General Electric Co.

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Electric Company and International Union of Electrical Radio and Machine Workers, AFL-CIO, and Local 182 , International Union of Electrical, Radio and Machine Workers, AFL-CIO. Cases 11-CA-3133 and 11-CA-3272 October 10, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 20, 1968, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 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 affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, General Counsel, Charging Party, and Respondent filed exceptions to the Trial Exam- iner's Decision together with supporting briefs, the Charging Party also filed a brief in answer to Respondent's exceptions, and Respondent filed a reply brief. 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 these cases 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 briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein: 1. For the reasons fully set forth in his Decision, we agree with the Trial Examiner that Respondent violated Section 8(a)(5) and (1) by refusing the Union's request to allow a union timestudy engineer to examine company timestudy data relating to production standards concerning which grievances had been filed under the applicable collective- bargaining agreement; and by failing or refusing to I Fafnir Bearing Company, 146 NLRB 1582 , enfd . 362 F.2d 716 (C.A. 2). 2 Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, 1412. See also The Timken Roller Bearing Co., 138 NLRB 15 , enfd . 325 F.2d 746 (C.A. 6). 3 As we noted in The Fafnir Bearing Company case, supra, at 1587, an independent time study might well lead to the Union 's refusal to 173 NLRB No. 22 furnish the Union with information concerning Re- spondent's wage surveys. 2. We do not agree with the Trial Examiner's finding that Respondent did not violate Section 8(a)(5) and (1) by refusing the Union's requests to allow a union timestudy engineer to enter Re- spondent's Hickory plant to conduct independent timestudies on jobs involved in the above-mentioned grievances. We find, as did the Trial Examiner, that the time study information sought by the Union was relevant and necessary for intelligent processing of grievances, and that the Union had a statutory right of access to Respondent's plant for such purpose.' We do not, however, adopt the Trial Examiner's further finding that the Union waived such statutory right by signing a collective-bargaining contract which retained article XIII 2(b)(2) of the Parties' National Agreement. As we have previously stated: Although a statutory right ... may be waived by collective bargaining , a waiver, if it is to be found,. must be clearly and unmistakably established and is not lightly to be inferred.' 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 mutual- ly agreeable times for the purpose of discussing such grievance. In those cases where it is mutually agreed by Management and Local representatives that an inspection of the job would be helpful in settling the case, a sub-committee of the Local with Management representatives shall be allowed to make an inspection of the job. Local representa- tives may include the Business Agent or his Assistant or officers of the Local. This second step joint inspection of the job is for the stated purpose of helping to settle the grievance. This bilateral procedure for settling a grievance is quite different from the Union's need for information so that it might itself evaluate the grievance and de- termine upon future action.' Accordingly, we do not find that the express language of article XIII 2(b)(2) standing alone consti- tutes the clear and unmistakable waiver by the Union of its statutory right to access to information neces- sary to assess the validity of a grievance. Neither apparently did the Trial Examiner, for before finding waiver, he found it necessary to consider the bargain- ing history of the 1966 negotiations between the process a grievance, or to an amicable agreement at an early stage of the grievance procedure. See also N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 437, where the Court noted the distinction between the union's statutory right to information relevant to a grievance, and the merits of the union's grievance under the contract. GENERAL ELECTRIC COMPANY 165 parties. We do not find that this bargaining history, either standing alone, or taken in conjunction with article XIII 2(b)(2), supports a finding of waiver. As the Trial Examiner found, during the 1966 negotiations the Union unsuccessfully proposed a revision to this article, specifically permitting the Union to bring in industrial engineers and specialists to assist it in studying or inspecting the job or work involved in a grievance. However, the Union con- tinuously and consistently asserted its statutory right to make its own timestudies prior to the 1966 negotiations, during the negotiations, and subsequent to the negotiations. At no time during the negotia- tions did the Union indicate to Respondent that it was conceding on this point. The question of union timestudies was discussed generally at the September 21, 1966, meeting of the National Negotiating Com- mittee, which committee alone had the power to commit the parties. At that meeting Irving Abramson, the Union's chief counsel, contested Respondent's contention that the Union did not have the right to make timestudies, citing the Fafnir Bearing case4 as controlling on the issue.' As we said in Cloverleaf Division of Adams Dairy Co., supra, 1413, "The fact that the Union attempted unsuccessfully to include in its contracts a statement of its statutory right ... is not evidence that the Union waived its statutory right ...."6 Further evidence of the Union's firm intent not to waive its statutory right is the fact that on September 20, 1966, the day before the above meeting, the Union signed the initial unfair labor practice charge in this case, and filed the charge with the Board on Septem- ber 22, 1966, the day after the meeting. This contemporaneous filing of the charge is at variance with any waiver intent.? Accordingly, we find that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to permit the Union to make independent time studies of disputed operations at Respondent's Hickory plant. 