The Fafnir Bearing Co.

National Labor Relations Board - Board Decisions

May 13, 1964

146 N.L.R.B. 1582 (N.L.R.B. 1964)

1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offices in Port Huron , Pontiac , Royal Oak , Lincoln Park , and Dearborn;
but excluding independent agents , retired agents, Metropolitan Insurance
consultants , managers , assistant managers , cashiers , clerical employees,
secretaries , professional employees , guards, watchmen , and all supervisors
as defined in the Act.
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
Dated----------- -------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 500 Book
Building, 1249 Washington Boulevard , Detroit , Michigan , Telephone No. 226-3230,
if they have any question concerning this notice or compliance with its provisions.
The Fafnir Bearing Company and International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America, Local No. 133, UAW, AFL-CIO. Case No. 1-CA-
4077. May 13, 19G4. -
DECISION AND ORDER
On September 26,1963, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that Respondent
had not violated the Act as alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial Examiner's
Decision and briefs in support thereof.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and finds merit in the exceptions of the General Counsel
and the Charging Party. Accordingly, the Board adopts the findings
of the Trial Examiner only to the extent consistent herewith.
The essential facts in this case are not in dispute, and have been
adequately set forth in the Decision of the Trial Examiner. We shall
restate the facts only to the extent required by our disposition of the
case.
. Respondent and the Union have been parties to collective-bargaining
agreements since 1944. The agreement in force at the time this dispute
arose contained an incentive wage clause. In substance, this clause
provided for the establishment of standard production rates which,
under the agreement, were supposed to reflect the number of pieces
I Respondent filed a brief in support of the Trial Examiner 's Decision and cross - exceptions
and a brief in support thereof.
146 NLRB No. 179.
THE FAFNIR BEARING COMPANY 1 83
produced by an employee working with ndrmal•ii centiv&-.. Employees
who exceeded the standard. rate were entitled to compensation in ex-
cess of the regular hourly wage. commensurate with the additional
production. The agreement provided that Respondenthad the obliga-
tion to fix standard rates. . ..
The actual fixing of standard rates was done by industrial engineers
employed by Respondent, called ratesetters. The ratesetters studied
the various elements which went into each manufacturing operation.
Some elements of the operation could be measured by an objective
standard, such as the speed of the machine. , Other elements required
the use of subjective judgment such as employee fatigue. and- "inter-
ference." Time also had to beallotted for such variables as consulta-
tion with the foreman rand visits to the 'washroom. The; total time
consumed by • all elements was -then ."normalized" by the ratesetter
-based on his observation and judgment. , The 'result constituted the
standard rate. . , .
The agreement also contained afour-stepgrievance procedure cut=
minating in arbitration'. Grievances over standard rates , which the
parties were unable to-resolve without the aid. of an,a.rbitrator, had in
the past been submitted-to a:permainent arbitrator who 'vas himself
an n industrial. engineer.: The, permanent arbitrator. had' always per-
-formed •an independent time. study of the, operation -involved in the
grievance.
The instant case involves -four grievances'respecting standard rates.
Having failed to'resolve :the,grievances at the first-two steps of the
grievance procedure, top officials representing Respondent and, the
Union met on February .7, 1963,' at the third' and final step before
arbitration'... Kermit Mead, i who was an expert industrial engineer,
represented`the Union: _ Mead requested and received from Respond-
ent the time-study data prepared by-Respondent's industrial engineers.
Mead studied, the, data and asked Respondent' s representatives; goes-
tions about the data.;: Respondent's representatives answered to the
best of their ability but in, one instance were unable to account for a
.5-percent "adjustment factor" which appeared 'in one of the time
studies. After 'studying the data, Mead informed. Respondent that be
was unable to advise the .Union whether, in his opinion, the rates set
for the disputed operations were in, co with the.provisions of
the collective-bargaining- agreement, and was, therefore, unable to
advise the 'Union whether to proceed to arbitration of the grievances.
Mead testified that merely studying the time data supplied by Respond-
ent wttis• not'a sufficient basis for forming an opinion respecting the
correctness of the rate because there was no way to assess the validity
of the time allotted by Respondent's industrial'erigineers to the'many
subjective variables in each operation. Mead asked permission-to
744-670-65-vol . 146-101
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform a time study of the disputed operations in order to obtain
sufficient information to enable him to advise the Union whether to
arbitrate any or all of the grievances.
Respondent denied the request on three grounds: (1) such a study
was unnecessary because Respondent had supplied the Union with suf-
ficient information to enable it to decide whether to proceed to arbit.ra-
tion; (2) the contract did not grant the Union the right to make an
independent time study; and (3) the arbitrator would conduct his own
time study. Respondent maintained that all four grievances were
subject to the arbitration provisions of the contract and offered to
arbitrate all of them.
Contrary to Respondent's contention, the Trial Examiner found
that the information supplied by Respondent was not sufficient.to
permit the Union to judge the accuracy of Respondent's time studies
and to make an intelligent decision whether to proceed to arbitration.
He also found that actual observation of the job by an expert was
necessary because of the many variables that had to be considered and
evaluated and the many subjective judgments that had to be made,
and because the information the Union desired could not be obtained
merely by interviewing the workman on the job.' Notwithstanding
the foregoing, however, the Trial Examiner concluded that Respond-
ent did not violate Section 8 (a) (5) and (1) of the Act because in ef-
fect the contract provided an exclusive remedy for the settlement of
this dispute, and because in the Trial Examiner's view Section 8(a) (5)
required no more than that Respondent furnish the Union with all
time-study data in its possession.
We do not agree. We find, as did the Trial Examiner, that the in-
formation which the Union sought to obtain by means of time studies
was not only relevant but also necessary to enable the Union to make
an intelligent decision whether to proceed to arbitration. But, un-
2 Our dissenting colleague would reject the Trial Examiner 's finding, based primarily on
Mead's testimony , that an independent time study by the Union was necessary properly to
assess the accuracy of the data supplied by Respondent and intelligently to judge whether
to proceed to arbitration , as well as the Trial Examiner 's further finding that Respond-
ent's data and interviews with ordinary employees were insufficient for these purposes.
