General Electic Co.

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Electric Company and International Union of Electrical , Radio and Machine Workers, AFL-CIO-CLC, and its Local 705. Case 8-CA-5591 October 16, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On May 7, 1970, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the Charging Party filed a brief in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 ORDER party in this kind of dispute. I would dismiss the complaint. i We hereby correct the Trial Examiner's inadvertent error in referring to the filing date of the unfair labor practice charge as October 27, 1969, instead of September 16, 1969. 2 While we agree with our dissenting colleague that an employer's obligation to supply relevant and necessary information does not also entail the obligation that such information be made available in the exact form requested by a union, we fail to see how the application of this principle can serve to resolve the issue before us In the present case, the Trial Examiner recognized that the Union had no right to insist that the information be provided in the precise manner and form requested. Accordingly, the Trial Examiner found it necessary to determine whether or not the video tapes offered by Respondent would have served as a reasonable substitute for the in-plant job evaluations requested by the Union In passing on this question , the Trial Examiner, on the basis of the credited evidence, concluded that the video tapes would not constitute a necessarily reliable and reasonably expeditious substitute for an in-plant evaluation We can perceive of no legitimate basis for overturning this finding of the Trial Examiner and, as a consequence , we are constrained to conclude that there was no justification for Respondent's refusal to comply with the Union's request. TRIAL EXAMINER'S DECISION HAROLD X. SUMMERS, Trial Examiner: In this proceed- ing, the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board, respectively) issued a complaint' alleging that General Electric Company (herein, Respondent), at its so-called Dover Wire and Fabrication Operation, had engaged in and was engaging in unfair labor practices within the meaning of 8(a)(1) and (5) of the National Labor Relations Act (the Act). The answer to the complaint admitted some of its allegations and denied others ; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at New Philadelphia, Ohio, on December 16, 1969; all parties were afforded full opportunity to call and examine and to cross-examine witnesses, to argue orally, and thereafter to submit briefs. Upon the entire record 2 in the case, including my evaluation of the reliability of the witnesses based upon my observation of their demeanor, I make the following: Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that Respondent, General Electric Company, New Philadelphia, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. CHAIRMAN MILLER, dissenting: I had thought the rule of law to be that while an employer must supply relevant and necessary infor- mation to a union, he need not supply it in precisely the form requested. Here the Respondent offered video-tapes as a substitute for the union proposal of on-site evaluation. The Union's summary rejection of the offer is what brought this case to issue. Had the Union observed the tapes, this entire dispute might have been avoided. I do not see that the Act is best effectuated by encouraging adamant stands by either FINDINGS OF FACT 1. JURISDICTION Respondent is a New York corporation with enterprises in various States of the United States. This proceeding involves the plant it operates at Dover, Ohio, known as the Dover Wire and Fabrication Operation (herein, Dover plant), where it is engaged in the manufacture of i The complaint was issued on October 27, 1969 . The unfair labor practice charge initiating the proceeding was filed on September 16, 1969 2 On or about January 6, 1970, Respondent filed a "request" for certain corrections in the transcript of hearing herein and, on March 31 , I issued an order to show cause why the transcript should not be corrected in specified respects some but not all of which corrections were contemplated by Respondent's request. No good cause to the contrary having been shown, the corrections indicated in the order to show cause (which is hereby received in the record as Trial Examiner 's Exhibit 1) are hereby ordered made, with the following exceptions the correction proposed by the show-cause order at page 51 , line 9 ("R-18" for "R-17") will not be made , in addition to the corrections proposed by the order, "contested" is hereby substituted for "concluded" at page 14, line 22, and "manners" is hereby substituted for "matters" at page 83, line 9 Respondent's request is (Continued) 186 NLRB No. I GENERAL ELECTRIC COMPANY 15 molybdenum wire and fabricated molybdenum parts for the lamp and electronic industries. Each year, in the course and conduct of its business operations at this plant, Respondent ships manufactured products valued at more than $50,000 directly from the Dover plant to points outside the State of Ohio. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE UNION The charging party herein , International Union of Electrical, Radio and Machine Workers , AFL-CIO-CLC, and its Local 705 (herein called the Union 3), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Setting Between 1966 and 1969, there was a "National Agree- ment" between General Electric Company on the one hand, and the International and various of its locals on the other, covering the working conditions of employees in a number of bargaining units represented by the Internation- al and/or those locals. The agreement, by its terms, went into effect for the original signatories as of October 3, 1966; was to apply to other bargaining units when and if the International and/or other locals acquired appropriate Board certifications; and was to be effective for at least 3 years. Article XIII 2(b)(2) of the contract concerns the second step of the grievance procedure and states as follows: Meetings between representatives of the Local and local management shall be arranged at mutually agreeable times for the purpose of discussing such grievance. In those cases where it is mutually agreed by Management and Local representatives that an inspec- tion of the job would be helpful in settling the case, a sub-committee of the Local with Management repre- sentatives shall be allowed to make an inspection of the job. Local representatives may include the Business Agent or his Assistant or officers of the Local. On or about April 27, 1967, the International-which, at the Dover plant, acted through Local 705-was certified by the Regional Director for Region 8 of the Board as exclusive bargaining agent for a unit consisting of: All production and maintenance employees [at the Dover plant] including group leaders and production plating specialists, excluding all office clerical employ- ees, engineering technicians, shipping and receiving clericals and professional employees, guards, and supervisors as defined in the Act, hereby granted to the extent it seeks corrections which have been made by this order, in all other respects, it is denied 3 Except when it becomes necessary to distinguish between the International and Local 705 4 The Union's joinder in the stipulation was without prejudice to its contention-being made in other Board proceedings now pending-that a multi-General Electric-plant umt is likewise an appropriate bargaining unit 5 Unless the contrary is indicated, all dates referred to herein fall within 1969 6 Throughout the hearing, different names were used for the jobs in question The General Counsel and his witnesses continually referred to and thereupon, pursuant to the terms of the National Agreement, the Union became a party thereto. I find, pursuant to the stipulation of the parties,4 that the unit described above is appropriate for the purpose of collective bargaining within the meaning of the Act. B. Chronology of Events On May 19, 1969,5 Local 705, through a steward, filed a grievance concerning the wages being paid for two jobs being performed at the plant, jobs "in the Fabrication Department, namely Grinding and Set-up Punch Press." In effect, by its action, Local 705 was seeking to restore the pay for the first job, now rated at "R-16" on Respondent's pay scale, to the R-17 rating from which it had been downgraded in 1965, and to upgrade the second job from its present R-17 to R-19; and it requested a written answer by next day. On the 20th, Respondent, through several foremen, responded: "We feel the General Operator and Set-up Fabrication and General Operator and Set-up forming rates are proper."6 The grievance having been thus denied, Local 705 caused it to be referred to local plant management (Step 2 of the established grievance machinery), and a meeting between plant officials and Local 705 representatives was held on July 7. The former explained, with respect to the grinders' job, that the downgrading from R-17 to R-16 had resulted from a reshuffling of functions-the elimination of certain duties and the assignment of other duties to a group leader; the latter, in effect, disputed that there had been any real change. As for the set-up punch press man'sjob, the Local representatives contended that his rate was below that prevailing for similar jobs in the area, a contention which was not acquiesced in by management. The meeting ended with a request by Local 705's president, Emmet Schide, for another meeting with an International representative in attendance; he expressed the need "for someone better qualified." Paul Rinaldi, International representative, was apprised of the matter at the July meeting of Local 705's executive board. (He had not been aware of the grievance earlier.) Learning also that-apparently by inadvertance-the grievance had now been referred to the Union's "National Officers" in New York City for discussions with Respon- dent's top management (Step 3 of the grievance procedure), he took steps, by agreement with Respondent, to have the matter referred back to Step 2; and a second meeting was scheduled for August 28. Rinaldi was present at the second meeting, at which, once again, the merits of the grievance were discussed. During this meeting, company representatives