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, as modified below, and hereby orders that Respondent General Electric Company, Hickory, North Carolina, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. Delete paragraph 1(a) and substitute the follow- ing: (a) "Refusing to bargain collectively with Inter- national Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Local 182, as the statutory bargaining representative of the production and maintenance employees at the Company plant at Hickory, North Carolina, by refusing to permit the Union, through its own experts, to examine the Company's time study materials pertaining to jobs involved in grievances arising under the parties' collective-bargaining agreement, by refusing to permit the Union to perform independent timestudies through its own experts on jobs involved in grievances arising under the parties' collective-bargaining agree- ment, and by refusing to furnish the Union with information concerning the Company's area wage surveys to enable the Union to process intelligently grievances over the Company's hourly rates of pay." 2. Delete paragraph 2(a) and substitute the follow- ing: (a) "Upon request, permit the Union, through its own experts, to examine the Company's timestudy materials and to perform independent timestudies pertaining to jobs involved in grievances arising under the parties' collective-bargaining agreement." 3. Substitute the following for the first indented paragraph of the Appendix attached to the Trial Examiner's Decision: WE WILL NOT refuse to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Local 182, by refusing to permit the Union, through its own experts, to examine the Company's time-study materials and to perform independent time studies pertaining to jobs involved in grievances arising under our collective-bargaining agreement, and by refusing to furnish the Union with information concerning our area wage surveys to enable the Union to process intelligently grievances over hourly rates of pay. 4. Delete the last paragraph of the Recommended Order. 4 Fafnir Bearing Co., supra. 5Willis Robinson, president of the Hickory Local, and Leo Jandreau, a union member of the National Negotiating Committee , both testified that Abramson , in referring to this case , said that the Union did not need a contract provision to conduct its own time studies, that it had the statutory right to do so, and that it intended to exercise that right. Elmer J . Ritter, the Company's manager of Union Contract Administra- tion, who was also present at the meeting , testified that he did not remember any such statement , but he did not deny that it was made. The Company 's notes of the meeting , cited by the Trial Examiner, were admittedly only selective notes , and Ritter admitted that the notes did not represent everything said by Abramson at the meeting The Trial Examiner, in admitting the notes , stated that . "I am not receiving them for the [ sic] completeness and accuracy, I am receiving them for the limited purpose of evaluating the credibility of the witness ' testimony." 6 See also The Timken Roller Bearing Company, supra, 16 7 See C & C Plywood Corporation, 148 NLRB 414, 417, reversed 351 F.2d 224 , reversed and enfd, 385 U.S 421 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner This proceeding was heard in Hickory, North Carolina, on November 14 to 17, 1967, pursuant to a consolidated complaint issued on July 18, 1967, upon charges filed on September 22, 1966, and March 20, 1967, by the International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Union The complaint alleges in substance that Respondent General Electric Com- pany, herein called the Company, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by withholding from the Union time study and wage information necessary for the intelligent processing of grievances filed in behalf of employees represented by the Union at the Com- pany's plant in Hickory, North Carolina After the hearing, all parties filed briefs, which I have carefully considered Upon the entire record in the case,' and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company manufactures distribution transformers at its plant in Hickory, North Carolina. The Company' s annual interstate purchases and sales at the Hickory plant each exceed $100,000. I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio and Machine Workers, AFL-CIO, and its Local 182, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Dispute Over Timestudies 1 The grievances employees for failing to meet production standards, filed under National Agreements for 1963-66 and 1966-69 2 The National Agreements establish a 3-step grievance procedure. The grievance is first considered by the shop steward and the foreman of the department involved, next by local management and local union officials, and finally by Company officials and National officers of the Union Some unresolved grievances, such as those challenging disciplinary action against employees, are subject to compulsory arbitra- tion, other grievances, such as those over the setting of production standards, are subject to voluntary arbitration. The grievances described below were processed to the second or third step of the grievance procedure. On February 12, 1966, the Union filed Grievance 