. 21 The employee in question, one Baker, was not called as a witness in this proceeding. 22 In this connection I note a distinguishing characteristic between the instant matter and the Kentucky Uttltities case, 182 F.2d 810 (C A. 6), supra In that case, Respondent had indicated its willingness to negotiate with the union if the offending employee did not participate in the negotiations. The court, in refusing to enforce that portion of the Board's Order, seemed to be rather heavily influenced by the fact that it was the union which was the employees' "chosen representative" and that "Braswell was not personally chosen by the employees to represent them . . . ... Here, on the other hand, the undisputed evi- dence is that of the approximately 11 employees qualified since 1960 to stand by during a job rate review, Bolton was the only one ever designated by employees to perform this function (although the evidence also showed that on some occasions departmental union stewards had been requested to perform the function even though they had not taken the qualifying course ). Thus, in a real sense , Bolton was a "chosen representative" in these circumstances. Cf. N.L R.B. v. Deena Artware, Inc, 198 F.2d 645 (C.A. 6), cert. denied 345 U.S. 906. 22 See also , e.g., N.L.R.B. v. Otis Elevator Co, 208 F.2d 176 (C.A. 2) where the court refused to enforce that portion of the Board's Order granting access to the plant, on the grounds that the information sought by the union was either already in the possession of the union or was available to the union by means of interviewing its own members. 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a procedure agreed on by the parties for resolving them is the preferable, if not the exclusive, means of dealing with them within the contemplation of the statute I find this argument, too, unpersuasive. It is true that the Supreme Court, in the American Manufacturing Company case, referred to Section 203(d) of the Act as follows- "`Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settle- ment of grievance disputes arising over the application or interpretation of an exist- ing collective-bargaining agreement .' That policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective- bargaining agreement is given full play." However, as most students and practitioners of labor law are aware, that case was handed down by the Supreme Court on the same day as two others (which have become known as the "Steelworkers' trilogy") in which, generally speaking, the Court reiterated that arbitration is the most desirable means of resolving disputes under collective-bargaining agreements,24 and held that Section 301 of the Act should be utilized to grant specific performance of agreements to arbitrate without the injection by courts into the merits of the dispute. In this connection, in the Warrior and Gulf case,25 the Court stated (at page 578): The present federal policy is to promote industrial stabilization through the collective bargaining agreement. . . . A major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the collec- tive bargaining agreement. [Emphasis supplied.] It is also noted that the grievance procedure in the collective-bargaining contract in the Hercules Motor Company case had its terminus in arbitration, and the Board took note of the fact that the company in that case "suggested that the Union take the matter to arbitration and promised to comply with any decision of the arbitra- tor." (Id. at page 1651.) Here, on the other hand, the grievance procedure does not terminate in arbitration but apparently leaves either party free, after exhaustion of the several steps in the grievance procedure (which are simply discussions between representatives of the parties at various levels in the hierarchy) to take whatever self-help action it may desire, including strikes and lockouts. This is hardly the kind of procedure for achieving industrial peace which the Court or the Board contem- plated, and does not serve, in my judgment, as a legitimate basis for ousting the Board's jurisdiction. In any event, I note that later cases of the Board, while not directly overruling Hercules Motor, have weakened its value as a precedent in this regard. Thus, in Acme Industrial Company, 150 NLRB 1463, 1465, the Board, in a "wage-data" case, stated: The mere existence of a grievance machinery terminating in arbitration is not to be construed as a waiver of the Union's statutory right to such information.26 Accordingly, and in the light of all of the foregoing, and based upon my consid- eration of the entire record in this case, I find and conclude that Respondent was not justified in refusing Kenneth Bolton, as the Union's duly designated representa- tive, access to the production area of its Blue Ash, Ohio, plant for the purpose of standing by during a job rate review, and that, by such refusal, the Respondent vio- lated Section 8(a)(5) and (1) of the Act.27 26 The Court, in the earlier Textile Worri ers v Lincoln Mills of Alabama case (353 U.S. 448) had found that "Congress was also interested in promoting collective bargaining that ended with agreements not to strike . . [and] [p]lainly the agieenient to arbitrate grievance disputes is the quid pro quo for an agreement not to strike " 22 United Steelworkers of America v Warrior & Gulf Navigation Co , 363 U S. 574. 