Alfred M. Lewis, Inc. and Roger Hendershot, Paul V.
             Gregan, Harlan Swetnam, Peter Brix, David Woodard, Derol
           Cheatham, Robert Riland, Jr., Kendall C. Jones, Jack Nelson,
                               and Paul E. Jaynes.
 
               Cases 28-CA-3628, 28-CA-3714, and 28-CA-3714-2
 
                       NATIONAL LABOR RELATIONS BOARD
 
          229 N.L.R.B. 757; 1977 NLRB LEXIS 1073; 95 L.R.R.M. 1216;
                1977-78 NLRB Dec. (CCH) P18,180; 229 NLRB No. 116
 
                                May 18, 1977
 
 [**1]
 
DECISION AND ORDER
 

By Chairman Fanning and Members Jenkins and Murphy
 
OPINION:
 
[*757]  On July 30, 1976, Administrative Law Judge James T. Rasbury issued
 the attached Decision in this proceeding.  Thereafter, the General Counsel and
 Respondent filed exceptions and supporting briefs and answering briefs to the
 briefs in support of exceptions.  The Charging Parties adopted the exceptions
 and supporting brief filed by the General Counsel.
 
Pursuant to the provisions of Section 3(b) of the National Labor Relations
 Act, as amended, the National Labor Relations Board has delegated its authority
 in this proceeding to a three-member panel.
 
The Board has considered the record and the attached Decision in light of the
 exceptions, briefs, and answering briefs and has decided to affirm the rulings,
 findings, and conclusions of the Administrative Law Judge only to the extent
 consistent herewith.  n1
 
n1 In view of the extensive modifications, we have substituted our own order
 for the recommended Order of the Administrative Law Judge.
 
1.  We agree with the General Counsel that the Administrative Law Judge erred
 in concluding that Respondent did not violate Section 8(a)(5) and (1) of the Act
 by virtue of [**2]  its unilateral establishment of a production quota and
 disciplinary system in July 1975.  The relevant and material facts are fully set
 out in the Administrative Law Judge's Decision.  In the spring of 1975,
 Respondent instituted a program of supervisory counseling of employees whose
 productivity was not within 5 percent of crew averages.  In July 1975,
 Respondent promulgated a procedure not only for counseling but also for
 disciplinary suspensions and terminations of employees who failed to attain the
 established production standards.  The July production quota and disciplinary
 procedure were instituted without prior notice to, or an offer to bargain with,
 the employees' collective-bargaining representative.  Following the imposition
 of discipline under the quota system, the Union filed grievances, the first two
 of which were processed through arbitration. In each arbitration, the
 arbitrator's award upheld the Respondent's position.  During the pendency of
 the arbitration proceedings various employees filed unfair labor practice
 charges alleging, inter alia, Respondent's violation of Section 8(a)(5) of the
 Act by unilaterally instituting the production quota and disciplinary [**3]
 system.
 
The Administrative Law Judge, while recognizing that the imposition of
 production standards and penalties are mandatory subjects of bargaining,
 concluded in reliance on Spielberg Manufacturing Company, 112 NLRB 1080 (1955),
 that deference to the arbitration awards precluded a finding of any violation of
 Section 8(a)(5).  The General Counsel contends that the Administrative Law Judge
 improperly applied Spielberg, arguing that neither arbitrator addressed or ruled
 on the unfair labor practice issues in their awards.
 
In Spielberg, the Board held that the objective of encouraging the voluntary
 settlement of labor disputes will be best served by the recognition of
 arbitration awards where the arbitration proceedings appear to have been fair
 and regular, all parties have agreed to be bound, and the arbitrator's decision
 is not clearly repugnant to the purposes and policies of the Act.  Where the
 arbitrator does not address himself to the unfair labor practice issue and his
 decision is contrary to unfair labor practice decisions under the Act, binding
 effect will not be given to the arbitration award.  Radio Television Technical
 School, Inc. t/a Ryder Technical   [**4]  Institute, 199 NLRB 570 (1972).
 
In the instant case. both arbitrators took the position that the production
 quota was reasonable.  Arbitrator McBreaty then concluded that:
 The company's right to take such steps [establishment of production quotas]
 cannot be denied so long as there is no direct conflict with the terms of the
 collective bargaining agreement.
 Arbitrator Hayes concluded that:
 Since there is no Collective Bargaining Agreement restricting the Company from
 establishing production standards, the Company has the right to unilaterally
 establish a production schedule for its employees in the grocery warehouse.
 Thus both arbitrators concluded that Respondent had a right to adopt
 unilaterally production quotas and disciplinary procedures because the contract
 did not specifically limit or restrict such actions.  It is clear, however, that
 both arbitrators ignored well-established Board precedent holding exactly to the
 contrary.  In the absence of a specific contract right, the unilateral
 institution of production or work standards, with accompanying penalties, is a
 refusal  [*758]  to bargain in violation of Section 8(a)(5) of the Act.  See
 Donna Lee Sportswear, 174 NLRB 318 [**5]  (1969); Durfee's Television Cable
 Company, 174 NLRB 611, 613 (1969); Boland Marine and Manufacturing Company,
 Inc., 225 NLRB 824 (1976), and cases cited therein.  Even where an employer has
 a right to establish standards of conduct unilaterially, the promulgation
 without bargaining of a system of penalties for compliance with these standards
 violates Section 8(a)(5).  The Capital Times Company, 223 NLRB 651 (1976). The
 arbitration awards were therefore clearly repugnant to the purposes and policies
 of the Act and not entitled to deference under Spielberg .  Since it is clear
 from the record that Respondent unilaterally instituted a production quota and
 disciplinary system in July 1975 without notifying the collective-bargaining
 representative and affording it an opportunity to bargain, we find that, by so
 doing, it violated Section 8(a)(5) and (1) of the Act.
 
2. We also find merit in the General Counsel's contention that, contrary to
 the finding of the Administrative Law Judge, Respondent violated the Act when
 it unilaterally instituted another production quota and disciplinary system on
 or about March 29, 1976, without first bargaining with the Union.  On Friday,
 [**6]  March 26, 1976, Saunders, Respondent's representative, gave Union
 Representative Lock a copy of Respondent's engineered production quota system
 and advised him that the system would be put into effect in the warehouse the
 following Monday.  Lock testified that when he told Saunders the Union could not
 agree to the system Saunders indicated that he was not looking for agreement,
 but that he just wanted to advise the Union that it was being put into effect.
 The warehouse is closed on weekends, and the first shall that could have been
 affected was the Sunday night shift preparing orders for Monday delivery.  From
 these facts, it is clear that the Union was faced with a fait accompli; there
 was neither an offer nor time to bargain. We conclude, therefore, that
 Respondent's unilateral institution of another production quota and disciplinary
 system on March 29, 1976, also violated Section 8(a)(5) and (1) of the Act.
 