66.11, alleging that time standards for a "Globe" winding machine were being improperly used for a "Sidney" winding machine and requesting that studies be made "on both these machines so time standard may be applied fairly." Foreman Rummage informally told Steward Wrightsell that day that he would not hold a winder to 100 percent efficiency on the Sidney machine and, on February 22, formally advised Wrightsell, "We will investigate the basic work place differences and their impact on the time standards " About April 24, President Willis Robinson of Local 182 discussed Grievance 66.11 with Donald Doulong, Manager of Employee and Community Relations at the Hickory plant Robinson suggested that the Union "should be allowed to have a time study engineer to come into the plant to make his own time studies." Doulong replied that the Company was under no obligation to do that but added that the Company had "always been willing to allow you to come in, or any of the stewards, to examine our data." Robinson replied that would be "useless to do, because we are not familiar with the MTS.i3 On April 25, Robinson requested in writing that a Union timestudy engineer be permitted into the Hickory plant "to make time studies of coil winding" so that the Union could "intelligently process" Grievance 66 11 Doulong replied that same day, turning down the Union's request because he considered that "setting standards on jobs is a responsibility of management" and because "your request seeks to extend the terms of the GE-IUE National Agreement during the life of the contract " A Company third step answer dated October 20, 1966, stated, "It is the Company position that in the instant grievance there is no violation of the National Agreement." It does not appear that subsequent to the filing of Grievance 66.11 any employee was reprimanded or disciplined for failing to meet a standard on the Sidney machine. Grievance 66 42, filed on May 12, 1966, complained that the Union could not properly represent its members "without being present when time studies are being made" and requested the Company to "permit Union representatives to participate when making all time standards." Foreman Rum- mage told Steward Wnghtsell it would be "unreasonable" for him to be present at the setting of a standard which sometimes The Company and the Union are parties to a National Agreement which is applicable to approximately 750 hourly rated production and maintenance employees at the Hickory plant. Many of these hourly rated employees, including coil winders, are subject to production standards established by time studies made pursuant to a Company system known as Motion Time Survey (MTS). The MTS system differs from stop watch time studies in that it involves the use of predetermined time values for body motions and movements. This proceeding is principally concerned with grievances over production standards, and disciplinary notices issued to coil winding 1 The General Counsel 's unopposed motion to correct the transcript is granted 2 The Union filed grievances with respect to production standards as early as January 1962 , a few months after the Board certified it as the collective-bargaining agent of the Hickory production and maintenance employees . It also filed such grievances subsequent to the grievances at issue in this case. 3 Sometime in 1963, Robinson and a steward were shown timestudy data relevant to a grievance that was being processed . Robinson could not "make heads or tails out of the study"and asked permission to bring in an "expert " The Company refused permission Robinson testified that in 1965, he asked Doulong 's predecessor, Bradford , to give union members courses in MTS so that the Union would be able to process time study grievances intelligently . He said that Bradford "never would follow through with it" and that Doulong also gave a "negative" reply when the Union complained to him "about refusing to give us the MTS course " GENERAL ELECTRIC COMPANY 167 took a Company analyst a month and, on May 18, advised Wrightsell that the Company's time standards were available to him "for any checking or review you care to conduct, therefore, I do not see the need for you to be present when the standard is being set." President Robinson thereafter requested that a steward be allowed to be present when a job was being retimed Doulong replied on June 24, "It is the Company's position that it is unnecessary to have the steward present during these studies and that there is no contractual basis for this demand 4 Grievances 66.50-66.72, filed from the end of May 1966 to June 6, 1966, complained that insufficient time was allotted for various coil winding operations and requested that the Company "Make full and complete study of this coil giving full credit to worker for all work performed. The steward or union officer must be present when this study is made." On June 1 and 8, Foreman Rummage gave the following first step reply to Steward Wnghtsell- As you know, part of making an MTS study is an intensive study of and the actual design of the work place This can only be done at the work place. Our winding time standards are also checked at the work place and this is being done on a continuous basis. However, due to an increasing number of standards you feel are incorrect, I will add more manpower to this area to provide additional auditing of our standards. As to the matter of allowing you or a union official to be present during the studies, I again point out our time standards are always available to you for any checking or review you care to make, therefore, I do not see the need for a union representative to be present at these studies. At a second step meeting on these grievances, President Robinson complained that the Union could not process these grievances