The Trial Examiner , however , specifically credited Mead 's testimony with respect to these
issues and found it probative . Our review of the record reveals no basis for reversing the
Trial Examiner in this respect . Respondent conceded that Mead was an expert industrial
engineer , and did not dispute that he possessed the training and experience to give expert
testimony regarding the need for independent time studies . There is nothing in the record
to indicate that Mead 's testimony was not truthful or was inaccurate . On the contrary,
Mead's testimony was corroborated by another expert witness , and Respondent did not seek
to contradict it by offering testimony from its own industrial engineers. We also note that
the correctness of Mend's testimony is borne out by the fact that Respondent's own
officers were unable to explain certain computations in the data which it supplied to the
Union , and that Respondent itself retimed the disputed operations after the grievances
were filed. Under these circumstances we cannot agree with our dissenting colleague that
we should reverse the Trial Examiner's acceptance of Mead's testimony and reject his
findings based on that testimony . See Universal Camera Corporation v. N.L.R. B., 340.
U.S. 474.
THE FAFNIR BEARING COMPANY 1585
like the Trial Esa.miner, we hold that Respondent's refusal in these
circumstances to allow the Union to make time studies constituted a
violation of Respondent's duty to bargain in good faith.
It is well settled that Section 8(a) (5) of the Act imposes an obliga-
tion upon an employer to furnish upon request all information relevant
to the bargaining representative's intelligent performance of its 'func-
tion.' This obligation extends to information which the union may
require in order "to police and administer existing agreements." 4
The time studies requested by the Union herein were in the nature of
requests for such information. It is clear that the information
requested was both relevant and necessary to enable the Union to fulfill
its function as the bargaining representative, and that it was within
the power of the Respondent to make such information available to
the Union. We are of the opinion that' compliance with the good-
faith bargaining prescribed by the Act required the Respondent to
cooperate with the Union by making plant facilities available to the
Union for the conduct by the latter of its own time studies, unless
the Union's request was improper for some other reason or imposed
an unreasonable burden on Respondent .5
Respondent's asserted justifications for refusing t.o.grant the Union's
request, which the Trial Examiner accepted in part, must, we believe,
fail.e As indicated, the Trial Examiner found, contrary to Respond-
ent's contention, and we agree, that the studies were necessary to the
intelligent performance by the Union of its representative duties.
The contract did not prohibit such studies.. Merely becailse" the right
to such information was not "recognized by the Company in the bar-
gaining agreement . . . does not mean that it does not exist by virtue
of the statute."' Undoubtedly, the Union could have waived its
statutory right to such information. But such a waiver must be "clear
and unmistakable" 8 and is not to be lightly inferred. We find nothing
in the present agreement to support a finding that the Union waived
its right to the information sought herein.
Similarly, and contrary to the Trial Examiner's view, Respondent
may not justify its refusal to grant the Union's request on the ground
that if the grievances were submitted to an arbitrator, the arbitrator
8N.L.R.B. v. Yawman f Erbe Manufacturing Co., 187 F. 2d 947 ( C.A. 2) ; The Timken
Roller Bearing Co. v. N.L.R.B., 325 F. 2d 746 (C.A. 6).
4J. I. Case Company v. N.L.R. B., 253 F. 2d 149 (C.A. 7) ; The Timken Roller Bearing
Co. v. N.L.R.B., supra.
5 See Otis Elevator Company, 102 NLRB 770, enforcement denied in relevant part 208
F. 2d 176 (C.A. 2).
e We agree with the General Counsel and the Charging Party that the Trial Examiner
incorrectly viewed the case as one involving a dispute over the interpretation of the in-
centive wage clause of the agreement. We are not called upon here to decide whether the
wage was set in accordance with the terms of the agreement , but whether the Union was
entitled under the Act to information which was relevant and necessary to its processing
of grievances respecting standard rates.
Y The Timken Roller Bearing Company v. N,L.R.B., supra.
sN.L.R.B. v. Perkins Machine Company; 32(1 F. 2d 488 ' (C.A. 1).
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would perform his own time studies. The Union sought the informa-
tion for-the purpose of enabling it to decide whether to take the griev-
ances to arbitration in the first place. The benefit to the Union of
making its own time study, both for that purpose and for the purpose
of preparing its cases for arbitration, should it ultimately take ,that
course,, are not so tenuous or insubstantial as to warrant our declining
to support the Union's statutory claim to the information sought.
Our dissenting colleague contends that we fail ,to recognize that in
assessing a union's right to access a distinction. is to be made between
nonproduction and production areas. We do not agree that with
respect .to, time 'studies a dichotomy can be drawn between production
and nonproduction areas since a time study of necessity must be con-
ducted,in a production area. As the Board pointed out in Stoddard-
Quirk Manufacturing Co.,9 unless there is reason to assume from the
nature.of the activity itself.that the exercise of a statutory right may
unreasonably interfere with, production or discipline, the Board will
not assume the validity of an employer's imposition of restrictions
upon the exericse of statutory rights. To the extent that the dissent
suggests that Respondent's property rights may justify an interfer-
ence with the exercise of a statutory right, -the Supreme Court, in,
Republic Aviation Corporation v. N.L.R.B.,10 established the prin-
ciple that property rights alone will not suffice as a reason for denial
of rights guaranteed under the Act. If the dissent is suggesting
that the denial of the statutory right involved herein may be justified
on the ground that its exercise would interfere with production and
discipline, Respondent has failed to present any evidence that the per-
formance of the requested.time studies would so interfere. Indeed,
we cannot see how the performance of a time study could interfere
with production or discipline, since a time study must be conducted
under normal operating conditions.
As in other cases where the statutory rights of employees conflict
with the property rights of employers, the doors are not "always open
or always closed." 11 Rather a balance must be struck between these
competing considerations, based on the "actualities of industrial rela-
tions" (N.L.R.B. v. United Steelworkers of America, CIO (Nutone,
Inc.), 357 U.S. 357, 364), which will accommodate the rights of both
parties "with as little destruction of one as is consistent with the
maintenance of the other" (N.L.R.B. v. The Babcock & Wilcox Com-
pany, supra, at 112). Here the record shows that the time studies
were relevant and necessary to the Union's administration of the griev-
ance machinery of the contract and that the needed information was
0138 NLRB 615, 619, 621.
10 324 U.S. 793.
u N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105, 112.
THE FAFNYR 'BEARING COMPANY 1587
not available to the Union through alternative channels.12 Moreover,
where, as here, there are no adequate alternative sources of informa-
tion to which the Union may refer, it is clear that Respondent's re-
fusal to permit time studies of the disputed operations constituted
an unreasonable impediment upon the Union's performance of its
statutory function."