pointed out that, with respect to the grinder's job, the work the "grinders" and the "set-up punch press man" while Respondent, in references by counsel and in explanations by witnesses, characterized the jobs as parts of the categories of "General Operator and Set-Up Fabrication" and "General Operator and Set-up Forming," respectively But it is clear, and I find, that there was no confusion in the parties' minds as to which jobs were involved, they were, in fact-throughout the discussions which are noted below and throughout this hearing-concerned with two specific, clearly identifiable, and identified jobs at the plant For convenience sake, I shall here refer to them as those of "grinder" and "set- up" punch press man " 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performed had, prior to 1965, been in a new operation and on a limited basis; when it was decided that the volume of business warranted a continuation, a redefinition and reevaluation took place which resulted in the reduction in grade-all prior to the Union's certification as bargaining agent. As for the punch press job, Local President Schide furnished some, but incomplete, information with respect to his survey of area rates. In the course of the discussion, Elsworth, an industrial relations officer of Respondent, said that the current grades for the two jobs had been set only after they had been compared with other jobs in the plant and fitted into the occupational structure; but, asked for any documentary material relating to such a study, he said he knew of no such material. Rinaldi indicated that the Union could not properly process the grievance without having examined thejobs in question in order to compare them with others; and he asked permission to come into the plant for this purpose. Elsworth denied the request at this time; it was against company policy, he said, to allow "outsiders" in the plant, but he would check into the matter. Several days later, Harold Ramsey, who, as the Dover plant's employee and community relations supervisor, had attended both grievance meetings, gave Schide Respon- dent's answer to Rinaldi's request: it would not permit him to enter the plant for the purpose indicated. At or about the same time, Ramsey showed Schide a job analysis form covering the grinders' reduction of which, he said, Elsworth had been unaware at the time of the meeting, and he invited Schide to make a copy for himself. On or about October 14, Schide met with Ramsey.? The circumstances of the grievance were reviewed for the third time. In the course of the discussion, Ramsey expressed a willingness to abide by the Board's final decision in a pending case,8 but Schide was not willing to wait. The issue, he said, boiled down to whether Respondent would increase the rates as requested or would permit Rinaldi to conduct an in-plant evaluation. At or about this point, Ramsey offered to make and to furnish a video tape of the operations on the two jobs, a tape which could be studied by Rinaldi. At meeting's end, Schide said he wanted to review this suggestion with Rinaldi. Next day, having discussed the video tape offer with Rinaldi, Schide told Ramsey that it was not acceptable. This was the parties' last contact on the subject. The unfair labor practice charge initiating this proceeding was filed on October 27 9 C. Discussion-Conclusions It is well settled, and Respondent concedes, that, absent an effective waiver, Section 8(a)(5) of the Act requires an ° The meeting was set up at Schide's request, upon his having heard that Respondent would like to make further attempts to settle the matter "at the local level." (Rinaldi did not attend ) B The reference was to a case involving Respondent's Youngstown, Ohio, plant, a proceeding in which a Board decision has since issued See infra 9 Meanwhile, the 3-year period constituting the term of the collective- bargaining agreement referred to earlier herein had ended on October 26. Shortly thereafter, no new agreement having been reached, the employees at the Dover plant (along with those at other of Respondent's installations for which the International or one of its affiliates acted as bargaining employer, upon request, to furnish all information relevant and necessary to a bargaining representative's intelligent performance of its function, among others, of policing and administering an existing agreement . And the "furnishing of information" includes the granting of permission to conduct in-plant time studies.io Respondent here contends, first, that the Union has waived its statutory right herein by virtue of Article XIII 2(b)(2) of the collective-bargaining contract, quoted supra, in the subsection on "Background and Setting." (At no point in their discussion-I find-did either Union or management representatives suggest resort to this aspect of the grievance machinery.) But the Board has already passed upon this contention, based upon the identical clause: the second-step joint inspection of a job was designed to help to settle a grievance and was no substitute for a union's need for information to help evaluate a grievance and to determine upon future action; neither the provision nor the