3.  We also find merit in the General Counsel's contention that on and after
 August 7, 1975, Respondent violated Section 8(a)(1) of the Act by its refusal to
 permit a union representative to be present at counseling sessions carried out
 under the production quota and [**7]  disciplinary system, and it violated
 Section 8(a)(5) at the same time by unilaterally changing its prior policy of
 permitting union representation at counseling sessions and disciplinary
 interviews. The Administrative Law Judge concluded that union representation was
 not appropriate at such counseling sessions, citing the Board's decision in
 Quality Manufacturing Company, 195 NLRB 197 (1972), and the Supreme Court's
 decision in N.L.R.B.  v. J. Weingarten, Inc., 420 U.S. 251 (1957). In Quality
 Manufacturing, we said that we would not apply the rule requiring representation
 at interviews to such "run-of-the-mill shop-floor conversations as, for example,
 the giving of instruction or training or needed corrections of work techniques."
 n2 However, the Board immediately qualified this limitation on the application
 of the rule by noting:
 
n2 195 NLRB at 199.
 In such cases there cannot normally be any reasonable basis for an employee to
 fear that any adverse impact may result from the interview, and this we would
 then see no reasonable basis for him to seek the assistance of his
 representative.
 But in the present case the conclusion is inescapable that employees involved
 [**8]  in the type of counseling given by Respondent had reasonable grounds to
 fear adverse consequences.  The counseling sessions explored the reasons for an
 employee's failure to meet production quotas and took place as an integral part
 of Respondent's production quota and disciplinary system.  The counseling was a
 preliminary step to the imposition of discipline under the system.  n3
 Investigatory interviews which may lead to discipline are clearly within the
 scope of Weingarten, supra, under which the employees' right to representation
 was affirmed.  We conclude, therefore, that by refusing to allow employees union
 representation at counseling sessions on and after August 7, 1975, Respondent
 violated Section 8(a)(1) of the Act.  We also find and conclude that by
 unilaterally terminating the practice of allowing union representation at
 counseling sessions and disciplinary interviews without first bargaining with
 the Union, Respondent violated Section 8(a)(5) of the Act.  n4
 
n3 Employee Hendershot testified:
 
Q.  But you knew that, from being in the second step of the system that the
 third step could very well mean suspension for you?  He had told you that
 before?
 
A.  He [Supervisor Numkena] had told me that.  Yes.
 
n4 Contrary to the Administrative Law Judge's finding in fn. 4 that this
 violation was not alleged in the complaint, we note, and Respondent agrees, that
 pars.  12 and 13 of the complaint in Case 28-CA-3714 allege this unilateral
 change of policy to be a violation of Sec. 8(a)(5) of the Act. [**9]
 
CONCLUSION OF LAW
 
1.  Respondent Alfred M. Lewis, Inc., is an employer engaged in commerce
 within the meaning of Section 2(2) and (6) of the Act.
 
2.  Transport and Local Delivery Drivers, Warehousemen and Helpers, Local
 Union No. 104, an  [*759]  affiliate of the Teamsters International, is now and
 has been at all times material herein a labor organization within the meaning of
 Section 2(5) of the Act.
 
3.  By unilaterally promulgating a production quota and disciplinary system
 in July 1975 without first bargaining with Local Union No. 104 of the Teamsters
 Union and, thereafter, on or about March 29, 1976, unilaterally instituting
 another production quota and disciplinary system without first bargaining with
 Local Union No. 104 of the Teamsters Union, 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.  By refusing, on and after August 7, 1975, to permit union representation
 at counseling sessions conducted pursuant to Respondent's July 1975 production
 quota and disciplinary system, Respondent has engaged in and is engaging in
 unfair labor practices within the meaning of Section 8(a)(1) of the Act.
 
5.  By [**10]  unilaterally changing on August 7, 1975, its policy of
 permitting union representation at counseling sessions and disciplinary
 interviews conducted pursuant to its production quota and disciplinary system
 without first bargaining with Local Union No. 104 of the Teamsters Union,
 Respondent has engaged in and is engaging in unfair labor practices within the
 meaning of Section 8(a)(5) and (1) of the Act.
 
6.  The aforesaid unfair labor practices are unfair labor practices affecting
 commerce within the meaning of Section 2(6) and (7) of the Act.
 
THE REMEDY
 
Having found that Respondent engaged in unfair labor practices, we shall
 order it to cease and desist therefrom and take certain affirmative action
 designed and found necessary to effectuate the policies of the Act.  The events
 that gave rise to these proceedings are, or are the consequences of,
 Respondent's unlawful unilateral institution of a production quota and
 disciplinary system in July 1975; a unilateral change of policy regarding
 employee rights to union representation at counseling sessions and disciplinary
 interviews under the production quota system on or about August 7, 1975; a
 refusal on and after August 7, 1975, to [**11]  allow union representation at
 counseling sessions; and a second or revised production quota system
 unilaterally instituted on March 29, 1976, to supplant the July 1975 quota
 system. As a result of Respondent's unlawful conduct, various employees have
 been unlawfully disciplined and either suspended or discharged. In these
 circumstances, we shall order Respondent to cease and desist from unilaterally
 instituting any production quota and disciplinary system; unilaterally changing
 its policy regarding union representation at counseling sessions and
 disciplinary interviews without first bargaining with the Union; or denying
 union representation to employees at counseling sessions and disciplinary
 interviews. Affirmatively, we shall order Respondent to rescind the March 29,
 1976, production quota and disciplinary system, n5 and, upon request, bargain
 with the Union about the institution of any production quota and disciplinary
 system governing employees represented by the Union.  We will also order that
 Respondent fully restore the status quo ante which existed at the time of its
 unlawful actions by (1) rescinding all disciplinary actions resulting from
 failure to meet the conditions [**12]  of the unlawfully instituted production
 quota and disciplinary system, (2) offering all employees discharged or
 suspended, or otherwise denied work opportunities as a result of said quota and
 disciplinary system, immediate and full reinstatement to their former positions
 or, if they no longer exist, to substantially equivalent ones, without prejudice
 to their seniority or other rights and privileges, and (3) making whole those
 employees who were either discharged, suspended, or otherwise denied work
 opportunities solely as a result of said quota and disciplinary system.  In all
 cases of lost pay and/or benefits, the amounts shall be computed in the manner
 set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest added
 thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716
 (1962).
 
n5 We do not order rescission of the unlawfully instituted July 1975
 production quota system in view of the fact that this system was supplanted by
 the March 29, 1976, "engineered" quota system and is no longer in effect and our
 Order prohibits the establishment of a production quota disciplinary system
 without bargaining.
 
ORDER
 
Pursuant to Section 10(c)  [**13]  of the National Labor Relations Act, as
 amended, the National Labor Relations Board hereby orders that the Respondent,
 Alfred M. Lewis, Inc., Phoenix, Arizona, its officers, agents, successors, and
 assigns, shall:
 
1.  Cease and desist from:
 
(a) Instituting unilaterally and thereafter enforcing production quota and
 disciplinary systems or changing policy unilaterally regarding union
 representation at counseling sessions and disciplinary interviews involving
 employees represented by Transport and Local Delivery Drivers, Warehousemen and
 Helpers, Local Union No. 104, affiliated with Teamsters  [*760]  International
 Union, without first bargaining with said Union.
 
(b) Requiring any employee to take part in any counseling sessions, or
 disciplinary interviews without union representation if such representation has
 been requested by the employee and if the employee has reasonable grounds to
 believe that the matters to be discussed may result in his being subject to
 disciplinary action.
 
(c) In any other manner interfering with, restraining, or coercing any
 employee in the exercise of his rights guaranteed by Section 7 of the Act.
 
2.  Take the following affirmative action necessary to effectuate [**14]  the
 policies of the Act:
 
(a) Cancel, withdraw, and rescind the March 29, 1976, engineered production
 quota and disciplinary system in effect as to employees represented by the
 aforesaid Union.
 
(b) Remove from the files of employees who are represented by the aforesaid
 labor organization all disciplinary warnings, notices, or memoranda issued since
 July 1975 resulting from application of the July 1975 production quota and
 disciplinary system, the March 29, 1976, engineered production quota and
 disciplinary system, and/or the refusal to allow union representation at
 counseling sessions and disciplinary interviews.
 
(c) Offer all employees discharged, suspended, or otherwise disciplined or
 denied work opportunities as the result of the institution of production quota
 and disciplinary systems in July 1975, and on March 29, 1976, and/or the refusal
 to allow union representation at counseling sessions and disciplinary
 interviews, immediate and full reinstatement to their former positions or, if
 they no longer exist, to substantially equivalent ones, without prejudice to
 their seniority or other rights and privileges.
 
(d) Make whole all employees who were discharged, suspended, or  [**15]
 otherwise denied work opportunities solely as a result of the institution of
 said production quota and disciplinary systems and/or refusal to allow union
 representation at counseling sessions and disciplinary interviews in the manner
 set forth in the section of this Decision entitled "The Remedy."
 
