Aeolian Corp.

National Labor Relations Board - Board Decisions

Feb 20, 1980

247 N.L.R.B. 1231 (N.L.R.B. 1980)

AEOLIAN CORPORATION
Aeolian Corporation, Ivers & Pond Piano Division
and Local 282, United Furniture Workers of
America, AFL-CIO. Case 26-CA-7498
February 20, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 14, 1979, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.2
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 Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Aeoli-
an Corporation, Ivers & Pond Piano Division, Mem-
phis, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc.. 91 NLRB 544
(1950), enfd. IS8 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings. In adopting the
Administrative Law Judge's Decision we do not find it necessary to rely on
her statement in sec. II C, par. 8, that a finding of undue delay is further
supported by the fact that Respondent knew that the requested information
related to the pending arbitration proceeding, which Respondent would have
a motive to assist or to handicap.
' We lall modify the Administrative Law Judge's recommended Order and
notice to include the appropriate cease-and-desist language utilized by the
Board.
247 NLRB No. 170
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportuni-
ty to present evidence and cross-examine witnesses, it
has been decided that we violated the law in certain
ways. We have been ordered to post this notice. We
intend to carry out the Order of the Board and abide
by the following.
WE WILL NOT unduly delay in complying with
the requests of Local 282, United Furniture
Workers of America, AFL-CIO, for information
relevant to the Union's representation of the
following unit for collective-bargaining purposes:
All production and maintenance employees,
including over-the-road drivers and helpers,
employed by us at our Memphis, Tennessee,
location, excluding office clerical employees,
professional and technical employees, watch-
men, guards and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
AEOLIAN CORPORATION, IVERS & POND
PIANO DIVISION
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard in Memphis, Tennessee, on March 6 and 7,
1979, pursuant to a charge filed on November 13, 1978, and
amended on December 12, 1978, and a complaint issued on
December 22, 1978. The question presented is whether
Respondent, Aeolian Corporation, Ivers & Pond Piano
Division, violated Section 8(aX5) and (1) of the National
Labor Relations Act, as amended (the Act), by unreasonably
delay in providing Local 282, United Furniture Workers of
America, AFL-CIO (the Union), with information neces-
sary and relevant to the processing of grievances.
Upon the entire record in the case, including the demea-
nor of the witnesses, and after due consideration of the briefs
filed by Respondent and by counsel for the General Counsel
(the General Counsel), I hereby make the following:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Memphis, Tennessee, where it manufactures
pianos. During the year preceding the issuance of the
complaint, Respondent purchased and received, at its
Memphis location, products valued at more than $50,000
directly from points located outside Tennessee and sold and
shipped, from its Memphis location, products valued at
more than $50,000 directly to points located outside Tennes-
see. I find that, as Respondent concedes, Respondent is
engaged in commerce within the meaning of the Act, and
that exercise of jurisdiction over its operations will effectuate
the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The collective-bargaining agreements
At all relevant times herein, the Union has been the
statutory representative of an admittedly appropriate unit of
Respondent's production and maintenance employees, de-
scribed infra in Conclusions of Law 3. The Union and
Respondent were parties to a collective-bargaining agree-
ment effective from April 1974 to April 1977 and to a
second agreement effective from April 1977 to April 1980.
Unless otherwise indicated, both contracts were the same for
all purposes relevant here. Both contracts contained a
grievance and arbitration procedure. Also, in both contracts
Respondent undertook "to furnish to the Union as complete
a time study as the Company may then have on any specific
job or operation upon request of the Local Union Business
Representative . . . if such study is necessary in connection
with any matter involving an employee of the Company."
Industrial engineer Donald H. Parker, who has represent-
ed the Union in grievance proceedings since at least 1973,
testified without contradiction that in practice the parties
had interpreted this provision so as to permit the Union to
copy the complete time study in longhand. Fritz Anschutz,
who since 1965 has been Respondent's personnel director
with functions which include representing Respondent in
grievance proceedings, testified without contradiction that
throughout his tenure as personnel director Respondent had
not given the Union, or permitted it to make, photocopies of
the standards.'
' My findings as to Anschutz' title and functions are based on his testimony;
on his spring 1977 execution, on Respondent's behalf, of a settlement of about
12 grievances; and on the fact that he signed, on Respondent's behalf, both the
April 1974 and the April 1977 bargaining agreements. Respondent's answer
admits that he was a supervisor, but denies that he was Respondent's
personnel and industrial relations director and Respondnet's agent. I find that
Anschutz has been Respondent's agent at all material times. Indeed.
Respondent's brief does not contend otherwise.
2. The 1976 grievances
a. The Hayslett and Campbell grievances
On January 22, 1976, employee Leo Hayslett filed a
grievance alleging that Respondent had violated the contract
by reducing the piece rate for his job after Respondent had
restudied his job and asking for reinstatement of the original
rate plus backpay. Prior to a grievance meeting scheduled
for February 2, 1976, Union President Willie Rudd asked
Personnel Director Anschutz to have available at that
meeting copies of both the old timestudy and the new
timestudy. Anschutz said to Rudd, "OK, I hear you."
The Union's representatives at that meeting were Rudd
and Parker, an industrial engineer with an MTM (method
time in motion) certificate. The Union asked Respondent for
"information of time study rates old and new" and for
photocopies of the old and the new timestudies. Respondent
advised the Union that it could not have a photocopy of
these studies, but that Respondent's timestudy engineer,
Jerry Middlebrook, was at the meeting to explain what had
been done about changing the rate. Middlebrook then tried
to give the union representatives copies of the old study and
the new study. Anschutz told Middlebrook that Anschutz
did not want him to give the Union a copy, but only wanted
him the explain it to the Union. Middlerbrook asked why
the Union could not have a copy to look at. Anschutz said
that it was company policy not to allow the Union to see
timestudy information. At this point Middlebrook sat in a
chair across the room, 6 or 7 feet from the union representa-
tives, and attempted to explain to them the contents of these
timestudies. The union representatives were unable to
formulate any idea or any opinion because they had nothing
to look at and to keep up with. Also during this meeting the
Union requested that Parker be given the right to do an on-
the-job study. Respondent refused. As soon as this meeting
was over, AnscIqtz wrote on the back of the document, "2-
2-76 [No Agreement in 2nd Step] Fritz." Immediately after
making this entry, Anschutz gave the document to Parker,
who wrote in Anschutz' presence, "Request information on
this standard was refused" and returned the document to
Respondent. Anschutz made no comment to Parker at the
time.
On February 4, 1976, the parties held another meeting on
the grievance. The Union asked Respondent for leave to
make photocopies of the old and the new timestudies and
also for leave to have the Union's industrial engineer
perform an on-the-job study. Respondent's engineer took
Respondent's timestudies in his hand and explained them to
the Union, but did not permit the Union to examine them.
Respondent refused to permit the union engineer to perform
an on-the-job study.2 At the conclusion of this meeting,
My findings in this paragraph up to this point are based on a composite of
credible portions of Parker's and Rudd's testimonies. For demeanor reasons,
in view of the uncontradicted testimony regarding Respondent's prior
February 2 refusal to show the Union the timestudies and in view of
Respondent's failure to reply to Rudd's subsequent February 19 letter asking
for a job study by the union engineer and for a copy of the old and new
standards, I discredit Anschutz' testimony that on February 4 Respondent's
1232
AEOLIAN CORPORATION
Anschutz entered on the back of the grievance, and he and
Parker signed the entry "No Agreement in 3rd Step."'
By letter to Anschutz dated February 19, 1976, and
captioned "Employee Grievances/Rate Changes and Bad
Rates," Rudd stated that in "our recent conversation [my]
verbal request for a copy of the old and new standards was
verbally denied by you." The letter requested a "copy of
every rate in question (old and new)" and a "job study by the
union engineer of all past, current, and future rates that will
be questioned by the employees." A courtesy copy of this
letter was sent to Respondent's attorney, Fletcher Hudson.
Rudd never received a response to this letter.
Meanwhile, on February 10, 1976, employee Vickie
Campbell filed a grievance alleging violation as to her job of
a contractual provision forbidding changes in existing
incentive rates or in rates established during the contract
term "unless the operation is changed by more than 3
percent, in which case the incentive rate will be changed to
reflect the change in the operation." The grievance alleged
that Respondent had restudied her job and had reduced the
piecework rate of her job, thereby effecting a reduction of
her earnings. The grievance asked for reinstatement of the
original rate plus backpay.
On February 26, 1976, Rudd, Parker, and Anschutz met
with regard to Campbell's and Hayslett's grievances. The
union representatives asked for old and new timestudies
made by Respondent. Middlebrook tried to give them
copies, but Anschutz stopped him and told him that he was
there to explain the studies to the Union. Middlebrook then
pulled back the documents, sat down on the side of the room
opposite to the side where the union representatives were
sitting, and explained the documents to the union represen-
tatives, without showing them the documents. In addition,
Anschutz refused the Union's request to permit it to study
the job.
My findings in the foregoing paragraph are based on
Rudd's and Parker's testimonies. Anschutz testified that a
copy of "the" or "a" timestudy was shown to Parker at this
meeting, that Parker reviewed it and requested a photocopy,
and that Respondent refused. Anschutz further testified that
on February 26 he wrote a memorandum, not claimed to
have been shown to the Union, regarding the meeting that
day. Although this memorandum states that the Union "was
told they could see time study . . . was able to look," it does
not specifically aver (as did Anschutz in his testimony) that
the Union in fact examined this material. Rather, the
memorandum states (although Anschutz did not testify) that
Parker said "he wasn't interested in any further discussion
unless he could have copies of time studies." In view of these
industrial engineer put the timestudies in front of Parker and explained them
to him, but Parker said that he was not interested in seeing them and only
wanted a photocopy. Cf infro. fn. 3.
'This entry is dated " 4-2-76." Unlike the General Counsel, I read this as
February 4, 1976. Anschutz speaks excellent English, hut with a slight foreign
accent. I conclude that, in making this entry, he reverted to the European
practice of specifying the day before the month.
