General Electric Co.

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Electric Company (Ohio Lamp Plant) and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. • Case 8-CA-5376 November 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS - On September 9, 1969, Trial Examiner Samuel M. Singer 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 Trial Examiner's Decision and a supporting brief, and the Charging Party filed an answering 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 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, General Electric Company (Ohio Lamp Plant); Warren, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete from paragraph 1(a) that part thereof which reads "relevant or necessary to the processing of employee grievances or complaints," and substitute "relevant and necessary to the processing of employee grievances." 2. Delete from paragraph 2(a) that' part thereof which reads "or complaints." 3. Delete from the first indented paragraph of the Appendix that part which reads "relevant or necessary to the processing of employee grievances or complaints" and substitute "relevant and necessary to the processing of employee grievances." TRIAL EXAMINER'S DECISION SAMUEL M SINGER, Trial Examiner: This proceeding was tried before me at Warren, Ohio, on June 19, 1969, pursuant to a charge filed on March 6 and complaint issued on April 18, 1969 The issue litigated was whether Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, by refusing to permit the Charging Party, as representative of its employees, to timestudy an operation which was the subject of a grievance. All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses Briefs were received from Respondent and Charging Party. Upon the entire record in the case' and from my observation of the witnesses, I make the following FINDINGS AND CONCLUSIONS I BUSINESS OF RESPONDENT AND LABOR ORGANIZATION INVOLVED Respondent, a New York corporation, manufactures and sells lamps and related products at its plant in Warren, Ohio Its annual interstate sales there exceed $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act The Charging Party (the Union) is and has at all times been a labor, organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A Sequence of Events 1. Introduction The issues here are similar to those considered by the Board in General Electric Company, 173 NLRB No' 22, affd 414 F 2d 918 (C A 4), involving Respondent's Hickory, North Carolina, plant S The national agreement covering that plant also covers the production and maintenance employees at the Warren, Ohio, plant involved in this proceeding One of the issues in Hickory - the Union's right to conduct an independent timestudy at the plant to enable the Union to assess the accuracy of Respondent's timestudies of an operation involved in a grievance - is also involved here 2 The change in piecework rate based on Company timestudies The Warren lamp plant manufactures, among other products, 300-and 500-watt rough service lamps, or light bulbs Part of the process of making the inside of the bulb is the putting together of the "stem" (containing the lead wires) and the "button" (containing the wire supports for the filament coils) by heating the "cane" (inner end of the glass stem) so that a piece of music wire extending out of the button may be inserted into the glass in the cane end of the stem This operation is known as "arboring" and the combined piece (stem and button) as an "arbor " 'Transcript corrected by my order on notice dated August 19, 1969 'That decision will hereafter be referred to as Hickory At the parties' request I have taken official notice of the record in that case, portions of which have been physically incorporated here 179 NLRB No 122 GENERAL ELECTRIC COMPANY 663 The arboring is a piece-work job and during the period here involved was assigned to only one operator who worked at it on a part-time basis. The job was classified as R-9, with an anticipated earned rate (A.E.R.) or expected production per hour price two "R" levels above the job rate, or R-1l This means that the operator would make the equivalent of two steps above the R-9 rate if she attained expected production and for production above the rate she would earn additional compensation over the R-1 1 rate. The R-1 l rate was $2.525 per hour prior to October, when it was increased as part of a general wage increase to $2 645 per hour During the period here involved Sophie Peck, an R-l I classified worker, performed the arboring operation, along with day-work fobs.' Because of her R-I1 classification she was in effect guaranteed a minimum equal to the A E R , i.e , the R-1 l rate If she exceeded the expected production level, she could earn far in excess of that rate. Company records show that during August 5-October 4, 1968,' Mrs. Peck never exceeded an average production of 142 arbors an hour, except once - well below the expected production rate of 220 per hour S At the hearing Mrs. Peck explained that during this period she was "quality-conscious," concentrating on quality at the expense of production It is undisputed that quality was indeed a problem at that time, both Peck and General Foreman Robinson testifying that when production was speeded up too much the glass end of the stem (the cane) would be heated too rapidly, causing strain cracks to develop Between October 7 and 16, however, Peck drastically increased production - averaging as much as 300 per hour, but sacrificing quality because, as she put it, "I was told I was going to be changed in my classification," possibly dropping as, many, as two steps, unless her production improved 6 This increased output resulted in considerable quality deterioration, with as many as 10 cracked pieces in a tray of 50. Because it became "clear that the limiting factor on production of arbors 'was a quality