intelligently so long as the Company refused to permit a union timestudy expert to make his own studies at the plant. As with Grievance 66 42, Robinson asked that a steward be allowed to observe the Company's retiming of the disputed production standards. On June 24, Doulong formally replied. The Company has already agreed at Step I to make studies and standard reviews of the various coil catalogue numbers mentioned in these grievances. It is the Company's position that it is unnecessary to have the steward present during these studies and that there is no contractual basis for this demand. The disputed standards were reviewed by Darrel Yount, a newly appointed time standards clerk, who had 9 years' experience as a coil winder and had just completed the Company MTS course.5 Yount checked the winding specifica- tions on each job to see that all the necessary work elements were correct and then, aided by an MTS specialist, made movies of these jobs. Each movie was reviewed "frame by frame" by Yount, the time standard instructor, the operator, and also at times the shop steward and the Company's winding technician. As a result of these reviews, more time was allotted to 14 of the 23 disputed jobs. On November 3, 1966, the Union filed Grievances 66 125-66.130, protesting the issuance of "contacts"-dis- ciplinary notices for consistent failure to meet production standards-to six employees. The Union claimed the contacts were "unjustified" because based on "inaccurate and uni- laterally imposed" time studies and requested as relief that the contacts be removed from each employee's record. In a first step answer dated November 9, Foreman Rummage offered to check "any specific standards you believe are in error" and said he would have production studies made "to find out precisely what [each employee's] problems are and assign our instructor to helping him with these problems s6 At a second step meeting with Doulong, Robinson stated for the Union that "we had no choice except taking sides with the men who received the contacts . until we could get an engineer to make his own studies." Doulong, on December 12, 1966, sent Robinson a second-step answer stating that the contacts were "proper" and that the Company would continue to make efforts "to insure that the standards on coil winding are accurate and to assist the grievants with any problems they may have in performing their work " At a third step meeting on January 12, 1967, the Union representatives took the position that they could not discuss the grievances intelligently so long as the Company denied the Union the right to have its own timestudy engineer make studies The Company repre- sentatives replied that the Union "had already filed charges" and that "they still held to the same position " The Company's third-step answer, dated January 17, 1967, stated that "there was no violation of the National Agreement involved in the issuance of the Contact Memos in question." On January 18, 1967, the Union filed Grievance 67.7 concerning the removal of Charles Rollins, a trainee, from his coil winding job The grievance charged that Rollins had been removed from coil winding "without just cause because the time standards are incorrect and unilaterally imposed by the Company" and requested as relief that Rollins be returned to coil winding and paid "wages lost since his removal " The Company's first-step answer stated that Rollins had been removed from winding for "continued failure to meet mini- mum production standards " At a second-step meeting on February 6, the Union representatives asked for permission "to have our time study engineer come in and make studies " The Company countered with an offer to give Rollins "another opportunity to meet the same standards." The Union rejected this offer, arguing that if Rollins "was unable to meet the standards prior to this, he would also be unable to meet the standards if given another opportunity." By letter dated February 8, 1967, President Robinson requested Manager Doulong to allow a union timestudy engineer to examine the Company's timestudy data On February 13, Doulong offered to give Rollins "another opportunity to meet the training curve in winding" and to give hum backpay "providing [Rollins] does return to winding,"7 and, on March 8, Doulong advised Robinson that it would be "inappropriate" as an extension of the National Agreement to allow a union timestudy engineer to examine coil winding study data but 4 Robinson had relied on article VI(4)(e) of the 1963-66 contract which permitted a steward to be present for the retuning of a job "where the piece price is in dispute between the Company and the Local." As previously noted, the employees at the Hickory plant are paid by the hour. 5 The course is given 2 hours a day, 3 times a week, for 3 months. 6 Timestudy clerk Yount subsequently reported to Rummage that 8-hour production checks on 3 men showed that 2 were able to better production standard even though each lost 4S minutes because of mistakes but that the third man did not have the "knack" for coil winding and had only achieved 93 percent efficiency. No checks were made on the other grievants because their efficiency had become satisfactory 7 On February 17, Rollins declined Foreman Rummage's offer to return him to winding 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "we have always been willing to allow examination of coil winding time standards data by the area steward and, when appropriate, by your union's executive committee, provided it is done on our premises." At a third-step meeting on the Rollins grievance in New York City on April 3, the Union representatives complained that they had no way to confirm their feeling that "the studies were inaccurate" because they had been denied a "right to have a time study engineer come in and examine these studies and make his own studies." On April 7, the Company filed its written answer "that Mr. Rollins was properly removed from the job in question, under the circumstances, and that there was no violation of the National Agreement as alleged." The Company's third-step reply was followed by a walkout. 