(e) Preserve and, upon request, make available to the Board or its agents,
 for examination and copying, all payroll records, social security payment
 records, timecards, personnel records and reports, and all other records
 necessary to analyze the amount of backpay due under the terms of this Order
 respecting rescission of all disciplinary actions.
 
(f) Post at its facilities in Phoenix, Arizona, copies of the attached notice
 marked "Appendix." n6 Copies of said notice, on forms provided by the Regional
 Director for Region 28, after being duly signed by Respondent's representative,
 shall be posted by Respondent immediately upon receipt thereof, and be
 maintained by it for 60 consecutive days 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 notices are
 not altered,  [**16]  defaced, or covered by any other material.
 
n6 In the event that this 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 read "Posted Pursuant to a Judgment of the
 United States Court of Appeals Enforcing an Order of the National Labor
 Relations Board."
 
(g) Notify the Regional Director for Region 28, in writing, within 20 days
 from the date of this Order, what steps the Respondent has taken to comply
 herewith.
 
ALJ:
  James T. Rasbury
 
ALJ-DECISION:
 
[*761]  DECISION
 
STATEMENT OF THE CASE
 
James T. Rasbury, Administrative Law Judge: These consolidated cases were
 heard before me in Phoenix, Arizona, on April 15 and 16, 1976.  n1 The charge in
 Case 28-CA-3628 was filed on September 4; in Case 28-CA-3714 on November 28; and
 in Case 28-CA-3714-2 on December 2.  Complaints in the first two cases were
 issued by the Regional Director for Region 28 of the National Labor Relations
 Board (herein Board) on January 16, 1976, and complaint in the third case issued
 January 19, 1976.  Answers in each of the aforementioned complaints duly filed
 by Alfred M. Lewis, Respondent herein, on January 28, 1976, acknowledged [**17]
 the requisite jurisdictional data required under the National Labor Relations
 Act (herein Act), but denied the commission of any unfair labor practices as
 alleged in the complaint.  On February 11, 1976, the three cases were
 consolidated for hearing and all parties notified.  n2
 
n1 Most of the significant and relevant dates with which these cases are
 concerned occurred in the year 1975.  Unless otherwise indicated, all dates
 hereinafter will refer to the year 1975.
 
n2 While there are no supporting instruments in the file, representations
 were made at the hearing which I have accepted that on March 8, 1976, Respondent
 filed with the Board a Motion for Summary Judgment and request for oral argument
 in Case 28-CA-3714.  On April 2, 1976, counsel for the General Counsel filed a
 motion in opposition to Respondent's Motion for Summary Judgment and on April
 14, 1976, the Board issued an order denying Respondent's motion.
 
More specifically, the complaint in Case 28-CA-3628 alleges that on August 7
 and 11 Roger Hendershot, an employee of Respondent, was denied union
 representation at interviews in which said employee reasonably believed could
 result in disciplinary action against him,  [**18]  in violation of Section
 8(a)(1) of the Act.  The complaint in Case 28-CA-3714-2 raises identical issues;
 it is alleged that Paul E. Jaynes was denied union representation at interviews
 occurring on December 1 and 14, in which said employee reasonably believed could
 result in disciplinary action against him.  The complaint in Case 28-CA-3714
 alleges that (a) Respondent instituted a production quota and disciplinary
 system without notice to or consultation with the collective-bargaining
 representative, (b) without notice to or consultation with the
 collective-bargaining unit, Respondent changed the method of compensating unit
 employees injured on the job, and (c) pursuant to said policies, a number of
 specified employees were suspended and/or terminated, all in violation of
 Section 8(a)(1) and (5) of the Act.  At the hearing, General Counsel was
 permitted to amend the complaint in Case 28-CA-3714 by adding a paragraph
 alleging that on or about March 29, 1976, Respondent instituted a new
 production quota system which supplanted the one heretofore alleged as being
 violative of Section 8(a)(5) and (1) of the Act.
 
The General Counsel, Charging Party, and Respondent were each represented
 [**19]  by very competent counsel.  All parties were given full opportunity to
 submit evidence, examine and cross-examine witnesses, and, at the conclusion of
 the hearing, to argue orally.  Oral argument was waived by extremely helpful
 briefs submitted by the General Counsel and Respondent and have been carefully
 weighed and considered.
 
Upon the entire record in the case, including my observation of the demeanor
 of the witnesses, I make the following:
 
FINDINGS OF FACT
 
I.  BUSINESS OF THE RESPONDENT
 
Respondent is, and at all times material herein has been, a corporation duly
 organized under and existing by virtue of the laws of the State of California.
 Respondent maintains an office and place of business at 435 South 59th Avenue in
 the city of Phoenix, Arizona, where it is engaged in the wholesale and
 distribution of dry goods, refrigerated foods, and related products.  During the
 past calendar year, which period is representative of its operations generally,
 Respondent in the course and conduct of its business operations purchased and
 caused to be transported and delivered to its Phoenix, Arizona, place of
 business dry goods, refrigerated foods, and other goods and materials valued
 [**20]  in excess of $ 50,000 which were transported and delivered to its
 Phoenix, Arizona, place of business in interstate commerce directly from State
 of the United States other than the State of Arizona.  During the same period of
 time Respondent, in the course and conduct of its business operations, sold and
 distributed from its Phoenix, Arizona, place of business products valued in
 excess of $ 50,000 which were shipped from said place of business in interstate
 commerce directly to States of the United States other than the State of
 Arizona.  On the basis of these admitted facts, I now find Respondent to have
 been at all times material herein an employer engaged in commerce within the
 meaning of Section 2(2), (6), and (7) of the Act.
 
[*762]  II.  THE LABOR ORGANIZATION INVOLVED
 
Transport and Local Delivery Drivers, Warehousemen and Helpers, Local Union
 No. 104 (herein Union), an affiliate of Teamsters International, is now, and at
 all times material herein has been, a labor organization within the meaning of
 Section 2(5) of the Act.
 
III.  THE ALLEGED UNFAIR LABOR PRACTICES
 
A.  The Issues
 
This rather uncomplicated, not seriously disputed, set of facts raises a
 number of interesting legal [**21]  issues.  (1) Under the particular
 circumstances of this case have the parties to the contract elected to resolve
 their differences by the grievance and arbitration machinery rather than by the
 unfair labor practice route?  (2) Did the arbitration awards meet the standards
 required by the Board?  (3) May individual employees prevail before the Board
 where their exclusive bargaining representative has provided for and availed
 itself of a different forum for resolution of the identical dispute?  (4) Does
 on-the-job counseling come within the ambit of the Weingarten case?  n3 (5) Are
 employer-employee conferences which are of a routine or perfunctory nature
 intended to advise of a decision already made the type of "investigative
 interview with reasonable fears of disciplinary action" encompassed within the
 language of the Board and Court in Weingarten ?
 
n3 N.L.R.B.  v. J. Weingarten, Inc., 420 U.S. 251 (1975).
 
B.  Background and Sequence of Events
 
The pleadings filed herein establish that Robert Burke, vice president and
 division manager of Respondent; Cornelius Caldwell, superintendent of
 operations; Jeff Thrasher, night superintendent; and Fred Numkena, night [**22]
 supervisor, are, and at all times material herein were, supervisors within the
 meaning of Section 2(11) of the Act.  At the hearing Respondent stipulated and I
 herewith find that the following description of certain employees of Respondent
 as set forth in the current collective-bargaining agreement between Respondent
 and the Union constitute an appropriate unit for the purpose of collective
 bargaining: "warehouse and trucking employees performing the occupational
 classifications listed in Article IX hereof employed at the Company's Arizona
 warehouses, exclusive of the cash and carry units, which includes employees on
 trucks working in and out of such warehouses, however, excluding supervisory,
 clerical and office employees."
 