We do not deem it significant that the Union did not request time
studies in the past. We cannot assume that the reasons which moti-
vated it not to request time studies in the past have any applicability
to the present. As Justice Frankfurter said, "mechanical answers
will [not] avail for the solution of this non-mechanical complex prob-
lem in labor-management relations." " Our concern here is not with
the past relationship of the parties, but with the preservation of in-
dustrial peace and stability in their future relationship. We believe
that permitting a union to have access to relevant information where
no hardship or other reason would dictate a denial of such access
will tend to eliminate uinecessary disputes and diminish the number
of grievances which are taken to arbitration. Thus, the Union. herein,
because of lack of relevant information, if it wants to be sure that the
.employee interests are adequately. represented must press these
grievances to arbitration and incur unnecessary costs of processing
grievances that may turn out to be without substantial merit. It is
reasonable to believe, as Mead testified, that an independent time study
of the disputed operations could very well lead to the Union's dropping
the grievances. We, therefore, agree with Judge Clark that there is
no apparent reason why 'a time study should be denied at an "early
and effective stage of the [grievance] procedure," thereby forcing the
Union to "grope somewhat blindly through the very stages. of the
grievance procedure, where adequate information is most likely to
lead the parties to amicable agreement . . . ." 15
Accordingly, we find that Respondent violated Section 8(a) (5)
and (1) of the Act by refusing to permit the Union to perform a time
study of the disputed operation's. 16
See N.L .R.B. v. Avondale Mills, 357 U . S. 357 . In this regard the instant case is dis-
tinguishable from N.L. R.B. Y. Otis Elevator Company, 208 F. 2d 176 (C.A. 2), where the
court refused to enforce that portion of the Board 's order requiring the employer to grant
the union's request for permission to perform a time study . In Otis a majority of the
court found that the information sought by the union was already in the possession of
the union or was available to the union by means of interviewing its own members. Since
there was an alternative source of Information the court felt that the union's intrusion
into the plant was not necessary. Here, however, the Trial Examiner found that the
union could not have obtained adequate information by interviewing the employees.
19 Cf. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793. The restrictions upon
nonemployees access to the employer's property (N.L.R.B. v. The Babcock d Wilcox Com-
pany , supra ) are not applicable here in our opinion since a time study must be performed
by an expert Industrial engineer who would almost necessarily be a nonemployee.
11 N.L.R.B. v. Avondale Mills, supra, at 364.
15 Judge Clark dissenting in N.L.R.B. v. Otis Elevator Company, 209F. 2d 176, 179-180
(C.A. 2). -
10 Otis Elevator Company, 102 NLRB 770.
1 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent, The Fafnir Bearing Company, of New Britain, Connecticut,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aerospace and Agricultural Implement Workers
of America, Local No. 133; ,UAW, AFL-CIO, by refusing to permit
the Union to perform independent time studies, through its own ex-
perts, on jobs involved in grievances arising under the parties'
collective-bargaining agreement.
(b) In any like or related manner interfering with the efforts of
the Union to bargain collectively with. it in behalf of the employees
covered by the provisions of the collective-bargaining agreement.
2. Take the following affirmative action which the Board finds will
effectuate ,the policies of the Act: .
(a) Upon request, permit the Union to perform its own time study
on the jobs involved in grievances 62-161, 62-114, 62-79, and 62-187
to the extent that Respondent. is continuing to perform the opera-
tions in question.
(b) Post at its plant in New Britain, Connecticut, copies of the
attached notice marked "Appendix." 1' Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not, altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the First Region, in writing,
withi1110 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
MEMBER LEEDOM. d issenting :
I cannot agree with my colleagues that on the facts in this case the
Respondent was obligated to admit union representatives into the
plant for the purpose of making a time study. -My colleagues rely
on several considerations to support this invasion of the Respondent's
right to control the use of its property. In my opinion, these con-
siderations are insufficient in law.
171n the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
THE FAFNIR BEARING COMPANY 1589
The majority rest first on the well-established principles relating to
the furnishing of information by an employer to his employees' rep-
resentative. My . only disagreement with their conclusion 'based on
these principles is that such principles are irrelevant to t.he'facts in this
case. There is no issue -here of the Union's right to information in the
Respondent's possession;. as the -Trial Examiner held, and my col-
leagues do not dispute, the Respondent gave the Union all the data
in its possession which was relevant to the matters in, dispute. The
issue, rather; is the Union's .right to make its own time study.in the
Respondent's plant, to suppleinent:.the informationrreceived from the
Respondent. That issue, asJ stated in my concurring opinion in the
Westinghouse case," is properly-to-be resolved by reference to the prin-
ciples underlying those cases concerning a-union's right of access to an
employer's property. Consequently, my colleagues' reliance on those
cases concerning a union's .rights to 'informat.ion is, in my opinion,
misplaced.
My colleagues also .hold that the Union's right, of a:ccess,to the
Respondent's " plant has been established because in their opinion the
record shows that the time studies sought are relevant and necessary
to'the Union's administration of the contractual grievance machinery,
the information is not available through alternative,channels, and
the respondent has not alleged or shown that granting the right of
access in these circumstances would interfere . with production or
discipline. Since, in their view, the test to be applied is one of balanc-
ing the competing considerations, the' Respondent's refusal to grant.
access was, on the facts as they find them, unjustified. I cannot agree
with either their view-as to the applicable test or their assessment of the
.relevant facts.
With respect to the appropriate test my colleagues rely on cases
delineating the rights of 'nonemployees to gain access to non-
production areas of the plant. It is clear, however, that the issue in
this case involves access to production areas while employees are at
work. In such circumstances, as pointed out in Westinghouse Electric
Corporation, supra, I would require that the General Counsel, in order
to establish the existence of a right of access, must first establish that
the denial of access would constitute an unreasonable impediment to
the Union's exercise of its statutory rights. This he has failed to do.
Further, in assessing the Respondent's obligation to afford access
the limited nature of the Union's purpose, the past history of the
parties' relationships, and the alternative sources of information avail-
able to the Union, must all be considered. The record shows that the
Respondent and the Union have for some years been processing
grievances of this type without an independent time study being made
11 lVestinghou8e Electric Corporation, 113 NLRB 954, 961-963.
1590 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
at any stage prior to the submission of the grievance to the arbitrator,
and that, in determining whether the grievance has merit, the arbitra-
tor invariably makes his own time study. Yet, there is no showing, nor
is it contended that the lack of a prearbitration time study has been a
handicap to the Union in the past, causing it either to fail to process
meritorious grievances or to process an excessive number of non-
meritorious grievances. Further, although I am aware of the testi-
mony of Mead, the Union's industrial engineer, I regard it as self-
serving and insufficient to establish that the information available from
other sources, such as the Respondent's time-study data, and discussion
with employees, stewards, and committeemen, would be insufficient to
permit a determination as to whether the grievance should be'.taken to
arbitration=which is the only purpose for which the time study is
desired." As the record therefore does not establish either the neces-
sity of access or the unavailability of adequate alternative sources of
information, there is no prima facie case to support the Union's
claimed right of access here. I find it unnecessary, therefore, to con-
Sider whether granting the right of access would or would not interfere
with production or discipline-"
Finally my colleagues seek to distinguish the Otis case," in which
the court refused to enforce a Board order requiring the granting, of
Access for the purpose of conducting a time study. There, the court
concluded that the right of access. did not exist because the alterna-
tive sources of information were adequate for the intended purpose.