Attached to the Hayslett grievance is a memorandum which is in Anschutz'
handwriting and which, according to his testimony, was written on the date it
bears-namely, February 4, 1976. This memorandum contains the rather
curious statement that the Union "was shown" the old and new studies and
was told that it "could see a copy only." This document contains the further
assertion, at the end and with a different pen, that the Union "was told the
time study engineer would explain any part of the time study they wanted to
discrepancies between Anschutz' testimony and his allegedly
contemporaneous memorandum,' the uncontradicted testi-
mony (discussed infra ) about Rudd's subsequent conversa-
tions with Company Attorney Hudson, and for demeanor
reasons, I credit Rudd and Parker and discredit Anschutz.
Further, I credit Parker's testimony that during this meeting
he did not indicate that he would not look at the timestudies
if they were offered to them or tell Anschutz that, if he did
not get a photocopy of the timestudies, he had no interest in
discussing the matter any further and would just kick it on
to arbitration.
After this meeting, Rudd told Company Attorney Hudson
by telephone what information the Union had asked for
regarding the old and new timestudy rates and also related
the Union's request for the right to study the job. Rudd said
that this information was very valuable to the Union in order
to determine whether there was justification for the wage
cuts being grieved about. Hudson said that he saw nothing
wrong with the requests, and that he would call Respondent
and see if it would comply with them. Later Hudson
telephoned Rudd that Respondent's officials had told him
that they were afraid that the information would fall into the
hands of their competitors and had further told him that
Anschutz had so advised the Union at previous meetings.
Thereafter, on March 31, 1976, the Union filed against
Respondent a charge docketed as Case 26-CA-6075. The
charge alleged a "verbal request" by the Union for "bargain-
ing information" on February 2, 4, and 26 a written request
by the Union for "information to represent the employees"
on February 19 and a company violation of Section 8(a)(5)
and (1) by refusing to supply "information necessary to
represent employees in the bargaining unit." About April 14,
1976, Board Agent Coleman Garrett telephoned Rudd that
Garrett had received a letter from Company Attorney
Hudson stating that Respondent would comply with the
Union's request for the timestudy information and to time
study the job. Garrett suggested that Rudd withdraw the
charge. Rudd's request for such withdrawal was approved
by the Regional Director on April 22, 1976, and by letter
dated the same day Respondent was advised of such
approval.
For several weeks thereafter, the Union did not renew its
efforts to review the timestudies on Hayslett's and Camp-
bell's jobs or to conduct its own timestudies of such jobs.
About mid-May 1976, union representative Parker advised
Rudd that during a grievance meeting Parker had asked
then Plant Superintendent Don Farris and then Plant
Manager Ernie Brazer for this material and that Brazer and
Farris had told Parker that they had been informed by
know about": unlike Anschutz' testimony, the document contains no
assertion that such an explanation was actually given. Also attached to the
grievance is a card which appears to be in Anschutz' handwriting, but about
which he gave no testimony. The card, which is dated "8:30 A.M. 2-3-7t."
states that Parker had been told that Respondent would be running the
grieved job "all day the above date" and Parker had been "unable to take
study." It is undenied that on February 2 and 4 Respondent refused to let
Parker conduct timestudies I regard these documents as insufficient to
warrant discrediting Rudd's and Parker's testimonies or crediting Anschutz
about the February 4 meeting. No contention is made that either document
was shown to the Union.
' Like Anschutz' Hayslett memorandum ( supra. fn. 3. the end of the
Campbell memorandum contains entries made with a different pen.
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anschutz that because Respondent had "won" the charges
they did not have to supply the Union with any information
or allow the Union to do any timestudy. After receiving this
report from Parker, Rudd telephoned Anschutz and asked
him about Brazer's and Farris' alleged remarks. Anschutz
stated that he did not know what Rudd was talking about,
and that Anschutz had not made any such statements to the
effect that Respondent had won the charges. Rudd said that
the charges had been withdrawn because the Union had
received a letter from Respondent's attorney stating that the
information would be supplied, and the request would be
complied with. Anschutz said that he knew nothing about
that letter or the letter that had been sent to the National
Labor Relations Board. Rudd then telephoned Hudson and
informed him of the situation. Hudson said that such a letter
had been sent with Respondent's consent and said that he
would call Anschutz and see that the matter was straight-
ened out. Later Hudson telephoned Rudd that the matter
was straightened out, and the request to review the old and
the new standards would be complied with. Hudson said
that the only stipulation was that the Union could not carry
the information away from the plant, and that Respondent
would make a place available for the Union there in the
plant to examine the information the Union had requested.
Rudd voiced no objection to this procedure. Later events in
this connection are summarized infra, part 11,A, 2,c.
b. The buss-planer grievance
Attached to each incentive job in the plant is an hourly
"base rate" established by job evaluation. Each employee
who performs that particular job receives at least the "base
rate" attached to that job, no matter how low his produc-
tion. Also attached to each incentive job is an incentive rate
which is determined largely on the basis of timestudies. The
1974-77 contract required that such incentive rates be
established so that a person of average skill for the job could
earn at least 25 percent above his base rate. In connection
with administering the foregoing contractual provisions,
Respondent's industrial engineering department determines
a time allowance for producing each piece, and then, using
the relevant hourly base rate, mathematically attaches a
money allowance to each piece. This money allowance is
sometimes referred to in the record as the "posted rate" or
"standard."
Respondent's five buss-planer employees function as a
production team. Each employee on the team has a different
job description, except that the team includes two off-
bearers. Before April 23, 1976, Respondent paid each of the
buss-planer employees 85 percent of standard, except that
the setup man received 100 percent of standard. The 1974-
77 collective-bargaining agreement called for a wage increase
of 20 cents per hour for all employees, effective April 23,
1976. On a date between April 23 and May 13, 1976,
Respondent notified the Union and the buss-planer employ-
ees that Respondent was going to pay all such employees 100
percent of standard. Because the 20-cent hourly increase
would likely have increased the buss-planer employees'
paychecks anyway, and because these employees' pay was
affected by constant variations in their production, the
Union was not sure whether the buss planers were in fact
being paid the 100 percent of standard which Respondent
had promised. On May 13, 1976, employee Elvis Cochran
filed a grievance on behalf of himself and three others in the
buss-planer group. Under "Nature of Grievance" he entered
"Rate not right"; under "Settlement Desired," he entered,
"Feel like underpaid, backpay."
On June 1, 1976, Parker and Chief Steward Moore met
with Anschutz in his office on the second step of Cochran's
buss-planer grievance. Parker asked Anschutz to provide the
Union with the buss-planer timestudies in order to enable
the Union to determine whether the employees were being
paid, as Respondent said they were, at 100 percent of "the
time" or were still being paid at 85 percent of "the time."
Respondent replied that it had no timestudies. Anschutz
gave Parker a table dated April 23, 1975 (before the 20-cent
raise), and a table dated April 23, 1976 (the effective date of
the 20-cent raise). These tables set forth the money allow-
ance per 100 pieces for pieces of various dimensions. At the
top of the 1975 table is a handwritten entry "106%." The
record fails to show when or by whom this entry was made.
Each dollars-and-oents figure on the 1976 table is 106
percent of the corresponding figure on the 1975 table,
corrected to the nearest cent. Parker told Anschutz that
these documents were not what the Union needed, that all
the Union could tell from them was the contract raise, and
that the Union needed the timestudies that determined the
time back of those rates of pay. Thereafter, Parker reported
these events to Rudd.
c. The Union's continued failure to obtain information
related to the Hayslett and Campbell grievances
Shortly after receiving this report from Parker, Rudd
received a call from Company Attorney Donna Fisher,
Hudson's assistant, about scheduling hearings for the Camp-
bell grievance, the Hayslett grievance, and another griev-
ance. Rudd told her that the Union had not received the
information necessary to go forward with these grievances
that Parker had recently told him that the Union had been
denied like information and that if the Union did not receive
the information Rudd would file another charge with the
Board. Fisher said that she could understand that this
information was important, and she said that she would call
Respondent and see that it was supplied. Later Fisher
telephoned Rudd that Anschutz had agreed to "make this
information available to [the Union], in other words, to
comply with the request." She told Rudd that he could call
Anschutz, check the matter out, and set up dates. Rudd then
telephoned Anschutz and tried to set up a date and time
when the Union and Respondent "could get together to
review this information and to carry out the request that we
had made as far as doing time studies and et cetera."
Anschutz said that he did not know where Fisher had got
her information, that Respondent was not going to supply
any timestudy information, and that the Union was not
going to do any timestudies.
There is no evidence that the Union thereafter asked
Respondent to show it the timestudies on the Hayslett and
Campbell jobs or for permission to study these jobs. Rudd
testified that he could not recall ever receiving this informa-
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AEOLIAN CORPORATION
tion, that he could not recall whether these grievances were
dropped, and that he did not recall their going to arbitration.
d. Respondent's actions in response to the Union's
request for information relating to the buss-planer
grievance
About mid-June 1976, Parker met with Anschutz in a
third-step meeting on the Cochran grievance relating to the
buss planers. Anschutz gave Parker a second set of copies of
the tables which Anschutz had given Parker on June 1.
Parker said that these were not what the Union needed to
determine whether it had a grievance. Anschutz said that
they were all the Union needed.
Thereafter, on June 24, 1976, the Union filed a charge
against Respondent, docketed as Case 26-CA-6211, which
contained the same allegations as the Union's withdrawn
March charge in Case 26-CA-6075. A Board agent then
told Parker that Respondent was going to give the Union a
complete time standard. At the Board agent's suggestion, the
Union withdrew the charge, whose withdrawal was ap-
proved by the Regional Director on July 26, 1976.
Thereafter Anschutz gave Parker a set of documents
relating to the buss-planer operation, which documents
included another set of the tables given Parker on June I and
in mid-June but which did not include a complete time
standard.' After examining these documents, Parker told
Anschutz that they were not what he had requested, that the
Union had withdrawn the charge on the Board agent's word
that the Union was going to get a complete time standard,
and that the Union needed it in order to determine if the
Union had any kind of a grievance. Anschutz said that he
knew nothing about it and referred Parker to Plant Superin-
tendent Charles Threadgill. Parker told Threadgill that the
Union had withdrawn the charge based on the fact that the
Union was going to get a complete time standard, which the
Union had not received Threadgill said that he was not sure
there were any timestudies, because Respondent's president
had got the standards from another firm, but Threadgill said
that he would look and see if he could find some timestudies.