2. Analysis and conclusions Section 8(a)(5) of the Act requires an employer, upon request, to furnish all information relevant to a bargaining representative's intelligent performance of its functions, in- cluding information which the representative may need to police and administer existing agreements J I Case Company v N.L R.B., 253 F 2d 149 (C.A. 7), The Timken Roller Bearing Company v. NL.R B., 325 F.2d 746 (C.A 6). The Union's requests to permit a union timestudy expert to examine the Company's time-study data and to conduct his own time studies on challenged standards were in the nature of requests for such information. Wilson Athletic Goods Mfg Co, Inc, 169 NLRB No. 82. The Company therefore violated Section 8(a)(5) by turning down the Union's timestudy requests unless, as it contends, (1) the information sought thereby by the Union, in the circumstances of this case, was unnecessary for the intelligent processing of the grievances relating to the production standards, or (2) the Union has waived any statutory right to have its expert examine company timestudy data and conduct his own timestudies on the production standards in issue. The Fafnir Bearing Company, 146 NLRB 1582, enfd. 362 F.2d 716 (C.A. 2). a. The need for union timestudies The Company responded to the Union 's grievances by reviewing the disputed time standards and by increasing the time allowances in some instances . It offered to show and explain the pertinent MTS data, including movies of the disputed operations , to the Union 's local representatives but it refused to permit a union industrial engineer to examine the MTS data and to check the time standards based upon such data by conducting his own timestudies . The Company defends its refusal on the ground that the fairness and accuracy of the standards based upon MTS data can be checked from such data without on -the-job timestudies and that the Union's local representatives are qualified to make such a check Bertram Gottlieb, a qualified AFL-CIO industrial engineer, testified to the contrary. His uncontradicted testimony may be summarized as follows Gottlieb examined during recesses in the hearing a specifica- tion which the parties stipulated to be representative of the coil winding operations in issue. He could not tell from his examination of this document whether "the stan- dard ... would be fair and equitable ." The document contains references to work elements not found in the document itself. Other work elements are not described in sufficient detail. For example, the specification notes that the operator is to get a crate but it does not show the size, weight, or composition of the crate, the precise distance to be walked, or how the crates are packed The time allowed under MTS for such a movement as picking up a crate-a "get"-depends on the classification- from "A" to "F"-assigned to the movement Each type of get under MTS "has certain definitions and certain characteristics" and the MTS analyst must use "a combination of what he sees and what he knows" in order to "make a determination of which class get should be applied to . a particular move- ment." The MTS analyst must make other "subjective" judgments such as whether a motion with one hand should be considered performed "simultaneously" with the movement of the other hand so that time would be allowed only for the movement of one hand. He must also determine how much additional "retarded" time must be allowed "when movements cannot be performed normally." The Company's MTS Manual points out "Unfortunately, it is impossible to outline hard and fast rules to apply when such conditions arise, and the only way in which they can be analyzed is by having the analyst exercise his judgment in applying time for retarded movement." For these reasons, Gottlieb could not advise the Union on the adequacy of the coil winding specification he had examined "without observing the job as it is being performed in this plant, under the working conditions that exist, and under the methods that are being used " If permitted to make a timestudy at the plant on the coil winding specification he had examined, Gottlieb initially "would observe ... the operator performing the work," note "significant interruptions in the work," and check to see "if the worker was in fact meeting the company standard." If the worker was meeting the standard, Gottlieb would determine in his "own mind" whether he met the standard "by working at a below-normal pace, normal pace, or above-normal pace " If the worker met the standard working at an "approximately normal" pace, Gottlieb would report his finding to the worker and his union representative and advise them to drop the grievance. On the other hand, if Gottlieb felt that the standard could not be met by "a normal operator working at a normal work pace," he would check the Company's MTS analysis data to see if the operator was in fact following "the method on which the standard was based " If not, he would inform the Company so it could decide whether or not the prescribed method should be altered If the operator was following the prescribed method, Gottlieb would seek a "clue" to the difficulty by asking him and other operators what part of the job "was giving them the most trouble." If Gottlieb could not determine that particular work elements were allotted insuf- ficient time, he "would set up and do the normal job of stop-watch time study." His "study would be of work elements" and not of the "several