problem" (Resp. br. 3), Respondent's "glass specialist" was given the task' "to analyze the crack problem" and bring in recommendations As a result of his report, Respondent, at the end of October or early November, added an annealing operation to the arboring process. Explaining this change, Mrs. Peck testified Well, before the change I took a stem from the .,table and held it in a fire and held it until I would insert it in what is called an arbor . Now, -I must take the stem from the table, place it on a pre-heating fire which we call annealer and it must pre-heat this arbor. Then I take . it from the annealer, place it into the inserting • fire and heat it the rest of the way and then insert the wire the same as before On December 23, after timestudying the arboring operation with the new added annealer, the Company placed into effect a revised expected production rate ' 'Mrs Peck also was the department Union steward 'All dates refer to 1968 unless otherwise indicated 'Actually, 1959 timestudies under the Company 's system known as Motion Time Survey (MTS), established an average ,expected production of 251 per hour Respondent in its brief (p 3) defines MTS as "a General Electric system consisting of predetermined time values applied to specific motions , predetermined from numerous tests under numerous conditions The values are preprinted on the M T S forms " See also the , Hickory' case supra, fn 2 'General Foreman Robinson admitted that "From time to time, [employees ] are talked to about their low production and the make-up pay we are giving them " Respondent's timestudy engineer (Smith) testified that at first he attempted a stopwatch timestudy of only the new annealing process; but, finding that he- could not accurately separate this from the whole arboring job, he decided to restudy the entire operation. Representing the Union at this timestudy were Chief Steward-Greenfield and Department Steward Peck (the observed operator), but Greenfield had to leave after Smith made some preliminary observations. General Foreman Robinson also was present. Smith testified that he began to time by his watch as the operator picked up a stem, and ran it until 79 arbors were completed by placing them in the rack. This took 20 93 minutes. He jotted down the time (seconds) it took to complete each arbor consecutively, noting ' such movements as getting more stems; changing trays, and removing cardboard. He then determined the seconds between each noted reading (the interval' between completions of arbors), and the total number completed in 3,600 seconds (I hour) and in 3,414 seconds (the-hour, less allowances for breaks, etc ) coming up with an expected production level- of 215 per hour based on Peck's performance. Smith further testified that in addition to timing the operation by stopwatch, he made a motion timestudy (MTS, supra, fn 5). First, he took the new motions and distances involved because of the annealer addition; i e., in picking up the stem, placing it on the annealer, removing it therefrom, and similar movements in handling' the button He then added 'the predetermined MTS values shown on the MTS form for "transports" (e.g , 25 seconds or quarter of a second for a 12-inch move, 30 seconds for an 18-inch move - the distance of the move measured by Smith), for' "gets" (e.g., l l seconds to "grab ahold of a stem at the table,") for "places" (e g., 26 seconds for placing a stem on an annealer), for "tolerances" (e.g., 10 'seconds "for time to find the hole" on the tray where the stem is put), and for "miscellaneous" moves (e g , fractions of seconds consumed for twists of hand, fingers, etc ) 8 To the aggregrate figure for the annealer operation (2 27 seconds) Smith added the time for completing the arboring operation without the annealer (13 57 seconds) as calculated by another Company engineer in 1959 (based on similar predetermined MTS values), to reach the conclusion that it took 15 84 seconds to complete one arbor, or 251 pieces to complete in one hour (3,414 seconds, - 3,600 seconds in an hour less allowances) According to Smith, the MTS study thus "confirmed" his stopwatch calculation that with "the addition 'of the annealer to the fob . [Peck] should be able to do 215 an hour." 3 The grievance against the new piece rate; Respondent's refusal to allow a Union timestudy to check on the accuracy of Respondent's timestudies On December 16, Peck filed a grievance (under article XIII of the collective agreement) "in protest of the time study,the Company has taken," asserting that the "new rate is unfair and impossible to meet" and asking that 'During the transitional period (early November to December 23), Mrs Peck was paid on the basis of her average hourly earnings (AHE) during the 2 weeks ending October 20 (her highest earning period) 'Smith testified that the predetermined MTS values set forth in the MTS form already account for such factors as fatigue , asserting that` these "figures [were ] arrived over many , many studies and calculations" as shown in a company manual 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "this time study be corrected immediately " Answering this, General Foreman Robinson maintained that the "new rate is in direct proportion to change in allowed time for the part of the job affected by the change in method " On January 16, 1969 (in the second step of the grievance procedure) the Union refiled the grievance At a subsequent meeting the Company "advised" the Union that its study of the job properly established the 215 per hour expected production level, asserting that "that, was the rate that we are going to go with " At Chief Steward Greenfield's request, Peck (the department, steward and affected employee) was allowed to copy the documents used by Company Timestudy Engineer Smith to arrive at the 215 figure, including his stopwatch and, MTS calculations ' The parties again discussed the grievance on March 4, 1969 - the Union represented at the meeting by Chief Steward Greenfield, the Local's three department stewards (including Peck), and the Local's president (Davis); and the Company represented by Personnel Manager Ruben, Timestudy Engineer, Smith, and another Company official When Greenfield was informed that Smith would answer questions pertaining to the timestudies, Greenfield asked to bring in International Representative Rmaldi, who had training and experience in this field,'" to which the Company agreed When Rmaldi joined the group and asked "how the rate had been arrived at," Ruben said that the Company had made MTS and stopwatch studies, offering him copies of these Rinaldi said," we` would like to make our own study of the job because these figures didn't mean anything to us since we weren't a party to the figures, we didn't know whether all the moves are there, also whether the times involved were checked and so on," adding that "evidently" there was "some problem with this rate" since Peck's earnings "were substantially higher" previously Ruben replied that Respondent was willing to discuss the study, to supply any information it could, and Smith was present to answer questions, but that "the Company's policy was not to allow an outside representative to come in the plant" to timestudy jobs Rinaldi then left, after asking for a copy of the Company's allowance sheet (reflecting special allowances for unavoidable delays, etc ), which .Ruben agreed to furnish (and did furnish) within a day or two. On the next day (March 5), the Union prepared and signed (and the following day filed) the unfair labor practice charges herein." On April I or 2, 1968, Smith made a second stopwatch study of the arboring job in the presence of Mrs Greenfield and Peck According to Smith, "this study showed that [Peck] should do at the time 214 an hour." Ruben so informed Mrs Greenfield and Peck at a meeting held on April 10, telling them that the outcome 'Based on the credited testimony of Personnel Manager Ruben '°Rmaldi had taken timestudy courses (including on MTS and stopwatch studies ) in two schools , he had also studied the MTS system at a General Electric facility None of the Union's employee officials (e g stewards) had similar training While disclaiming knowledge as to whether Chief Steward Greenfield "has had experience ," Personnel Manager Ruben recalled her remarking that she "had read a book or two on the subject " Peck had no training "whatsoever " Timestudy Engineer Smith testified that apart from formal instruction , he had been doing timestudies for 7 or 8 years Smith conceded that he "wouldn ' t expect" a person without training to be able to analyze his NITS findings , adding, however , that "they could [do so] with a small amount of training" and without personally seeing the operator perform The above findings are based largely on testimony of Rinaldi, in essential respects consistent with that of Ruben "was in line with the first study and there was no basis on which to change the rate " A dispute developed over whether or not the rate should have been based on an 8-hour or 7-1/2-hour day, the later favored by the Union. 13 B Conclusions The question presented is whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to allow the Union to conduct an on-the-job timestudy of the arboring operation Except for a brief time in October, the operator assigned to this operation (Mrs Peck) did not attain the expected production rate (220 units per hour). Although she had not been perialized for her low production (she was guaranteed the minimum earning for her job grade), she could be reprimanded and "talked to about the make-up pay," also, she could more readily make incentive pay with a' low expected production rate. On December 23, Respondent added the new annealing process to the arboring operation As a result of timestudies conducted by an experienced industrial engineer, Respondent set a new expected production rate of 215 units per hour - a drop of only 5 units to compensate for the added annealing process Peck thereupon filed a grievance, protesting that "this new rate is unfair and impossible to meet " In the second step of the grievance procedure, International 'Representative Rinaldi who had schooling and training in timestudies, asked "to make our own study of the job because these figures [in the Company timestudy sheets] didn't mean anything to us " Respondent denied the request because "the Company's policy was not to allow an outside [Union] representative to come in the plant " It did allow two employees - Peck as the operator and department steward and Greenfield as chief steward - to participate in and observe the Company studies, but neither had training and experience in this field In issue is whether Respondent's refusal to permit Rinaldi (or any other nonemployee Union expert) to conduct an independent timestudy - for purposes of verifying the accuracy of the studies used by Respondent in setting its revised piece rate, the subject of the grievance - was unlawful For the reasons stated below, I find that it was I The Supreme Court has stated that "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 " N L R B v Acme Industrial Co . 