Here, as I have pointed out above, the only evidence indicating the
present inadequacy of relevant information is Mead's testimony; and
that testimony in my opinion cannot outweigh the objective facts
'° My conclusions with respect to these Issues are reached in the context of the limited
purpose for which the right of access is being sought . I express no opinion as to what
my conclusions would be if the right of access were being sought in connection with the
ultimate resolution of the merits of the grievances.
In this connection , my colleagues misapprehend my reasons for not accepting Mead's
testimony at face value . I do not at all purport to reverse the Trial Examiner's credibility
resolution. I take Issue, rather, with the virtually conclusive weight which the majority
accord to his testimony and their failure to accord proper weight to the other relevant
factors.
20 The cases on which my colleagues rely to support their rejection of this analysis are
clearly not in point; such cases are concerned with the rights of employees within the
plant, whereas this case Is concerned with the asserted rights of nonemployees to gain
access to the plant. As the Supreme Court succinctly stated in N.L.R.B. v. The Babcock rk
Wilcox Company , 351 U.S. 105, 113, there is "a distinction between rules of law applicable
to employees and those applicable to nonemployees." In view of this distinction there is
no warrant for assuming , as my colleagues apparently do, that nonemployee union repre-
sentatives have an absolute statutory right to admittance to an employer 's premises for
any and all union purposes , unless the employer can sustain a burden of showing a counter-
vailing basis for denial of that right. The burden , rather, is initially upon the non-
employees desiring access to establish factors which warrant granting a right of access ;
and not until a prima facie case has been established to support the claimed right of
access is it even necessary to consider the employer 's countervailing claim of a basis for
denying such a right.
-^ Otis Elevator Company , 102 NLRB 770 , enforcement denied in relevant part 208 F. 2d
176 (C.A. 2).
THE FAFNIR BEARING COMPANY 1591
establishing its adequacy for its intended limited purpose. The court
decision in Otis, therefore, fully supports my views in this case.
Under all the circumstances, therefore, I would for the foregoing
reasons dismiss the complaint.. As my colleagues have not done so,
I must dissent.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International
Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, Local No. 133, UAW, AFL-CIO, by
refusing to permit the Union to perform independent time studies
through its own experts on jobs involved in grievances arising
under our collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with the
efforts of the Union to bargain collectively on behalf of the em-
ployees covered by our collective-bargaining agreement.
WE WILL, upon request, permit the Union to conduct its own time
studies on the job with respect to grievances 62-161, 62-114, 62-
79, and 62-187 to the extent that we are continuing to perform
the operations in question.
THE FAFNIR BEARING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Any employees having a question concerning the meaning of the
above notice or concerning compliance with its requirements may
inquire by mail, telephone, or in person at the Board's Regional Office,
24 School Street, Boston, Massachusetts, Telephone No. 523-8100.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A charge was filed on February 11, 1963,1 by International Union, United
Automobile, Aerospace, and Agricultural Implement Workers of America, Local
' All dates herein refer to the year 1963.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 133, UAW, AFL-CIO. Upon that charge the General Counsel of the National
Labor Relations Board, by the Regional Director for the First Region ( Boston,
Massachusetts), issued a complaint on May 7 against The Fafnir Bearing Company
alleging, in substance , the commission of unfair labor practices as defined in Sec-
tion 8(a)(1) and (5), and affecting commerce as defined in Section 2(6) and (7)
of the National Labor Relations Act. Respondent has answered admitting some
facts but denying any violations of the Act.
Pursuant to due notice, a hearing was held before Trial Examiner James V.
Constantine at New Britain, Connecticut, on June 26, and at Hartford, Connecticut,
on August 13. All parties were represented at and participated in the hearing''and
had full opportunity to introduce evidence, examine and cross-examine witnesses,
submit briefs, and offer oral argument . At the close of the hearing all parties argued
orally. . Briefs have been received from all parties.
At the opening of the hearing I denied a request of the General Counsel that
Respondent be ordered to produce four time studies made by it. This denial was
prompted by a reading of the complaint , which alleged only a refusal to grant "the
Union's -request. to conduct its own time studies relative to piecework standards that
are the subject of certain grievances being processed by the Union as the exclusive
bargaining representative of all the employees of the Respondent in the unit :... • .,
Said time studies are relevant to the Union's evaluation of the merits of said griev-
ances . ' As framed, the complaint merely alleged a refusal to permit time-
studies by the Union. It did not refer to-any studies made by the Employer. Hence-
the issue 'should, be whether, as a matter of law, a bargaining representative is en-
titled to make time studies to aid it - in processing • grievances . Nothing in the
complaint , even intimated that the Union was seeking to conduct its time studies
only as the result of having examined the Employer's time studies which previously
had been supplied to it; nor was there an allegation in the complaint . that the time
studies made available by the Employer were inadequate , thus rendering it neces-
sary that the' Union make supplementary studies. The General Counsel took an
interlocutory appeal from this ruling to the Board . Such ruling was reversed on
the ground that "the evidence sought! is relevant to the charges described in the
complaint." -
At the hearing Respondent moved to .dismiss the complaint before evidence was
received. This motion was denied, - -
Upon the entire record in this case , including the stipulations of the parties, and
from my. observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Fafnir , a Connecticut corporation , is engaged in New Britain, Connecticut, in the
manufacture , sale, and distribution of ball bearings and related products. An-
nually it purchases and receives materials valued at more than $50,000 from, and
ships products valued at more than $ 50,000 to, points outside the State of Connecticut.
I find that Fafnir is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act, and that it will effectuate the policies of the.Act to take jurisdiction
of the present proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace, and Agricultural Implement
Workers of Amerca, Local No. 133, UAW, AFL-CIO, is a labor organization
comprehended by Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In general , the factual issues were virtually undisputed . Many crucial facts were
stipulated . Where controversy exists as to the facts , it has been resolved in-accord-.
ante with my evaluation of the credibility of the witnesses and reasonable inferences
from the evidence; but I have not narrated the evidence leading to such findings.
