Univis, Inc.

UNIVIS, INC. 37 Univis, Inc. and United Glass and Ceramic Workers of North America, AFL-CIO-CLC, Local No. 433. Case 12-CA-3723 January 8,1968 DECISION AND ORDER BY MEMBERS BROWN,JENKINS , AND ZAGORIA On August 28, 1967, Trial Examiner Alvin Lieberman issued his Decision in the above -entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as ,amended, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision , the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions , and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Univis, Inc., Fort Lauderdale , Florida, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner 's Recom- mended Order. MEMBER BROWN, dissenting: In my opinion the basic dispute in this case should be left for resolution within the framework of the dispute settlement procedures agreed upon by the parties in their current collective-bargaining agreement. We are dealing in this case solely with a request for information first made by the Union during bar- gaining negotiations preliminary to the parties' agreement on the wage incentive provisions. At that time, the parties fully explored the information is- sue, with the Respondent giving examples of the type of data that it would agree to furnish. The Union thereafter accepted the contract which specified the type of information to be provided. When the Respondent subsequently denied a request for additional data, the Union grieved, but at the final step, filed an unfair labor practice charge, rather than proceeding to a final and binding determination pursuant to the contractual dispute settlement machinery. In my opinion, responsible collective bargaining entails an obligation on the parties to abide by their agreements with respect to matters, which, as here, have been affirmatively regulated through the collective-bargaining process. Permitting a party to refuse to use the agreed upon settlement machinery is inconsistent with the na- tional labor policy. Accordingly, I would not con- sider this case on the merits, but would dismiss the complaint in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN , Trial Examiner: This case , with all parties represented , was tried before me in Miami, Florida, on April 5 , 1967, upon a complaint' of the General Counsel and Respondent's answer.2 The 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 furnish certain data to the Union pursuant to its request. More particularly the questions for decision in determining this issue are as follows: 1. Is the information requested by the Union relevant? 2. Did the Union waive any right which it might have had to receive the information which it requested? 3. Should the National Labor Relations Board (herein called the Board), defer to arbitration and refrain from making a decision in this case? Upon the entire record ,3 upon my observation of the witnesses and their demeanor while testifying , and upon careful consideration of the able bnef submitted by Respondent , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation whose principal of- fice and place of business is located at Fort Lauderdale, Florida, where it is engaged in the manufacture of optical glass. Respondent annually purchases and receives directly from sources located outside the State of Florida goods and materials valued at more than $50,000. Ac- ' The complaint was issued on a charge filed by United Glass and Ceramic Workers of North America, AFL-CIO-CLC, Local No 433 (herein called the Union) During the trial the complaint was amended in several respects Par 4 was amended by substituting the name "ArthurJ Sowers" for "Arthur J Sawers." Par 7 and 7(b) were amended by sub- stituting for the date set forth therein the date "September 21, 1966." Finally, the following was substituted for the first two lines of par 7(a) Since on or about September 21, 1966 , and more particularly on September 21, 1966, September 22, 1966, October 3, 1966, November 2, 1966, and again during November 21, 1966 2 During the trial Respondent admitted the allegations of paragraphs 7, 7(a), and 7(b) of the complaint, as amended. 3 Errors in the transcript have been noted and corrected. 169 NLRB No. 18 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion ofju- risdiction over this matter by the Board is warranted. Siemons Mailing Service, 122 NLRB 81, 85. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly this case concerns itself with the Union's request for, and Respondent's refusal to furnish, certain data; namely, results of Respondent's timestudies and co- pies of Elements I through VII of each Work Study Summary4 prepared by Respondent for each job placed within an incentive wage program provided for by the contract between Respondent and the Union. The General Counsel and the Union contend 5 that the Union must have this information for the purpose of, as alleged in the complaint, "the proper administration of [its] cur- rent collective bargaining agreement" with Respondent and that Respondent's refusal to furnish it constitutes a violation of Section 8(a)(5) and (1) of the Act. Respondent, for its part, questions the relevancy of the data sought; asserts that it is giving, and has given, the Union all the information it is entitled to under the con- tract; and insists that the Union has waived its right to receive more. In addition, inasmuch as the contract in- volved provides for a grievance procedure culminating in binding arbitration, Respondent argues that the Board should defer to that method for determining the issues in this proceeding. B. Facts There appears to be little material dispute as to the facts. They will, therefore, be set forth in summary fashion under appropriate headings. 