26 Citing The Fafnir Bearing Company, 146 NLRB 1582. The Acme case was denied enforcement by the Court of Appeals for the Seventh Circuit (351 F.2d 258), but on February 21, 1966, the Supreme Court granted the Board's petition for certiorari in that case See also, C & C Plywood Corporation, 148 NLRB 414, enforcement denied 351 F 2d. 224 (C A. 9, 1964), cert granted, April 18, 19GG, G1 LRR\l 255 , C & S Industries, Inc., 158 NLRB 454. 27 Deeco, Inc., 127 NLRB 666; Roscoe Skipper, Inc, 106 NLRB 1238, enfd 213 F.2d 793 (C.A. 5) ; NLRB v. Deena Artware, Inc, 198 F2d 645 (C A. 6), cert denied 345 U S. 906. See also Adolph Coors Co„ 150 NLRB 1604, and Sears, Roebuct & Co , Inc, 139 NLRB 471. . GENERAL ELECTRIC COMPANY 1317 II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Respondent, 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 thereof. III. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. General Electric Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local 1198, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to grant to a duly authorized representative of the Union access to its plant for the purpose of standing by during a job rating review, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the National Labor Relations Board order that the Respondent, General Electric Company, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Brotherhood of Electrical Workers, Local 1198, AFL-CIO, as the exclusive bargaining representative of its employees in the appropriate unit concerning rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, by refusing to recognize Ken- neth Bolton as the duly designated representative of the aforesaid Union, selected for the purpose of making a job rating review at the Respondent's Blue Ash, Ohio, plant, and by further refusing said Kenneth Bolton access to the production area of said plant in order to make such review. The following unit of employees is appro- priate for collective bargaining. All hourly rated employees assigned to jobs included in the certification issued by the National Labor Relations Board in Case 9-UA-666, dated June 25, 1948, but excluding office and clerical employees (both office and factory), foremen, supervisors as defined in the Act, professional employees, engineers, timekeepers, guards, draftsmen, and watchmen. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the poli- cies of the Act: (a) Upon request, recognize, meet, deal, and negotiate with Kenneth Bolton as the duly authorized representative of the aforesaid Union, including the granting to him of access to the production areas of the plant for the purpose of standing by during a job rating review of any operation at the Respondent's Blue Ash, Ohio, plant, subject to such procedure. (b) Post at its plant in Blue Ash, Ohio, copies of the attached notice marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Director for 21 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall he substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Couit of Appeals Enforcing an Order' shall be substituted for the words "a Decision and Order " 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 9 of the Board, after having been duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.29 79 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL recognize and deal with Kenneth Bolton as a duly authorized rep- resentative of International Brotherhood of Electrical Workers, Local 1198, AFL-CIO, and, upon request, grant him access to the production areas of the plant for the purpose of standing by during a job rating review. WE WILL NOT refuse to bargain collectively with International Brotherhood of Electrical Workers, Local 1198, AFL-CIO, as the exclusive bargaining rep- resentative of our employees in the appropriate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, by refusing to meet or deal with Kenneth Bolton or any other duly authorized representative of the aforesaid Union. The following unit of employees is appro- priate for collective bargaining: All hourly rated employees assigned to jobs included in the certification issued by the National Labor Relations Board in Case 9-UA-666, dated June 25, 1948, but excluding office and clerical employees (both office and factory), foremen, supervisors as defined in the Act, professional employ- ees, engineers, timekeepers, guards, draftsmen, and watchmen. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. GENERAL ELECTRIC COMPANY, Employer. Dated------------------- By-----------;----------- ------------------- (Repre,entative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627. American Fire Apparatus Company and United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Cease 18-CA-2167. September 27, 1966 DECISION AND ORDER On June 30, 1966, Trial Examiner Harry R. Hinkes issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices 160 NLRB No. 104.