599 F.2d 91 (5th Cir. 1979), 78-1232, Axelson, Inc. Subsidiary of United States Industries, Inc. v. N.L.R.B.

Docket Nº:78-1232.
Citation:599 F.2d 91
Party Name:AXELSON, INC., SUBSIDIARY OF U.S.A. INDUSTRIES, INC., Petitioner, Cross- Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
Case Date:July 20, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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599 F.2d 91 (5th Cir. 1979)

AXELSON, INC., SUBSIDIARY OF U.S.A. INDUSTRIES, INC.,

Petitioner, Cross- Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 78-1232.

United States Court of Appeals, Fifth Circuit

July 20, 1979

Kothe, Nichols & Wolfe, Frank B. Wolfe, III, Lynn Paul Mattson, Tulsa, Okl., for petitioner, cross-respondent.

Elliott Moore, Deputy Assoc. Gen. counsel, N.L.R.B., Lawrence E. Blatnik, Atty., Washington, D.C., for respondent, cross-petitioner.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before GEWIN, GOLDBERG and VANCE, Circuit Judges.

GEWIN, Circuit Judge:

Axelson, Inc., a subsidiary of U.S.A. Industries, Inc., filed a petition seeking a review of a decision and order of the National Labor Relations Board 1 pursuant to § 10(f) of the National Labor Relations Act, as amended. 29 U.S.C. § 151 Et seq. The Board cross-applied for enforcement of its order.

The Board, reversing an earlier decision by an Administrative Law Judge, found that the company had unilaterally refused

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to pay employee members of the Union's negotiating committee for production wages lost by them while participating in working time contract negotiations, in violation of the then current contract and established past practice. The Board further determined that petitioner had refused to bargain with the Union on that matter in violation of § 8(a)(5) & (1) of the National Labor Relations Act.

The parties, in general, accept the findings of fact of the administrative law judge. The dispute in the instant case arose during the negotiation of the current contract which runs from March, 1976 until 1979. Petitioner and the union had been involved in a succession of bargaining contracts covering the production and maintenance employees since 1959 with the Union being represented in the contract negotiations by a shop committee comprised of bargaining-unit employees. In recent years, this committee has consisted of four members.

The administrative law judge found the evidence to be uncontroverted that in all negotiations from 1963 through 1973, with the possible exception of 1969, 2 all members of the shop committee representing the Union had been paid, at their regular hourly rates, for the time they spent in negotiating sessions which otherwise would have been spent in production activities.

The instant dispute arose during one of the first bargaining sessions for the current contract. The shop committee asked that one of its members, Harvey Cross, be reassigned from the night to the day shift. Petitioner's chief bargaining spokesman, Mr. West, questioned the reason for the request and was told by the committee that they felt it would be unfair to require Cross to work his full production shift to maintain his income level during negotiations while those members on the day shift were being excused from their production work to participate in negotiations without loss of pay. During the 1974 negotiations, the company had accommodated a similar request by allowing one of the committee members, C. C. McKee, to make a shift change. Mr. West stated that he did not know whether any of the committee members would be paid for the time they spent in negotiations but he would confer with his superior and inform the committee of his decision. Negotiations terminated at that point.

At the following bargaining session West informed the committee that they would not be paid for the time they spent in negotiations away from their work, but offered in the alternative to meet during nonwork time such as weekends. This offer was rejected by the committee which cited past practice and the 1974-1976 contract as support for their position that they were entitled to production pay during negotiations.

The relevant provisions of the 1974-76 contract are as follows:

6.4 A shop committeeman will, after notice and permission from his immediate supervisor, be allowed to leave his work, if necessary, for the following reasons:

(D) to attend negotiation sessions with Company representatives for the purpose of renewing this agreement.

6.5 If it becomes necessary for a . . . committeeman to leave his work, after receiving permission from his immediate supervisor in accordance with Section . . . 6.4 of this article, he must clock out on his job card and, on his return, clock in on his job card.

(B) The . . . shop committeeman will receive pay for time so spent when authorized by his supervisor prior to, during, and after normal working hours at his regular straight time hourly rate except on scheduled overtime.

Record at 101.

The evidence at the hearing established that Article 6.4(d) was identical to the language

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in the five preceding contracts. Article 6.5(B) in the contracts preceding the 1974-76 contract had read:

(B) The . . . shop committeeman...

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