1. The incentive system The contract, currently in force between the Union and Respondent, went into effect on March 28,1966 .6 It pro- vides for the placing of jobs in Respondent's plant on an incentive wage system founded upon work standards to be established by Respondent. These will be more fully described below. As the contentions of the General Counsel and the Union appear to be similar in all respects they will be referred to hereafter as the General Counsel's contentions. R Unless otherwise noted, all dates subsequently referred to in this Decision fall within 1966. ' These appear in the record as G.C. Exh. 12. Samples of a Work Study Summary were received in evidence as G.C. Exhs. 6 and 10. The former contains only Element VIII, the latter, Ele- ments I through VII . Also in evidence , as G.C. Exh. 4, is a sample of an Operations Standard Sheet. 9 This is the only area in this case in which there is a testimonial con- flict. The variance, however, is not between testimony given by J. Bernard McCabe, the Union's president, who was the only witness called by the General Counsel, and that given by Maloney, Respondent's vice pres- ident for industrial relations, the only witness called by Respondent. It The term "work standard" which is the basis for the in- centive system was defined by John T. Maloney, Respon- dent's vice president for industrial relations, as being "the number of pieces that an individual is to perform within a specific period of time." If an employee produces more, he receives an incentive payment arrived at by the appli- cation of agreed-upon formulas .7 If he does not, he receives the base rate set forth in the contract for the job in question. The work standard for a particular job is set by Respondent's industrial engineers. The process is com- plex and highly technical. It includes the timing of the job involved and, in addition, the preparation of a Work Study Summary. The latter consists of a breakdown of the job into its various elements, usually eight in number. Element IV, entitled "Allowances," contains some results of the timestudy. Element VIII, entitled "Stan- dard Operating Procedure," describes the job. Finally, an Operation Standards Sheet for the job under considera- tion is prepared which sets forth the number of units to be produced within a specified period of time before an in- centive bonus is payable." 2. The negotiations concerning the incentive wage rates During the negotiations which resulted in the current agreement between Respondent and the Union extensive discussions were had with respect to the incentive wage system. In the course of the bargaining concerning the timestudies which were to be made by Respondent the Union asked to be furnished with the resulting data, or in the alternative for permission to enter the Respondent's plant and conduct its own timestudies. Respondent, how- ever, made it clear that it would neither provide this material nor permit the Union to make its own studies.9 Also during the bargaining discussions with respect to the incentive system Respondent showed the Union ex- amples of data which would be furnished with respect to all jobs placed within it. These consisted of two blank forms. One was the Operations Standard Sheet, which when completed, as noted above, would constitute the work standard. The other was entitled "Explanation Sheet," which would be given to the Union each time a work standard was changed.10 This form would set forth the nature of, and reason for, the change. Ultimately, the Union and Respondent agreed upon the terms of an incentive wage program to be incorporated in their collective-bargaining agreement. Among them is one which provides that "A copy of the work standard ap- plicable to each job on incentive will be given to the Union."" appears, rather, in contradictory testimony given by McCabe. Thus, on cross-examination McCabe admitted that while the negotiations were in progress the Union had asked for the timestudy data; that Respondent had refused to grant this request; and that the Union then asked for permission to make its own timestudies, which request was also rejected. When re- called on rebuttal, however, McCabe testified that "nothing" was men- tioned "during the negotiations regarding the time study sheets." Because McCabe's testimony on cross-examination appears more plausible than that given by him on rebuttal, the former furnishes the basis for my findings with respect to the matter under discussion. 19 As already set forth, G.C. Exh. 4 in evidence is a sample of an Opera- tions Standard Sheet. G.C. Exhs. 5 and 9 in evidence are forms of an Ex- planation Sheet. 1 I The incentive wage program appears in the contract, G.C. Exh. 2 in evidence, as art. 6. The quoted provision is sec. 4(i) of that artical. UNIVIS, INC. 39 3. The grievance procedure The contract between the Union and Respondent pro- vides for a four-step grievance procedure.12 Pursuant to its terms if the issue in dispute is not settled upon the completion of the third step it may, as a fourth step, be submitted by either party to an arbitrator, whose deci- sion, as set forth in the contract, "shall be final and bind- ing upon the parties." 