motion elements [which] normally go into the performance of a work element." Both MTS and stop-watch timestudies are "methods of arriving at a standard for performing work ... used by industrial engi- neers ... in the United States and other parts of the world " Many writers on timestudy recommend a stop-watch check on standards set under a predetermined motion time system because "every use of a predetermined system involves its application to work performed removed from the conditions and the place under which the original data was de- veloped ...... According to Gottlieb, all time standards are "strictly a question of judgment" and no engineer can "prove" a standard GENERAL ELECTRIC COMPANY 169 is right or wrong. Whether or not an operator could meet a standard by working at a normal pace "is strictly a subjective determination. I have a concept of a normal operator which I carry in my head just as any other industrial engineer does, and which is based on my own training and experience, and I have to apply it in that way " In Gottlieb's opinion, the setting of a production standard under MTS or any other predetermined time value system is "professional work" requiring training "equivalent to at least a bachelor's degree," and including courses in industrial psycho- logy, physiology, and "various mechanical subjects "8 I am satisfied from Gottlieb's uncontroverted testimony that the Union's local representatives were not qualified to evaluate the timestudy data offered them,9 and that the Union could not make an intelligent decision on how far to press employee grievances challenging the Company's time standards without the advice of an expert based on his actual observation of the operations in question and an opportunity to check his observations, including timestudies, against the Company's MTS data. b. The "waiver"issue The Company contends that certain contract provisions, union proposals to change these provisions, and negotiations over these proposals compel a finding that the Union has waived any statutory right it may have to observe or make timestudies in the Hickory plant and to examine the Com- pany's timestudy data pertaining to the standards in issue. Article VI 4(e) of the 1963-66 National Agreement permits a union steward to be present where a job is to be retimed because a "piece price is in dispute." This article by its terms applies to piece workers and not to hourly paid employees such as the Hickory production workers The Company argues that it follows from the exclusion from this article of a provision for union observation of the retimmg of hourly rated jobs, that the Union has waived any right it may have to observe or make time studies of such jobs. A waiver of a statutory right "must be clearly and unmistakably established and is not lightly to be inferred." Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410. I find that article VI 4(e) does not support the Company's waiver contention. Article XIII 2(b)(2) of the 1963-66 contract permits "a subcommittee of the Local" to inspect a job at the second step of the grievance procedure "where it is mutually agreed by Management and Local representatives" that such inspection "would be helpful" in resolving the grievance. In 1966, the Union proposed a revision of this section which would have permitted the Local, where it deemed it "necessary," to "retain industrial engineers and specialists to assist it in studying or inspecting the job or work involved in the grievance."' 0 The Union's proposed revision of the section was discussed during the 1966 negotiations by the "Sub- Com uttee on Contract Language" but was not specifically taken up by the National Negotiating Committee which alone had the power to commit the parties The question of union timestudies was discussed by the National negotiators, how- ever, at a meeting on September 21, 1966 The conversation, as transcribed by the Company's notetaker,' I was as follows- Callahan. My delegate from Hickory just handed me a note. I'll read it to you The Company says that negotia- tions are the best way to resolve grievances on time studies, yet in Hickory you won't allow us to observe the time studies or make our own. Ritter: There is no language that provides what he is looking for. Abramson: This is the first I heard of this. I didn't know you were refusing the union to view the setting of rates. Are you familiar with the Bearing Company case9 Hilbert Yes. And it's my assumption that they are using MTS there ... (Robinson nodded his head in agreement.) And copies of this are available and were possibly given to the union President Robinson of the Hickory local and Leo Jandreau, a union member of the National Negotiating Committee, testi- fied to the effect that Abramson, the Union's General Counsel, in referring to the Fafnir Bearing case, said that the Union did not need a contract provision to conduct its own timestudies, that it had a statutory right to do so, and that it intended to exercise its right.' 2 The Union's initial charge in this pro- ceeding, which had been prepared on September 20, was filed the next day. On October 5, 1966, a Federal Mediator mentioned to the Company's negotiators that the matter of union time studies was still "one of the issues." The 1966-69 National Agreement retained article XIII 2(b)(2) without change. It also retained a provision reciting that the Agreement and certain other 1966 agreements between the parties "are intended to be and shall be in full settlement of all issues which were the subject of collective bargaining between the parties in national level collective-bargaining negotiations in 1966." Article XIII 2(b)(2) of the 1963-66 National Agreement limits union job specification at the second step of the grievance procedure to local representatives of the Union and to instances where the parties are mutually agreed that such inspections would be helpful in resolving a grievance.' 