*1 erroneously accepted, testimony and findings did not that identify event injured separate boats sufficiently injury establish actual justify commissioner the reference damages. compute dismissal reversed for decree is the libel. LABOR RELATIONS
NATIONAL BOARD
v. ELEVATOR CO.
OTIS 28, Docket 22727.
No. Appeals Court of
United States Circuit. Second
Argued Oct. 1953. Nov.
Decided Somers,
A. Norman Coun- Asst. Gen. sel, Board, National Labor Rеlations Bott, Washington, (George D. J. Gen. C. Counsel, Findling, David P. Asso. Gen. Counsel, and Frederick U. Reel and Williamson, Attys., Mary E. National Board, Washington, Labor Relations D. petitioner. C., brief), on the Fayette Dunn, City, New York S. Washington, Humphrey, Helen F. D. C. Humphrey, Washington, (Denham & D. respondent. C., brief), for on the Irving Abramson, City New York Warshaw, Brooklyn, (Melvin brief), for Local Un International Electrical, Radio and Machine ion Workers, O., C. I. amicus curiae. CHASE, Judge, Before Chief Judges. FRANK, Circuit CLARK PER CURIAM. presented by
The issues opinion petition stated are *2 respondent under the Act tion of the is unani- Judge there which Clark good bargain collectively in in faith to respect en- is as there agreement far in so mous not, does to this the order part of that of forcement any duty majority, impose opinion of the make respondent to requires the which representa- time-study upon open plant to it to its certain union to the аvailable them to of the union to enable in tives used which was possession in data its new new time-studies to obtain make setting up the standards. formulate new stand- which to agree, majority not does ards. of the re however, refusal the by striking pro- modified out the Order permit to use its spondent the union respond- in vision for time-studies the time-study independent plant to make by representatives plant ent’s of the 8(a)(1)(5) of was a violation Act, § and, modified, as enforced. union 158(a)(1) (5). Un 29 U.S.C.A. § pertinent data on the disclosure like Judge CLARK, (concurring in Circuit respondent relied in set had which dissenting part). part and in concededly ting standards, which petition by National La- This is right to establish it has the exclusive 10(e) under bor Relations Board § contract, pursuant to the as the National Labor Relations Act permit respondent required order amended, 160(e), en- 29 U.S.C. § by property its the union the invasion of order, 102 N.L.R.B. No. forcement presumably different to assemble data required which Otis Elevator Com- standards were from that on which the pany, respondent employer, to cease by standards set based. Whether refusing bargain and leсtively by from col- desist give respondent in a reason do fact refusing furnish the cer- leeway employees for its affected able bargaining representative tified wages by premium earn the ex them to employees certain data and depends, course, ertion of extra effort allow refused to it to conduct an inde- upon amount of effort whether the re study, pendent time and which affirma- production quired for is more a unit of tively directed that fur- the data be reasonably than it would be. That independent study nished knowledge already has, which the union brings permitted. proceeding Thus the have, through acquired or should us the issue whether Board before wage trial its members of the incen may properly require employer system implemented by as tive the re represent- make available to the Uniоn spondent’s standards. No invasion of employees time-study data on its respondent’s plant get is needed to standards, it based certain work which changing Obviously, by that. the stand whether it must allow produc ards to decrease the amount of make certain time studies. per oрportunity tion unit to earn premium wages pro Electrical, will be tanto in Union of International respond Workers, creased and no invasion of Machine Local No. Radio and 453, O., plant ent’s is needed to show I. was certified as that. C. the exclu- bargaining opportunity representative Given a fair the sive cer- fixing respondent’s employees data used in the tain of throughout standards, as the union will have been ad and continued they period vised as to After the manner which here involved. certification were established and will Union executed a contract with re- have ade quate among determine, providing, things, spondent, basis on which to other light system experience whereby the members, of the actual incentive for an re- position spondent what it undertook to set work should take stand- guarantеe respect processing would ards which minimum grievance concerning pursuant employees them and would to all further to rate average obliga employee the terms of the contract. The enable the who was occupa- spection explain posi- experienced an effort to
trained and engaged complexity But increase tion. tion in he was volume which earnings per the material his least 25 cent was such that could *3 possibly analyzed digested premiums ef- be for extra and incentive offered job opportunity presented. system fort. Later the Union Under the each being requested permission bring units, to rated in of its own terms a unit average time-study job; man amount in and of work which an to ordinary worker, expending trained fort, ef- when was refused it asked for copies acсomplish respondent’s data, of minute. file of which could a Thus 60 hour a normal also were refused. These refusals were units an would be ordinary accomplishment held such an Board to be violations of for §§ produced 8(a)(1) Act, employee; any event, (5) and if of the 29 U.S.C. hе 158(a)(1) less, paid (5). 60 at and §§ units or he was to be If, however, pro- he 60-unit rate. The Union concedes that under the this, pro- duced than he more received respondent contract has the exclusive portional wages. premium And the con- right to establish standards the first avеrage guaranteed tract perienced worker, that ex- urges instance. But it that it needs the effort, with extra requested its information to evaluate produce would be to least 75 able grievance supposed intelligently and respondent units an hour. When from bargain effectively respect it, changed time to or time its machines and, bargaining fail, present should production methods, it was bound adequately arbitrator, its case an establish a new standard which con- step grievance next under the contract system. formed fur- to the The contract procedure. The refusals thwart establishing provided ther stand- that proper policing function. respondent ards should use certain forms Respondent, hand, on other of data. that tends under the contract the Union’s 1950, September, adequacy In initi- interest confined to or grievance ated a with the connection of the as fairness contract measured operation coil-taping bargained effect; new machine of a its away that the Union has earlier, any right six and installed about months to examine the data un- аdequacy standard; production derlying compilation contested the that operation. for standard