4. The Union's request for information, Respondent's refusal to furnish it, and the grievance As jobs have been placed within the incentive wage program Respondent has furnished the Union with an Operation Standards Sheet, the work standard, for the job in question. In addition, Respondent has furnished the Union with a Work Study Summary concerning each such job containing only Element VIII, the job descrip- tion. And, as changes were made in any particular work standard, the Union has also received from Respondent an Explanation Sheet detailing the change and the reasons for making it. Starting in May and continuing through November the Union has requested from Respondent, with respect to the incentive jobs, results of the timestudies made by Respondent and Elements I through VII of the Work Study Summaries it had prepared. In this connection, McCabe, the Union's president, told John D. Baer, Respondent's plant manager, that without this data he "could not effectively administer [the] contract because [he] could not tell ... that the standards were right." Respondent has steadfastly refused to supply this infor- mation. Because it had not received the material sought, the Union, on September 21, instituted a grievance proceed- ing pursuant to the terms of its contract with Respondent. The matter remained unsettled through the third step. In- stead of moving to the fourth step, which would have been arbitration, the Union abandoned the grievance and, on January 9, 1967, filed the charge in the instant case. C. Contentions and Concluding Findings The complaint alleges, and the General Counsel con- tends, that Respondent's refusal to furnish the Union with results of the timestudies and Elements I through VII of the Work Study Summaries respecting the jobs under the incentive system, which information is required by the Union for the proper administration of its contract with Respondent, constitutes a violation of Section 8(a)(5) and'(1) of the Act. In defense, Respondent makes several arguments. It argues that the information sought is not relevant; it, is not required under the contract to furnish the Union with the requested data; the Union has waived its right to any more information than it is already receiving; and, finally, the Board should defer to arbitra- tion ratherthan decide the issues presented' in this proceeding in view of arbitration provisions of the con- tract. In connection with the duty resting upon an employer to supply information requested by a union the Board stated in The Fafnir Bearing Company, 146 NLRB 1582, 1585, that: It is well settled that Section 8(a)(5) of the Act im- poses an obligation upon an employer to furnish upon request all information relevant to the bargain- ing representative 's intelligent performance of its function. This obligation extends to information which the union may require in order to "police and administer existing agreements." Accordingly , unless the arguments raised by Respondent, which will be discussed seriatim, excuse it from comply- ing with its statutory obligation to supply the information requested, Respondent's refusal to do so requires a find- ing that it violated Section 8(a)(5). Relevancy: Whether information sought is relevant de- pends, of course , on its nature and the reason for the request. With respect to the latter , where, as here, infor- mation is sought by a union for the purpose of administer- ing a contract the Board in The Item Company, 108 NLRB 1634, 1635 , 1639, enfd. 220 F.2d 956 (C.A. 5), adopted the rule enunciated in N.L.R .B. v. Yawman & Erbe Manufacturing Co., 187 F.2d 947, 949 (C.A. 2), that it "must be disclosed unless it plainly appears irrele- vant." Concerning the former , the information requested here is intimately related to Respondent's establishment of work standards , as provided by the contract between Respondent and the Union. This being so, it not only does not appear to be "plainly ... irrelevant" to the Union's administration of the contract , but, on the contra- ry, appears to be clearly relevant. J. I. Case Company, 118 NLRB 520, 521-523, enfd. as modified in other respects 253 F.2d 149 (C.A. 7). Contract and Waiver : As noted, Respondent contends that its contract with the Union does not require it to supply the data sought and that the Union has waived its right to receive more information than Respondent is al- ready furnishing. The Union's right to the information in question, however, does not derive from contract, but from statute. Timken Roller Bearing Co . v. N.L.R.B., 325 F.2d 746, 751 (C.A. 6); The Fafnir Bearing Com- pany, 146 NLRB 1582, 1585 . While the Union 's right, in this regard, may be waived , the waiver, as Timken also teaches, "must be in `clear and unmistakable' language" expressed either in the "bargaining agreement [or] as a part of the bargaining process...."13 Respondent recognizes the foregoing principles as con- trolling and asserts that, as in The Berkline Corporation, 123 NLRB 685, the union during the negotiations effec- tively waived its right to receive the information sought. To support this contention Respondent relies on the testimony given by McCabe , the Union's president, that in the course of the bargaining, the Union asked for the timestudies which were to be made by Respondent and when Respondent demurred requested permission, which Respondent also refused, to make its own timestudies, following which the contract was signed. However, I do not find in this testimony the "`clear and unmistakable' language" which must exist in order to establish a waiver.14 Nor do I find it in that portion of the contract agreed to by the Union which provides that "A copy of the work standard applicable to each job on incentive will be given to the Union." To hold otherwise would be to as- 12 The grievance procedure appears in the contract as art 8 this manner, the waiver would relate to the timestudies which the Union 13 To the same effect, see also C & C Plywood Corporation, 148 NLRB requested but not to Elements I through VII of the Work Study Summa- 414,416, affil 385 U.S. 421. nes, which the Union also seeks. 