The Respondent Company and the Union involved herein have had a successful
 working relationship dating back at least until 1950 and perhaps longer.  It
 should be emphasized that there is not a scintilla of evidence contained in this
 record indicating Respondent's course of conduct was in any sense motivated by
 antiunion considerations; nor is there any claim of discriminatory conduct.  The
 basic conflict stems from Respondent's efforts to introduce policies and [**23]
 administrative procedures seeking to upgrade the productivity of the work force,
 which procedures in turn have caused the affected employees to feel that their
 "wages, hours and working conditions" have been altered in a manner that
 contravenes the law.
 
The conflict primarily concerns those employees working in the warehouse who
 are classified as "order runners." The duties of the order runners consist of
 obtaining an order or bill from a "console," filling the order by driving an
 electric-powered "tug" through the aisles of the warehouse, collecting the items
 as listed on the order, and delivering them to a loading dock for loading into
 trucks for delivery to Respondent's customers.
 
The productivity of the "order runners" herein involved is below that of
 order runners at other warehouses owned and operated by Respondent.  Sometime
 around the first of 1975, Respondent began an "informal" program of counseling
 -- seeking to improve the quantity of work of the order runners. This "informal"
 procedure failed to achieve the desired results and in March the procedure was
 set forth in writing and each order runner not attaining productivity within 5
 percent of the crew average was  [**24]  to be counseled in a constructive
 manner for the purpose of helping him improve his production.  The procedure for
 order-runner counseling appears in the record as Respondent's Exhibit 11 and is
 sufficiently significant to be set forth in its entirety:
 
PROCEDURE FOR ORDER RUNNER COUNSELING
 
1.  COUNSELING SHOULD BE DONE IN THE WORK AREA, NOT IN THE OFFICE.  IT SHOULD
 BE INFORMAL AND DONE IN A CONSTRUCTIVE MANNER.  THE PURPOSE OF TALKING TO THE
 EMPLOYEE IS TO HELP HIM IMPROVE HIS PRODUCTION.
 
2.  ALL ORDER RUNNERS BELOW 5% OF THE CREW AVERAGE MUST BE TALKED TO NIGHTLY
 AND A WRITTEN RECORD KEPT.  NOTHING SHOULD BE MENTIONED ABOUT WRITTEN WARNING,
 SUSPENSION OR TERMINATION. TRAINING SHOULD BE STRESSED.  RIDE WITH AND INSTRUCT
 THESE PEOPLE TO SHOW THEM HOW TO INCREASE THEIR PRODUCTION.  BE SURE TO CONVEY
 THE MESSAGE THAT YOU ARE TRYING TO HELP IN A CONSTRUCTIVE WAY AND NOT AS A
 PUNISHMENT OR PUNITIVE MEASURE.
 
3.  WRITE YOUR RECORDS AFTER YOU HAVE TALKED TO, OR INSTRUCTED THE ORDER
 RUNNER. DATE YOUR RECORDS, RECORD TIME SPENT WITH THE PERSON, NOTE HIS ATTITUDE
 AND ANY RELEVANT REMARKS.
 
4.  COMPLE, AT THE END OF EACH WORK WEEK, A LIST OF ALL EMPLOYEES WHO HAVE
 BEEN COUNSELLED.  [**25]
 
5.  DO NOT MENTION STANDARDS.
 
6.  DISCUSS WITH THE SUPERINTENDENT OF OPERATIONS THOSE EMPLOYEES WHO HAVE
 BEEN ON THE WEEKLY LIST TWO OF THE FOUR WEEKS IN EACH CALENDAR MONTH.
 The record is clear and not in dispute that a large number of "order runners"
 were counseled in keeping with this procedure.
 
In late July or early August a "Grocer Order Filler Disciplinary Procedure"
 was established (see Resp. Exh. 2),  [*763]  which outlined not only a procedure
 for counseling, but also established a precise suspension (3 days) and then
 termination procedure in the event an employee failed to respond to the
 counseling by attaining the required crew average.
 
At the hearing the parties stipulated that, pursuant to the above-described
 productivity quota and disciplinary system, the following employees received
 discipline as indicated: Randall Pfeiffer, suspended August 4-6; John F.
 Clapper, suspended August 11-13; Roger Hendershot, suspended August 11-13;
 Donald F. McGaughey, suspended September 15-17; Authony J. Utz, suspended
 September 15-17; Dave Miller, suspended September 22-24; Terry Harris, suspended
 October 22-24; Gary Gromer, suspended November 24-26; Paul E. Jaynes, suspended
 December [**26]  1-3; Paul E. Jaynes, discharged December 14; and Robert W.
 Riland, suspended December 20, 21, and 24.  It was further stipulated that
 following his suspension Terry Harris was discharged and later was reinstated.
 
Respondent does not deny that in late March 1976 it abandoned the crew
 average concept of production standards and adopted a completely new engineered
 set of standards (see G.C. Exh. 2).  The union business agent, Anthony Locke,
 was informed of the "engineered standards," but there was no offer to bargain
 nor did Locke demand to bargain concerning the new standards.
 
In a memo dated March 21, Ron Huber, the industrial relations director for
 Respondent, advised various supervisors regarding the impact of the Weingarten
 case which included, inter alia , this paragraph (complete text Resp. Exh. 14):
 Our general policy over the years has been no question employees until it was
 decided that disciplinary action was going to be taken, whether it be an oral
 warning, written warning, suspension or discharge.  Under the terms of
 Weingarten, this is no longer possible.  An employee who asks for his steward
 must be allowed the presence of that steward or the questioning must [**27]
 cease.  This does not apply in counseling or training situations where there is
 no intent on the Company's part to impose any discipline whatsoever, but merely
 help the employee improve his performance.
 
The parties stipulated "that prior to August 7, 1975, it was the company
 policy of the Respondent to allow union representation at counseling and
 disciplinary procedures with its employees and after August 7, 1975, it was and
 is company policy of the Respondent to prohibit union representation at
 counseling sessions and disciplinary procedures with its employees." n4
 
n4 The General Counsel devoted a portion of his posthearing brief to the
 proposition that this change in practice was a violation of Sec. 8(a)(5) of the
 Act in addition to being a violation of Sec. 8(a)(1) of the Act as determined by
 the Weingarten case.  Such an allegation was not included in the complaints
 heard by me, nor was there any attempt to amend the complaints to include such
 an allegation.  In my opinion, Respondent has not had a sufficient opportunity
 to defend itself of such an allegation, the matter was not fully litigated, and,
 even if meritorious, to find validity in such an allegation at this late date
 would be most unjust to Respondent. [**28]
 
The other issue of these cases involve the alleged change of policy
 concerning the question of pay for the remainder of an employee's shift
 following an on-the-job injury.  Mr. Burke acknowledged that prior to May 1975
 it had not been company policy to seriously question an employee's right to
 payment for the balance of his shift following an on-the-job injury, but that
 about that time Respondent began to question the necessity of every employee
 leaving the job following an injury.  As a consequence, some employees who left
 the job following what Respondent believed to be superficial or minor injuries
 were denied payment for the balance of their shifts.  This resulted in a number
 of grievances being filed, all of which have been resolved in favor of the
 grievants under the contract's grievance procedure.  It is the change in policy
 from and automatic payment to a discretionary payment that General Counsel
 alleges is violative of Section 8(a)(5) of the Act.
 
C.  Argument by the Parties
 
1.  Timeliness
 
Respondent first argues that Section 10(b) of the Act n5 bars the charge and
 therefore requires dismissal of the complaint in Case 28-CA-3714 because the
 counseling [**29]  program was initiated in January and the charge was filed in
 November.  While there is some testimony indicating that Respondent began taking
 steps in January to improve the productivity of its employees, the program was
 not formalized and put in writing until March 18, which is well within the 10(b)
 period.  Moreover, it was not until the following July that the job improvement
 or counseling program was coupled to definitive standards with penalties for
 failure to attain the required standard.  Until that was done, the counseling
 policy was completely harmless.  Appropriately, the purpose of Section 10(b) is
 to prevent laches and to avoid stale charges.  The disputes considered here are
 not stale and the Charging Parties could not be expected to act until they had
 knowledge or were affected by the new program.  I find the complaints to be
 based on valid charges.
 
n5 The relevant portion of which reads: "Provided , That no complaint shall
 issue based upon any unfair labor practice occurring more than six months prior
 to the filing of the charge with the Board and the service of a copy thereof
 upon the person against whom such charge is made...."
 
