523 F.2d 1153 (D.C. Cir. 1975), 74-1892, Leone v. Mobil Oil Corp.

Docket Nº:74-1892.
Citation:523 F.2d 1153
Party Name:1975-1976 O.S.H.D. ( 20,171 Frank LEONE et al., Appellants, v. MOBIL OIL CORPORATION.
Case Date:November 28, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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523 F.2d 1153 (D.C. Cir. 1975)

1975-1976 O.S.H.D. ( 20,171

Frank LEONE et al., Appellants,



No. 74-1892.

United States Court of Appeals, District of Columbia Circuit

November 28, 1975

Argued Sept. 5, 1975.

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George H. Cohen, Washington, D. C., with whom Robert M. Weinberg, Washington, D. C., was on the brief for appellants.

Stanley R. Strauss, Washington, D. C., for appellee.

Before TAMM, ROBINSON and MacKINNON, Circuit Judges.

TAMM, Circuit Judge:

The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 Et seq. (hereinafter OSHA), allows a representative authorized by the employees to accompany an inspector during the walkaround inspection of the workplace. This case presents the issue of whether the employee representative is entitled to pay by the employer for the walkaround time under the provisions of OSHA or the Fair Labor Standards Act, 29 U.S.C. § 201 Et seq. (hereinafter FLSA). The trial court, giving due deference to a ruling by the Secretary of Labor that pay is not required under either act, found in favor of the employer. We affirm.

The four plaintiffs in this case are Mobil Oil Corporation employees who participated in a walkaround inspection of the Mobil refinery at Paulsboro, New Jersey during the autumn of 1971. The inspection, which occurred in several stages, was the result of a complaint filed by Local 8-831 of the Oil Workers Union, pursuant to 29 U.S.C. § 657(f)(1). 1 The Union, of which plaintiffs were members, represented about four-fifths of the employers at the refinery. As a result of this inspection Mobil was cited for three "serious" and 90 "non-serious" violations.

Plaintiff employees each participated in some phase of the walkaround inspection on the plant property during their regular working hours. Although Mobil paid them for the time spent in the inspection prior to October 25, 1971, they received no pay for inspection time after that date. In contrast, Mobil's management representatives who participated in the inspection were paid for the entire time. At the time of the inspections, the existing collective bargaining agreement with Mobil specified wages, paid holidays, and pay for jury duty, military registration examination, and excused absences; it did not, however, contain any provisions referring to wages for employees participating in OSHA inspections. The agreement did include a three-step grievance procedure for disputes as to the interpretation of or alleged violations of the agreement, as well as a no-strike clause and an arbitration procedure for unresolved disputes. Plaintiffs made no attempt to use the grievance procedure because they felt that the dispute over inspection pay was not covered because it did not involve a contract term, working condition, or disciplinary action.

In November of 1971, the Union filed a complaint against Mobil with the Secretary of Labor alleging that failure to pay the employee representatives for their inspection time violated OSHA's proscription against discriminatory treatment of employees who exercise their

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OSHA rights. 2 The claim was rejected by the Assistant Secretary of Labor because "failure to compensate for walkaround time is not discriminatory Per se under section 11(c)" J.A. at 69. See also 29 C.F.R. § 1977.21(a) (1975). Analogizing the situation to testifying before the National Labor Relations Board during working hours, the Assistant Secretary determined that the employer may not prevent the exercise of such rights but need not pay for the activity as working time under FLSA, Citing Electronic Research Co., 190 NLRB No. 143.

Following rejection of this claim, plaintiffs brought suit in the District Court for the District of Columbia invoking the court's jurisdiction under the statute granting jurisdiction of suits for violation of labor contracts, section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) (1970). District Court Judge John Lewis Smith, Jr. granted Mobil's motion for summary judgment because participation in the inspection was voluntary and primarily for the benefit of employees and thus not compensable under the "hours worked" test of the FLSA. Leone v. Mobil Oil Corp., 377 F.Supp. 1302, 1304 (D.D.C.1974). The trial court accepted the Assistant Secretary's decision as the correct interpretation of OSHA and FLSA. Id.