established that and correlation of such data are com- pletely managerial pre- that a fair The Union contended after the area of impossible rogative, subject scrutiny earn trial it was found not to union wage guaranteed by challenge; premium minimum or and that should an inde- Respondent po- pendent study needed, the contract. took be it should await operators put- not sition that the were order arbitrator. effort, ting required extra forth the We do not doubt that there are and had the standards suffi- not highly areas where it is desirable that addition, respondent cient trial. In ex- management responsibil have exclusive engineer plained that an was investi- decisions, subject ity only to the gating job, and that he would cor- general on most of checks of inequities. any rect discovered Dunlop, Regula See & the union. Cox Bargaining passed complaint quickly tion Collective of the Na steps pro- Board, tional Labor Relations first two 63 Harv. the cedure, And taken third L.Rev. 401-418. it and was at the seems clear meetings higher agreement labor level at be- that may place representatives administrative function tween Dur- within the exclusive control of Union Grievance Committee. one side. meetings, Co., these as v. American Nat. Ins. course of was N.L.R.B. 343 custom, produced respondent’s 72 S.Ct. file U.S. L.Ed. 1027. general philosophy for the Union’s in- But the to the standard the Act as language joint par- quoted general desirability from the contract car- suggest general implication ticipation responsibility ries intent keep operator private that reservations informed as affecting clearly development power and de- must be described studies pro- express him. In the limited in the absence of contract. limiting vision this requests read should as Turning here, find we to the contract еmployees behalf employer to set undertakes general information, but rather as in designated using standards, four one of supporting think, therefore, them. We methods; usual to revise standards general principles that the of free access changes operаtion; *4 the whenever affect bargainable to information to relevant apply. issues must N.L.R.B. v. Jacobs being “(i) operator When an Mfg. Co., Cir., 680; 2 196 F.2d N.L.R.B. requests, time time so the studied Mfg. Co., Cir., v. Yawman & Erbe 2 187 study him as to man will advise F.2d 947. during ratings high and low principle accepted, respond- With this study and an estimate of quickly ent’s further contentions are resulting dis- rating there- combined posed urges It of. that all accurately This from. cannot be leading fixing eventually data prior compilation determined wages subjective judg- must include a figures of all of the for various ment on the evaluator as go to make elements that being employed the skill and effort production standard. When new operator observation, under and that standards are hereafter released checking impossibility this sub- use, they appear on form will jective element rendеrs the data useless supplied to de- which will be challenging give Union. There is partment. The form shall ample support finding evidence to standard, effective date of the that, apart subjective element, from the average coding and relaxation used appear error in the can in the ob- (except has where standard data analysis jective operation, used), equipment to which been that this could disclose the tooling source applies, re- the standard grievance. Clearly, then, such data fall speeds quired, used and feeds be within the standard of relevance set pertinent information. and other forth us in N.L.R.B. v. Yawman & in the This form will be retained Mfg. Co., supra, Cir., Erbe 2 187 F.2d oper- department for the use of the 947. assigned.” work is ator when such independent advancing study As for Respondent, an ex- sought by Union, argument, pressio this differs at most unius contends that degree obligation and not in kind from the other forth his entire
this sets sources of information impart thus allowed and constitutes it. information rights. respondent’s possession do, The data Union additional waiver may, present agree. incоmplete atmosphere or at least an In the We cannot picture. really bargaining If Union is labor rela at- of collective tempt appraise this, require or tions, correct that the must reasonable to it is they supply Indeed, own substitute. on which forth the terms sеt actually drawing agreed. Trial Examiner found broad But the have study, although entitled to such a from their silence he did of waiver inferences carry respond- to hold disruptive foster rather than would Act, violation of the ent’s refusal a ing relations. See N.L.R.B. since of amicablе independent Co., Cir., study an he found that 6 165 F.2d Allison & H. v. J. 990, 768, would be available an 766, certiorari de N.L.R.B., arbitrator A.L.R.2d 3 grievance step procedure, v. 335 the next Allison & Co. J. H. nied such studies had L.Ed. 369. The and that been 93 S.Ct. allowed U.S. past. respondent, support- in the And must be studies; shown the time while ruling I properly thе Trial Examiner’s as to the believe the Board could allow availability study against the data, my con- Union to check this its own arbitrator, disagreement ducted effect brothers’ on this point study cedes the ultimate need of such a will lead to the modification of the adequate they if information for settlement decree as direct. is to be had. gomay so, But if is if behind a examine standard to its founda- ultimately
tion and if on occasion
such a is needed the examina- permitted, good tion thus perceived no reason early denial at procedure. effective If the SMITH v. SHERRARD. acquire Union is to be allowed to some Nos. stopped information, *5 it should not be short of most useful data it can de- Emergency United States Court velop; grope Appeals nor it be forced to should Submitted Oct. blindly very somewhat 2, 1953. stages grievance procedure, where Decided Dec. likely adequate information is most agreement,
lead the to amicable study
to await an arbitrator-conducted end. In the writer’s view same powers
the Board least within its acted overruling
in ordering Trial Examiner permit study.
Union to conduct its own time found, possibility
As the of a Board was at the arbitration legitimate inadequate satisfy Un- request. was
ion The contract silent as any right, fact and the that re-
spondent arbitrators in had allowed past to obtain time studies its intention to so in
and indicated do respondent’s did not future eradicate right consistent denial of Union thereto. The Board therefore set- ruling.
tling the doubt a definite Respondent here asserts thаt result right destroys to set reached its exclusive instance, first and thus
standards contract. But this rewrites the effect right has been affected.
initial in ac- will still be established Standards respondent’s de- unilateral cordance All Board has termination. right independently to ex- is the underlying and check the
amine may intelligently so standard grievances police handle agreed that are So we tract.