14 In any event, even if it were to be held that the Union did waive in 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cribe an effect to the doctrine of expressio unius which, in a similar context , the Board rejected in Otis Elevator Company, 102 NLRB 770, 771, 778, enfd. in this respect 208 F.2d 176 (C.A. 2). Respondent has cited several cases in addition to The Berkline Corporation , 123 NLRB 685, in support of its position on this branch of the case. I have carefully read and considered all of them . None, however, requires me to alter my conclusion that the Union neither waived, nor bargained away , its right to the information sought. Deferment to Arbitration : On brief, Respondent argues that "Insofar as the [Union's] claim [to the information requested] is based on the contract , the right must be en- forced by arbitration." The short answer to this argument is that the Union's right to the information in question is based entirely on statute. Assuming, however, that the issue in dispute here is ar- bitrable under the provisions of the contract between the Union and Respondent that assumption alone , as Section 10(a) of the Act plainly states '15 would not require the Board to defer to arbitration , as Respondent urges. Nor, again assuming arbitrability , should it do so in this case, there being no pending arbitration proceeding despite the passage of much time since the outbreak of the con- troversy here at issue within which Respondent could have exercised its contractual privilege of submitting the matter to arbitration notwithstanding the Union 's aban- donment of its grievance in favor of the filing of the in- stant charge. See, in this connection, W. P. Ihrie & Sons, etc., 165 NLRB 167; C !&I S Industries, Inc., 158 NLRB 454; Thor Power Tool Company, 148 NLRB 1379, 1381 , enfd. 351 F.2d 584 (C.A. 7). Accordingly , I conclude that, as alleged in the com- plaint, Respondent violated Section 8(a)(5) and ( 1) of the Act by refusing to furnish to the Union, pursuant to its request, the results of its timestudies and Elements I through VII of the Work Study Summaries respecting all jobs placed by Respondent within the incentive wage pro- gram. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's refusal to furnish the information requested by the Union set forth in section III, above, oc- curring in connection with Respondent 's operations set forth in section I, above, has a close, intimate , and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, my Recommended Order will direct Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the pur- poses of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to furnish to the Union, pursuant to its request, the results of timestudies and Elements I through VII of the Work Study Summaries respecting all jobs placed by Respondent within its incentive wage program Respondent 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 aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, I hereby issue the fol- lowing: RECOMMENDED ORDER Univis, Inc., its officers , agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO CLC, Local No. 433, by refusing to furnish to the said labor organization the results of timestudies and Elements I through VII of the Work Study Summa- ries respecting all jobs placed by Univis, Inc., within its incentive wage program. (b) In any like or related manner interfering with the efforts of United Glass and Ceramic Workers of North America, AFL-CIO-CLC, Local No. 433, to bargain collectively with it on behalf of employees covered by the provisions of the collective-bargaining agreement between it and the said labor organization. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Upon request furnish to United Glass and Ceramic Workers of North America, AFL-CIO-CLC, Local No. 433, results of timestudies and Elements I through VII of the Work Study Summaries respecting all jobs placed by Univis, Inc., within its incentive wage program. (b) Post at its premises copies of the attached notice marked "Appendix." ", Copies of said notice , on forms provided by the Regional Director for Region 12, after being signed by an authorized representative of Respond- ent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered , defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from receipt of this Decision , what steps Respond- ent has taken to comply herewith.17 I S Sec. 10(a) states, in pertinent part, that the Board 's power to prevent the commission of unfair labor practices in the manner provided for in the section's subsequent subdivisions "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement , law, or otherwise...." 11 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 1 ° In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." UNIVIS, INC. 41 APPENDIX tive-bargaining agreement between us and the NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT refuse to bargain collectively with United Glass and Ceramic Workers of North Amer- ica, AFL-CIO-CLC, Local No. 433, by refusing to furnish to the Union the results of timestudies and Elements I through VII of the Work Study Summa- ries respecting all jobs placed by us within our incen- tive wage program. WE WILL NOT in any like or related manner inter- fere with the efforts of United Glass and Ceramic Workers of North America, AFL-CIO-CLC, Local No. 433, to bargain collectively with us on behalf of employees covered by the provisions of the collec- Union. WE WILL, upon request, furnish to United Glass and Ceramic Workers of North America, AFL-CIO-CLC, Local No. 433, results of timestu- dies and Elements I through VII respecting all jobs placed by us within our incentive wage program. UNIVIS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, faced, 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, 706 Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.