385 U S 432, 435-436 See also Timken, Roller Bearing Company v. N L R B, 325 F 2d 746, 750-751 (C.A 6) This "general obligation" includes the duty to allow the employees' statutory representative to make timestudies on employer premises when necessary to enable it to make an intelligent decision as to whether to initiate or process a grievance Fafnir Bearing Company v. N L R B, 362 F.2d 716, 720-722 (C A 2), Waycross Sportswear, Inc v. N L R B, 403 F.2d 832, 835-836 (C.A. 5), Hickory, supra, fn 2 The basic criterion for determining whether the employer breached this duty is whether the requested timestudy is relevant and reasonably necessary for the discharge by the Union of its representative role (ibid) Obviously, the duty to allow such union study no more obligates the employer to abide by its results than the duty of an employer to substantiate his claim of inability to pay a requested wage "The findings in the above paragraph are based on the testimony of Ruben and Smith GENERAL ELECTRIC COMPANY increase (N L R B v Truitt Mfg Co , 351 U S 149, 153) obligates him to the union's contentions in that regard It is clear, however, that a union timestudy could persuade the employer to modify a new rate unilaterally determined through the employer's own study Indeed, giving the union permission to observe-a company on-the-job study through a qualified observer might lead it to conclude that the employer's study was proper, obviating necessity for a separate union study "The ultimate goal. of, industrial peace, upon terms voluntarily accepted by both sides, may thus be achieved " P. R Mallory & Company, Inc v NLRB,422F.2d757(CA 7) 2 The above principles were recently given effect by the Board and Court of Appeals for the Fourth Circuit As noted, one of the issues in Hickory (supra, fn 2) involved the right of the union at Respondent's Hickory, North Carolina, plant to timestudy an operation which there also was the subject of a grievance There, as here, Respondent offered to show and explain to the union the pertinent timestudy data (in that case also movies of the disputed operation), but refused a union timestudy. (In addition, Respondent there also refused a union request to examine MTS' data.) In rejecting Respondent's defense that the propriety of its new standards and rates could be checked from the MTS data without on-the-job timestudies and that the Union's local representatives (employees) were qualified to make such check, the Court stated (71 LRRM at 2564) We think that there was substantial evidence to support the finding that in order intelligently to participate in the grievance procedures established by the contract the union should be given the opportunity to conduct independent time studies of production standards, have its expert inspect General Electric's time study data, and have its expert conduct independent evaluations by personal observation The Court pointed out that the record in Hickory established that it was impossible to tell "from the MTS alone whether the standards thereby prescribed would be fairly and equitably applied in a given case", that it was evident "that a' person analyzing MTS must make . subjective judgments", that it was "necessary . to observe the operator performing the work, noting significant interruptions in the work to determine if the employee was in fact meeting the General Electric standard", that if these steps were still insufficient it would be necessary to "undertake a stopwatch time study [which] would be of work elements and not of the several motion elements", and that "whether an operator can meet a standard by working at a normal pace is strictly a subjective determination, arrived at as a result of the engineer' s training and experience .`including courses in industrial psychology, physiology and various mechanical subjects " The Court pointed out that its conclusion "is fully in accord" with Fafnir Bearing Company v. N L R B, 362 F 2d 716 (C A 2), quoted with approval in N L R B v Acme Industrial Co , 385 U.S 432, 438, fn 8, "where, unlike,the present (Hickory) case, the company provided the union's time study engineer with its time study data, but refused to permit the union to conduct `live' studies for assessment and verification of the company's proposed piece rates " It then concluded (414-F 2d at 923) The only limitation on the scope of the Fafnir rule suggested in the opinion in that case is the caveat that each case requires a weighing of the union's need to make the studies balanced against any inconvenience which might be caused to the company in the process, 665 or the violation of any right of privacy that the company may possess In the case at bar, there is no serious suggestion that the studies in question would interfere with production, nor can we say that the prerogatives of management to the private conduct of its business should outweigh the union's demonstrated need to the information and inspections that it sought to enable it to administer its interest and the interest of its employees in and under the contract to which it had agreed In this connection, we are, of course, influenced by the strong public policy to make the grievance procedures established by the parties the means for accomplishing industrial peace. See, e g , United Steel Workers of America v. Warrior and Gulf Nav Co., 363 U S 574' (1960) Access to the information to make them fully effective is in the interest of an enlightened employer, as well as the union 3. As in Hickory, Respondent's MTS - set standards (with its built-in subjective factors and judgments) were utilized in establishing the new piece rate for the arboring operation. MTS (and to a lesser extent, a' stopwatch study) were the engineering techniques used in fixing the rate before the addition of the annealing process in December 1968. The annealing portion of the arboring, operation - which gave rise to the present dispute - was timestudied by stopwatch and verified by MTS I cannot accept Respondent's contention that the stopwatch technique is so simple a process that even an untutored rank-an-file factory employee could conduct and verify the results revealed by Respondent's expert industrial engineer " To begin with, even assuming, arguendo, that a stopwatch study is as simple and routine as depicted, it would appear that the Union was entitled to verify the stopwatch study by the allegedly more complicated and subjective MTS, as was done by Respondent. Furthermore, since