2.  Is the new program a  [**30]  mandatory subject for bargaining?
 
The General Counsel argues effectively that Section 8(a)(5) of the Act
 requires the respondent to bargain with the union in respect to rates of pay,
 wages, hours of employment, or other conditions of employment.  These mandatory
 subjects of collective bargaining require that any changes in the subjects occur
 only after negotiations with the selected collective-bargaining representative.
 n6 The theory is that any unilateral action taken by a company which affects or
 may affect the job tenure, wages, or other working conditions of its employees
 necessarily diminishes the authority of the collective-bargaining agent chosen
 by  [*764]  the employees to bargain over these issues.  General Counsel then
 quotes from Murphy Diesel Company n7 wherein the Board stated: "Plant rules,
 particularly where penalties are prescribed for their violation, clearly affect
 conditions of employment and are mandatory subjects of collective bargaining."
 In two other cases the Board's choice of words has made it unmistakably clear
 that the unilateral institution of a warning system, having direct effect on job
 tenure and the amount of work employees are expected to perform, is [**31]  a
 matter falling within the scope of "wages, hours, and other terms and conditions
 of employment" and is, therefore, an appropriate matter for collective
 bargaining. n8 Clearly, the factual situation of the instant case is analogous
 to that in the cases cited by the General Counsel and it would appear that under
 Board and court precedent Respondent may have violated Section 8(a)(5) of the
 Act.
 
n6 N.L.R.B.  v. Wooster Division of Borg-Warner Corporation , 356 U.S. 342
 (1958).
 
n7 Murphy Diesel Company , 184 NLRB 757, 762 (1970); also see Miller Brewing
 Company , 166 NLRB 831 (1967), enfd. 408 F.2d 12 (C.A. 9, 1969).
 
n8 Donna Lee Sportswear , 174 NLRB 318 (1969); Durfee's Television Cable
 Company , 174 NLRB 611, 613 (1969).
 
3.  Should the Board defer to the arbitration process?
 
Respondent contends, however, that under the doctrine expressed by the Board
 in Spielberg n9 the Board's prescribed criteria for deferral to arbitration
 awards have been met and thus the Board should defer to the arbitrators' awards.
 In Spielberg n10 the Board stated that, where the proceedings appear to have
 been fair and regular, all parties had agreed to be bound,  [**32]  and the
 decision of the arbitration panel is not clearly repugnant to the purposes and
 policies of the Act, "we believe that the desirable objective of encouraging the
 voluntary settlement of labor disputes will best be served by our recognition of
 the arbitrators' award." Later the Board added a fourth requirement; namely,
 that the issue involved in the unfair labor practice case before the Board must
 have been presented to and considered by the arbitrator. n11
 
n9 Spielberg Manufacturing Company , 112 NLRB 1080 (1955).
 
n10 Id . at 1082.
 
n11 Raytheon Company , 140 NLRB 883 (1963), set aside 326 F.2d 471 (C.A. 1,
 1964).
 
The rationale of Spielberg was enunciated in International Harvester Company
 (Indianapolis Works ), n12 where the Board said:
 
n12 138 NLRB 923, 926 (1962), enfd. sub nom.  Thomas D. Ramsey  v. N.L.R.B .,
 327 F.2d 784 (C.A. 7, 1964), cert. denied 377 U.S. 1003.
 
The Act... is primarily designed to promote industrial peace and stability by
 encouraging the practice and procedure of collective bargaining.Experience has
 demonstrated that collective-bargaining agreements that provide for final and
 binding arbitration of grievances [**33]  and disputes arising thereunder, "as a
 substitute for industrial strife," contribute significantly to the attainment of
 this statutory objective....
 
If complete effectuation of the Federal policy is to be achieved,... the
 Board... should give hospitable acceptance to the arbitral process as "part and
 parcel of the collective bargaining process itself," and voluntarily withhold
 its undoubted authority to adjudicate alleged unfair labor practice charges
 involving the same subject matter, unless it clearly appears that the
 arbitration proceedings were tainted by fraud, collusion, unfairness, or serious
 procedural irregularities or that the award was clearly repugnant to the
 purposes and policies of the Act.
 
In reaching its decision in International Harvester, supra , the Board relied
 in part on Section 203(d) of the Act which provides that: "Final adjustment by a
 method agreed upon by the parties is hereby declared to be the desirable method
 for settlement of grievance disputes arising over the application or
 interpretation of an existing collective-bargaining agreement."
 
The Supreme Court has added emphasis and support for arbitration, for
 example, in Carey  v. Westinghouse [**34]  , n13 the Court held that a union
 representing a group of production and maintenance employees could compel
 arbitration, by a suit brought in a state court, or a grievance asserting that
 technical employees represented by yet another union were performing production
 and maintenance work, even though the dispute may have involved matters within
 the jurisdiction of the National Labor Relations Board.  Arbitration, the Court
 said, is available as an alternate remedy to an NLRB proceeding.  In August 1971
 the Board further recognized the role of arbitration in the solution of
 industrial disputes by announcing the Collyer doctrine.  n14 In Collyer the
 Board held that, if a collective-bargaining contract contains a
 grievance-arbitration procedure for resolving disputes under the contract, the
 Board will defer to the contractual procedure where an unfair labor practice
 charge also involving a contractual issue has been filed with the Board prior
 to arbitration. After the award has been issued, the Board then will review it
 to determine whether it met the Spielberg standards for honoring awards.  If the
 record fails to reveal that the arbitration tribunal was not presented with,
 [**35]  or had failed to duly consider, those aspects of the dispute with which
 the Board would be involved in an alleged unfair labor practice, then it might
 refuse to honor the arbitration award.  n15
 
n13 Carey, President of International Union of Electrical, Radio & Machine
 Workers, AFL-CIO  v. Westinghouse Electric Corp ., 375 U.S. 261 (1964).
 
n14 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837
 (1971).
 
n15 See Yourga Trucking, Inc ., 197 NLRB 928 (1972).
 
The collective-bargaining agreement between the Union and the Respondent
 provides for final and binding arbitration regarding "any complaint,
 disagreement or difference of opinion between the Company, the Union, or the
 employees covered by this contract, which concerns the interpretation or
 application of the terms and provisions of this contract...." (See art. 23 of
 Resp. Exh. 1.) While this language could conceivably confine grievance and
 arbitration to disputes arising out of the interpretation of the language set
 forth in the contract, nevertheless there was undenied testimony indicating that
 the parties have resorted to arbitration on the occasion of the Company
 unilaterally instituting [**36]  an attendance policy; on another  [*765]
 occasion when they required a specified form of sick leave certificate; and on
 yet another occasion when the Company refused to pay sick leave to employees who
 had vasectomies.  Each of these issues clearly involved items falling within the
 area of mandatory subjects for collective bargaining. The testimony established
 that in all instances the parties have abided by the arbitrator's final
 decision.
 
There have been two arbitration decisions arising under the labor agreement
 (Resp. Exh. 1) following the institution of the Company's production quota and
 disciplinary procedures established in mid-1975.  The first of these involved
 the discharge of George McCown.  There the issue as set forth by the third
 impartial arbitrator in his decision was: "Was the defendant, George McCown,
 discharged for 'just cause' under the terms of the collective-bargaining
 agreement, if not, what is the proper remedy?" This issue which is rather
 narrowly framed would appear to have foreclosed or prevented a consideration by
 the arbitrator of the right of the Respondent to unilaterally initiate the
 production quota and disciplinary procedure.  However, the broader and more
 [**37]  relevant question was presented to the arbitration panel as reflected by
 the posthearing letter or brief submitted by the Union's appointee to the panel,
 Horace Manning (see letter dated November 18 from Manning to James C. McBrearty,
 the impartial member of the panel, which is attached to and made a part of the
 arbitrator's decision and appears in the record as Resp. Exh. 7c).
 