negotiations which led to its adoption constituted a waiver of the statutory right to information.ii There has been no waiver here. Next, Respondent contends that a union timestudy of the job of set-up punch press man was not relevant to the Union's performance of its duties as bargaining representa- tive. Since the Union's asserted basis for this aspect of the grievance was that the rate was out of line with community rates, a resolution of the issue-the argument runs-would not be furthered by an on-the-job evaluation of the set-up punch press man's duties. The argument ignores the fact that, since (I here find) the present rate on the job was set after an on-the-job evaluation by Respondent's representa- tive, a similar operation by a union representative might well furnish the Union with information which would bolster its community-rates position or which would, indeed, cause it to abandon its position.12 I find that the requested timestudy was relevant to the processing of this aspect of the grievance. Finally, Respondent contends that the General Counsel has not established the necessity for the requested in-plant job evaluation. Encompassed within this general contention are a number of subarguments: (a) There is no per se right on the part of a bargaining representative to make such a study, as claimed by the charging party; it may or may not be necessary, depending on the circumstances. (b) The request was made by the Union, assertedly without giving the basis therefor, even though other methods of acquiring the necessary information had not been explored. (c) Assuming, without conceding, that Article XIII 2(b)(2) did not amount to a waiver, the on job inspection which it afforded might have provided all the information the Union needed to process the grievance. (d) Respondent did not finally reject the Union's request. It made several agent) went on strike The strike was still in effect at the time of the instant hearing 10 Wilson Athletic Goods Mfg Co, Inc, 169 NLRB No 82 11 General Electric Company (Hickory North Carolina plant), 173 NLRB No 22, enfd 414 F 2d 918 (C A 4) (filing of the grievances in question preceded the adoption of the clause), General Electric Company (Youngstown Lamp Plant), 180 NLRB No 13 (filing postdated adoption of clause) 12 See Fafnir Bearing Co, 146 NLRB 1582 (enfd 362 F 2d 716 (C A 2)), at 1587 GENERAL ELECTRIC COMPANY 17 counterproposals, including the offer of the video tape, counterproposals the effectuation of which might have given the Union whatever information it needed. (e) The Union precipitously rejected Respondent's offer to furnish a video tape, without reason other than "total unacceptabil- ity," even though, assertedly, the tape, viewed and discussed with the incumbents of the jobs, would either furnish all the information the Union needs or, at the least, form the basis for further discussion with Respondent. (f) Lastly-and this pervades all the other subarguments-the Union's agents, by their summary rejection of all proposals except their insistence upon an in-plant evaluation, prematurely closed off all approaches to their supposed objective. Under the circumstances, Respondent submits, there had been no refusal to bargain on its part. The resolution of the problem lies in the proper interpretation of the word "necessary," as used in the present context.13 In agreement with Respondent, I do not believe a job evaluation is "necessary" merely because a bargaining representative claims or even believes that it is necessary. On the other hand, I am not persuaded that, in order for the evaluation to be considered a necessity, it need be shown that there is no alternative. The test, I submit is whether under the circumstances, the action proposed is the only reliable and reasonably expeditious device for accomplishing an objective of the Act-making it possible for a bargaining representative intelligently to precess a grievance. Here, I find, there were no officials of Local 705 who were able to make an evaluation of the two jobs in question, whether by in-plant inspection or otherwise; it was "necessary" that the evaluation be made by someone who was qualified, such as Local 705's designee, Rinaldi. Furthermore, I find, in agreement with the General Counsel, that Respondent's offer to furnish video tapes of the jobs to Rinaldi did not, constitute a necessarily reliable and reasonably expeditious substitute for an in-plant evaluation. For one thing, opportunity abounds for the camera to be selectively deficient, by design or otherwise, a disability which might or might not be detected by a workman unversed in job study; for another, a tape, however skillfully produced, must of necessity omit much of the contextual surroundings in which the job is performed. (Significantly, Respondent had established the rates on the jobs in question as a result of visual inspection by more than one trained official, not by tapes.) 