the stopwatch study was made by a trained and experienced Company industrial engineer, the Union was entitled to rely on one equally knowledgeable to conduct its own study. More importantly, however, a stopwatch study is a recognized engineering timestudy technique, entrusted for good reasons not to factory hands but to skilled industrial engineers ' 4 Involved, as this case illustrates, is the computation of movements in split seconds and a high rate of speed Involved also is the capacity and power to observe accurately and record such matters as the pace with which the operator works, distance from machine, environmental factors, condition of machine and products, "unusual" occurrences, etc Even such "simple" things as how to record readings dexterously and when to release a watch stop are essential, not to say how to evaluate what-the analyst sees and to draw proper inferences and reject selected elements.15 To "According to Respondent "All that was done here was to run the watch, note the time if arbor was changed, note unusual things, and stop the watch at the end Any person observing could note the time of starting, the time of stopping, the number of pieces completed The only question would be whether the watch stopped at the time noted and if the count were correct The rest was pure arithmetic, and the sheet on which calculations were made was given to the Union " "See, e g , Mundel, Marvin E , Motion and Time Study, Principles and Practice (3d ed , Prentice Hall, Inc , 1960), 359-374 See also Fafnir Bearing Company. 146 NLRB 1582, 1593, enfd 362 F 2d 716 (C A 2), Tex-Tan Welhausen and Tex-Tan Western Leather Company, 172 NLRB No 93, fns 15 and 35 "See Mundel, op cit supra, -fn 14, at 371,372, where the author emphasizes the importance on the part of the stopwatch timestudy analyst "to watch constantly the performance of the operator to be sure that the time entries may represent valid performances of the elements," making appropriate notations for various occurrences - a "fumble" due to "lack 666 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD say, as Respondent suggests , that all that is involved is "pure arithmetic" is tantamount to saying, by way of analogy, that anyone with knowledge of arithmetic qualifies as an accountant . Even "arithmetic" of this type requires expertise . The fact is, as noted in Waycross Sportswear, Inc v. N L R B, 403 F 2d 832, 836 (C A 5), that "Time and motion studies are too sophisticated to be a matter left to the unskilled observation (and recollection ) of those [employees ] doing the work " "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 Company v N L R B ., 362 F 2d 716, 722 (C A 2), enfg. 146 NLRB 1582.16 That Respondent itself recognized this is attested by its entrusting the Company's stopwatch study to an engineer, an expert in this specialization , and trained to observe industrial operations from the standpoint of a professional engineer Cf. Tex-Tan Welhausen and Tex-Tan Western Leather Company, 172 NLRB No 93 I conclude that the Union-requested timestudy was relevant and reasonably necessary to intelligently evaluate the timestudy conducted by Respondent ' s expert. Unless permitted to obtain an informed opinion from an individual trained and experienced in timestudies - just as Respondent itself had done - the Union "would be forced to grope blindly through . the grievance procedure" (Curtiss-Wright Corp v. N L R B , 347 F 2d 61, 71 (C.A 3). See • also Fafnir, supra, 362 F 2d at 721-722 1 find that neither the Union's chief steward (Greenfield ) nor department steward (Peck ) - the two employees and local union representatives who were permitted to "observe " Respondent 's on-the-job studies - were qualified to observe , verify, or evaluate them " of operator skill" or something " inherent in the job," a "false movement," a personal movement such as scratching , "minor machine adjustment or repair," and "faulty work " due to' "low skill" or "poor material " The author cautions that the recorded time value of some "unusual occurrences" (e g , work improperly done ) must be "discarded so as not to influence the result, while others "inherent in the element" (e g , fumbling with tangled material ) should be allowed to remain in the study Still others, such as faulty material or a machine adjustment occurring at irregular intervals, "should be evaluated separately and added to the final time standard in proportion to its rate of occurrence " Finally, the author stresses the importance of using a "representative or reliable sample"' iii the test which , for good results, should "be mathematically determined" by certain enumerated formulae (td at 363-370) "The Fafnir case involved stopwatch timestudies See 146 NLRB at 1593. and Hickory (TXD), fn 12 "Cf Wrought Washer Mfg Co, 171 NLRB No 85 As previously noted, International Representative Rinaldi, who had timestudy training and know-how , was not an employee of Respondent and under Company policy was barred from conducting on-the-job timestudies Under the circumstances , I do not credit or accept the opinion elicited from Respondent's "Time Standard Specialist for the Lamp Department" (Webster ) that any "qualified" timestudy man could without seeing the operator perform the job and personally timestudying it, evaluate the accuracy of the Company expert's timestudy, provided there were made available to him Respondent's computations and data (MTS and' stopwatch sheets ), the materials used in-the arboring operation (stem and button ), and the operator for questioning Furthermore , Webster admitted that in the case of the stopwatch study he "would have to assume" the' correctness of the "raw data" supplied him, indicating that such data may not accurately reflect "when the watch stopped, was it stopped-when this' says it was , and was the count of the number of pieces