The Kendall Co.

National Labor Relations Board - Board Decisions

Apr 24, 1972

196 N.L.R.B. 588 (N.L.R.B. 1972)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kendall Company, Oakland Plant and United
Textile Workers of America , AFL-CIO . Case 11-
CA-4357
April 24, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND KENNEDY
On December 30, 1971, Trial Examiner Laurence
A. Knapp issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and has
decided to affirm the Trial Examiner's rulings, find-
ings, and conclusions and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, The Kendall Company, Oakland Plant,
Newberry, South Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP. Trial Examiner: This case was tried
before me in Newberry, South Carolina, on September 16,
1971, after preheanng proceedings in compliance with the
National Labor Relations Act, as amended (herein referred
to as the Act). 1 Following the hearing, briefs were filed by
counsel for the General Counsel and for Respondent.
Upon the entire record in the proceeding, I make the
following:
FINDINGS OF FACT
I RESPONDENTS BUSINESS, THE
LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits , and I find
that at its plant involved herein, located in Newberry, South
Carolina, Respondent is enga ged in the manufacture of
cotton goods, and that in the I months preceding issuance
1 The underlying charge was filed on September 22, 1970, the complaint
issued on July 13, 1971, and Respondent's answer to the complaint, denying
the commission of the alleged unfair labor practices , was filed on July 22,
1971.
of the complaint Respondent received at this plant directly
from points outside the State of South Carolina , and ship-
ped from this plant to points outside the State of South
Carolina , goods valued , in each instance , in excess of $50,
000. Upon these facts , Respondent is engaged in commerce
and in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
The complaint alleges , Respondent admits , and I find
that United - Textile Workers of America , AFL-CIO, and its
Local Union No. 2014 (herein sometimes collective ly refer-
red to as the Union), are labor organizations within the
meaning of Section 2 (5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
For a number of ears the Union has been the representa-
tive of Respondent s production and maintenance employ-
ees at the plant herein involved, and corresponding Labor
agreements have existed between Respondent and Union.2
The question presented is whether Respondent unlawfully
refused to permit the Union to make through its own expert
a job or workload study of certain weavers jobs in relation
to a grievance of the Union concerning a work-change af-
fecting these jobs put into effect by Respondent.
A. Events Surrounding and Negotiations
Concerning the Union's Request
Respondent has what is described in the record as the
"lower weave room," containing 833 weaving looms. Prior
to March 31, 1970,3 nine weavers per shift were assigned to
this room, each with corresponding portions of the total
looms to tend. On that date, and in accord with contract
procedures relative to the initial making of workload
changes,a Respondent reduced the number of weavers per
shift from nine to eight, with a resulting increase in the
number of looms assigned to each weaver. On May 22, 1970,
and likewise in accord with contract provisions relative to
the submission and disposition of complaints by the Union
concerning such workload changes through a grievance and
arbitration procedure,5 the Union filed with Respondent a
grievance 6 protesting this change as a "stretch-out" alleged-
ly causing a decrease in the weavers' production and earn-
ings ;7 and on July 6, the Union amended its grievance to
include a "request that a time study engineer from the Un-
ion be allowed to study the weavers' fobs."s The Union's
presentation of its complaints in this written form and at-
tendant meetings had between Union representatives and
Respondent's plant manager (and associated officials) con-
stituted the final ste in the grievance procedure, that is,
prior to arbitration if invoked by the Union .9
At these meetings, the Union representatives reiterated
their request that Respondent permit the Union's expert to
study the weavers' jobs, on the ground that such a study was
2 The contract current at the times material to this case was effective
January 1, 1970 (Resp. Exh. 1).
3 All dates used hereinafter refer to the year 1970 unless otherwise stated
See Resp Exh . 1, Sec. Twelve.
5 See Resp . Exh 1, Sec Eleven and Twelve.
6 C. G. Exh 2
r The weavers work on an incentive-pay basis, that is, at a base rate plus
a premium for production above the base rate standard . The amount of
production per loom per shift is recorded by counting devices on the looms.
8CG Exh.3.