Nevertheless all evidence has been considered in arriving at the ensuing findings of
fact. Cf. Trumbull Asphalt Co. of Delaware v. N.L.R.B., 314 F. 2d 382, 383
(C.A. 7).
A. Characteristics of a time study
This case involves the refusal by an'employer to allow a bargaining representative
to conduct an independent time study to ascertain . whether such employer's time
THE FAFNIR BEARING COMPANY 1593
study should be accepted or submitted to arbitration. It is desirable therefore
that the ingredients of a time study be outlined and their connection with wages be
briefly portrayed.
1. The conception of a "standard"
When an employee is paid according to the number of pieces he produces or the
output attributable to his efforts, a study is made of all factors involved and there-
after it is determined how many pieces an hour should be produced by a workman
working at a normal pace. This number is referred to as standard. Thus, if the
study 'discloses that 50 pieces an hour are' normal on a particular operation, this
figure will be'the standard. Expressed as a percentage standard- is always considered
to be 100 percent.
An employee failing to turn out enough work to equal standard is guaranteed a
minimum pay, which is called his base or hourly rate. Every employee on piecework
is assigned an hourly rate of pay, regardless of the job which he may be performing.'
Thus employee A may have an hourly rate of $2 an hour. If A produces below
standard,.he will receive $2 an hour anyway; and, if he just makes standard, he still
receives $2 an hour. However there is an incentive to exceed standard. A bonus is
given for producing above standard. Thus if A fabricates more than standard, he
will be paid his hourly rate of $2 multiplied by a percentage consisting of the num-
ber of pieces produced divided by the standard number of pieces. For example, if A•
produces 75 pieces an hour when standard is 50, this. percentage may be expressed
as 7%0 or 125 percent. ' In the example given, A's pay for that hour in which he
turned•out_.75 pieces comes to $2.50, which is computed by multiplying $2 (A's hourly
rate) by-.125'pefcent? The calculation of incentive,pay is readily. recognizable by
the "fo'rmula B' d/c,. where B .is the hourly or base rate, d is the number of pieces'
produced, c is standard, and d/c is expressed in terms of percent.
2. The time-study procedures
In determining standard, a time study is made 'by a time-study man (herein called
a ratesetter) from the industrial engineering department.' The ratesetter, who' ob=
serves the employee performing the tasks, as a preliminary step writes up the 'condi-
tions and circumstances connected with the operation involved and under which
he intends to conduct the time study. These include the layout of the place where
the work is to be done; heat, if a factor; temperature; lighting; and all other compo-
nents affecting the completion of the job. After this, the ratesetter reduces the work
content • of the job. into individual items called work content elements.. They are
denominated 'as cyclic elements. Nonwork elements , such as going to ' a washroom
or keeping production Tecords, are called noncyclic."All the cyclic and the noncyclic•
elements. combined make a cycle.. A cycle results in'the production of one unit ' or *
single piece.
Basically, three kinds' of cyclic elements are performed` in the production -of a
unit. One of these is called, the machine control element, which relates to the speed
and feed of the machine -itself. The operator, of course, has no control over this.
Noncyelic.elements -also are taken into consideration, although they do.not enter into
every single cycle. Such noncyclic elements, for example, may involve occasional
travel away. from the work area to obtain a quantity of stock to work on, or visits to
the washroom, among other things. '
In the next step the ratesetter then observes an operator performing the particular
cycle involved, using a stopwatch to time movements of the operator: The number of
cycles he will observe is a matter of judgment. In doing so the ratesetter forms an
opinion as to whether the operator is performing at a normal pace, below normal,.
or above normal. The ratesetter then "normalizes" the performance he observes by
applying a rating, or leveling, or normalizing factor.if.he believes that the operator
was performing above or below normal.. By apply this normalizing factor to the
operator's average time in ,a cycle, the ratesetter will arrive at what is known as normal
time for a cycle. After ascertaining normal time, the ratesetter makes allowances
for personal fatigue and delay of the operator. Delay may involve keeping time
records, or rests, or cleaning up in the work area. Thereupon the total elapsed time
per piece is computed. Standard. is the number of pieces which should be produced
in an hour,at a normal pace and is reckoned by dividing 60 (the number of minutes in
2 In the contract between Respondent and the Union a minimum earning of 105 percent
is guaranteed on all piecework jobs to "the average operator" after a. "reasonable trial
period." See article 8.4.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an hour) by the total elapsed time per piece. If, for example, the total .elapsed
time per piece is 36 seconds (or .6 of a minute) then standard is 60/.6 or 100 pieces
an hour.
B. The refusal to permit time studies by the Union
Respondent and the Union have been parties to collective-bargaining agreements
since April 12, 1944, the current contract expiring on February 16, 1964. The
bargaining unit is not in issue. On various dates prior to February 7, 1963, the
Union submitted four grievances to Respondent on certain piecework rates involving
jobs within the unit covered by the contract. The Union contended that such rates
had not been properly established by the Company pursuant to the governing pro-
visions of the contract. Thereafter, these grievances were processed in the first two
steps in accordance with the mandate of the contract, and on February 7, 1963,
Respondent's top officials met with top representatives of Local 133, including Inter-
national representatives thereof, as required at step 3 of the grievance procedure.
At this step 3 meeting the Union's representatives requested and, received all the
time-study data used by the Company in establishing the piecework rates affected by
the grievances involved. Kermit Mead, a representative and director of the time-study
and industrial engineering department of the International, who was present, analyzed
said data and asked several questions in respect thereto of company officials. These
questions were answered fully. Mead, whose qualifications are admitted, then re-
quested permission to make on behalf of Local 133 his own time study of the opera-
tions involved in the four grievances, giving detailed reasons therefor. This was
denied on the grounds that.such a union study was unnecessary since the Company
had furnished the Union with sufficient information for it to determine whether the
grievances should be taken to arbitration; that. the contract failed to grant the Union
the right to conduct an independent time study; and that the arbitrator, as he had for
a number of years in the past in all piecework rate grievance cases submitted to him,
would conduct his own independent time study to determine whether the particular
piecework price had been set according to the pertinent criteria established by the
contract. It was stipulated that for a number of years the parties have submitted
many piecework grievance. cases to an arbitrator, and he had always conducted his
own independent time study to determine whether the piecework price established
by the Company in.the particular case met the contractual standard spelled out in
section 8 .4 of the contract.
1. Findings. common to all four grievances
As noted above, the Union filed grievances on four different piecework rates and,
at step 3 of the grievance procediiure, analyzed the Company' s time studies relating
thereto. These studies, it is contended, are based 'on the Employer's observations,
and, therefore, the Union seeks to supplement them with its own independent time
studies based on its observation in order to ascertain whether it should proceed fur-
ther with the grievances.