3 The Company's refusal to permit union time studies on the ground that availability of its time standard data to the Union's local representatives made union time studies unnecessary, accords with the express language of this article So far as the record shows, this contract limitation on union job inspection was voluntarily accepted by the Union as part of the give and take of collective bargaining Although the Union asserted a statutory right to make its own time studies during the 1966 8 Time standards clerk Yount testified that he was not qualified to set a production standard. 9 "It would be a rare coincidence where an employee happened to be also a qualified industrial engineer and could adequately conduct time studies on behalf of his Union ." Fafnir Bearing Co. v. N.L R.B., 362 F.2d 716, 722 (C.A 2) 10 In 1960 negotiations, the Union proposed to substitute "Union representatives " for "a subcommittee of the Local." I i The Company 's notetaker took minutes in longhand and made a selective rather than a verbatim record of the meeting. 12 1 regard Company attorney Hilbert 's reference to the use of MTS at the Hickory plant as a statement to the effect that he considered Fafnir Bearing inapplicable because it concerned stop watch time- studies. 13 The limitation on union job inspection in article XIII 2(b)(2) would be meaningless if the Union could avoid it simply by processing a grievance to the third step. The Union in 1966 proposed a revision of this article which would have given it the right to conduct its own time studies. I find that the limitations of article XIII 2 (b)(2) are applicable to grievances processed beyond the second step. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations, it subsequently accepted a contract which re- tained article XIII 2(b)(2) without change. I find that article XIII 2(b)(2) constitutes a clear and unmistakable waiver by the Union of any statutory right it may have to inspect a job in order to process a grievance intelligently, and therefore that the Company did not violate Section 8(a)(5) and (1) of the Act by refusing in the circumstances of this case to permit the Union to observe or make time studies at the Hickory plant Cf Shell Oil Company, 93 NLRB 161,Brunswick Corporation, 146 NLRB 1474. The National Agreements and the bargaining negotiations show no waiver by the Union of any statutory right to examine the Company's time study data This data is clearly relevant and necessary to the Union's processing of grievances on the Company's production standards as "error in the data can appear in the objective analysis of the operation, and . could disclose the source of the grievance." NL.R.B v Otis Elevator Co, 208 F.2d 176, 179 (C.A. 2). I find that the Company violated Section 8(a)(5) and (1) of the Act by refusing to permit a union industrial engineer to examine its time study materials relating to challenged production stand- ards at the Hickory plant. B. The Dispute Over Job Evaluations and Area Wage Surveys The Company sets hourly rates at the Hickory plant by means of a job evaluation system, which consists of 12 factors, each of which is subdivided into 6 degrees Each degree has a number of points assigned to it The total number of points is applied to a point scale to obtain a job rating code number. This number applied to a wage scale yields the hourly rate. The scale of hourly rates is based in part on information obtained by the Ccmpany through area wage surveys In January and February 1967, the Union filed Grievances 67.2, 67.12, 67.24, and 67.33-67.39, claiming that the jobs in question were rated too low. The Company's first step answers were to the effect that the jobs were properly evaluated except that it would "completely re-evaluate" the jobs concerned in Grievances 67 33-67.38. By letter dated March 6, President Robinson of Local 182 requested Manager Doulong to permit the Union "access to observe the jobs, in order that we may make up our job analysis with which to bargain from," and to furnish "the Union the names of the companies it uses in making area wage rate surveys, and the various jobs compared at each plant." On March 8, Doulong told Robinson at his work station that the Company was under no obligation to permit the Union to observe the jobs in order to make its own evaluations. Concerning the area wage survey, Doulong said he would be willing to prepare a chart for the Union showing the names of the companies and the jobs but which "would not identify the company with the job " Robinson said if the chart gave the Union the information it sought, it would withdraw its request so far as it asked for such identification By letter dated March 8, Doulong advised Robinson that the Company did not believe union job inspections "would be helpful in 14 The record does not contain sufficient information for a determination whether the Company would satisfy its statutory obligation by supplying the Union with the names of the companies surveyed and a list of the jobs compared , but not correlating a job to a particular company . Should such correlated information be necessary settling cases " At a second step grievance meeting, the Company offered the Union copies of the job analyses and a full description of the point values which the Company had assigned to each job factor but refused to permit the Union to observe the jobs. Concerning area wage surveys, Doulong said what he had in mind was furnishing the Union with a chart based on information to be obtained from a new survey. Robinson said that the Company had relied on an area wage survey in excluding certain employees from a general wage in- crease in June 1966 and that the Union