Univis, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1968

169 N.L.R.B. 37 (N.L.R.B. 1968)

UNIVIS, INC. 37
Univis, Inc. and United Glass and Ceramic Workers
of North America, AFL-CIO-CLC, Local No. 433.
Case 12-CA-3723
January 8,1968
DECISION AND ORDER
BY MEMBERS BROWN,JENKINS , AND ZAGORIA
On August 28, 1967, Trial Examiner Alvin
Lieberman issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as ,amended , and recommending that
it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial
Examiner 's Decision . Thereafter , the Respondent
filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
Trial Examiner 's Decision , the exceptions, the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Univis , Inc., Fort Lauderdale , Florida, its
officers , agents, successors, and assigns, shall take
the action set forth in the Trial Examiner 's Recom-
mended Order.
MEMBER BROWN, dissenting:
In my opinion the basic dispute in this case
should be left for resolution within the framework
of the dispute settlement procedures agreed upon
by the parties in their current collective-bargaining
agreement.
We are dealing in this case solely with a request
for information first made by the Union during bar-
gaining negotiations preliminary to the parties'
agreement on the wage incentive provisions. At that
time, the parties fully explored the information is-
sue, with the Respondent giving examples of the
type of data that it would agree to furnish. The
Union thereafter accepted the contract which
specified the type of information to be provided.
When the Respondent subsequently denied a
request for additional data, the Union grieved, but
at the final step, filed an unfair labor practice
charge, rather than proceeding to a final and binding
determination pursuant to the contractual dispute
settlement machinery. In my opinion, responsible
collective bargaining entails an obligation on the
parties to abide by their agreements with respect to
matters, which, as here, have been affirmatively
regulated through the collective-bargaining process.
Permitting a party to refuse to use the agreed upon
settlement machinery is inconsistent with the na-
tional labor policy. Accordingly, I would not con-
sider this case on the merits, but would dismiss the
complaint in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Trial Examiner : This case , with all
parties represented , was tried before me in Miami,
Florida, on April 5 , 1967, upon a complaint' of the
General Counsel and Respondent 's answer.2 The issue
litigated was whether Respondent violated Section-
8(a)(5) and ( 1) of the National Labor Relations Act, as
amended (herein called the Act), by refusing to furnish
certain data to the Union pursuant to its request. More
particularly the questions for decision in determining this
issue are as follows:
1. Is the information requested by the Union relevant?
2. Did the Union waive any right which it might have
had to receive the information which it requested?
3. Should the National Labor Relations Board (herein
called the Board), defer to arbitration and refrain from
making a decision in this case?
Upon the entire record , 3 upon my observation of the
witnesses and their demeanor while testifying , and upon
careful consideration of the able bnef submitted by
Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation whose principal of-
fice and place of business is located at Fort Lauderdale,
Florida, where it is engaged in the manufacture of optical
glass. Respondent annually purchases and receives
directly from sources located outside the State of Florida
goods and materials valued at more than $50,000. Ac-
' The complaint was issued on a charge filed by United Glass and
Ceramic Workers of North America, AFL-CIO-CLC, Local No 433
(herein called the Union ) During the trial the complaint was amended in
several respects Par 4 was amended by substituting the name "ArthurJ
Sowers" for "Arthur J Sawers ." Par 7 and 7 (b) were amended by sub-
stituting for the date set forth therein the date "September 21, 1966."
Finally, the following was substituted for the first two lines of par 7(a)
Since on or about September 21, 1966 , and more particularly on
September 21, 1966, September 22, 1966, October 3, 1966,
November 2, 1966, and again during November 21, 1966
2 During the trial Respondent admitted the allegations of paragraphs 7,
7(a), and 7 (b) of the complaint, as amended.
3 Errors in the transcript have been noted and corrected.
169 NLRB No. 18
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, I find that Respondent is engaged in commerce
within the meaning of the Act and that the assertion ofju-
risdiction over this matter by the Board is warranted.