Mead testified, and I credit him,-that he was unable to determine from the data
set forth in the Company's studies whether the piecework rates were 'established in
accordance with the contract, and, therefore, was unable to advise the Union
whether to request arbitration. I proceed to examine the data concerning each
grievance and the Union's analysis of such data.
2. Findings peculiar to grievance numbered 62-161
As found above, each cycle is composed of several elements, both cyclic and
noncyclic. Company time-study data on the job involved in this particular grievance
disclose that seven elements were considered and timed. Thereafter, the Company
divided the total time by the number of observations, seven in all, and then supplied
a rating, or normalizing, or leveling factor of 90 percent. The Union has no way
of knowing, solely by perusing the time-study data, whether the conditions under
which this time was arrived at are still in existence. But a standard can remain
valPd only as long as the conditions and circumstances under which the standard was
established continue unaltered. They may change by the time a grievance is filed.
Hence personal observation is necessary to ascertain whether such conditions and
circumstances have been modified or changed between the time when they contributed
to the original time study and the time a grievance has arisen concerning-thhe piece
rate . It is not enough to talk to the workman operating the job; the operator niust be
seen while he is working.
Another reason why the Union is unable to evaluate the Company' s time studies
is that the rating or normalizing factor is applied by the time-study man as his
opinion based on his observations. This occurs after a ratesetter has studied opera-
THE FAFNIR BEARING COMPANY 1595
tions for a period of time sufficient in his opinion to be able to conclude from this
sampling how much time should be allowed as normal for one piece when a job
requires production on a quantity basis.
Some of the conditions requiring personal observation by the Union's time-study
man under the foregoing criteria are: (a) Load outers, that is, which hands and feet
are used to load, the motions in connection therewith, and the manner in which a
machine is loaded; and (b) personal fatigue and delay, such as rest periods, talking to
the foreman, going to the washroom, keeping time and other records, cleaning the
machine, etc. Fatigue varies with the nature of a job. In this particular time study
the Company had made an allowance for personal fatigue and delay; but the Union
cannot evaluate it without actual observation of the operator on the job. It is not
enough merely to talk to the operator; his actions on the job must be observed.
Rating factors cannot be inquired into or checked by the Union by perusing the
Employer's time-study records because they represent the opinion of the time-study
man. In this case the Company's ratesetter applied a rating factor of 90 percent, but
it is based on his observation of the operator and not on any established objective
criteria capable of accurate appraisal by another person.
The contract between the parties provides for arbitration of disputes relating to
production standards or.prices, but it is silent as to the Union's right to conduct its
own independent time study in connection with such disputes.
Often in making his own time studies at other plants. Mead has discerned that an
employer has "missed things . this is particularly true of noncyclic elements .
such as getting stock, doing things that are not done in the cycle of doing work, but
which is a necessary and time consuming part of a job . .
As found above, Mead examined Respondent's time studies on February 7 and
found them impossible to be evaluated because they involved the ratesetters' observa-
tions. Mead conveyed this conclusion to Respondent at the step 3 meeting, explain-
ing why in detail, but the Company notwithstanding refused to sanction an independent
Union conducted time study.
3. Findings peculiar to grievance numbered 62-114
Mead testified credibly that he was unable to evaluate the time-study data on this
grievance, that he conveyed this information to Respondent at the step 3 grievance
meeting on February 7, giving reasons in. detail, and yet Respondent refused permis-
sion to the Union to make its own time study. thereon. Findings made in connection
with grievance numbered 62-161, recited above, as to why Mead could not appraise
the Company's data and therefore needed to conduct his own time study, are equally
applicable here. They need not be reiterated; but they are incorporated here by
reference.
However, additional findings limited to this grievance are set out in this and the
succeeding paragraph. Respondent increased the time by 5 percent and called it and
adjustment factor on this job, but Mead neither knows the reason therefor nor, if he
knew, is he able to tell whether this was an adequate allowance or adjustment factor.3
This can be determined only by watching that part of the operation to which the
adjustment was applied . In addition , the Company's ratesetter used "a simple
average" rather than "a rating or normalizin* factor as such" after timing 15 pieces in
4.72 minutes. However, a simple average is utilized when the rating factor is 100
percent; otherwise a normalizing factor is used. This simple average was based on the
opinion of the ratesetter, and, therefore, was valueless to the Union as an opinion.
The Union would have required its own observation over a period of time sufficiently
long and on many more than 15 pieces to have arrived at a judgment as to what should
be a fair adjustment.
Actually this operation is a cycle within a cycle, that is, it is part of another and
larger job. The larger job, called the control operation, was timed for 65 pieces in
21.77 minutes. Where several operations occur within a control operation'cycle, the
standard must be based on the control operation. Here again, the personal judgment
of the ratesetter in terminating the grievanced operation time study after 15 pieces
and the control operation after 55 pieces cannot be evaluated except by an independ-
ent observation of the operator. Such observation will take into consideration -per-
sonal fatigue and delay, among other things. Respondent allowed 110.71 percent for
personal fatigue and delay on this job. Whether this is adequate or not can be
determined only by observation of the operator and not by perusing the Employer's
time study data or by talking to the operator.
81 find that Mead asked Respondent to explain this factor on February 7 but was told
that Respondent did not know what it represented . I make no finding as to whether it
was a negotiated 5-percent 'factor, as I am of the opinion that it makes no difference
whether it was negotiated or not by the parties.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4.. Findings with respect to grievance numbered 62-79
Findings previously made wth respect to the grievances numbered 62-161 and
62-114, apply here as to rating and normalizing , and are hereby incorporated by
reference . The ensuing additional findings concern this grievance only.
The Company' s ratesetter observed 30 pieces produced in deciding on a time
allowed to produce one piece . In arriving at this conclusion he applied no rating
factor, i.e., the rating factor remained at 100 percent, so that the time ultimately com-
puted was average time. However , he applied an 11.11 percent allowance, based on
his opinion of what the job deserved for personal fatigue and delay.
A very important factor involved here, but absent in the two grievances hereto-
fore discussed , is intermediate heat , i.e., bringing the load of stock to be used,
forged , or hammered , to the furnace to render it forgeable or hammerable. But
unless a union time-study man were able to observe this, he would be powerless to
tell whether a sufficient allowance had been made . In this connection , another
important consideration necessitates a determination of whether the furnace operates
at a constant temperature , and this can be checked only by examination of the
furnace itself.4
5. Findings concerning grievance numbered 62-187
Findings heretofore made in connection with the grievances numbered 62-161
and 62-114 also apply here and are hereby incorporated by reference at-'this point.