14 In my opinion, Rinaldi's examination of the tapes, at best, could only lead to further inquiries, a circumstance which could only delay discussions on the merits of the grievance. I find that the in-plant job evaluation was "necessary." Indeed, the Board has passed 'upon the question in its decisions relating to Respondent's Hickory and Youngs- town plants.15 It found requested timestudies to be both relevant and necessary to enable the union intelligently to process grievances. I find that the distinctions between those cases and this which have been pointed out by Respondent are not differences in substance.16 In sum, on what I consider to be a fair preponderance of the evidence, I find and conclude that Respondent failed and refused to bargain collectively with the bargaining representative of its employees on and after August 28, 1969. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. On and since August 28, 1969, by refusing the Union's request to permit its International representative to enter Respondent's Dover plant for the purpose of conducting job evaluations relevant and necessary to the processing of grievances, Respondent has refused and is refusing to bargain with the Union within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid acts are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case 13 Most of the cases on the subject have concerned themselves with the relevance of the information in question, but the requirement of necessity has been injected, perhaps by indirection, in a number of decisions. For example, in N.L.R.B. v. Acme Industrial Co., 384 U.S. 432, 435, the Court, in deciding whether a union was entitled to be furnished with certain information although arbitration was available, said "There can be no question of the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties." In Hamburg Shirt Corp.,v N.LR.B., 419 F.2d 1275, 1276, the Court of Appeals for the Eighth Circuit noted that "The Company's disclosure (of information about its one time studies should not forclose the Union from obtaining its own time studies.... The Union's need for this linformation is apparent ...... The Court of Appeals for the finding that the employer's refusal to permit a union to make a piece rate study violated the Act, said, at page 836: "If needed during the performance under an existing contract, [the information to be derived from the study] may be of even more significance in negotiations looking toward the making of an agreement." Finally, in Timken Roller Bearing v. N.L.R.B., 325 F.2d 746, 751 (C.A. 6), the court, in deciding whether the union's right to the information in question derived from a contract or from the Act said that "the Union's right to wage information it needed to administer the bargaining agreement was a right which it had under Section 8(d) of [the Act] ...." (Emphasis supplied in all cases.) 14 In the course of his testimony , John Donahue, general manager of forming and fabrication at the Dover plant and a witness : called by Respondent, said: "[How long it took to observe these jobs ] would depend on actually setting down and putting all this together . It is a matter of watching. You can't just look at the machine and evaluate it, from that aspect. You have to look at it from the start, looking at the machine and observing it in operation." 15 Citations at footnote 11, supra. 16 Also, see General Electric Company (Ohio Lamp Plant), , 179 NLRB No. 122; Hamburg Shirt Corp.,,175 NLRB No. 48, enfd. 419 F.2d 1275 (C.A. 8); and Waycross Sportswear, Inc., 166 NLRB 101, enfd . 403 F.2d 832 (C.A. 5). 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and pursuant to Section 10(c) of the Act, I hereby recommend that the Board issue the following: ORDER 17 General Electric Company, at its Dover (Ohio) plant, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 705, by refusing to permit the Union, through its International representative, to enter its Dover plant for the purpose of conducting job evaluations relevant and necessary to the processing of grievances. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent that such right (to refrain) may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, permit the Union, through its International representative or other representative of its own choosing, to enter Respondent's Dover plant for the purpose of conducting job evaluations relevant and necessary to the processing of grievances. (b) Post at its plant at Dover, Ohio, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.19 17 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes 18 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 19 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 8, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 705, as the statutory bargaining representative of our production and maintenance employees at our Dover (Ohio) Wire and Fabrication Operation by refusing to permit the Union, through its International representative or other representative of its own choosing, to enter our plant for the purpose of conducting job evaluations relevant and necessary to the processing of employee grievances. WE WILL NOT in any like or related manner interfere with the efforts of the Union to bargain collectively on behalf of our production and maintenance employees. ELECTRIC COMPANY (Employer) Dated By Representative Title This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 513-684-3686.