Siemons Mailing Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly this case concerns itself with the Union's
request for, and Respondent's refusal to furnish, certain
data; namely, results of Respondent's timestudies and co-
pies of Elements I through VII of each Work Study
Summary4 prepared by Respondent for each job placed
within an incentive wage program provided for by the
contract between Respondent and the Union. The
General Counsel and the Union contend 5 that the Union
must have this information for the purpose of, as alleged
in the complaint, "the proper administration of [its] cur-
rent collective bargaining agreement" with Respondent
and that Respondent's refusal to furnish it constitutes a
violation of Section 8(a)(5) and (1) of the Act.
Respondent, for its part, questions the relevancy of the
data sought; asserts that it is giving, and has given, the
Union all the information it is entitled to under the con-
tract; and insists that the Union has waived its right to
receive more. In addition, inasmuch as the contract in-
volved provides for a grievance procedure culminating in
binding arbitration, Respondent argues that the Board
should defer to that method for determining the issues in
this proceeding.
B. Facts
There appears to be little material dispute as to the
facts. They will, therefore, be set forth in summary
fashion under appropriate headings.
1. The incentive system
The contract, currently in force between the Union and
Respondent, went into effect on March 28,1966 .6 It pro-
vides for the placing of jobs in Respondent's plant on an
incentive wage system founded upon work standards to
be established by Respondent.
These will be more fully described below.
As the contentions of the General Counsel and the Union appear to be
similar in all respects they will be referred to hereafter as the General
Counsel's contentions.
R Unless otherwise noted, all dates subsequently referred to in this
Decision fall within 1966.
' These appear in the record as G.C. Exh. 12.
Samples of a Work Study Summary were received in evidence as G.C.
Exhs. 6 and 10. The former contains only Element VIII, the latter, Ele-
ments I through VII . Also in evidence , as G.C. Exh. 4, is a sample of an
Operations Standard Sheet.
9 This is the only area in this case in which there is a testimonial con-
flict. The variance, however, is not between testimony given by J. Bernard
McCabe, the Union's president, who was the only witness called by the
General Counsel, and that given by Maloney, Respondent's vice pres-
ident for industrial relations, the only witness called by Respondent. It
The term "work standard" which is the basis for the in-
centive system was defined by John T. Maloney, Respon-
dent's vice president for industrial relations, as being "the
number of pieces that an individual is to perform within
a specific period of time." If an employee produces more,
he receives an incentive payment arrived at by the appli-
cation of agreed-upon formulas .7 If he does not, he
receives the base rate set forth in the contract for the job
in question.
The work standard for a particular job is set by
Respondent's industrial engineers. The process is com-
plex and highly technical. It includes the timing of the job
involved and, in addition, the preparation of a Work
Study Summary. The latter consists of a breakdown of
the job into its various elements, usually eight in number.
Element IV, entitled "Allowances," contains some
results of the timestudy. Element VIII, entitled "Stan-
dard Operating Procedure," describes the job. Finally, an
Operation Standards Sheet for the job under considera-
tion is prepared which sets forth the number of units to be
produced within a specified period of time before an in-
centive bonus is payable."
2. The negotiations concerning the incentive wage rates
During the negotiations which resulted in the current
agreement between Respondent and the Union extensive
discussions were had with respect to the incentive wage
system. In the course of the bargaining concerning the
timestudies which were to be made by Respondent the
Union asked to be furnished with the resulting data, or in
the alternative for permission to enter the Respondent's
plant and conduct its own timestudies. Respondent, how-
ever, made it clear that it would neither provide this
material nor permit the Union to make its own studies.9
Also during the bargaining discussions with respect to
the incentive system Respondent showed the Union ex-
amples of data which would be furnished with respect to
all jobs placed within it. These consisted of two blank
forms. One was the Operations Standard Sheet, which
when completed, as noted above, would constitute the
work standard. The other was entitled "Explanation
Sheet," which would be given to the Union each time a
work standard was changed.10 This form would set forth
the nature of, and reason for, the change.