might file a grievance and "wanted to determine what the survey showed to cause [the Company] to do this." Doulong did not reply but later during the meeting said the Company might furnish the Union with information obtained from a new area wage survey. The wage rate grievances were processed through the third step where they were denied on the ground that the jobs were properly evaluated. The Company's job evaluation system includes assigning point values to such factors as working conditions, job safety, and mental and physical effort, and, as in the case of timestudies, its application to a particular job necessarily reflects the personal judgment of the person observing the job. I find that the Union had a statutory right to make its own job inspections in processing grievances over the fairness of hourly wage rates. The Company, however, in accordance with article XIII 2(b)(2), refused to permit union job evaluations. As I have found that the Union waived its statutory right to job inspection by voluntarily accepting the limitations of article XIII 2(b)(2), I find that the Company did not violate Section 8(a)(5) and (1) of the Act by refusing to permit the Union to make its own job evaluations in connection with the processing of grievances over hourly wage rates. I find, however, that the Company violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with the names and jobs of area companies it had surveyed.' 4 As the record shows that the Company uses such information in setting its range of hourly rates, and also that such information was a factor in the Company's decision to exclude certain of its highest and lowest paid employees at the Hickory plant from a general wage increase in June 1966, the information was plainly relevant to the Union's intelligent processing of grievances over wage rates. General Electric Company, Battery Products, Capacitator Department, 163 NLRB No. 30 CONCLUSIONS OF LAW 1. By refusing the Union 's requests to allow a Union time study engineer to examine company timestudy data relating to production standards concerning which grievances had been filed, and by failing or refusing to furnish the Union with information concerning its area wage surveys, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. for the intelligent processing of grievances by the Union, the Company would not be warranted in withholding it from the Union because it may have been given such information on the understanding that it would not be disclosed Cf. Ingalls Shipbuilding Corp., 143 NLRB 712, 717 GENERAL ELECTRIC COMPANY THE REMEDY Having found that the Company engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following RECOMMENDED ORDER Respondent General Electric Company, 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, and its Local 182, as the statutory bargaining representative of the production and maintenance employees at the Company plant at Hickory, North Carolina, by refusing to permit the Union, through its own experts, to examine the Company's timestudy materials pertaining to jobs involved in grievances arising under the parties' collective-bargaining agreement, and by refusing to furnish the Union with information concerning the Company' s area wage surveys to enable the Union to process intelligently grievances over the Company's hourly rates of pay (b) In any like or related manner interfering with the efforts of the Union to bargain collectively with it in behalf of the production and maintenance employees at? the Hickory plant. 2. Take the following affirmative action (a) Upon request, permit the Union, through its own experts, to examine the Company's time study materials pertaining to jobs involved in grievances arising under the parties' collective-bargaining agreement. (b) Upon request furnish to the Union information con- cerning the Company's area wage surveys or other information necessary to enable the Union to process intelligently griev- ances on hourly rates of pay at the Hickory plant. (c) Post in its offices and plant at Hickory, North Carolina, copies of the notice attached hereto marked "Appendix."' 5 Copies of said notice on forms to be furnished by the Regional Director for Region 11, shall, after being duly signed by Respondent's representative, be posted by Respondent im- mediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous 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. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' 6 171 IT IS FURTHER RECOMMENDED that the consolidated com- plaint be dismissed insofar as it alleges violations not found herein 15 If these Recommendations are 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 If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." 16 If these Recommendations are 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 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 Relations Act, as amended, we hereby notify our employees that. WE WILL NOT refuse to bargain collectively with In- ternational Union of Electrical, Radio and Machine Work- ers, AFL-CIO, and its Local 182, by refusing to permit the Union, through its own experts, to examine the Company's time-study materials pertaining to jobs involved in griev- ances arising under our collective-bargaining agreement, or by refusing to furnish the Union with information con- cerning our area wage surveys to enable the Union to process intelligently grievances over hourly rates of pay. WE WILL NOT in any like or related manner interfere with the efforts of the Union to bargain collectively on behalf of the employees covered by our collective-bargaining agree- ment. GENERAL ELECTRIC COMPANY (Employer) Dated By (Representative) (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 direct- ly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911.