In • addition, findings limited -to grievance number 62-187 are set forth in this
subsection.
Respondent's ratesetter made allowances for an interference factor for something
he observed, but the time-study data failed to disclose the circumstances prompting
such allowances. The time study itself shows only a time value of 1.04 minutes for
55 units. Hence the Union can only find out by actually looking at the operation
whether interference exists and, if so, what allowance is proper therefor.
On this job the Company's ratesetter allowed 5.26 percent for personal fatigue
and delay based on his observations; but no verification thereof can be made by the
Union without an observation of its own under identical circumstances.
Respondent has referred to this job as "an obsolete operation," thus implying that
the dispute as to it is moot. But the issue , i.e.,-whether the Union is entitled-to make
its own time study, is still alive. Hence I reject the defense of mootness.
6. Other . expert testimony
Mead's expert testimony was confirmed by Bertram Gottlieb, staff industrial engi-
neer for AFL-CIO, whom I credit and whom I find to be qualified as an authority
in the field of time studies. Gottlieb described the nature of a time study and
agreed with Mead, for substantially the same reasons advanced by Mead, that per-
sonal observation was necessary to evaluate those elements based on the ratesetter's
personal opinion. _
Discussion and Concluding Findings
1. It is my opinion-and I find-that the parties have channelized their collective
bargaining by a contractual agreement which governs disputes relating to standards 5
covering piecework rates. This channel is' inserted in article 4.7 of the contract
whereby
If the grievance is not settled satisfactorily in accordance with the foregoing
procedure, and involves a question of interpretation or application of the terms
of this agreement, the Union may refer the matter to arbitration by written
notice to the Company . . . [at step three after the first two steps prove
abortive].
I further find that the grievances herein discussed involve a difference as to the 'ap-
plication or interpretation of standards set forth in Article 8.4 of the contract. ,
*Respondent contends, and offered evidence showing, that this job has not run since
February. 7. Nevertheless I do not find that this particular issue has been rendered moot
since it is not asserted that.the job has been permanently abolished. In any event, I find
that the issue, i.e., whether the Union may conduct its own time study, is active and
therefore not moot.
eThese standards are delineated at length in article 8.4 of the collective-bargaining
contract.
THE FAFNIR BEARING COMPANY 1597
It is lawful for parties to channel and direct their bargaining by consensual ar--
rangements. The Timken Roller Bearing Co. v. N.L.R.B., 161 F. 2d 949, 955-956
(C.A. 6). Cf. Teamsters Union v. Oliver,.358 U.S. 283, 295. And it is lawful
for a party-in the instant case 'the Respondent-to insist upon conformance with
the contractual provisions. ". . . the stability of labor relations that the statute
seeks to accomplish by the encouragement of the collective-bargaining process ulti-
mately depends upon the. channelization of- the collective-bargaining relationship
within the framework of a collective-bargaining agreement, and the adherence
thereto by the contracting parties .. the broad purpose of the statute and the
interests of the parties will best be served by requiring such adherence." United
Elastic Corporation, 84 NLRB 768, 773. See Knight Morley Corporation, 116
NLRB 140, 151.
Hence I am constrained to rule that, on the facts found, Respondent has not
violated Section 8(a)(5) by refusing to grant the Union the right to make independ-
ent time studies and by demanding that the grievances be resolved by an arbitrator
who will make his own independent time studies. Montgomery Ward & Co., In-
corporated, 137 NLRB 418, 423, in my opinion points to this conclusion. The
Timken Roller Bearing Co., 138 NLRB 15, and Hekman Furniture Company, 101
NLRB 631, are distinguishable because the contracts there, unlike that in.the instant
case, did not channelize the disputes there by subjecting them to the 'grievance
machinery. Indeed Timken indicates endorsement of the result herein by noting that
".the arbitrator's jurisdiction is limited [by the contract] in -fact to disputes involving
the interpretation and application of the agreement," that the dispute there did not
pertain to an arbitrable matter, and implying that a contrary result would be reached
if the dispute there were embraced by the contractual provision requiring arbitration.
138 NLRB 16.6
2. Secondly, I find that the controversy between the parties concerns the inter-
pretation of the contractual text in article 8.4 relating to standards to be followed in
adopting piece rates. In effect the Union is contending that the failure to conform
to such contractual commands amounts to a breach of conract. But a breach of
contract does. not constitute a refusal to bargain. United -Telephone Company of the
West and United Utilities, Incorporated, 112 NLRB -779. See Dowd Co. v Courtney,
368 U.S. 502, 513; The Union's recourse therefor lies either in arbitration or in
litigation before a judicial forum empowered to interpret and enforce the Union's con-
struction of the disputed text. See United Telephone Company etc. supra at 781-782;
Sinclair•Refining Co. v. N.L.R.B., 306 F. 2d 569, 576 (C.A: 5).
. 3. In any event I am constrained to rule that , as a matter of law , Section 8(a) (5)
of the Act does not impose upon an employer an obligation to acquiesce in a union's
demands for an independent time study by such union after such employer has sup-
plied it with all his relevant time studies. In this connection it is desirable to
stress what this case does not involve. (a)rNo contention is advanced that Re-
spondent has refused to make available its time-study data,7 for Respondent actually
has supplied all its relevant time studies-to the Union. (b) Nor is it argued that
some data were withheld from the Union, for the complete time-study data have
been made available. (c) . Nor- is it alleged or - argued that Respondent's time
studies were conducted inefficiently, or incompetently, or in bad faith.8 (d) Finally,-
Respondent is not accused of refusing to discuss, during the term of an existing
contract, the adoption of a clause providing for independent time studies by the.
Union. See Proctor Manufacturing' Corporation, 131 NLRB 1166; The Jacobs
Manufacturing Company, 94 NLRB 1214, enfd. 196 F. 2d 680 (C.A. 2). In process-
ing the grievances the Union never requested such a provision in the contract so
far as the record discloses. -
This branch of-the case must be decided, therefore, on the premise that the time
studies which the Union examined represent all'the data which the Union was entitled
to receive if the Board had ordered Respondent to disclose its time-study data to
° Otis Elevator Company, 102 NLRB 770, upon which the General Counsel relies, adopts
this same' distinction. Hekman Furniture Company, 101. NLRB 631; enfd. 207 F. 2d 561
(C.A. 6), is further distinguishable because wage information was there sought and also
it did not relateto.a grievance. -Unlike Hekman, Respondent' here has produced the \cage
information demanded by the Union, i.e., Respondent has made available its complete time
studies.