Parker said that he was in a hurry for them and asked
Threadgill to please call him back. Threadgill did call back
and set up a meeting with Parker on September 15, 1976.
At this meeting, Threadgill said that Respondent had no
timestudies at all. He gave Parker a one-page document with
a 1970 date. The subject of this document was the arithmetic
process of figuring out a piece rate from a known base rate
and a known time standard but in giving examples of how to
do this the document stated that 12 minutes were allowed
for buss-planing 100 pieces of specified dimensions. Thread-
gill said that all the other "times" on the "summary chart"
(inferentially, the tables repeatedly given the Union) had
been developed from this single 12 minutes. Parker and
Threadgill agreed that the "times" for all pieces with
dimensions other than those specified on this 1970 document
must have been arithmetically developed by projecting the
' In addition to the tables, the documents consisted of: (I) an example of the
daily time tickets showing how to compute "bonus'" at 100 percent for the
setup man and 85 percent for all other buss planers; (2) a covering
memorandum to management from Leon Dodson. one of Respondent's
industrial engineers, which is dated April 1970 and states, inter alia. that
"Methods, Job Description. and Standards" for the buss-planer operations
time allowance and the dimensions on this document. Parker
then went back to his office and developed a chart based on
this assumption. The piece rate calculations based on this
chart were very different from the piece rates actually being
paid. After Parker had made this determination, the Union
decided to submit the Cochran buss-planing grievance to
arbitration. The date on which the Union gave Respondent
notice of that decision is not shown by the record.
On February 25, 1977, a date before the arbitration
hearing was scheduled to begin, Respondent gave the Union
a document dated March 3, 1970, headed "Time Standards
. . . Buss Planer." (Cf. supra. fn. 5.) This document set forth
the minutes allowed per 100 pieces for pieces of various
dimensions and enabled the Union to determine whether the
buss-planer employees were being paid 85 percent of
standard or 100 percent of standard. The Union never did
receive any timestudies in connection with the Cochran
buss-planer grievance. Parker testified that the Union
needed such material in order to determine how the five
buss-planer jobs were prorated in the time set itself, if that
equaled 100 percent or if it did not, whether the five
employees had been properly evaluated in the job in the
proper time allotted for each one, how the four people had
arrived at 85 percent of the time, and the proper procedure
for doing the job. In spring 1977, just before the arbitration
hearing was scheduled to begin, the Cochran buss-planer
grievance was settled.
Respondent's representatives at the February 25, 1977,
meeting included Leon Dodson (Respondent's then industri-
al engineer) and H. W. Hayley, who at the time of the March
1979 hearing was Respondent's corporate safety director and
the administrative assistant to Respondent's president. Dod-
son had signed the previously mentioned April 1970 memo-
randum to management, given to the Union on or about
August 1976, which averred, "Attached are l~ethods, Job
Description, and Standards" (supra, fn. 5). Hayley, who was
Respondent's chief industrial engineer between 1954 and
1972 and whom Respondent's industrial engineering depart-
ment has since consulted in an advisory capacity about
matters which include rates or timestudies, testified that the
only buss-planer timestudies ever made were destroyed by
fire in 1969. Hayley further testified that in his presence on a
date which "could have been" 1975 or 1976, at a time when
neither the Union nor the Company proposed reevaluation
of the job, the Union was told that there were no timestudies
in connection with the buss-planer operation. At the time
these studies were destroyed by fire, Anschutz was working
for Respondent. The record fails to show whether this was
also true of Threadgill. Respondent never told the Union
why there were no timestudies.
3. The 1977 rubbing department grievance
On August 10, 1977, then Stewart Charles Moore filed on
behalf of the rubbing department a grievance alleging unfair
rates on certain specified styles of pianos. The settlement
were attached, and that when the attached methods were used a person of
average skill for the job "could earn at least 20% above his Base Rate, in
accordance with the contract'" (the 1974-77 contract required 25 percent): (3)
an operations chart showing the number of jobs and the crew size; (4) a
summary of the equipment specification; (5) a plan of the work place layout;
and (6) elemental job descriptions of the buss planers.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested on the grievance form was "Restudy job, adj. rate
so employees can make a livable salary, compared to other
rates, with backpay." This grievance was based on the fact
that after Respondent had initiated some new styles of
pianos Respondent's engineers had timestudied the new
studies of pianos that came through and, in essence, cut the
time compared to some of the older styles.
On August 18, 1977, the parties held a second-step
meeting on the grievance, and on August 24 they held a
third-step meeting. During both meetings, Parker asked
Anschutz for the engineering drawings and specifications for
those styles of pianos. On both occasions Respondent said
that all Respondent had was photographs of the pianos, and
that the Union could look at them. Parker replied that
photographs would do no good because the Union could not
tell the dimensions of the surfaces. The rubbing department
employees rub the finishes on the pianos. Parker testified
that he needed the specifications and engineering drawings
of the pianos in order to compare the surfaces of the new
style pianos with the surfaces of the old style pianos and to
determine whether there was any difference which would
affect the time needed to complete the rubbing operation.
On August 25, 1977, the Union asked the Federal
Mediation and Conciliation Service to provide a panel of
arbitrators for the rubbingdepartment grievance. On No-
vember 16, 1977, the Union filed a charge against Respon-
dent, docketed as Case 26-CA-6961, alleging that since May
15, 1977, Respondent had violated Section 8(a)(5) and () by
refusing to furnish the Union with "time study and other
relevant information to allow the Union to prepare ade-
quately for grievance and arbitration proceedings." Thereaf-
ter, a Board agent told Parker that all Respondent had was
photographs, and that Respondent would make them avail-
able to thejUnion. Parker said that he did not believe that it
was possible to build or assemble something as finely made
as a piano without having any engineering drawings and
specifications. The Board agent said that Respondent had
given him assurances that there were no specifications and
no drawings. Eventually, on the advice of union counsel, the
Union withdrew the charge, whose withdrawal was ap-
proved by the Regional Director on December 21, 1977.
Testimony adduced before me at the March 1979 hearing
established that throughout 1977 Respondent did in fact
have specifications for its pianos. The record fails to show
what happened to the rubbing department grievance.
B. The Conduct Alleged in the Complaint as Unfair
Labor Practices Occurring Within the 6-Month
Limitations Period
1. The Union's prearbitration requests to see
Respondent's time studies in the oil-off department
Before April 20, 1978, there had been one incentive rate in
the oil-off department at all material times, and Respondent
had not announced any change in this system. On that date,
for reasons not shown in the record, employees in that
department went out on a wildcat strike which lasted until
May 5, 1978. During strike settlement discussions, Respon-
dent told the Union that the oil-off incentive job would be
broken down into three parts-rub and wax, setup, and
running edges-and that there would be new timestudies set
on the operations as soon as the strikers returned. The
Union voiced no objections. On or shortly before May 5,
1978, Respondent and the Union entered into a strike
settlement memorandum which provided, inter alia, that
"the oil-off operation will be broken down into its
parts. .... Employees will be paid their average rates until a
time study is made for each job, at which time employees
will be paid rate of the job."
Immediately after the employees returned to work, Re-
spondent began timestudies in the oil-off department. The
prestrike incentive job in the oil-off department was eventu-
ally divided into the three jobs discussed during the strike
settlement negotiations, each of which was an incentive job,
and a fourth job-color patch-which was put in with
repairs as a day-rated job. Respondent assigned each of the
formerly incentive employees in the oil-off department to
one of these four jobs (see infra, fn. 7).
The collective-bargaining agreement provides, inter alia:
(j) When the Company abolishes an incentive rate for
a particular job and substitutes a day rate for that job or
establishes a new job that takes the place of an old job
and desires to establish a day rate for the job, the
Company shall establish a day rate by taking into
consideration the skill, ability, speed and effort required
for such job and the amount earned on such job while
piece rates were in effect, together with any changes
that may have been made in the job. However,
employees who worked on the job when the job was on
incentive rate shall receive a "red circle" rate when they
work on the job which "red circle" rate shall be the
same they earned while on incentive rate for two (2)
previous quarters if they continue to work with at least
the same speed and effort while they worked on
incentive rate. Notwithstanding anything else to the
contrary in this Agreement, the Company's right to
abolish a piece work rate for any job and, substitute a
day rate therefor shall not be subject to arbitration but
the question of whether the Company has established
the correct day rate for such a job, in accordance with
the provisions of this Section, shall be subject to the
grievance procedure and arbitration.
When the Company establishes a new job that takes
the place of an old job that was on an incentive rate, and
establishes an incentive rate for the new job it shall do
so on the basis of standard time study practices and
procedure using a base rate established by job evalu-
ation; however, for the employees who performed the
old job the Company shall establish a "red circle"
incentive rate for such empoyees when they work on the
new job which shall be the same as they earned on the
old job for the previous two (2) quarters if they continue
to work with at least the same speed and effort when
they worked on the old job.... Notwithstanding
anything else to the contrary in this Agreement, the
Company's right to establish a new job that takes the
place of an old job that was on an incentive rate and
establish an incentive rate for such job shall not be
subject to arbitration, but the question of whether the
Company has established the correct piece work rate
1236
AEOLIAN CORPORATION
for such job shall be subject to the grievance procedure
and arbitration.
Between May 15, 1978, and June 6, 1978, employees in
the oil-off department filed five separate grievances. The
only jobs specified by name in these grievances were the
incentive jobs of setup, clean and wax, and running edges.
However, one of these grievances, filed on June 2, named as
one of the grievants employee Euree Knight, who did the
day-rated job of color patch.6 This grievance alleged, "We
the Oil Off Dept. had [an] established base rate and the
Company has [changed] it. The [operations] of all obs] are
the same [, it's] nothing new. Just broke down job into four
[parts]. The edge running has a new base rate. Clean & Wax
& Setup base rates are the same [now?]." Under "Settlement
Desired," this grievance stated, "To give us our right base
rate which was already established in oil-off with all
backpay." Another of these grievances alleged, inter alia,
"We are being time [studied] on a new operation but each
job is the same as the past nothing has [changed]." The
foregoing grievances aside, all the grievances attacked the
rates in particular oil-off incentive jobs as too low. The
employees who performed the color patch operation were
being paid an hourly rate based on their previous average.'
