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Mallory v. National Labor Relations Board

June 3, 1969


Castle, Chief Circuit Judge, Fairchild, Circuit Judge, and Hoffman, District Judge.*fn1

Author: Hoffman


P. R. Mallory & Company has petitioned this Court to review and set aside an order of the National Labor Relations Board directing the Company to furnish information concerning the structure and operation of its incentive wage system to the union*fn2 representing the Company's employees. The Board's order, reported as 171 NLRB No. 68, finds that the Company's refusal to supply this information upon the union's request constituted the unfair labor practice of refusal to bargain, in violation of Section 8(a)(5) and (1) of the Labor Management Relations Act, 29 U.S.C. Secs. 158(a)(5) and (1), and requires the Company to cease and desist from this practice and to publish a prescribed notice to its employees. The Board has cross-petitioned for enforcement of its order.

At issue is the authority of the Board, under the statutory scheme to intervene in a dispute arising under an existing collective bargaining contract, to facilitate the resolution of the dispute through the grievance procedures provided by the contract. The Company takes the position that it owes no duty to participate in the agreed grievance procedures when, in its view, no valid grievance has been presented. Since the interpretation and enforcement of collective bargaining contracts is not vested in the Board, but is left to the ordinary processes of law, the Company insists that it need not provide information relevant to a claimed grievance until a court has first decided that a legitimate grievance has been stated. We find this position to be untenable, and conclude that the Board's order should be enforced.


Under the rule of Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1950), this Court must accept administrative findings of fact which are supported by substantial evidence. On the basis of such substantial evidence, presented at the hearing on the unfair labor practice charge, the Trial Examiner found that the Company and the union, as the duly designated bargaining agent, had entered into a series of collective bargaining contracts, the latest on October 1, 1966. That contract, for a three-year term, sets up a grievance procedure consisting of four internal steps, involving discussions between union and management representatives at ascending levels of authority, and culminating in binding arbitration as a fifth step. The contract defines a grievance as any dispute regarding the Company's interpretation or application of the collective bargaining agreement.

On the subject of wages, the agreement provides two systems for determining rates of pay. Employees in some designated positions are paid a fixed hourly rate. Employees in other classifications are compensated under an incentive plan, with a basic hourly rate and added earnings measured by productivity. The base incentive rate is set somewhat below the fixed hourly rate for comparable nonincentive classifications, in the expectation that an average experienced employee, working with good skill and effort in incentive operations, will earn 25% above the base incentive rate. Not all the work performed by employees in incentive classifications carries the incentive premium, however. The availability of incentive work, therefore, is an important factor determining the actual compensation of employees in the incentive classification. Concerning this factor, the agreement provides in Paragraph 44, sections (c) and (d), that:

(c) The Company will make every effort to have its employees work on incentive jobs as continuously as possible. The Company will also strive to arrange work schedules and personnel so as to maintain earnings on as high level as possible. Continuous incentive work, or noninterference with incentive earnings cannot, however, be guaranteed.

(d) No limit will be placed on the earnings of any person or group working on a regular production job under the incentive plan. Earnings of employees working on inspection, or special or critical jobs, may be limited to 25% premium. It is expected that earnings of individuals and groups may vary considerably, dependent upon experience, skill, ability and other conditions. Quality of work, however, must at all time remain within acceptable limits.

The contract of October 1, 1966, in assigning employees to incentive or nonincentive classifications, placed the operators of turret lathes manufactured by the Warner & Swasey Company under the incentive plan. These Swasey operators were dissatisfied with this placement, however, and complained to their union representatives. In response, the union obtained from the Company on October 13, 1966, a chart showing the percentage of his total weekly hours which each of these employees spent on lucrative work, the percentage increase in earning over the base rate for each employee, and the average percentages of incentive work and of increased earnings over the base rate for all the Swasey operators as a group.

Still dissatisfied, one of these Swasey operators filed, on October 24, 1966, a formal grievance on behalf of himself and eight other employees in the same classification. In accordance with the contract, the grievance was presented in writing on a form provided by the Company. Under the heading "Claim violation of clause", the writing refers to Paragraph 44, sections (c) and (d), of the contract, wherein the Company agreed to "make every effort" to make incentive work available. Under the heading "Nature of Grievance", the employees stated:

We feel we should be placed in . . . non-incentive [category] because of the reasons below:

1. The incentive jobs we get are of such quantity that we cannot have enough time on incentive to make any money.

2. The amount of time spent on jobs that have not been placed on incentive plus set-up time brings our earnings down below what we could make if the incentive work was available. The average time we spend on incentive ...

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