7 Taylor Forge and Pipe Works; 113 NLRB 693, enfd. 234 F. 2d 227, cert. denied 352
U.S. 942; The Ingalls Shipbuilding Corporation, 143 NLRB 712. Hence the cases cited
by. the General Counsel to the effect that a union is entitled to relevant information are
not applicable. Cf. The Timken Roller Bearing Company, 133 NLRB 15'
8 Westinghou8e Electric Corporation, 113 NLRB 954, 958 ( concurring opinion).
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fullest extent as in I. I. Case Company, 118 NLRB 520, enfd. 253 F. 2d 149
(C.A. 7). The question then is whether the Union may check such data by its
own time studies. . But I am unable to find any present compelling authority in
decided cases or in the legislative history of the Act which sanctions the view that a
union is entitled to make its own independent time studies after it has received the
employer's time-study records. The few cases upon this branch: of the law are not
harmonious, but the most recent suggest, the conclusion that such independent time
studies are not a matter of legislative right. A hurried review of them follows.
Otis. Elevator Company 102 NLRB 770, endorses the position of the General
Counsel and the Charging Union. But it was denied enforcement by the Second
Circuit Court on the.ground that Section 8(a) (5) of the Act does not confer this
right on unions. See 208 F. 2d 176. Westinghouse Electric Corporation, 113 NLRB
954, although it contains no majority opinion, not only is inconsistent with the
Board's decision in Otis Elevator, but the separate rationale of each of the three
opinions of those composing the majority contains language indicating that Otis
does not confer upon collective-bargaining agents an absolute right to conduct in-
dependent time studies.
Although the problem was presented in Hercules Motor Corporation, 136 NLRB
1648, that case was finally decided on other grounds. Nevertheless one Board mem-
ber dissented in the Hercules Motor case because in his opinion "the majority's con-
clusion . . . that the Respondent was under no duty' to furnish. the Union [with
permission to make its own independent time studies] is a reversal of" Otis Elevator
Company, 102 NLRB 770. Hence I conclude that one Board member considers
Otis Elevator as overruled and, Hercules Motor Corporation as standing for the
proposition that a union may not as a matter of right insist upon making its own
independent time studies.
Judged by the-subsequent treatment of Otis Elevator by the Board and the Second
Circuit Court of Appeals it is difficult to assert that any vitality remains in its
doctrine. Consequently, I do not regard that case as an authoritative precedent.
As pointed out above I am of the opinion that the Board now probably holds that
denial of permission to direct an independent time study, absent evidence of employer
bad faith, or a showing of incompleteness of the employer's study, or the with
holding of some of the study data by the employer, does not contravene Section
8(a) (5) of the Act as .a refusal to bargain.
Finally, as .1 read it, the legislative history of the. Act fails to sustain the General
Counsel. It discloses a congressional , policy (a). which compels employers and
unions in good faith to meet, and negotiate upon bargainable subjects; reducing
their agreements to written contracts, and (b) which requires an employer' to pro-
vide a union with,certain data or information in the employer's possession .9 How-
ever, the instant case involves more than a discovery and inspection of data or
information which the employer possesses ; it concerns the right of a collective-
bargaining agent to test, verify, or investigate data which has been made available
by the employer. But I am unable to discern any legislative intent to confer
on unions a statutory right to conduct investigations of or to probe an employer's
records or his methods of doing business by reviewing his operations. As.the Supreme
Court has commented on the legislative history, ... the nature of the duty to
bargain in good faith thus imposed upon employers by Section 8(a) (5) of the
original Act was not sweepingly conceived ... . [quoting a remark by Senator
Walsh] the underlying purpose of the remark has remained the most basic
purpose of the statutory provision. That purpose is the making effective of the duty
of management to extend recognition to the union . recognition as the bargain-
ing agent of the employees in a process that looked to the . formation of a
contract." N.L.R.B. v. Insurance Agents' International Union, AFL-CIO
(Prudential Ins. Co.), 361 U.S. 477, 484-485. See Section 8(d) of the Act. "The
purposes of the Act are served by bringing the parties together and establishing
conditions under which they are to work out their agreement themselves." 10
Teamsters Union v. Oliver, 358 U.S. 283, 295.
Accordingly, I conclude that on the record unfolded before me the complaint
should be dismissed.
Upon the basis of the foregoing findings of fact and the entire record, I make
the following:
o See Oregon Coast Operators Association, et ai., 113 NLRB 1888 , 1845-1346; The
Ingalls Shipbuilding Corporation, 143 NLRB 712.
3U This has been characterized as "industrial self-government." See United Steelworkers
v. Warrior and Gulf Co., 363 U.S. 574, 580.
ARISTOCRAT INNS OF AMERICA, INC., ETC . 1599
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace, and Agricultural Imple-
ment Workers of America, Local No. 133, UAW, AFL-CIO, is a labor organiza-
tion within the contemplation of Section 2(5) of the Act.
3. Respondent is the recognized exclusive collective-bargaining agent in a unit.
which includes those employees involved in grievances numbered 62-79, 62-114,.
62-161, and 62-187.
4. Respondent has fulfilled its statutory obligations under Section (a) of (5) of the
Act.
5. Respondent's refusal to allow Local 133 to make an independent time study in
connection with the grievances described in 3, above , does not constitute an unfair
labor practice.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law , and the entire
record , it is recommended that the complaint be dismissed.
Aristocrat Inns of America, Inc., and Essex Inn Corporation
and Madie Roots
Aristocrat Inns of America , Inc., and Essex Inn Corporation
and Odell Butler
Aristocrat Inns of America, Inc., and Ascot Motel Corporation
and Lawrence L Perry
Local No. 4, Building Service Employees International Union,,
AFL-CIO and Madie Roots. Cases Nos. 13-CA--54,09-1,13-CA-
5429-20,13-CA-5474, and 13-CB-1385-2. May 14, 1964
DECISION AND ORDER
On January 17, 1964, Trial Examiner Horace A. Ruckel issued his
Decision in the above-entitled proceeding, finding that certain Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer 's Decision. The Trial Examiner also found that the Respond-
ents had not engaged in other unfair labor practices, and recommended
that the allegations of the complaint pertaining thereto be dismissed.
Thereafter, the General Counsel and the Respondent Employers filed
exceptions to the Trial Examiner's Decision and supporting briefs,
and Respondent Employers also filed a brief in opposition to certain
of General Counsel's exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
146 NLRB No. 178.
744-670-65-vol . 146--102