Between May 24 and June 13, 1978, Parker orally asked
for the timestudies on setup, clean and wax, and running
edges.' Anschutz untruthfully said that Respondent did not
have the old timestudies and, as to the new studies, said that
he would check with engineering and let the Union know
about some timestudies. Parker testified that he wanted
these timestudies because the employees had told the Union
that, when the jobs were time studied that May, there were a
lot of new elements added in that were never in the old
standards, and he needed to see what, if any, elements had
been changed.'
On July 14, two-thirds of the employees went out on a
wildcat stike which lasted until July 25. On July 18, while
this strike was in progress, the Union filed against a charge,
Respondent docketed as Case 26-CA-7309, which alleged,
inter allia, that ince on or about January 1, 1977, Respon-
dent had "systematically [refused] to furnish the Union with
information in regard to time studies that are necessary for it
to process and investigate grievances."' ° After the July 18
filing of this charge, Respondent agreed to permit the Union
to examine the standards, and the Union did so. On an
undisclosed date thereafter, the Union requested withdrawal
' In view of the language on the grievance, Parker clearly erred in his
testimony that Knight never filed a grievance.
According to a December 1978 letter to the Union from Respondent's
counsel, Euree Knight had been an hourly rated employee for several years. It
is unclear when Respondent initially assigned a formerly incentive employee
to perform the day-rated job of color patch. A December 27, 1978, letter to
the Union from Respondent's attorney indicates that such assignments were
being made by November 1978. As shown infra. fn. 30, this was clearly done
by mid-December 1978.
' My time frame finding is based on: () the fact that grievances which
together named all three jobs were filed on May 24 and June 6 (2) the fact that
arbitration of these grievances was requested by the Union on May 30 and
June 13, respectively, and (3) Parker's credible testimony that he asked for the
timestudies in the second or third step of the grievance procedure. As
previously noted, the first oil-off grievance was filed on May 15.
' My finding that a request for such timestudies was made at that time is
based on Parker's testimony. Partly for demeanor reasons and partly because
of Parker's credible testimony about why he wanted the timestudies, I do not
credit Anschutz' denial of Parker's testimony about the pre-August requests
of the charge. This request was approved by the Regional
Director on July 25, the date that the strike ended.
2. The Union's inspection, after arbitration began, of
Respondent's oil-off timestudies
The first arbitration hearing with respect to an oil-off
grievance was held on August 29 and 30. During this
hearing, Respondent advised the Union for the first time of
Respondent's position that there was a 3-percent change in
the operation within the meaning of the collective-bargain-
ing agreement and, therefore, that the jobs were subject to
the contractual provision, previously referred to in connec-
tion with the Vickie Campbell grievance, that "the incentive
rate will be changed to reflect the change in the operation."
Union Attorney Lynn Agee said that in view of Respon-
dent's 3-percent theory he would have to see the old and the
new timestudies. The parties agreed to postpone the arbitra-
tion hearing until the Union could review the studies. On a
date not shown by the record (but earlier than December 4
and perhaps as early as the August 29-30 arbitration hearing
itself), the parties agreed to resume the arbitration hearing
on January 8, 1979.
After the postponement of the arbitration hearing, Re-
spondent's attorneys brought to their office all the oil-off
timestudies for setup, clean and wax, and rubbing edges. In
early September 1978, Parker and Agee came to these
attorneys' office and examined these timestudies." After
looking at them for 1-1/2 to 2 hours, Parker said that he
needed a better place to look at them and suggested that the
examination be continued in the plant. Respondent then
arranged for Parker to come to the conference room in the
plant and examine the timestudies there. On a Friday about
a week later, Parker came to the plant conference room
where, in the presence of Company Attorney Warren, Chief
Industrial Engineer Mills, and Corporate Safety Director
Hayley, Parker spent most of the day examining the
timestudies. At Parker's request he returned on the follow-
ing Monday and examined the timestudies for another 2
hours. While in Respondent's conference room during these
2 days, Parker examined about 30 timestudies, took notes,
and put questions to Hayley (who at one time had been
Respondent's chief industrial engineer) and Mills, both of
whom answered. Then Parker said that he had gone about as
for timestudies. In so finding. I take into account both Parker's vagueness
about the dates of his requests and the fact that union vice president Charles
Moore, who, according to Parker, was present during this conversation. vas
not asked about it. However, I attach no significance to Industrial Engineer
Mills' testimony that he was unaware of any refusal by Respondent to show
timestudies in view of the fact that he did not start working for Respondent
until July 17, less than I week before the Union saw the timestudies.
Respondent's brief errs in stating that Moore testified that the Union did
not ask to see Respondent's timestudies until after the arbitration hearing in
August. Respondent relies on testimony by Moore which is directed toward
the Union's taking of its own timestudies.
a The charge also alleged unlawful unilateral changes in wage rates
including mid-July changes in the rubbing department rates and unlawful
discharges in the rubbing department. The contents of this charge aside. the
record fails to show why the employees struck.
" My finding that Agee was present is based on Parker's testimony, which I
accept in view of Mills' and Anschutz's testimony that the studies were made
available because Agee wanted to see them. Mills testified that Parker was the
only official from the Union who was present during this conference.
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
far as he could by looking at Respondent's timestudies and
would need to make timestudies of his own.
3. The Union's performance of timestudies in the oil-off
department
The collective-bargaining agreement between the parties
provides, "The Union shall be permitted to make any
necessary visit to a specific area of the plant during working
hours provided that a request is made in advance designating
the specific work area to be visited and provided further that
a Company official shall have the right to accompany the
Union representative during such visit." Between September
18, 1978, and December 8, 1978, Parker spent 15 to 20 hours
per week at the plant conducting timestudies of the oil-off
setup, clean and wax, and running edges jobs. Initially the
parties agreed that before going into the production area to
perform timestudies Parker would check with Anschutz,
who would call engineering and get someone to go to the
department with Parker. Within a week after Parker began
his timestudies the Company's president, Luke Borger, told
Chief Industrial Engineer Mills, who had previously re-
mained with Parker "on the whole, more or less," to spend
all the time he could in the oil-off department while Parker
was there. Thereafter and until Parker completed his
timestudies about December 8 Mills stayed with Parker as
often and as long as possible in view of Mills' other duties;
Mills testified that during this period staying with Parker
was Mills' primary responsibility.
Until on or about the end of September, Parker followed
the procedure of initially reporting to the personnel office.
By letter to union president Rudd dated October 3, 1978,
Company Attorney Warren stated, inter alia:
This will confirm our meeting of yesterday's date and
our telephone conversations regarding the above refer-
enced matter.
This is to advise that any prior arrangements made
with union representatives by me to conduct time
studies in the Oil Off Department are rescinded,
effective this date. Any arrangements for visits to the
plant must be made with appropriate Company officials
in accordance with the terms of the contract. When I
advised Mr. Don Parker that he could conduct time
studies, it was not my intention to authorize continual,
uninterrupted union studies that would interfere with
the production process to the degree which has thus far
occurred nor was it my intent to authorize visits that
were not mutually convenient with both parties. As
indicated in yesterday's meeting, the production of
incentive workers in the Oil Off Department has during
the past week, when Mr. Parker conducted studies,
been reduced by II1% as compared to a representative
period of the previous seven weeks when Mr. Parker
was not conducting such studies.
The Company does not intend to unreasonably deny
the union the right to visit the plant so long as the
provisions of the contract are adhered to by the parties
and if such visits do not unreasonably interfere with the
Company's operations.
"On undisclosed dates, Company Attorney warren parked in the fire lane.
Anschutz's testimony that Parker did not report to the personnel office after
Please consider this letter a request that you do not
return to the plant until after future arrangements are
made with the Company officials.
Rudd testified that this letter correlated with his telephone
conversation with Warren.
About early October, Anschutz told Parker to follow the
procedure of going directly to engineering and getting one of
the engineers to go with him to the production area. Parker
adhered to this procedure for 2 to 4 weeks. One day Parker
went to engineering and found that nobody was there. After
waiting there for 15 to 30 minutes, Parker asked a woman,
who was sitting at a desk in the department, where the
engineer was. She said that she did not know. He said to tell
the engineer when he came in that Parker was in the oil-off
department. Parker went to the oil-off department, where he
and Departmental Steward Joyce Campbell told Departmen-
tal Supervisor Carol Collins that Parker. could not find the
engineer, and that Collins might call him and remind him
that Parker was there. Parker then went ahead with his
timestudy activity. For an undisclosed period thereafter
Parker went directly to the department and, with or through
Campbell, reported to Collins, who thereupon picked up the
telephone and called someone, inferentially Anschutz or the
engineering department. Later Anschutz told Parker to
revert to the earlier procedure of first going directly to the
personnel office. Parker objected to this procedure on the
ground that, inter alia, sometimes it would be timeconsum-
ing because he could not find the engineer. Anschutz told
Union President Rudd and Union Vice President Moore
that Anschutz wanted Parker to report to the personnel
office first. Rudd worked out, with company representatives
other than Anschutz and whose identity is not shown by the
record, a procedure under which Parker was to park in the
fire lane next to the personnel office, come to personnel,
advise Anschutz of his presence, and wait 5 minutes for the
engineer to come. After an undisclosed (but inferentially
brief) period during which this procedure was followed,
Corporate Safety Director Hayley told Parker to stop
parking in the fire lane because the Company's president,
Borger, had told Hayley to keep the fence clear." After that
Parker parked in the back lot at a location relatively near the
rear door of the plant but about one-quarter of a mile and
across the railroad tracks from the personnel office, which
was at the far end of the plant. At this point he resumed his
practice of going directly to the oil-off department and, with
or through Steward Campbell, reporting his presence to
Supervisor Collins. He persisted in this practice notwith-
standing Attorney Warren's request to him, and Anschutz's
request to Rudd and Moore, that Parker report to the
personnel office first.