correct" - matters which he would not be in a position to gauge unless he himself timed the job Noting that the operator studied in this case (Peck ) showed a wide and varied range of speed (from a low of 18 to a high of 34 - and in one case 47 ) in completing arboring operations , Webster admitted that this, could be accounted for by such factors as "mistake" in recording , quality of product worked on, and fatigue ,' he' insisted , however, that the ultimate result reached ( i e , that 215 units could be produced ) was based on the 4 Respondent contends ' that it "was justified in not acceding" to the Union's timestudy demand on the ground that that demand was "not made in good faith," asserting that it "was obviously made hastily and without any effort to determine the Union's real need, if any, or even to really determine its relevancy." In support of its contention it claims that International Representative Rinaldi never availed himself of the opportunity given him to study the Company's timestudy materials and, indeed, that he never even saw the stopwatch study papers, that the Union "made no real attempt . . to seek any real or meaningful discussion of the data", and that Rinaldi did not even question in depth the grievant (Peck) concerning the job According to Respondent, Rinaldi, without taking "advantage of the • .. material and extensive possibilities open to him" "summarily" demanded access on the "erroneous assumptions that the study was M T S and that Mrs Peck had indeed lost earnings" as a result of the changed rate To begin with, the record establishes that prior to Rinaldi's March 4 timestudy demand, Rinaldi did discuss the subject with Peck and that this indeed was "the most outstanding" item taken up at a Union meeting While Rinaldi apparently saw only a copy of the MTS (before the March 4 meeting with management), it is clear that he knew that Respondent's timestudy expert (Smith) also used a stopwatch study, Personnel Manager Ruben having advised him of this at the March 4 meeting. The Union's basic position, as Rmaldi testified, was that Respondent's data "didn't mean anything to us since we weren't a party to the figures " As Rinaldi further testified, "I could not intelligently process the grievance unless I made a study myself to see whether the information provided to me was correct." -Under the circumstances, Rinaldi (according to Respondent, "a schooled timestudy man") could reasonably conclude that a survey of Respondent's data would have been futile and meaningless without a live-job study. Furthermore, there is no evidence that Respondent's representatives exerted , any effort to persuade Rmaldi or the Union that a live study was unnecessary nor that it undertook to demonstrate that its expert's survey was adequate to enable the Union to evaluate the appropriateness of the revised piece rate Respondent met Rinaldi's timestudy demand with the flat assertion that "the Company's policy was not to allow an outside representative to come in the plant to make a time study," demonstrating thereby that its primary concern was to vindicate naked property rights, rather than to acquaint the Union with the facts 18 5. Respondent also contends (br 10-13) that, in any event, under the "present posture" of the record the correctness of its timestudy is no longer in issue, and accordingly, that the Union's right, to make a like study "vanishes " This contention is predicated on the claim that the original question raised by the grievance turned on the ability of-the operator (Peck) to attain the new rate and on the assumption that she was losing money. However, according'ito Respondent (br. 11) the record average of the readings which tended to minimize atypical factors (But cf Mundel, op cit supra, fns 14 and 15 ) Webster's testimony nonetheless corroborates , in part, the testimony of Rmaldi (who, as noted , had training in timestudies) that he could not determine whether or not Respondent's timestudies were accurate by merely examining a set of figures without also personally observing the job "At the hearing, Respondent adduced no evidence , nor even claimed, that a Union-conducted timestudy would disrupt production or impose an unreasonable burden Its engineer's (Smith) stopwatch study (79 cycles) was completed in 2093 minutes GENERAL ELECTRIC COMPANY 667 shows that "[a]side from 6 days in October, when, for the first time, the grievant worked to her `fullest capacity,' she averaged roughly the same number of units per hour before the change as she did afterward " I do not agree. Mrs. Peck's production record shows no consistent pattern before and after the new piece rate was put into effect (December 23). She had averaged considerably less than the dxpected production rate of 220 per hour `before the addition of the new annealer (having 'concentrated at that time on quality at the expense of production) She averaged a much higher figure (300 units) for a brief period in October - still before the annealer was added She reverted to a lower average (higher, however than the pre-October average) before the annealer was added on, December 23 Her production from December 23 to April 10 (the last date available) exceeded the revised production rate (215 units) on only three dates January 3, 6, and 7 Under these circumstances, I cannot accept Respondent's premise (br 13) that "[s]ince the basis for the claim is gone, the relevance of a union time study vanishes "" ` 6 Finally, Respondent contends (br 28-36) that the Union "waived any right it might otherwise have to make time studies of- piecework jobs by nonemployees," by virtue of two clauses in the collective agreement Section 4(e) of article VI ("Wage Rates") provides that when a Company representative makes a timestudy of , any piecework job, the employee and his steward "will be notified and advised of its purpose " It