I have carefully examined the typewritten 78-page decision of Mr. McBrearty
 and have concluded that the required criteria for deferral to arbitration awards
 as established by the Board in Spielberg and Raytheon, supra , are all present
 in this arbitration award.  The arbitrator's decision was dated December 11,
 1975.
 
A second arbitration decision was rendered on January 23, 1976, which
 involved the suspension of John F. Clapper following the institution by the
 Respondent of the production quota and disciplinary system.  Again the issue as
 framed by the parties was rather narrow: "Was grievant, John F. Clapper,
 suspended by the Company for just cause; if not, what remedy should be imposed?"
 However, the posthearing brief submitted by the Union and appearing in the
 record as Respondent's Exhibit 8b [**38]  leaves no doubt that the broader
 question of the Company's right to initiate the program was fully considered.
 The Union's posthearing brief (p. 9) specifically raises the key question, "Does
 the Company have the right to unilaterally impose production standards and a
 corresponding system of discipline?" The following two paragraphs also appear in
 the Union's brief:
 
It is clear that the production standards imposed by the Company were put
 into effect without the Companies having discussed their ramifications with
 union representatives.  Had the Company bargained with the Union about the
 change in management policy occasioned by the production standards, many of the
 problems raised in this hearing need not have occurred.
 
In National Labor Relations Board parlance, the actions of the employer
 constitute a clear "refusal to bargain." An employee injured by the unilaterally
 imposed acts of an employer is entitled to be made whole for any damage suffered
 as a result of such a unilateral act.
 Similarly, the posthearing arbitration brief submitted by the Company carefully
 argues the Company's right to unilaterally establish the production quota and
 disciplinary system (see Resp. Exh.  [**39]  8a).  Arbitrator Raymond F. Hayes,
 in a well-reasoned decision, cited a number of arbitration cases holding that
 the company had the right to unilaterally install a production schedule for its
 employees.  I have carefully examined the arbitrator's decision and can find
 nothing therein to indicate that it does not meet all of the requirements
 established by Spielberg and Raytheon, supra .
 
The issue of Respondent's right to unilaterally institute a production quota
 and disciplinary system was fully presented to not just one panel of
 arbitrators, but two; the parties agreed to be bound to arbitration; the
 proceedings were fair and regular; and the result reached is not clearly
 repugnant to the purposes and policies of the Act.  Unless the Board is to pay
 only lipservice to Spielberg, supra , then it is not for me to substitute my
 judgment for that of the arbitrator's.
 
4.  The Charging Parties were not parties to the arbitration
 
Before finally disposing of this aspect of these consolidated complaints, it
 is necessary to give some consideration to the rights of the individual Charging
 Parties vis-a-vis the collective-bargaining representative in bringing this
 particular [**40]  charge alleging an 8(a)(5) violation of the Act.  As the
 General Counsel correctly points out, a charge may be filed by any person.n16
 Section 102.9 of the Board's Rules and Regulations and Statements of Procedures,
 Series 8, as amended, provides: "A charge that any person has engaged in or is
 engaging in any unfair labor practice affecting commerce may be made by any
 person." There is a difference, however, between the right to file a charge and
 the right of a charging party to prevail in the complaint which might stem from
 the charge.  A charge is a mere claim or unproven contention by one or more
 persons.  The charge serves to initiate the investigation by the Board.  The
 complaint which follows, in the event there appears to be merit to the charge,
 must be weighed in light of the factual evidence, the statutory provisions of
 the Act, and the Board's and court's interpretations of those statutory
 provisions.  In other words, the mere fact that any person has a right to file a
 charge does not necessarily mean that that person will prevail in any complaint
 that might issue.
 
n16 Monroe Manufacturing Company, Division of Continental Oil Company , 167
 NLRB 1074, fn. 2 (1967); Blount Farmers Cooperative, Inc ., 150 NLRB 1681
 (1965); Tursair Fueling, Inc ., 151 NLRB 270 (1965). [**41]
 
It should be noted that each of the individuals alleged to have been
 wrongfully disciplined pursuant to the unilaterally promulgated production quota
 and disciplinary system had filed grievances which were being processed through
 the grievance and arbitration procedure until withdrawn voluntarily by the Union
 (see letter dated February 19, 1976, which is a part of Resp. Exh. 5).  The
 testimony  [*766]  indicated that the Union and the individual employees agreed
 that further efforts to pursue their grievances in light of the two arbitrators'
 decisions would be futile, and their action was taken voluntarily and not
 because of any fraud, coercion, and pressure.  The Act provides that it shall be
 the designated or selected representative for the purpose of collective
 bargaining by the majority of the employees in a unit appropriate for such
 purposes, that shall be the exclusive representative of all employees in such
 unit for the purposes of collective bargaining in respect to rates of pay,
 wages, hours of employment, or other conditions of employment.  n17 In the
 absence of some showing of fraud or collusion between the Company and the
 collective-bargaining representative, to allow the  [**42]  individual employees
 to pursue their individual methods of resolving a dispute would be most
 disruptive of the industrial scene and contrary to the purposes of the Act.  n18
 
n17 See Sec. 9(a) of the Act.
 
n18 This case is quite different from the situation found by the Board in
 Kansas Meat Packers, a Division of Aristo Foods, Inc ., 198 NLRB 543 (1972),
 where it was doubtful the employees could or would be fully and fairly
 represented by the Union.
 
The United States Supreme Court gave strength and support to this proposition
 in 1953 when it reversed a decision of the circuit court of appeals and
 dismissed a suit brought by a group of dissident employees protesting the right
 of the exclusive bargaining representative to negotiate certain seniority
 clauses in their labor agreement.  n19 The Eighth Circuit Court of Appeals put
 it very succinctly in Lion Oil Company and Monsanto Chemical Company  v.
 N.L.R.B., 245 F.2d 376, 378-379 (C.A. 8, 1957), when it said:
 
n19 Ford Motor Company  v. Huffman , 345 U.S. 330 (1953).
 
The National Labor Relations Act does not countenance negotiating with
 individual employees when they have bargaining representatives....  [**43]  It
 requires that representatives designated by the majority of employees shall be
 the exclusive collective-bargaining representatives in respect to rates of pay,
 wages, hours of employment or other conditions of employment.  Lion Oil is
 compelled to deal exclusively and collectively with the union or, as the Supreme
 Court has put it, "... the obligation to treat with the true representatives was
 exclusive and hence imposed the negative duty to treat with no other."
 [Citations omitted.] More recently the Supreme Court has confirmed the view that
 it would be unwise to permit dissident or minority groups to bargain directly
 with their employer in contravention to that exclusive right established by law
 in the collective-bargaining representative.  n20 I conclude and find that to
 allow these individual employees to prevail in an 8(a)(5) complaint after their
 exclusive bargaining representative has availed itself of arbitrating the
 identical subject matter would be making a nullity of the Spielberg doctrine,
 supra .  Moreover, these employees are working under a labor management
 agreement which provides for a broad final and binding arbitration procedure to
 which they had access.  [**44]  Under the Collyer doctrine, supra , the matter
 involving the suspension and the discharge of specific employees would have been
 deferred to the arbitration process.  In this instance the grievance and
 arbitration process became final and binding when the grievances were
 voluntarily withdrawn.
 
n20 Emporium Capwell Co.  v. Western Addition Community Organization , 420
 U.S. 50 (1975).
 