During the 14-week period when Parker was performing
timestudies in the oil-off department, on some days he did
not come to the plant at all, and on other days he came for
periods ranging between 30 minutes and 6 hours. Several
times, inferentially during periods when he was coming
directly into the department without first going to the
engineering or personnel department, he entered the depart-
ment when the plant entrance was open but 10 to 15 minutes
before oil-off production operations were supposed to begin.
the first 2 or 3 weeks of his timestudies leads me to infer that the fire lane
parking agreement was of short duration.
1238
AEOLIAN CORPORATION
Parker always told at least one of three people-the
engineer, Departmental Steward Campbell, and Supervisor
Collins-when he left for lunch or for the day, and the date
and hour when he expected to return. However, on occasion
Parker would leave for the day without telling Mills who,
according to his testimony, would "have to follow him down
to the door to see if he got in his car or not." Occasionally
Parker returned at a time of day later than he had specified."
On at least two occasions, Mills attempted to work out with
Parker some kind of schedules so that they could both be
present at mutually agreeable times. Among Mills' proposals
was that Parker give him a daily or weekly schedule in
advance so Mills could schedule his work also. Parker said
that this was Mills' problem and made no attempt to work
out any type of scheduling arrangement that conceivably
would be convenient to both parties.
Among the grievants named in the oil-off grievances filed
with Respondent were Euree Knight and Joyce Campbell,
both of whom were listed as "Grain and Color Patch" in a
list of job assignments which Respondent gave the Union
about December 13. By letter to Anschutz dated December
4, Parker stated that on December 6 he intended to start a
study of Knight's job. By letter to Parker dated December
18, Company Attorney Warren stated, inter alia:
During the past two and one-half months you have
continually conducted time studies, on behalf of the
Union, in the Oil Off Department as it pertained to
incentive employees. During this entire period of time
you have continually trespassed on Company property
without proper permission from Company officials and
the Company has on numerous occasions attempted to
work out a mutual system of cooperation to enable you
to conduct time studies on incentive workers in this
department, but it has been to no avail. In this regard,
you have steadfastly refused to report your presence to
the Personnel and Industrial Relations Director of the
Company prior to entering the plant and have steadfast-
ly refused to work out or even attempt to work out any
type of mutually satisfactory system wherein you would
conduct your time studies so as to have the least
amount of interference with the production process and
with duties of our Industrial Engineering Department.
As information provided you has clearly established,
continuing time studies in the Oil Off Department have
obviously interfered with the production process in that
department over the past two and one-half months and,
in addition, has interfered with the normal operation of
the Company's Industrial Engineering Department.
You are also obviously aware that none of the
grievances filed in the Oil Off Department for which we
will resume arbitration on January 8 involve Euree
Knight or any other employees who hold the present
job assignment of color patch, and you have refused our
requests for an explanation as to the relevance of such
studies. Due to the past and existing interference you
have created in this department with its normal
production process, the Company is not prepared to
"My findings in these three sentences are based on Parker's and Mills'
testimonies and inferences therefrom. For demeanor reasons and in view of
the probabilities of the situation, I do not accept Parker's testimony that he
always told engineer Campbell and Collins when he left and when he
respond to your request to expand your timestudies in
the Oil Off Department to employees that are paid on
an hourly rated basis and who are not incentive workers
until after the issues raised by your current interference
with our operations have been resolved and a mutually
agreeable understanding as to incentive studies has be
agreed upon. You have heretofore consistently refused
to consider any reasonable suggestions we have made to
resolve this matter in a reasonable and mutually
agreeable manner.
It is not the intent of the Company to deny
representatives of the Union access to its plant for
legitimate and relevant reasons as long as fundamental
conditions of mutual cooperation are met and the
Union's visits are in accordance with the terms of the
collective bargaining agreement between the parties.
We suggest that you indicate your cooperation by
discontinuing your illegal entries into the plant and that
you, in the future, enter the plant only at times that are
reasonable and mutually agreeable and only after
checking with the Personnel Department before entry.
Warren's October 3 and December 18 letters were not
objected to on hearsay grounds, although, in responding to
relevance based objections to the October 3 letter Respon-
dent's Counsel made no assertion that he was offering it to
show that production had in fact been interfered with.
Anschutz testified that the reason he wanted Parker to check
with him before entering the factory to perform his timestu-
dies was that the contract says that "they are to check with
the official of the company with advance notice and also an
official of the company to be with the Union representative
during his presence in the factory." Chief Industrial Eingi-
neer Mills testified, in effect, that when Parker came to the
plant to perform timestudies he remained in the oil-off
department at all times. Attorney Warren's letters aside,
there is no evidence that Parker's activities interfered with
Respondent's production process or that Respondent ever so
claimed. Attorney Warren's December 18 letter aside, there
is no evidence that Respondent ever questioned the rele-
vance of a study of the color patch job. As of the March
1979 hearing, Respondent was still denying the Union the
opportunity to look at the original "rate" of the incentive job
from which the color patch job was separated or to study the
color patch job. No contention is made that Respondent's
conduct in this connection violated the Act.
Among the jobs performed by oil-off employees is putting
decals on pianos. Some decals are harder to put on than
others. About early November, while writing a standard for
putting on these decals, Parker took two decals from
Respondent's garbage can and two usable decals from the
roll in which they came. Inferentially, these four decals were
all different. Parker glued all four onto the standard he was
preparing. A little later Mills came by and asked Parker
whether he had any "company property" in his possession.
Parker said that he did, indicated the decals, and said that he
had planned to ask Anschutz if the Union could buy them.
Mills told him to return "the property." Parker asked to buy
returned. For demeanor reasons, I believe that Mills overstated the frequency
of the occasions when Parker left without telling Mills and when Parker came
late.
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them on the ground that he needed to show them to Union
Attorney Agee because the standard was written for a
precise size of decal. Mills said that he was not authorized to
sell company property and wanted the stickers back. Parker
pulled off what he could, cut off what he could not pull off,
and gave Mills the stickers. The record fails to show the
monetary value of the decals. By letter to Union President
Rudd and Union Attorney Agee, dated November 10, 1978,
Company Attorney Warren stated:
Re: Union's Unauthorized Removal and Possession
of Company Property
Gentlemen:
I am writing to each of you in an effort to bring a
matter to your immediate attention which is of great
concern to the Company and, likewise, should be of
great concern to the Union.
As you both are aware, Mr. Don Parker has been
conducting time studies in the Oil Off Department at
Ivers & Pond Piano Company for the last six weeks. On
today's date, I was advised by Company officials that
Mr. Parker had, totally unauthorized by any Company
official, secured Company property and placed it in his
immediate possession. In this regard, I was advised by
Mr. Kirt [sic] Mills, Industrial Engineer, that Mr.
Parker had, on this date, four separate Company decals
which are placed on pianos in his personal notebook
without any authority from any Company official to
either remove or retain these in his personal possession.
When Mr. Mills approached Mr. Parker indicating that
it had come to Mr. Mills' attention that Parker had
Company property in his possession, Parker attempted
to be coy and responded by asking Mills, "What
property?" Mills then advised Parker that it was
Company decals and labels and requested Parker to
advise upon whose authority he had Company property
in his immediate possession. Mills then demanded the
immediate return of the Company property and Parker
responded by stating that he would contact the Labor
Board. Mills then repeated his demand that Parker
return the Company property and Parker, at this point,
removed the four Company decals from his personnel
notebook and returned them to Company officials.
The above incident and conduct by a Union official is
hardly the type to be expected of one who claims to be a
professional. Should an incident of this nature occur
again, this is to advise that the Company will bar Mr.
Parker's entry to Company premises and take the
necessary legal steps to insure that Mr. Parker is not
admitted within the plant.
In view of the seriousness of the above incident, I am
requesting that either or both of you provide the
"This letter was not offered or received to show what actually happened
during the decal incident. Parker's testimony about this incident is uncontrad-
icted. Mills testified for Respondent but was not asked about it.
'' My findings as to the October 6. 12, and 19 requests are based on Parker's
testimony. For demeanor reasons. I do not accept Anschutz' denials.
'" Mills testified that Anschutz told him on or right after October 27 to
compile the information; that about 3 days later (that is, about October 30)
Anschutz explained to him just what the Union wanted; and that Mills
completed compiling this information I week after this second conversation
with Anschutz-that is, about November 6. Anschutz testified and Respon-
dent's brief asserts that he gave the Union this material 2 or 3 days after
Company with a written response giving assurances
that such an incident by Mr. Parker will not occur in
the future. '
4. The Union's requests for certain oil-off employees'
production records
On October 6, 1978, Parker orally asked Anschutz for the
daily production of oil-off department employees Cora Byrd,
Ella Mae Peete, and Mildred Conley. Parker testified that
when he made this request he was at a point in his studies
where he needed to know the average production per
employee so that he could include in his study the proper
allowances for certain tasks such as fetching materials,
which the employees performed perhaps twice a day.
Anschutz replied that he would check with "engineering,"
which would have to give the Union this information. On
October 12, Parker again asked Anschutz for this informa-
tion. Anschutz replied that he had forgotten about the
request but would get hold of Chief Industrial Engineer
Mills and get him started on it. On October 19, Parker again
asked Anschutz for this information. What Anschutz replied
is unclear, but Parker did not then receive the information."
On October 25, Parker and Union Steward Campbell
asked Anschutz whether these three oil-off employees'
production information was ready. Anschutz said that he
did not know, and that Mills was supposed to get it. Parker
asked Anschutz whether he could ask Mills whether it was
ready, and Anschutz said yes. Parker and Campbell ap-
proached Mills. Parker asked Mills whether he had "the
information on Ella Mae and Cora and Mildred for us."
Mills looked blank. Parker said that Anschutz had said that
Mills was working on it. Mills untruthfully said that he had
completed it" but stated that Respondent would not give it
to Parker without the permission of the Company's presi-
dent, Borger, and that Parker would have to pay for it.
Parker said that the Union had never paid for information
before. Mills replied that his time was valuable. He did not
say. how much Parker was going to have to pay for the
information, and Parker did not ask him.'
By letter to Anschutz dated October 26, 1978, Parker
again requested "the daily production information on Cora
Byrd, Ella Peete, and Mildred Conley for the month of
September." The Union never received a reply to this letter.