Ultimately, the Union and Respondent agreed upon the
terms of an incentive wage program to be incorporated in
their collective-bargaining agreement. Among them is one
which provides that "A copy of the work standard ap-
plicable to each job on incentive will be given to the
Union.""
appears, rather, in contradictory testimony given by McCabe. Thus, on
cross-examination McCabe admitted that while the negotiations were in
progress the Union had asked for the timestudy data; that Respondent had
refused to grant this request; and that the Union then asked for permission
to make its own timestudies, which request was also rejected. When re-
called on rebuttal, however, McCabe testified that "nothing" was men-
tioned "during the negotiations regarding the time study sheets." Because
McCabe's testimony on cross-examination appears more plausible than
that given by him on rebuttal, the former furnishes the basis for my
findings with respect to the matter under discussion.
19 As already set forth, G.C. Exh. 4 in evidence is a sample of an Opera-
tions Standard Sheet. G.C. Exhs. 5 and 9 in evidence are forms of an Ex-
planation Sheet.
1 I The incentive wage program appears in the contract, G.C. Exh. 2 in
evidence, as art. 6. The quoted provision is sec. 4(i) of that artical.
UNIVIS, INC. 39
3. The grievance procedure
The contract between the Union and Respondent pro-
vides for a four-step grievance procedure.12 Pursuant to
its terms if the issue in dispute is not settled upon the
completion of the third step it may, as a fourth step, be
submitted by either party to an arbitrator, whose deci-
sion, as set forth in the contract, "shall be final and bind-
ing upon the parties."
4. The Union's request for information, Respondent's
refusal to furnish it, and the grievance
As jobs have been placed within the incentive wage
program Respondent has furnished the Union with an
Operation Standards Sheet, the work standard, for the job
in question. In addition, Respondent has furnished the
Union with a Work Study Summary concerning each
such job containing only Element VIII, the job descrip-
tion. And, as changes were made in any particular work
standard, the Union has also received from Respondent
an Explanation Sheet detailing the change and the
reasons for making it.
Starting in May and continuing through November the
Union has requested from Respondent, with respect to
the incentive jobs, results of the timestudies made by
Respondent and Elements I through VII of the Work
Study Summaries it had prepared. In this connection,
McCabe, the Union's president, told John D. Baer,
Respondent's plant manager, that without this data he
"could not effectively administer [the] contract because
[he] could not tell ... that the standards were right."
Respondent has steadfastly refused to supply this infor-
mation.
Because it had not received the material sought, the
Union, on September 21, instituted a grievance proceed-
ing pursuant to the terms of its contract with Respondent.
The matter remained unsettled through the third step. In-
stead of moving to the fourth step, which would have
been arbitration, the Union abandoned the grievance and,
on January 9, 1967, filed the charge in the instant case.
C. Contentions and Concluding Findings
The complaint alleges, and the General Counsel con-
tends, that Respondent's refusal to furnish the Union
with results of the timestudies and Elements I through
VII of the Work Study Summaries respecting the jobs
under the incentive system, which information is required
by the Union for the proper administration of its contract
with Respondent, constitutes a violation of Section
8(a)(5) and'(1) of the Act. In defense, Respondent makes
several arguments. It argues that the information sought
is not relevant; it, is not required under the contract to
furnish the Union with the requested data; the Union has
waived its right to any more information than it is already
receiving; and, finally, the Board should defer to arbitra-
tion ratherthan decide the issues presented' in this
proceeding in view of arbitration provisions of the con-
tract.
In connection with the duty resting upon an employer
to supply information requested by a union the Board
stated in The Fafnir Bearing Company , 146 NLRB 1582,
1585, that:
It is well settled that Section 8(a)(5) of the Act im-
poses an obligation upon an employer to furnish
upon request all information relevant to the bargain-
ing representative 's intelligent performance of its
function . This obligation extends to information
which the union may require in order to "police and
administer existing agreements."