In a recent Supreme Court decision, the Court noted with approval that "Board
 policy is to refrain from exercising jurisdiction in respect of disputed conduct
 arguably both an unfair labor practice and a contract violation when... the
 parties have voluntarily established by contract a binding settlement
 procedure." n21 I shall recommend dismissal of that portion of the complaint in
 Case 28-CA-3714 alleging that Respondent unlawfully established a production
 quota and disciplinary system pursuant to which individuals received suspensions
 and/or discharges.
 
n21 William E. Arnold Co.  v. Carpenters District Council of Jacksonville and
 Vicinity, et al ., 417 U.S. 12 (1974).
 
5.  Changes in policy of payment of wages for balance of shift when employee
 injured on the job  [**45]
 
It was also alleged as a part of the complaint in Case 28-CA-3714 that the
 Company's change in attitude toward payment for the remaining portion of the
 shift when employees are injured on the job was a change in policy affecting
 wages, hours, and working conditions and therefore subject to bargaining. The
 evidence is clear and undisputed and I herewith find that Respondent did change
 its policy.  I shall recommend dismissal of this aspect of the complaint,
 however, for two reasons.  First of all, the evidence reveals that every
 grievance that was filed regarding the failure of an employee to receive pay for
 the remainder of the shift on which he may have been injured was resolved
 through the grievance procedure by payment of the required sum of money to the
 respective grievants.  Thus, the issue has been finally resolved by an
 agreed-upon grievance and arbitration procedure and all that has been said
 heretofore regarding other portions of this complaint is equally applicable to
 this allegation; i.e., where the parties have a workable dispute-resolving
 machinery the Board should not interfere.  Second, the Board has neither the
 time nor the manpower to look behind every grievance  [**46]  on the part of
 either management or labor unions which might arise in the process of enforcing
 or interpreting labor-management contract language.  Each change of supervisors
 or business agent is apt to bring forth a slightly different "attitude or
 policy," but the parties have provided for a means of resolving those
 differences, if and when they became unreasonable.  The question is not whether
 there was a change of "policy or attitude," but did the resulting conduct breach
 either the contract or the law.  In the instances herein involved the Union
 protested through its established dispute-resolving machinery and won.  In the
 incidents alleged to be violative of the Act Respondent has acknowledged it was
 wrong and has made full restitution.  The issue has become moot because the
 Company has capitulated.  The record does not fully reveal -- nor was it
 necessary -- all the circumstances surrounding these particular on-the-job
 injuries, but obviously the Company  [*767]  did not feel it could prevail.  It
 is entirely possible that given the proper circumstances and set of facts
 Respondent may wish to test its right to deny payment, but it is not for the
 Board to become involved in interpreting [**47]  contract language.  Moreover,
 the Board seemed to have recently recognized the problem when, in dismissing an
 8(a)(5) complaint concerning the unilateral institution of timeclocks by a
 respondent company, the Board said:
 
While there is some evidence that the Respondent was lax in enforcing its
 rule, we cannot say that such inattentiveness raised the former normal procedure
 to the level of a term and condition of employment which the Respondent was
 required to bargain over before changing.  For absent discrimination, an
 employer is free to choose more efficient and dependable methods for enforcing
 its workplace rules.  In the circumstances of this case, we find that the
 Respondent's introduction of the timeclocks was but a part of the day-to-day
 managerial control which it was free to exercise.  n22
 
n22 Rust Craft Broadcasting of New York, Inc ., 225 NLRB 327 (1976).
 As indicated earlier herein there is absolutely no evidence of union animus or
 discrimination and I shall recommend dismissal of the allegation charging
 Respondent Company with a violation because of its change of attitude or policy
 regarding the payment of moneys for the balance of the shift on occasions when
 [**48]  employees are injured on the job.
 
6.  The 1976 production quota standards
 
An amendment to the complaint was permitted at the hearing to allege that
 Respondent had, on or about March 29, 1976, unilaterally and without notice to
 or consultation with the Union, or affording the Union an opportunity to
 request bargaining, instituted a production quota system for its warehouse
 employees which supplanted the previous production quota system. I shall
 recommended dismissal for lack of proof.
 
The record established that changes were made in the production standards in
 the spring of 1976 (see G.C. Exh. 2).  However, there was no evidence tending to
 prove that the newly instituted engineered set of standards in any manner
 affected the employees.  The right to establish the basic production quota and
 disciplinary program has heretofore been found valid.  In the absence of some
 showing that the program instituted in 1976 represented a "material,
 substantial, or significant change" from prior practice, there is no basis for
 finding a violation.  n23 Moreover, all that has heretofore been said regarding
 deferment by the Board under either the Collyer or Spielbery doctrines is
 applicable [**49]  here.  In sum, I find that the General Counsel has not shown
 by a preponderance of the evidence that Respondent violated the Act by
 instituting a new set of production standards in the spring of 1976.
 
n23 Wabash Transformer Corp., Subsidiary of Wabash Magnetics, Inc ., 215 NLRB
 546 (1974).
 
7.  The right to have a union representative present
 
The issues raised in Cases 28-CA-3628 and 28-CA-3714-2 are identical and
 relate to the right of employees to have a union representative present at
 "employee-supervisor interviews."
 
The evidence is clear that it had been Respondent's policy to permit union
 representatives to be present upon request at interviews which might reasonably
 result in disciplinary action (see Resp. Exh. 14).  In connection with the
 production quota and disciplinary procedure instituted by Respondent it became
 an almost daily occurrence for the night supervisor, Numkena, to discuss with
 each of the order runners their productivity of the previous evening.  In every
 instance, those employees who failed to come within 5 percent of making the
 average production attained by the entire crew were talked to or counseled by
 the supervisor in an effort to improve  [**50]  their production.  In some
 instances this counseling took the form of actually riding on the "tug" with the
 employee for the purpose of trying to learn what might be causing the low
 production.  On other occasions it was a matter of questioning the employee
 regarding the condition of his equipment or the working conditions which might
 have caused the low production.
 
Mr. Huber director of industrial relations for Respondent, testified that, in
 August 1975, the Company's policy regarding permitting a union representative to
 be present at the counseling sessions, as well as at the disciplinary sessions,
 was changed.  (See the stipulation set forth herein above under the caption
 "background and Sequences of Events.") Huber explained that it became necessary
 to change their practice because the employees began requesting union
 representatives to be present so frequently at the counseling sessions that it
 made job instruction and training impossible.  The allegations in Case
 28-CA-3628 to the effect that, on or about August 7, Roger Hendershot was denied
 union representation at a counseling session relating to on-the-job instruction
 or training, and the fact that, on or about August 11,  [**51]  Respondent
 denied Roger Hendershot the right to have a union representative present in a
 "conference" which resulted in his suspension are not seriously contested or
 disputed and I herewith find them to be facts.  The same is true regarding the
 allegations in Case 28-CA-3714-2 wherein it is alleged that Paul E. Jaynes was
 denied union representation at an interview with Jeff Thrasher, Respondent's
 night superintendent.  Jaynes credibly testified that, after arriving at
 Thrasher's office and being told that Thrasher wanted to talk to him about his
 low productivity, he (Jaynes) asked to have union representation.  He was told
 by Thrasher that it was not needed and then was advised of his suspension.
 Jaynes testified that on December 14 when he was told that Jeff Thrasher wanted
 to see him he went to Thrasher's office but immediately asked for union
 representation.  Again he was told that it was not needed and Jaynes was
 informed that in accordance with their established policy his productivity had
 not improved and he was being discharged.
 
A resolution of these allegations is to be found in the application of
 Weingarten, supra .
 
Respondent acknowledges that the Weingarten [**52]  decision holds that an
 employee has a right to have his union representative present at an interview
 where the employee reasonably believes the investigation will result in
 disciplinary  [*768]  action, but contends that this right does not apply: (1)
 to run-of-the-mill shop-floor conversations involving training instruction or in
 correction of work techniques; or (2) to situations where there is no interview
 or investigation.
 