9 For the provisions of the contract relative to arbitration of workload
grievances see Resp Ex 1, Sec. Eleven , par. 3, and Sec. Twelve, pars. (B) and
(C). Because of the impasse which the parties reached relative to the Union's
job study request (see infra in the text), the Union did not invoke the arbitra-
tion procedure
196 NLRB No. 102
THE KENDALI, CO. 589
needed to ascertain whether the weavers were being
"overloaded" (by virtue of the additional looms assigned to
them under the work change ), 10 and, hence , so that the
Union could determine whether to take the matter to arbi-
tration and have useful data of its own to present if it did
so. Respondent 's initial response to the Union request was
that, in line with a corresponding provision of the contract,
it would permit a member of the local union to study the
jobs along with a company engineer , a course which the
Union declined to follow on the ground that none of its
members had the necessary industrial engineering qualifica-
tions , for which reason the Union wanted to utilize the
services of a qualified specialist employed by the Interna-
tional Union . It is unnecessary to dwell further on this or
other aspects of the discussions had at these meetings, since
what brought matters to a head was Respondent 's offer at
the last meeting to permit the Union 's expert to review at
the lant with Respondent 's industrial engineers the ]'ob-
study or workload data Respondent had utilized as justifica-
tion for the reduction in weavers ; in this connection,
Respondent 's officials asserted their confident belief that
such a study would satisfy the Union's expert and render it
unnecessary for him to make his own study of the jobs. In
response , Heath, an international representative of and
principal spokesman for the Union , agreed to follow this
procedure provided Respondent would agree to permit the
Union's expert to study the jobs if he found something
"wrong" with or had some questions concerning
Resppondent's data following his review of it . On the basis
of the testimony both of Respondent 's and Union witnesses,
it is clear to me that the initial response of Respondent's
spokesman to this query was that Respondent would not
then agree to Heath s proposal but would cross this bridge
when it came to it ; i.e., after the Union 's expert had com-
pleted his study of Respondent's data. I credit Respondent's
evidence that this was its final position and that it never
flatly declined to permit the Union's expert to study the
jobs." But, of course , if under the circumstances of this
case , Respondent was required under the Act to accede to
the Union's request , that is, could not properly insist that
the Union first study Respondent's data, before determin-
ing whether or not to grant that request, then Respondent's
position amounted , in effect, to an unlawful refusal of the
requested permission.12
10 Various of the weavers had complained to the Union that they were
being "overloaded" and were "losing pay" as a result of the additional looms
assigned to them . There is no evidence that the weavers had less earnings
after the change than before , but apparently what the weavers meant by their
claim of lost pay was their belief that they should have been earning more
premium pay after the change than before because they were then tending
more looms.
11 Heath testified that after Respondent had declined to commit itself he
stated that he was going to file charges with the Board because he felt the
job study was within the Union 's rights and that Respondent 's officials then
said "if the Board ruled that [the Union 's expert] could go into the plant
.. then he could go; but unless the Board's decision said that he could go,
that he could not go into the plant ." Respondent 's witnesses uniformly testi-
fied that at no time did they flatly refuse to permit the requested job study
and its witness Estes testified that the final session ended with Heath's
declaration of intention to file charges. In any case , with Heath shifting the
forum from negotiations to a proposed Board determination , all that Respon-
dent was saying was that it would abide the result . This in no sense amounted
to a flat refusal of the Union 's request or any shift from Respondent's
position in the negotiations ; i.e., that would it defer final decision upon the
Union's request pending study of its data by the Union expert . In short, any
exchanges relative to Board proceedings left the parties where they were
before these exchanges.
12 Subsequent to these meetings there occurred an exchange of correspon-
dence between the Union and Respondent which , so far as the issues herein
are concerned , in substance merely reflects the opposing positions reached
B. Respondent 's Workload Determination
System and Related Reasons
for the Workload Change
In determining the workloads of the weavers in question,
i.e., the number of looms assigned to each weaver to tend,
Respondent uses a job-study system composed of two main
factors. One is "unit times ,' that is, the average amounts of
time spent by weavers in their various work functions and
in nonwork ("fatigue time") activities during the workday.
These unit times are ascertained by actual timestudies (not
adjusted or weighted by reason of any factor other than
time) of a representative number of weavers , and once made
need not be repeated so long as the weaving work being
performed remains substantially the same . 13 The other main
actor is "frequencies ;" i.e., the frequency with which the
unit elements occur . The number of "frequencies" is ob-
served and arithmetically recorded continuously, not by
industrial engineers who make the unit time studies, but br
ordinary employees called "frequency" or "loom stop
checkers . Of key importance for purposes of this case is the
number of loom stops , that is , the occasions when due to
one form of malfunction or another a loom ceases opera-
tion.
On the basis of these two factors , but by some mode of
calculation not detailed in the record , Respondent de-
termines the number of looms to be assigned to a weaver in
such a fashion that the average worker will be able to earn
base pay when his productive time falls in a range of about
80-87-1 /2 percent of total workhours, and, accordingly, his
nonproductive or "fatigue" time activities is in a range of
about 13-1 /2-20 percent of total workhours . Since the more
continuously his looms operate , the more the weaver can
earn in premium pay, this s ystem gives the weaver an in-
ducement to patrol and tend his looms in such a way as to
prevent, so far as he can, loom stops . According to
Respondent's witnesses , the frequency checks made during
some period prior to March 1970 showed a significant de-
cline in the frequencies of loom stops which justified reduc-
ing the number of weavers per shift from nine to eight (this
is, increasing the number of looms assigned to each weaver).