Accordingly , unless the arguments raised by Respondent,
which will be discussed seriatim , excuse it from comply-
ing with its statutory obligation to supply the information
requested , Respondent's refusal to do so requires a find-
ing that it violated Section 8(a)(5).
Relevancy : Whether information sought is relevant de-
pends, of course , on its nature and the reason for the
request. With respect to the latter , where , as here, infor-
mation is sought by a union for the purpose of administer-
ing a contract the Board in The Item Company, 108
NLRB 1634, 1635 , 1639, enfd . 220 F.2d 956 (C.A. 5),
adopted the rule enunciated in N.L.R .B. v. Yawman &
Erbe Manufacturing Co., 187 F.2d 947, 949 (C.A. 2),
that it "must be disclosed unless it plainly appears irrele-
vant." Concerning the former , the information requested
here is intimately related to Respondent 's establishment
of work standards , as provided by the contract between
Respondent and the Union . This being so, it not only
does not appear to be "plainly ... irrelevant" to the
Union 's administration of the contract , but, on the contra-
ry, appears to be clearly relevant. J. I. Case Company,
118 NLRB 520, 521-523, enfd . as modified in other
respects 253 F .2d 149 (C.A. 7).
Contract and Waiver : As noted, Respondent contends
that its contract with the Union does not require it to
supply the data sought and that the Union has waived its
right to receive more information than Respondent is al-
ready furnishing . The Union 's right to the information in
question, however, does not derive from contract, but
from statute . Timken Roller Bearing Co . v. N.L.R.B.,
325 F.2d 746, 751 (C.A. 6); The Fafnir Bearing Com-
pany, 146 NLRB 1582, 1585 . While the Union 's right, in
this regard , may be waived , the waiver , as Timken also
teaches, "must be in `clear and unmistakable' language"
expressed either in the "bargaining agreement [or] as a
part of the bargaining process...."13
Respondent recognizes the foregoing principles as con-
trolling and asserts that , as in The Berkline Corporation,
123 NLRB 685, the union during the negotiations effec-
tively waived its right to receive the information sought.
To support this contention Respondent relies on the
testimony given by McCabe , the Union 's president, that
in the course of the bargaining, the Union asked for the
timestudies which were to be made by Respondent and
when Respondent demurred requested permission, which
Respondent also refused , to make its own timestudies,
following which the contract was signed. However, I do
not find in this testimony the "`clear and unmistakable'
language" which must exist in order to establish a
waiver.14 Nor do I find it in that portion of the contract
agreed to by the Union which provides that "A copy of
the work standard applicable to each job on incentive will
be given to the Union ." To hold otherwise would be to as-
12 The grievance procedure appears in the contract as art 8 this manner, the waiver would relate to the timestudies which the Union
13 To the same effect, see also C & C Plywood Corporation, 148 NLRB requested but not to Elements I through VII of the Work Study Summa-
414,416, affil 385 U.S. 421. nes, which the Union also seeks.
14 In any event, even if it were to be held that the Union did waive in
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cribe an effect to the doctrine of expressio unius which, in
a similar context , the Board rejected in Otis Elevator
Company , 102 NLRB 770, 771, 778, enfd . in this respect
208 F .2d 176 (C.A. 2).
Respondent has cited several cases in addition to The
Berkline Corporation , 123 NLRB 685, in support of its
position on this branch of the case . I have carefully read
and considered all of them . None , however , requires me
to alter my conclusion that the Union neither waived, nor
bargained away , its right to the information sought.
Deferment to Arbitration : On brief, Respondent argues
that "Insofar as the [Union 's] claim [to the information
requested ] is based on the contract , the right must be en-
forced by arbitration." The short answer to this argument
is that the Union's right to the information in question is
based entirely on statute.