Respondent's counsel argues persuasively that when the employees were advised
 of their discipline no discussion or interrogation took place.  Respondent
 contends the disciplinary action was perfunctory in accordance with a
 cut-and-dried company policy and that the right to union representation at such
 sessions does not apply.
 
I find Respondent's counsel to be entirely correct insofar as the warehouse
 floor counseling, or job instruction, is concerned, but I feel that he has
 misconstrued the scope of the Supreme Court's language in Weingarten, supra , as
 it relates to disciplining sessions, even though the rationale is predicated on
 a situation that contemplates interrogation, investigation, and exploration in
 an effort to ascertain the facts .  For example,  [**53]  the opinion states [
 420 U.S. 251 at 262]: n24
 
n24 Also see the language set forth by the Court in fn. 7 which also suggests
 that the Court envisions and exploratory type of conference wherein a union
 representative might be helpful, in contrast to one that is as cut and dried or
 perfunctory as is represented by the instant dispute.
 A single employee confronted by an employer investigating whether certain
 conduct deserves discipline may be too fearful or inarticulate to relate
 accurately the incident being investigated, or too ignorant to raise extenuating
 factors.  A knowledgeable union representative could assist the employer by
 eliciting favorable facts, and save the employer production time by getting to
 the bottom of the incident occasioning the interview.
 Both the Board's Decision and the Court's approval thereof, however, is
 predicated on the right of an employee to engage in concerted activities for the
 purpose of mutual aid or protection and the Board's permissible construction of
 the statute that concerted activity includes the right to have a union
 representative present when the employee's employment security is threatened.
 
Perhaps the most precise and succinct [**54]  statement of what the court
 majority said can be found in the dissenting opinion written by Justice Powell,
 wherein he said [420 U.S. 251 at 269]: "Section 7 of the National Labor
 Relations Act, as amended, 61 Stat. 140, guarantees to employees the right to
 'engage in... concerted activities for the purpose of collective bargaining or
 other mutual aid or protection.' The Court today construes that right to include
 union representation or the presence of another employee at any interview the
 employee reasonably fears might result in disciplinary action." Under the broad
 reasoning expressed by the Board and approved by the Court in Weingarten there
 can be little doubt that when Roger Hendershot and Paul Jaynes were denied an
 opportunity to have a union representative present as they were being told that
 they would be suspended and/or discharged that Respondent was thereby
 interfering with the employee's Section 7 rights in violation of Section 8(a)(1)
 of the Act.Both employees had been counseled on several occasions and were aware
 of the written policy; therefore, they each had every reason to know what was
 going to occur at the interview.
 
On the other hand, I can find nothing [**55]  contrary to the Act, or the
 Board and Court's interpretations thereof, in Respondent's refusal to permit a
 union representative to be present at each of the counseling or on-the-job
 instructional sessions, because as the Board stated in Quality Manufacturing
 Company , 195 NLRB 197, 199 (1972):
 We would not apply the rule to such run-of-the-mill shop-floor conversations as,
 for example, he giving of instructions or training or needed corrections of work
 techniques.  In such cases there cannot normally be any reasonable basis for an
 employee to fear that any adverse impact may result from the interview, and thus
 we would then see no reasonable basis for him to seek the assistance of his
 representative.
 Clearly the evidence supports the position that the night supervisor, Mr.
 Numkena, never disciplined any of the employees and his role was solely one of
 seeking to aid the employees in attaining adequate production.  Hiring and
 training employees is an expensive labor cost to most employers and they are not
 anxious to discharge employees if they are capable of performing a reasonable
 and accepted standard of work.
 
CONCLUSIONS OF LAW
 
1.  Respondent Alfred M. Lewis, Inc., is an [**56]  employer engaged in
 commerce within the meaning of Section 2(2) and (6) of the Act.
 
2.  Transport and Local Delivery Drivers, Warehousemen and Helpers, Local
 Union No. 104, an affiliate of the Teamsters International, is now and has been
 at all times material herein a labor organization within the meaning of Section
 2(5) of the Act.
 
3.  By specifically denying employees Roger Hendershot's and Paul Jaynes'
 request for union representation at interviews conducted by Night Superintendent
 Jeff Thrasher under circumstances from which said employees could reasonably
 conclude that their job security was in jeopardy, Respondent interfered with,
 coerced, and restrained employees in the exercise of rights guaranteed by
 Section 7 of the Act, and thereby engaged in and is engaging in unfair labor
 practices proscribed by Section 8(a)(1) of the Act.
 
4. The aforesaid unfair labor practices are unfair labor practices affecting
 commerce within the meaning of Section 2(6) and (7) of the Act.
 
5.  Allegations contained in these consolidated complaints not specifically
 found herein are to be dismissed.
 
THE REMEDY
 
Having found that Respondent engaged in unfair labor practices, I shall
 recommend [**57]  that it be required to cease and desist therefrom and take
 certain affirmative action designed and found necessary to effectuate the
 policies of the Act.  However, under all of the circumstances of this case, I
 shall not direct that Hendershot or Jaynes be reinstated and/or compensated for
 time lost because, as  [*769]  indicated in the body of this Decision, the
 propriety and reasonableness of the disciplinary action has already been
 resolved in a manner and forum established by the parties to the labor
 agreement.  Reinstatement would in effect vitiate the arbitrator's decision and
 be unduly punitive to the Respondent.  The violation found is a technical one
 stemming from broad language which compels the finding of a violation, but the
 rationale of the applicable case does not comport with the factual situation
 here.  When this fact is weighed along with the total absence of union animus on
 the part of Respondent, I feel the remedy herein recommended fully effectuates
 the purposes of the Act.
 
[Recommended Order omitted from publication.]
 

[*760contd]
 [EDITOR'S NOTE: The page numbers of this document may appear to be out of
 sequence; however,  this pagination accurately reflects the pagination of the
 original published documents.]
 
APPENDIX
 NOTICE TO EMPLOYEES
 POSTED BY ORDER OF THE
 NATIONAL LABOR RELATIONS BOARD
 An Agency of the United States Government
 
WE WILL NOT institute [**58]  and thereafter enforce production quota and
 disciplinary systems applicable to employees represented by Transport and Local
 Delivery Drivers, Warehousemen and Helpers, Local Union No. 104, an affiliate of
 Teamsters International, or change policy regarding union representation at
 counseling sessions and disciplinary interviews involving employees represented
 by said Union without first bargaining with said Union.
 
WE WILL NOT require any employee to take part in any counseling session or
 disciplinary interview without union representation if such representation has
 been requested by the employee and if the employee has reasonable grounds to
 believe that the matters to be discussed may result in his being subject to
 disciplinary action.
 
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
 in the exercise of rights guaranteed them by Section 7 of the Act.
 
WE WILL cancel, withdraw, and rescind the March 29, 1976, engineered
 production quota and disciplinary system in effect as to employees represented
 by the aforesaid Union.
 
WE WILL remove all disciplinary warnings, notices, or memoranda issued since
 July 1975 resulting from application of the July 1975 [**59]  production quota
 and disciplinary system and the March 29, 1976, engineered production quota and
 disciplinary system, or refusal to allow union representation at counseling
 sessions and disciplinary interviews from the files of employees who  [*761]
 are represented by the aforesaid labor organization.
 
WE WILL offer all employees discharged, suspended, or otherwise disciplined
 or denied work opportunities as a result of the unilateral institution of said
 production quota and disciplinary systems, or refusal to allow union
 representation at counseling sessions and disciplinary interviews immediate and
 full reinstatement to their former positions or, if they no longer exist, to
 substantially equivalent ones, without prejudice to their seniority or other
 rights and privileges.
 
WE WILL make whole all employees who were discharged, suspended, or otherwise
 denid work opportunities as the result of the unilateral institution of said
 production quota and disciplinary systems, or refusal to allow union
 representation at counseling sessions and disciplinary interviews.
 
ALFRED M. LEWIS, INC.