On October 27 or immediately thereafter Anschutz instruct-
ed Mills to compile this information?. On November 2,
1978, the Union, through Parker, filed a charge against
Respondent alleging that it had unlawfully failed to supply
information relevant to collective bargaining. Parker testi-
fied, but the charge does not state, that he filed the charge
because of Mills' stated conditions on giving the Union
information which he had assertedly already compiled. This
receiving through the mail a written request therefor dated October 26 ad
which (according to Mills) Anschutz showed him about October 27. The
Union's initial charge complaining about Respondent's failure to provide this
material was filed on November 2-about 3 days after Anschutz assertedly
gave it to the Union but 4 days before Mills assertedly finished compiling it.
" My findings in this paragraph are based on Parker's testimony. For
reasons set forth, infra, and demeanor considerations. I do not accept Mills'
version of the conversation.
" This finding is based on Mills' testimony. For demeanor reasons, I do not
accept Anschutz' testimony indicating an earlier date which he did not
specify.
1240
AEOLIAN CORPORATION
charge was docketed as Case 26-CA-7486 and was served
by Respondent on November 3. On an undisclosed date
between November 2 and 9, 1978, Anschutz gave the
information to Parker. On November 9, 1978, the Regional
Director approved the Union's request to withdraw the
charge. On cross-examination Mills testified that compiling
this material, most of which was put together by industrial
engineer trainee Gary Almonds, took about 12 man-hours.'"
Anschutz testified that Parker prepared the October 26
letter because Respondent was unsure whether Parker
wanted styles, hours, or just an overall figure and asked him
to clarify his request; that the letter related "exactly what he
wanted," namely, units per person per day; and that
Anschutz gave this information to Parker 2 or 3 days after
receiving his letter (see supra, fn. 16). Mills testified that,
after seeing the letter (on or right after October 27), he asked
Parker what he really wanted; Parker started to explain;
Mills inferred that he wanted the daily time and production
tickets filed by each employee each day; Mills then checked
with Anschutz; and, after talking with Parker, Anschutz
told him that Parker wanted only the number of units
worked on by each employee every day. Mills further
testified that after Anschutz gave him this explanation he
submitted the information to Anschutz I week later (see
supra, fn. 16). In view of the discrepancies between An-
schutz' and Mills' testimony about this matter, the failure of
the October 26 letter to contain the explanation which
Anschutz ascribed to it, and for demeanor reasons, I
discredit the testimonies of Anschutz and Mills summarized
in this paragraph and credit Parker's denial that the October
26 letter was sent because Anschutz told him that engineer-
ing was having problems understanding what Parker wanted
by his request for daily production.
5. The Union's requests for all oil-off employees' job
assignments
Parker testified that under the contract if an employee is
transferred from his regular job to another job for Respon-
dent's convenience Respondent had to pay the employee "an
average."' ° Parker testified that the Union understood that
Respondent had assigned each employee in the oil-off
department to one job. Still according to Parker, while he
was time studying the incentive jobs in the oil-off depart-
ment, Respondent took one of the employees off one oil-off
job, assigned her to do another one, and refused to pay her
"an average" on the ground that "this was her job." As
previously mentioned, the oil-off grievances attacked the
rates established by Respondent after Respondent, following
a strike settlement dealing with (inter alia ) breaking down
the oil-off operation, had purportedly broken down what
had been a single incentive job into three incentive jobs and
one day-rated job.
In late October or early November, Parker and Depart-
mental Steward Campbell asked Respondent for the job
assignments of the employees in the oil-off department.
Anschutz said that the Union did not need this information.
' I regard this testimony as more reliable than his testimony on direct
examination that compiling this material took "Minimum of 12 hours."
s" See art. XVIII. sec. I(h): "if there is a temporary breakdown of
machinery, or there is a lack of materials which prevents an employee from
working .. [andl such employee is required by the Company during such
The union representatives explained why they needed it.
Respondent did not provide any of this information at that
time. About November 8 Campbell again asked Anschutz
for this information. That same day Anschutz gave her the
assignments for three of the four employees in the depart-
ment who were on incentive jobs. She pointed out the
omitted incentive employee, and he added the assignment
for that one. That day or the following day, Parker told
Anschutz that the Union needed the job assignments of all
the employees in the oil-off department so that the Union
would know when they were assigned to a job if it was a
violation of the contract.
By letter to Anschutz dated November 9, Parker stated,
"We have made several requests for information on the job
assignments of employees in the Oil Off Department. We
need this information immediately because of the grievance
we have in arbitration." On November 13 the Union filed its
initial charge in the instant case alleging, inter alia, that
since November 7 Respondent had unlawfully failed to
provide the Union with relevant to its performance as
bargaining agent. Respondent received this charge on
November 15, but the record fails to show when Company
Attorney Warren was first advised of its existence. By letter
dated November 15, Warren stated that the only request
Respondent had received for the job assignment information
was from Campbell on November 8, and that on that date
Anschutz had given her "the respective jobs of the employ-
ees in the Oil Off Department." Later that month the Union
received the complete list. Although the record does not
contain this November list, the record does include a similar
list which the Union received in mid-December. This mid-
December list sets forth the names of 12 employees and
attaches to each name a list of from one to four job
assignments. Of these employees only Jackson was assigned
what is clearly a single incentive job, and at least one
employee (Neal) was clearly assigned to both an incentive
and a day-rated job.
6. The Union's September 1978 request for
specifications and drawings of Respondent's pianos
In September 1978 the Union asked Respondent for the
specifications and engineering drawings of Respondent's
pianos. Respondent said that it had no engineering drawings,
but that Odie Bradford would show the Union the specifica-
tions.2' In early October, then Plant Superintendent Herb
Smith told Parker during working hours that if he were
ready Respondent was prepared to show him the specifica-
tions at once. After indicating such readiness to Smith,
Parker told Departmental Steward Campbell that Respon-
dent was ready to show them the specifications. Before
leaving her job Campbell asked Parker and Mills how she
was going to be paid for her lost time. Parker said that he did
not know. Smith then said that Respondent was not going to
pay her. Someone asked Parker why the Union did not pay
her. Her replied that only Rudd, who was out of town, had
the authority to approve such an arrangement. Parker and
idle time to perform other work, then he shall be paid at the rate of his average
hourly earnings."
:' As previously noted, in November 1977 Respondent had untruthfully
advised the Union that it had no specifications. Miles testified that Bradford is
Respondent's drafting man and engineering man on specifications.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Campbell suggested that the conference be held after
working hours that afternoon. Smith said no, that "they
wasn't going to waste their time staying after work at
[Parker's] convenience, that [Parker and Campbell] would
have to do it during a work day at [Respondent's] conve-
nience." Parker said, "Well, fine. I will go on and do as
much of my study as I can and then we will let you know
when . . . we're ready to look at these specifications." Smith
turned and walked off.22
7. The Union's requests for the number of pins in each
piano style
In early November, Parker asked Anschutz the number of
pins which setup employees in the oil-off department had to
paint in each style of piano. Anschutz said that he did not
have "any earthly idea about it." At or about this same time,
Campbell, in Parker's absence, asked Anschutz for the
number of pins in a piano. Anschutz told her that he did not
know, but he could secure the information or she could get it
from Bradford. Campbell reported to Parker that Anschutz
had referred her to Bradford and said that she did not know
where his office was. Parker said that he would "catch"
Bradford. Later, when Bradford came by, Parker called him
over and in Campbell's presence asked him for the informa-
tion about the pins. Bradford said that on 2 or 3 days' notice
he would be glad to show them the information. The three
set up an appointment for this purpose. The day after this
conversation Bradford told Parker that Anschutz had told
Bradford that he could not meet with Parker and Campbell
and could not give them anything.
By letter to Anschutz dated November 10, 1978, Parker
stated, "We have made a request for the Company to supply
us with information concerning the number of pins in each
style of pianos that the set-up employees have to paint. We
need this information in order to complete our study."
Warren's November 15 letter to Parker, previously referred
to, asserted, inter alia, that on or about November 7
Campbell had requested the information about the number
of pins, that Anschutz had "advised [her] to contact
company representative Bradford for this information," and
that she had never done so.
8. Respondent's November 15 letter to the Union about
requests for information; subsequent events
Warren's November 15 letter also stated:
As you are aware, approximately six weeks ago you
indicated a desire to review the Company's specifica-
tions for its pianos and, at that time, you were advised
that Mr. Bradford would make himself available to you
for a review of the specifications. Since that time, it is
my understanding that you have advised Mr. Anschutz
and Mr. Mills you would not want to review the
specifications until such time as you completed your
time studies in the Oil Off Department. Accordingly, it
: My findings in this paragraph are based on a composite of credible
portions of Mills' and Parker's testimonies. I do not accept Mills' testimony
that Smith proposed meeting after working hours and Mills said that he could
meet after hours but Bradford would not be available for weekends, in view of
Mills' further testimony that this incident occurred on a Monday and Parker's
is suggested that your request for information as
contained in your November 10, 1978 letter, along with
any other necessary and relevant requests for informa-
tion from the Company can be obtained by yourself
from a review of the Company's specifications when
you have completed your time studies and indicate a
desire to get together with Mr. Bradford and review the
Company's specifications.
In essence, what I am proposing, is a procedure
whereby you review the Company's specifications to
obtain any necessary and relevant information at one
time rather than proceeding on a piece-meal approach
which interferes with the Company's production pro-
cess.
If there are any questions regarding this matter,
please advise.
The Union did not write Warren a reply to this letter.' By
letter to Anschutz dated November 20, 1978, Parker asked
for oil-off employee Ruth Frost's "daily production for the
month of October" and "all of the specifications on all styles
of pianos." This letter was the Union's first request for
specifications since the abortive discussion of the matter in
early October. In late November or early December, Warren
telephoned Parker and asked him to clarify what the Union
needed. Also, a Board representative telephoned Parker and
asked how he had responded to Warren's November 15
letter. After Parker said that he had never responded at all
because he had already told Respondent what he needed the
Board agent said that Warren had said he needed it
specified. Because of these two telephone calls, Parker sent
the following letter to Anschutz, dated December 4, 1978:
This letter is in regard to my letter of November 20,
1978 to clarify for you the request for information that
we need concerning the Oil Off Department arbitration.