further provides that "where the piece -price is in dispute between the Company and the Local, and is scheduled to be retimed, the Steward may be present during this retiming and observe the' conditions under which it is made "20 Section 2(b)(2) of article XIII ("Grievance Procedure") provides for "an' inspection of the job" by Union representatives at step '2 of the grievance "where it is mutually agreed" that an inspection "would be helpful" in resolving the grievance 21 The law governing the "waiver" of statutory rights, including the right to information through timestudies in connection with processing grievances (supra, sec. B, 1), is well settled. In Hickory, where Respondent 'raised, and the Board and the Court rejected, an identical waiver contention (based on Respondent's' reliance on the two clauses here involved), the Court emphasized that "only clear and unmistakable language will warrant a conclusion that waiver was intended [citing cases] " 414 F 2d at 923 See also Timken Roller Bearing Company 'v. N L R B 325 F.2d 746, 751 (C A 6) It must appear that "the "Moreover , assuming, as Respondent suggests (but did not prove), that Peck could , if so disposed, presently produce as many as 215 units,' this ignores the possibility that she could be making additional (incentive) earnings if the production rate were reduced "The full text of sec 4(e), art VI, is "When a Company representative makes a time study of any job, the employee and his Steward will be notified and advised of its purpose On jobs where the piece price is in dispute between the Company and the Local, and is scheduled to be retimed, the Steward may be present during this retiming and observe the conditions under which it is made If the Steward requests , the Foreman will explain to him the data used in making up the piece price from the time study and/or applicable tables " "The full text of sec , 2(b)(2), art X111, is "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 inspection of the job would be helpful in settling the case, a subcommittee of the Local with Management - representatives 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 Union knowingly waived" its interest in - the matter. N L R B. v. Gulf Atlantic Warehouse Co., 291 F 2d 475, 477 (C.A 5) "Silence in the bargaining agreement on such an issue does not meet this test " Timkin Roller, supra, 325 F 2d at 751. See also Fafnir Bearing Company v. N L R B, 362 F 2d 716, 722 (C A. 2) Nor does the "fact that the Union attempted unsuccessfully to include in its contracts a statement of its statutory right evidence that the Union waived its statutory right . Hickory (Board Decision), quoting from Cloverleaf Division of Adams Dairy Co, 147 NLRB 1410, 1413. The "general philosophy of the Act and the general desirability of joint participation and responsibility suggest that any ' . reservations of power, [by an employer respecting bargaining matters] must be clearly described and delimited in the contract." (N L R B v Otis Elevator Co, 208 F 2d 176, 178-179 (C.A. 2) ) As indicated (supra, sec A, 1), the national agreement which covers the Hickory plant also covers the plant involved in this case and, by the same token, the collective-bargaining history considered in Hickory is applicable here (indeed, that history was physically incorporated in this record). In Hickory, the Board and Court found that section 4(e) of article VI did not amount to a waiver of the Union's statutory right to in-plant timestudies since that section by its terms related to pieceworkers and not to the. hourly paid (daywork) employees involved in Hickory As to section 2(b)(2) of article XII1, the Board and the Court rejected Respondent's waiver defense on the ground that neither its language nor bargaining history supported a finding of waiver Thus, the Board stated. This second step joint inspection of the job [referred to in sec 2(b)(2)] 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 determine upon future action [D]uring the 1966 negotiations the Union unsuccessfully proposed ,a revision of 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 'continuously 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 negotiations 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 committee, which committee alone had the power to commit the parties , At that meeting . the Union's chief counsel, contested Respondent's contention that the Union did not have the right to make timestudies, citing the Fafnir Bearing case JsupraJ as controlling on the issue. (Footnotes omitted ) The Court agreed, stating (4l4 ' F 2d 923), "Clearly the union did not consciously yield, or , clearly and unmistakably waive, its interest in the matter The mere fact that it executed a contract which did not include its request for a contractual guarantee of its statutory rights did not constitute an effective waiver of them. Timken Roller Bearing Co v. N L R B, supra " 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Respondent's basic position is that here, unlike Hickory, section 4(e) of article V I does control, since here the disputed job (Peck's arboring operation) involved piecework expressly covered by that section. It argues that because this provision names only the steward as the Union official who "may be present during the retiming" of a disputed job, it necessarily follows that other Union representatives (nonemployees) are excluded from observing or timestudying the job As did the Board and Court in Hickory, I find that section 4(e) of article V I does not govern the Union-requested timestudy here in question Section 4(e) is an integral part' of an article entitled "Wage Rates " That article sets out a comprehensive scheme for setting and handling rates and prices for all workers - hourly paid, piecework, and salaried It deals with the furnishing of information (sec. 2) concerning job