Assuming , however , that the issue in dispute here is ar-
bitrable under the provisions of the contract between the
Union and Respondent that assumption alone , as Section
10(a) of the Act plainly states ' 15 would not require the
Board to defer to arbitration , as Respondent urges. Nor,
again assuming arbitrability , should it do so in this case,
there being no pending arbitration proceeding despite the
passage of much time since the outbreak of the con-
troversy here at issue within which Respondent could
have exercised its contractual privilege of submitting the
matter to arbitration notwithstanding the Union 's aban-
donment of its grievance in favor of the filing of the in-
stant charge . See, in this connection , W. P. Ihrie & Sons,
etc., 165 NLRB 167; C !&I S Industries, Inc., 158
NLRB 454; Thor Power Tool Company, 148 NLRB
1379, 1381 , enfd . 351 F.2d 584 (C.A. 7).
Accordingly , I conclude that , as alleged in the com-
plaint , Respondent violated Section 8(a)(5) and ( 1) of the
Act by refusing to furnish to the Union, pursuant to its
request, the results of its timestudies and Elements I
through VII of the Work Study Summaries respecting all
jobs placed by Respondent within the incentive wage pro-
gram.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent 's refusal to furnish the information
requested by the Union set forth in section III, above, oc-
curring in connection with Respondent 's operations set
forth in section I, above , has a close , intimate , and sub-
stantial relationship to trade , traffic , and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, my Recommended Order
will direct Respondent to cease and desist therefrom and
to take such affirmative action as will effectuate the pur-
poses of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to furnish to the Union, pursuant to its
request, the results of timestudies and Elements I through
VII of the Work Study Summaries respecting all jobs
placed by Respondent within its incentive wage program
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, I hereby issue the fol-
lowing:
RECOMMENDED ORDER
Univis, Inc., its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Glass
and Ceramic Workers of North America,
AFL-CIO CLC, Local No. 433, by refusing to furnish
to the said labor organization the results of timestudies
and Elements I through VII of the Work Study Summa-
ries respecting all jobs placed by Univis, Inc., within its
incentive wage program.
(b) In any like or related manner interfering with the
efforts of United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, Local No . 433, to bargain
collectively with it on behalf of employees covered by the
provisions of the collective-bargaining agreement
between it and the said labor organization.
2. Take the following affirmative action which, it is
found , will effectuate the policies of the Act:
(a) Upon request furnish to United Glass and Ceramic
Workers of North America, AFL-CIO-CLC, Local No.
433, results of timestudies and Elements I through VII of
the Work Study Summaries respecting all jobs placed by
Univis, Inc., within its incentive wage program.
(b) Post at its premises copies of the attached notice
marked "Appendix ." ", Copies of said notice , on forms
provided by the Regional Director for Region 12, after
being signed by an authorized representative of Respond-
ent, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent
to ensure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from receipt of this Decision , what steps Respond-
ent has taken to comply herewith.17
I S Sec. 10(a) states , in pertinent part, that the Board 's power to prevent
the commission of unfair labor practices in the manner provided for in the
section's subsequent subdivisions "shall not be affected by any other
means of adjustment or prevention that has been or may be established by
agreement , law, or otherwise...."
11 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
1 ° In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
UNIVIS, INC. 41
APPENDIX tive-bargaining agreement between us and the
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT refuse to bargain collectively with
United Glass and Ceramic Workers of North Amer-
ica, AFL-CIO-CLC, Local No. 433, by refusing to
furnish to the Union the results of timestudies and
Elements I through VII of the Work Study Summa-
ries respecting all jobs placed by us within our incen-
tive wage program.
WE WILL NOT in any like or related manner inter-
fere with the efforts of United Glass and Ceramic
Workers of North America, AFL-CIO-CLC, Local
No. 433, to bargain collectively with us on behalf of
employees covered by the provisions of the collec-
Union.
WE WILL, upon request, furnish to United Glass
and Ceramic Workers of North America,
AFL-CIO-CLC, Local No. 433, results of timestu-
dies and Elements I through VII respecting all jobs
placed by us within our incentive wage program.
UNIVIS, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
faced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 706 Federal
Office Building, 500 Zack Street, Tampa, Florida 33602,
Telephone 228-7711.