Analysis and Conclusions
The Board has repeatedly held that, as an incident of the
employer's obligation to furnish upon request all informa-
tion relevant and necessary to a bargaining representative's
intelligent performance of its function, the employer is re-
quired to permit such a representative to conduct its own
job studies in connection with workload or job assignment
gnevances.14 And Respondent's main objection in this case,
that the Union ought first to be required to review
Respondent's job study data, was rejected in the Wilson
Athletic Goods case, supra.
Respondent further contends that at the hearing the Un-
ion officials were unable to demonstrate in what particular
way a ]ob study by the Union's expert would support or
throw light on the Union's "overload" grievance. But obvi-
ously, the Union 's witnesses were not job study experts and
the right of the Union to a job study is not subject to any
advance showing that the grievance was meritorious. To
by these parties in the meetings . C.G. Exh. 4-7, inclusive
13 The unit time studies material to this case were made in late 1968.
l4 See, for example , General Electric Company, 192 NLRB No. 9; General
Electric Company, 186 NLRB No. 1; General Electric Company, 180 NLRB
No. 13; North Carolina Finishing Division of Fieldcrest Mills, Inc., 182 NLRB
No. 115; Wilson Athletic Goods Mfg. Co, 169 NLRB 621; Fafnir Bearing Co.,
146 NLRB 1582.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throw light on that question is the very purpose of such a
union-conducted study.15
Absent any union waiver, and seeing nothing in
Respondent's contentions which refuted what is otherwise
clear, i.e., that the Union requested job study is relevant to
and necessary for intelligent processing or arbitration of its
workload grievance, Respondent's reprisal to grant the
Union's request was an unlawful reprisal to bargain and
violated Section 8(a)(5) of the Act under the Board deci-
sions previously cited.
CONCLUSIONS OF LAW
1. Respondent is an employer enga ed in commerce with-
in 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. By refusing the Union's request to permit the Union's
representative to enter Respondent's plant for the purpose
of studying the weavers' ,lobs, Respondent has refused to
bargain collectively with the Union within the meaning of
Section 8(aX5) and (1) of the Act.
4. The aforesaid acts are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action in order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in this case and
pursuant to Section 1D0(c) of the Act, I hereby recommend
that the Board issue the following:
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 no-
tices are not altered, defaced, or covered by any other mate-
rial.
(c) Notify the Regional Director for Region 11, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.18
is Respondent further points out that under the contract Respondent's
"unit times" are not subject to arbitration But these times are but one feature
of Respondent's job study system , the Union is not necessarily bound to
study the jobs in precisely the same fashion as Respondent does, and, in any
case , this provision cannot be interpreted as representing a waiver by the
Union of job-study rights.
16 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 , recommendations , 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.
17 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted By
Order Of The National Labor Relations Board" shall be changed to read
"Posted Pursuant To A Judgment Of The United States Court Of Appeals
Enforcing An Order Of The National Labor Relations Board "
18 In the event that this recommended Order is adopted by the Board, this
provision shall be modified to read - "Notify the Regional Director for Re-
gion 11, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency Of The United States Government
ORDERI6
The Kendall Company, Oakland Plant, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Textile
Workers of America, AFL-CIO, and its Local Union 2014,
by refusing to permit the Union, through its own expert, to
make job studies relevant and necessary to the processing
of g evances.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to bargain collectively through
representatives of their own choosing, to engage in concert-
ed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all
such activities except to the extent that such right (to re-
frain) may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
a) Upon request, permit the Union, through its own
exert, to make job studies at Respondent's Oakland plant
relevant and necessary to the processing of grievances.
(b) Post at its Oakland plant at Newberry, South Caroli-
na, copies of the attached notice marked "Appendix."17
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by its repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
WE WILL NOT refuse to bargain collectively with
United Textile Workers of America , AFL-CIO, and its
Local No. 2014, as the statutory bargaining representa-
tive of our production and maintenance employees at
our Oakland plant by refusing to permit the Union
through its own expert, to make job studies relevant
and necessary to the processing of employee griev-
ances.
WE WILL NOT in any like or related manner interfere
with the efforts of the Union to bargain collectively.
THE KENDALL COMPANY,
OAKLAND PLANT
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
an one.
is 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 questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 1624 Wachovia Building, 301
North Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-2300.