Later courts went against this
Declined to follow by Waycross Sportswear, Inc. v. National Labor Relations Board, and Amalgamated Clothing Workers of America, Afl-Cio, 403 F.2d 832 (1968)
We reject the company’s insistence that we should follow the Second Circuit’s earlier decision in N.L.R.B. v. Otis Elevator Co., 2 Cir., 1953, 208 F.2d 176.
The opinion
PER CURIAM.
The issues presented by this petition are stated in the opinion of *177 Judge Clark with which there is unanimous agreement in so far as there is enforcement of that part of the order which requires the respondent to make available to the union certain time-study data in its possession which was used in setting up the standards.
The majority does not agree, however, that the refusal of the respondent to permit the union to use its plant to make an independent time-study was a violation of § 8(a)(1)(5) of the Act, 29 U.S.C.A. § 158 (a)(1) (5). Unlike the disclosure of pertinent data on which the respondent had relied in setting up the standards, which concededly it has the exclusive right to establish pursuant to the contract, this part of the order required the respondent to permit the invasion of its property by the union to assemble data presumably different from that on which the standards were based. Whether the standards set by the respondent do in fact give a reasonable leeway for its employees affected by them to earn premium wages by the exertion of extra effort depends, of course, upon whether the amount of effort required for a unit of production is more than it reasonably would be. That is knowledge which the union already has, or should have, acquired through the trial by its members of the wage incentive system as implemented by the respondent’s standards. No invasion of the respondent’s plant is needed to get that. Obviously, by changing the standards to decrease the amount of production per unit the opportunity to earn premium wages will be pro tanto increased and no invasion of the respondent’s plant is needed to show that. Given a fair opportunity to study the data used by the respondent in fixing the standards, the union will have been advised as to the manner in which they were established and will have an adequate basis on which to determine, in the light of the actual experience of its members, what position it should take in respect to the processing of the grievance concerning them pursuant to the terms of the contract. The obligation of the respondent under the Act to bargain collectively in good faith in respect to this grievance does not, in the opinion of the majority, impose any duty upon it to open its plant to representatives of the union to enable them to make new time-studies to obtain new data on which to formulate new standards.
Order modified by striking out the provision for time-studies in the respondent’s plant by representatives of the union and, as modified, enforced.