classifications, progression schedules, and price adjustments As Respondent itself puts it (br. 37), section 4(e) "provides only for notice of normal time studies " (emphasis supplied) If retiming is necessary "the steward may be present during this retiming and observe the conditions under which it is made " If the steward requests it, he may also obtain an explanation from the foreman of "the data used in making up the piece price from the time study and/or applicable tables." However, section 4(e) does not purport to cover the Union's or grievant's right to information, including timestudies needed in connection with the processing of a grievance Nor does it preclude resort to an expert when required It is the "Grievance Procedure" article (XIII) which comes into play when a grievance is filed That article applies to the processing of formal grievances by any and all employees covered by the collective agreement (piecework, hourly-paid, salaried employees) and prescribes their rights and obligations thereunder It is under this article that the Union sought a timestudy to evaluate Peck's grievance The only provision in that article which is claimed to defeat the Union's right to the timestudy (sec 2(b)(2)) already was held by the Board and Court "not [to] constitute a waiver" (414 F 2d at 923) As found (supra, sec B, 3), the requested timestudy was relevant and necessary to appraise intelligently the appropriateness of Respondent's new rate Without such study it would be difficult, if not impossible, for the statutory representative to decide whether the grievant (Peck) had a valid complaint which should be pressed in further negotiations and pursued to arbitration 22 As in Fafnir Bearing, supra, 362 F 2d at 722 (C.A 2), "if the Company-Union grievance machinery was to work smoothly, it was essential that the Union obtain the information necessary for 'a considered judgement " See also P R Mallory and Company, Inc v N L R B, 422 F.2d 757 (C.A. 7) The Union "would be forced to grope blindly through the stages of the grievance procedure unless adequate information were preliminarily available " (Curtiss- Wright Corp v N L R B, 347 F.2d 61, 71 (C A 3)) This obviously would frustrate the statutory objective of promoting industrial peace by encouraging the authorization of contract procedures for the resolution of labor disputes Accordingly, I find that the Union did not waive its statutory right to perform an independent timestudy in connection with the processing of Peck's grievance I find and conclude that by refusing to permit the Union access "As noted in Hickory, the operative collective agreement provides for "voluntary arbitration" of grievances arising out of the establishment of production standards (414 F 2d 919 ) to the plant to make such timestudy for the purposes indicated,, Respondent violated Section 8(a)(5) and (I) of the Act. CONCLUSIONS OF LAW I By refusing to permit the Union , ` through its International Representative or other designated qualified agent, to enter its plant for the purpose of conducting a timestudy relevant and necessary to the processing of a grievance, Respondent has refused to bargain with the Union within the meaning of Section 8(a)(5) and ( 1) of the Act 2 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that at cease and desist therefrom and that it take certain affirmative action necessary to ^ repair and 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 (Ohio Lamp 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, as the statutory bargaining representative of the production and maintenance employees at its Warren , Ohio, Lamp Plant, by refusing to permit the Union through its International Representative or other expert of its own choosing , to enter and be present in Respondent's , plant for the purpose of conducting timestudies relevant or necessary to the processing of employee grievances or complaints. (b) In any like or related manner interfering with the efforts of the Union to bargain collectively with it on behalf of the production and maintenance employees at its Warren, Ohio , Lamp Plant. 2. Take the following affirmative action necessary to effectuate the policies of the act (a) Upon request , permit the Union, through its International Representative or other expert of its own choosing , to enter and be present in Respondent ' s Warren, Ohio, Lamp Plant, for the purpose of making timestudies relevant and necessary to the processing of employee grievances or complaints. (b) Post at its Warren, Ohio, Lamp Plant, copies of the attached notice marked "Appendix " 23 Copies of said notice, on forms provided by the Regional Director for. Region 8, after being duly signed by Respondent's authorized 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. "In the event that this Recommended Order is adopted by the Board, GENERAL ELECTRIC COMPANY 669 (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 21 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 Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "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 Respondent has taken to comply herewith " employees at our Warren, Ohio, Lamp Plant, by permitting the Union, through its International Representative or other expert of its own choosing, to enter and remain in our plant for the purpose of conducting timestudies relevant or necessary to the processing of employee grievances or complaints. 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. 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 bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, as the statutory bargaining representative of our production and, maintenance Dated By GENERAL ELECTRIC COMPANY (OHIO LAMP PLANT) (Employer) (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 directly with the Board's Regional Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715