This information is as follows: (1) I need to see the
specifications on all styles of pianos, (2) I need to know
the number of pins of each style of pianos, (3) I need to
know the styles of pianos that the set-up employees
paint, (4) I need Ruth Frost daily production for the
month of September, (5) I need Joyce Campbell daily
production for the month of November, (6) 1 need
Euree Knight daily production for the month of
November as I will be starting this job by Wednesday of
this week, (7) need the names of the jobs of each
employee in the Oil Off Department.
I would appreciate all this information be given to us no
later than Friday, Dec. 15, 1978. 1 need this informa-
tion so we can complete our case for the Oil Depart-
ment arbitration, which is to be held on January 8,
1978.
If there are any problems with time, please advise.
undenied testimony that he and Campbell proposed a conference after
working hours that day.
" Warren sent a blind copy of this letter to Anschutz who, of course,
received no reply thereto from the Union.
1242
AEOLIAN CORPORATION
On December 7, Respondent met with the Union and said
that Respondent did not maintain production records for
Knight because she was an hourly paid day worker."
On December 12, the Union, through Attorney Agee,
filed its first amended charge in the instant case alleging that
since on or about May 13, 1978, and at all times thereafter
Respondent had violated the Act by failing to provide the
Union with "information relevant to its performance as
bargaining agent.""' Also on December 12, Bradford gave
the Union all the information set forth in the Union's
December 4 letter except Euree Knight's daily production
for November. Respondent again told the Union that it had
no records of Knight's production count. Also, Respondent
said that the color patch job was a day-rated job, and there
were no standards or timestudies on that job. Parker testified
that the Union had requested this information about the
color patch job because it had been one of the four jobs that
had been in the original standards, the Union needed to
study it to determine how much time was taken out for a
particular job, and because Respondent had changed the
base rate of the color patch job as well as the others.2'
The information supplied to the Union that day included
specifications for all styles of pianos. As previously noted, in
November 1977 the Union had requested such specifications
in connection with the rubbing department grievance arid
had withdrawn its charge in connection with that grievance
on the representation that no such specifications existed.
Charles More, who worked for Respondent as a fly finisher
between 1968 and 1977, credibly testified to the existence of
such specifications throughout this period. The Union did
not see any engineering drawings. Respondent maintained to
the Union that it had none, and there is no evidence
otherwise (cf. supra, fn. 21).:'
Parker concluded from his September-December timestu-
dies that the running edges job had been almost completely
changed, and that there had been a change of more than 3
percent in the setup and clean and wax jobs as to some piano
styles but not others. About February 9, 1979, during the
last day of the arbitration proceeding on the oil-off griev-
ances, the Union caucused and concluded, on the basis of
Parker's timestudies, to refrain from attempting to show that
the 3-percent change alleged by Respondent had not been
made, and therefore the jobs were the same. Rather, the
Union decided to attempt to show that these were new jobs
and, therefore, were subject to the contractual provisions
that Respondent was to establish the incentive rate therefor
"on the basis of standard time study practices using a base
rate established by job evaluation. '" In consequence of this
decision as to strategy and because Respondent was putting
in evidence tending to show that these were new jobs, the
Union did not put into the arbitration record any of Parker's
timestudies. The March 1979 record herein fails to show
what decision, if any, had been reached by the arbitrator.
!' This finding is based partly on a letter from Company Attorney Warren
dated December 18, 1978. which letter was offered and received into evidence
without objection or limitation.
' This amended charge did not include the original (November 13) charge's
allegations of discrimination against various employees.
*' As previously noted. the contract called for Respondent to establish a day
rate "by taking into consideration inter alia ] the skill, ability. speed, and
effort required for such job and the amount earned on such job."
' Respondent's industrial engineer, Mills, testified that during the Decem-
About mid-January 1979, during a hiatus of several weeks
in the arbitration hearing, Attorney Agee advised Parker
that Agee was going to meet with Respondent about setting
up a system to request information. Just before the opening
of the unfair labor practice hearing on March 6. 1979,
Parker asked Warren whether Agee had contacted Warren
about the matter. Warren said no.
C. Analysis and Conclusions
The duty to bargain imposed on employees by Section
8(a)(5) of the Act includes the duty to comply with the
bargaining representative's request for information relevant
to processing grievances. See N.L.R.B. v. Acme Industrial
Co., 385 U.S. 432 (1967); The Fafnir Bearing Co., 146
NLRB 1582 (1964), enfd. 362 F.2d 716 2d Cir. 1968);
Kayser-Roth Hosiery Co., Inc. v. N.L.R.B. 447 F.2d 396,
400-401 (6th Cir. 1971). With the possible exceptions
(discussed infra ) of the job assignments and daily produc-
tion of certain employees, Respondent does not appear to
question the relevance of the information which, according
to the General Counsel, Respondent improperly delayed in
furnishing during the 6-month period before the November
1978 filing of the charge which gave rise to the instant
complaint. I agree with the General Counsel that all such
information was relevant to the processing of the oil-off
grievances, including the production and job assignment
information whose relevance Respondent may dispute (see
infra ). Further, while the General Counsel does not appear
to contend that Respondent failed to eventually provide the
Union with all the requested information in Respondent's
possession, Respondent's brief seems to concede that the
statutory duty to provide information is breached not only
by a failure or refusal to provide such information at all but
also by a display of "tardiness and reticence" in providing it.
See DePalma Printing Co.a 204 NLRB 31, 33 (1973); accord:
Pennco. Inc.. 212 NLRB 677, 678 (1974). In short, the
principal dispute between the parties is whether Respondent
unduly delayed in providing this information.
Without regard to Respondent's conduct in 1976 and
1977 regarding requests for information and in 1978 regard-
ing the other items of information specified in the complaint
I find undue delay by Respondent regarding the number of
pins which setup employees in the oil-off department had to
paint. When the Union asked Anschutz in early November
1978 for this information he referred the Union to Bradford,
who said that he could provide it on 2 or 3 days' notice.
However, Bradford thereafter told the Union that Anschutz
had forbidden him to give the Union this information. When
the Union again asked Anschutz for such information, this
time in writing, the Union's letter was answered by Respon-
dent's attorney, who inaccurately asserted that the Union
had never contacted Bradford and implied that he would
ber 12 meeting the Union asked for a list of which model piano took which
brand name decal. Mills further telstifed that the Union also asked for the
number. size, and type of screws put in by the setup employees. Still according
to Mills. Respondent replied that it did not have any of this information
:' My findings in these two sentences are based on Parker's testimony. For
demeanor reasons, I do not accept Anschutz' or Mills' testimonies that the
Union took the position as early as the August arbitration hearing that these
were new jobs.
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give it on request. The Union did not obtain this information
until more than I month after asking for it, even though
Respondent had admitted to the Union that it was available
on 2 or days' notice.
Especially in view of Respondent's conduct in connection
with the pin matter, which constituted a particular part of
the specifications, I further conclude that Respondent
unduly delayed showing the Union the piano specifications
which the Union initially requested in September. While I
attach no significance to Respondent's early October refusal
to show the Union the specifications after rather than during
working hours, I note that Respondent did not comply until
December 12 with the Union's November 20 written request
to see such specifications. Particularly because Parker told
Respondent in early October that he wanted to see the
specifications eventually, I regard the 3-week period between
November 20 and December 12 as unreasonable under all
the circumstances.2 9
Similarly, and still without regard to Respondent's 1976
and 1977 conduct or its 1978 conduct without regard to
other items of information, I find undue delay by Respon-
dent regarding Respondent's time studies for the oil-off
department. Respondent initially sought to put the Union
off by saying untruthfully that Respondent did not even
have the old timestudies. Nor did Respondent show the
Union the old and new timestudies until more than I month
after the Union asked for them, even though its contention
(rejected on credibility grounds), that the Union received
this information less than 2 weeks after first asking for it
constitutes an admission that 2 weeks' notice was sufficient.
I regard the delay of more than I month as unreasonable
under all the circumstances.
Further, and without regard to Respondent's conduct in
1976 and 1977 or its 1978 conduct with respect to other
items of information, I find that Respondent unduly delayed
telling the Union the job assignments of all the employees in
the oil-off department. It is uncontradicted that, in late
October or early November, Parker and Campbell asked for
these employees' job assignments. The Union was entitled to
this information without any specific showing of relevance.
See N.L.R.B. v. Rockwell-Standard, Transmission and Axle
Division, Forge Division, 410 F.2d 953, 957 (6th Cir. 1969);
Doubarn Sheet Metal, Inc., 243 NLRB 821 (1979). In any
event, when Anschutz said that the Union did not need this
information, the Union explained its need therefor, and so
' Parker did not complete his timestudies until on or about December 8.
Attorney Warren's November 15 letter states that it was his "understanding"
that after asking to see the specifications Parker told Anschutz and Mills that
he did not want to see the specifications until after he had completed his
timestudies in the oil-off department. This letter aside, there is no evidence
that Parker so stated. Rather, Parker's credible testimony shows that he said
that he would do as much of his study as he could and would then let
Respondent know when he was ready to look at the specifications-testimony
from which I infer that he expected to use the specifications in completing his
study. Although Warren's letter was offered by the General Counsel and was
received without limitation or objection. I regard its representation of
Warren's "understanding" as nonprobative that such statements were made.
No contention is made that Warren had any firsthand knowledge of the events
purportedly described in his November 15 letter, and, as noted in connection
with the pins and job assignment matters, his letter contains certain
demonstrated inaccuracies. In any event, Parker's November 20 letter asked
to see the specifications "at the Company convenience."
"' This alone sufficiently negates the assertion in Respondent's brief that the
job assignments of the employees on a day rate were initially not provided
"since none of these employees had filed grievances or were involved in the
far as the record shows he did not ask the Union to spell out
its explanation or thereafter voice any doubt as to its
relevance. Nor did Anschutz ask the Union whether it
wanted the job assignments of all the oil-off employees or
only some of them.'" However, Respondent failed for more
than I week to give the Union the job assignments of any of
the oil-off employees. When the request was repeated,
Respondent gave the Union a list limited to the incentive
employees (and, initially, less than all of those). After
receiving a specific statement from the Union that it needed
the job assignments of all the oil-off employees together with
an explanation of why they were wanted, Respondent
inaccurately implied that the Union had already received
this information on November 8 and inaccurately stated that
the Union's November 8 request was its only request
therefor. In view of the foregoing conduct by Respondent
after receiving this request, I conclude that by failing to
furnish this information until November 16 at the earliest
Respondent unduly delayed in complying with that request.