The plaintiffs then appealed to this court, alleging Inter alia that the OSHA statutory scheme envisions placing the economic burden of industrial safety on employers and that the non-frivolous nature of employees' participation in the inspection benefits the employer in meeting his statutory duty to provide safe working conditions; employee participation thus merits compensation under FLSA. Plaintiff-appellants urge that, since these inspections constitute "hours worked" under FLSA, employees are entitled to pay at the contract wage. In contrast, Mobil argues that the walkaround time is noncompensable and that, in any event, the suit is improper because the employees failed to exhaust the grievance procedure specified in the collective bargaining agreement.

Although this second issue the exhaustion of dispute procedures was not resolved by the district court, we find a consideration of this issue imperative. If, as Mobil contends, the action is barred by the plaintiffs' failure to follow grievance procedure, we need not address the issue of pay for OSHA inspection participation.

Mobil's claim raises two distinct issues: (1) whether an individual employee seeking to assert his statutory rights under FLSA must exhaust grievance procedure before seeking judicial resolution, and (2) whether the specific terms of the relevant collective bargaining agreement in this case control the dispute. Because we answer the first general question in the negative, we need not resolve the second issue.

A brief sketch of the historical development of judicial deference to grievance procedures agreed upon by the parties via collective bargaining is helpful in illuminating the unsettled question presented by this case. Beginning with the so-called Steelworkers Trilogy in 1960, United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), the United States Supreme Court has greatly strengthened the effect of grievance and arbitration clauses like those which appear in the 1971 Mobil/United

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Oil Workers agreement. 3 In both American Manufacturing and Warrior & Gulf Navigation, supra, the Court enforced the arbitration clauses in suits brought under section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) (1970), and stressed the importance of using the arbitration process to avoid industrial strife. Although the Court recognized that the question of arbitrability is one for the court, it articulated a broad standard for judicial determination of arbitrability:

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

363 U.S. at 582-83, 80 S.Ct. at 1353 (footnote omitted). The Court has expanded this presumption of arbitrability to cover even safety disputes. Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 379, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

Consistent with its generous support of arbitration procedures, the Court also has favored the use of grievance procedures that precede the arbitral requirement. In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), the Court required an individual employee to exhaust the prescribed grievance procedure before

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bringing suit for breach of contract. Id. at 652, 85 S.Ct. 614. Relying on Congressional preference for using grievance procedures to stabilize labor relations, the Court required an employee to use the dispute procedure even though he was seeking severance pay after the plant had closed.

This expansion of the rule favoring use of grievance procedures to individual employees, as opposed to unions and employers, was soon limited in two decisions. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), held that an employee could sue directly for wrongful discharge without exhausting grievance procedures if the union had breached its duty of fair representation by wrongfully refusing to process the grievance. Id. at 186, 87 S.Ct. 903. Later the Court held that exhaustion was not required before a seaman could assert judicially his claim for wages under the statute regulating pay of maritime workers, 46 U.S.C. § 596 (1970). 4 U. S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971). Although the Court there reaffirmed the value of grievance and arbitration procedures, it refused to hold that section 301 replaced the individual seaman's statutory claim.

What Congress has plainly granted we hesitate to deny. Since the history of § 301 is silent on the abrogation of existing statutory remedies of seamen in the maritime field, we construe it to provide only an optional remedy to them. We would require much more to hold that § 301 reflects a philosophy of legal compulsion that overrides the explicit judicial remedy provided by 46 U.S.C. § 596.

Id. at 357-58, 91 S.Ct. at 413.

In 1972, the Court faced a related question:

whether, similarly, employees may sue in court to recover overtime allegedly withheld in violation of the Fair Labor Standards Act, if their complaint of alleged statutory violation is also subject to...

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