Also without regard to Respondent's conduct in 1976 and
1977 or in 1978 with regard to other items of information, I
find that Respondent unduly delayed in giving the Union
information as to the production of oil-off department
employees Byrd, Peete, and Conley. At least arguably,
undue delay is established by the mere statistics: Parker first
asked for the information on October 6, compiling it took
about 12 man-hours, and Parker did not receive this
information until November 2 at the earliest. Undue delay is
further shown by industrial engineer Mills' testimony that he
was not asked to start compiling this information until, at
least October 27, 3 weeks after the Union first asked
Anschutz for it. Also pointing toward unreasonable delay is
Anschutz's untrue statement to Parker on October 25 that,
in effect, Mills had already been asked to compile the
information and Mills' untrue statement to Parker that same
day that he had already compiled it-an assertion whose
inaccuracy Mills in effect concealed from Parker by telling
him that Mills would not give the Union the information
without the company president's consent and by advancing
the entirely new requirement that the Union pay for the
information.
I am unimpressed by the suggestion in Respondent's brief
that its delays were somehow excused by what it claims to be
an unreasonably short interval between the Union's request
for the production information and the Union's action in
piece rate grievances." Moreover. one of the oil-off grievants was Euree
Knight, whom Respondent's attorney described as a day-rated employee for
several years. Nor did any of the parties have any reason to anticipate that
none of the incentive paid grievants would ever perform day-rated work, or
that grieved transfers in the oil-off department would be limited to incentive
employees and incentive jobs. Thus. Anschutz testified that sometimes an
employee performs on a part-time basis the same day-rated job as Knight
performed. Furthermore, the December 13 list of job assignments shows that
at least one employee was assigned to both an incentive job ("run edges." the
incentive job to which grievant Chaffer was assigned) and a day-rated job.
Moreover. in December 1978 Respondent listed the same "grain and color
patch" assignment for day-rated employee Knight and for Campbell, another
oil-off grievant and also gave the Union Campbell's November production.
which Respondent contends is not kept for day-rated. "grain and color patch"
employees. Also, in November 1978 Parker studied Campbell's job. I infer
that Campbell was an incentive employee in November and a day-rated
employee in December. Also, although incentive jobs were being performed
by only 4 oil-off employees in early November 1978, such jobs were being
performed by 9 of the 12 oil-off employees on December 13 and by 12 of the
14 or 15 oil-offemployees in March 1979.
1244
AEOLIAN CORPORATION
filing a charge which attacked Respondent's failure to
provide it. See Rauland Division of Zenith Radio Corp., 187
NLRB 785 (1971), enfd. 80 LRRM 2768, 68 LC Para. 12,
749 (7th Cir. 1972); O'Land, Inc., d/b/a Ramada Inn South,
206 NLRB 210, 210-211 (1973)." Nor am I impressed with
Respondent's suggestion in its brief that this information
was irrelevant. Assuming arguendo that a showing of
relevance need be made (although see Rockwell, supra, 410
F.2d at 957), Parker gave credible testimony about why he
wanted it, and there is no evidence that management ever
suggested to him that it was irrelevant. While Mills testified,
in effect, that the work delay allowance which Parker
wanted to determine from such production information
could have been determined by using methods which did not
call therefor, Mills did not testify that Parker's method was
not an acceptable practice, and the record fails to show
whether Parker had obtained the information needed to use
Mills' suggested technique.
Lending further weight to the General Counsel's conten-
tion that Respondent unduly delayed in providing all the
foregoing information is the fact that, as Respondent knew,
all of it related to a single arbitration proceeding, as to which
Respondent would have a single motive to expedite and
assist or delay and handicap. Accordingly, evidence of
unreasonable delay in furnishing any part of such informa-
tion renders some support to a contention of unreasonable
delay in furnishing the rest of it.
I have reached the foregoing conclusions without regard
to Respondent's conduct in 1976 and 1977, more than 6
months before the filing of the charge in the instant case.'2
However, these conclusions do gain some support from
Respondent's 1976 conduct in connection with the Union's
requests for timestudies regarding the Hayslett, Campbell,
and buss-planer grievances and from Respondent's failure to
comply with the Union's 1977 request for piano specifica-
tions on the untrue ground that there were none."
The complaint also alleges that Respondent violated
Section 8(a)(5) and (1) in connection with the daily
production records of employee Ruth Frost for the month of
September 1978 and the daily production records of employ-
ees Joyce Campbell and Euree Knight for November 1978.
So far as the record shows, the Union did not ask for Frost's
September production records or for Campbell's production
" On the basis of evidence which I have discredited. Respondent contends
that it received the first clear request about October 27 and complied
therewith 2 or 3 days later. Parker testified that his November 2 charge was
motivated by the conditions which Mills had attached to providing the
information rather than by a belief that Respondent had delayed too long in
giving it. In any event, Respondent's prior delays in providing other
information might well have warranted otherwise premature suspicions on
Parker's part.
': Respondent's brief does not renew its contention, at the conclusion of the
General Counsel's case, that no complaint could issue with respect to the
material whose nonproduction may have been attacked in the charges
docketed as Cases 26-CA-7309 and 26-CA-7486 because they were with-
drawn on July 25. 1978, and November 9, 1968, respectively. I adhere to my
rejection of this contention at the hearing. See Sec. 10120.5 of the Board's
Casehandling Manual, Part 1, April 1975; Omico Plastics. Inc.. 184 NLRB
767, 768. fn. 4 (1970); N.L.R.B. v. T. W. Phillhps Gas d Oil Co., 141 F.2d 304,
305-306 (3d Cir. 1944). 1 also adhere to my rejection of the contention that as
to the material whose nonproduction was attacked in the original charge on
which this case is based, any finding of undue delay in producing it must be
based on conduct preceding that November 13, 1978, charge, and notwith-
standing the amended charge filed on December 12. See N.L.R.B. v. Faont
Milling Co.. 360 U.S. 301 (1959).
records until sending the December 4 letter to Respondent
and this information was given the Union on December 12. I
find no undue delay in this 8-day interval. So far as the
record shows, the Union's first request for Euree Knight's
production records was made in this December 4 letter.
Respondent stated to the Union on December 7 and 12 that
such records did not exist, and there is no substantial
evidence otherwise." The complaint will be dismissed as to
the material discussed in this paragraph.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all relevant times herein, the Union has been and is
the exclusive representative for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act of
the following unit which is appropriate for collective-bar-
gaining purposes within the meaning of Section 9(b): All
production and maintenance employees, including over-the-
road drivers and helpers, employed by Respondent at its
Memphis, Tennessee, location, excluding office clerical
employees, professional and technical employees, watchmen,
guards and supervisors as defined in the Act.
4. Respondent has violated Section 8(aXS5) and (1) of the
Act by undue delay in providing the Union with the
following information: (1) Respondent's timestudies for the
oil-off department; (2) the daily production of employees
Cora Byrd, Ella Mae Peete, and Mildred Conley for
September 1978; (3) job assignments for all the employees in
the oil-off department; (4) the number of pins in each style of
piano; and (5) specifications of all styles of pianos.
5. Such unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
6. Respondent has not violated Section 8(a)(5) and (1) of
the Act in connection with the following information: daily
production records of employee Ruth Frost for September
1978 and daily production records of employees Joyce
Campbell and Euree Knight for the month of November
1978.
" The relevance of these 1976 and 1977 events to the instant case is limited
to the reasonableness of Respondent's conduct in 1978. Accordingly, I regard
as beside the point the face (not adverted to by Respondent) that Respon-
dent's untruthful disclaimers regarding piano specifications were made to a
group of union representatives who included Union Vice President Moore, the
employee whose 1979 testimony established the 1977 existence of such
specifications.
" By letter dated December 18, 1978, Company Counsel Warren stated that
Respondent did not maintain production records for Knight because she was
an hourly paid day worker and was not on an incentive rate. The letter further
stated that Respondent had only an incomplete record of the number of
pianos on which work had been performed in the color patch operation in
November, and that Knight was the only employee in the color patch
operation during November Before Warren wrote this letter, Respondent
gave the Union Campbell's daily production for November and also a
document, dated December 13 and apparently purporting to be responsive to
the Union's December 4 request for "the names of the jobs of each employee
in the Oil Off Department," which listed both Campbell and Knight as
"Grain and Color Patch." By letter dated December 27. Warren repeated his
December 18 representations about color patch records, but stated that he had
erred in asserting that Knight was the only employee paid on an hourly rate in
the color patch operation during November.
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that it be required to
cease and desist from such conduct and like or related
conduct. In addition, I shall recommend that Respondent be
required to post appropriate notices.
Upon the foregoing findings of face, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended Order:
ORDER"
The Respondent, Aeolian Corporation, Ivers and Pond
Piano Division, Memphis, Tennessee its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unduly delaying in complying with the requests of
Local 282, United Furniture Workers of America, AFL-
CIO (the Union), for information relevant to the Union's
representation of the following unit for collective-bargaining
purposes: All production and maintenance employees in-
cluding over-the-road drivers and helpers employed by
Respondent at its Memphis, Tennessee, location excluding
office clerical employees, professional and technical employ-
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
ees, watchmen, guards, and supervisors as defined in the
Act.
(b) In any like or related manner interfering with the
Union's efforts to bargain collectively with Respondent.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at its Memphis, Tennessee, plant copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by Respondent's 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.
(b) Notify the Regional Director for Region 26, in writing,
within 20 days from the receipt of this Order, what steps the
Respondent has taken to comply herewith.
The complaint is hereby dismissed to the extent it alleges
that Respondent violated the Act in connection with daily
production records of employee Ruth Frost for September
1978 and daily production records of Joyce Campbell and
Euree Knight for November 1978.
'^ In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1246