Axelson, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1978

234 N.L.R.B. 414 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Axelson, Inc., subsidiary of U.S. Industries, Inc. and
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 16-CA-6423
January 25, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 11, 1977, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, General Counsel and Re-
spondent filed exceptions and supporting briefs;
Respondent also filed a brief in response to the
General Counsel's brief.
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 and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleges that during the 1976 contract
negotiations between Respondent and the Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, hereafter the Union, Respon-
dent refused the Union's request to bargain collec-
tively with respect to wages, hours, and other terms
and conditions of employment and "unilaterally
changed working conditions by refusing to pay
employee members of the Union negotiating com-
mittee for time spent in contract negotiations with
Respondent" in violation of Section 8(a)(5) and (1) of
the Act. The Administrative Law Judge found that
the remuneration of employee members of the union
negotiating committee was a nonmandatory subject
of bargaining and therefore Respondent did not
violate the Act by unilaterally refusing to make such
payments, and he dismissed the complaint in its
entirety. We disagree. We are of the view that the
payment of wages for time spent in negotiations
constitutes a mandatory subject of bargaining.
As set forth more fully in the Administrative Law
Judge's Decision, the Union and Respondent have
been party to a successive number of collective-
bargaining agreements covering Respondent's pro-
duction and maintenance employees. Over the years,
the Union has been represented in contract negotia-
The record establishes the Respondent paid shop committee members
for the negotiations of the 1963, 1965, 1967, 1971, and 1974 contracts and
for the 1973 midterm negotiations. The record is unclear, however, whether
the negotiators were paid in 1969.
2 Cross had been present at the earlier negotiation sessions.
234 NLRB No. 49
tions by a shop committee composed of unit employ-
ees. In the past the members of the negotiating shop
committee have been paid their regular hourly wages
for time spent in bargaining sessions that otherwise
would have been spent in production.'
The dispute involved herein arose in January 1976
when negotiations for the 1976-78 collective-bar-
gaining agreement began. Early in the negotiations
the shop committee, which was comprised of four
employees, asked that one of its members, Harvey
Cross, be reassigned from the night to the day shift so
that Cross could receive production pay for negotiat-
ing time.2 When Respondent's spokesman, Drew
West, questioned the request, the shop committee
explained that it would be inequitable to pay the
other shop committee members who were on the first
shift and had been excused from production to
negotiate while not paying Cross who was on the
second shift and was not scheduled to work during
negotiation time. The shop committee further point-
ed out that during the 1974 negotiations Respondent
had accommodated a second-shift negotiator by
reassigning him to the first shift for the duration of
the negotiations. West indicated he would confer
with his superiors.
At the next negotiation session, West informed the
shop committee that none of the committee members
would receive pay for the 1976 negotiations but that
Respondent was willing to meet for negotiations
during nonwork time so that none of the employees
would lose production wages.3 The shop committee
claimed that Respondent's past practice over the
years and the then applicable 1974-76 contract
entitled them to production pay during negotiations.
The relevant provisions of the contract read:
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 ... committee-
man to leave his work, after receiving permission
from his immediate supervisor in accordance with
Section ... 6.4 of this article, he must clock-out
3 The record is unclear when the 1974-76 contract expired; however, it is
uncontested that that contract was still current on January 21, 1976, when
Respondent unilaterally refused to pay production wages lost due to
negotiations.
414
AXELSON, INC.
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.
Respondent continued to refuse to pay the negotia-
tors' loss production wages, whereupon the Union
filed the unfair labor practice charges involved
herein. The Union agreed to reimburse the shop
committee for lost wages pending a determination of
the unfair labor practices, and the negotiations
resumed. On March 25, 1976, the parties reached
agreement and signed the current collective-bargain-
ing agreement.
We agree with the Administrative Law Judge that
the touchstone issue involved herein is whether the
remuneration of employee members of the shop
committee for time spent in negotiations is or is not a
mandatory subject of bargaining. We have defined
mandatory subjects of bargaining as:
those comprised in the phrase "wages, hours, and
other terms and conditions of employment" as set
forth in Section 8(d) of the Act. While the
language is broad, parameters have been estab-
lished, although not quantified. The touchstone is
whether or not the proposed clause sets a term or
condition of employment or regulates the relation
between the employer and its employees. 4
The Administrative Law Judge found that the
remuneration of "employees for performing union
functions goes more to the relationship between
union and employer than to that between employee
and employer," and that, therefore, the payments in
question did not involve a mandatory subject of
bargaining.5 The Administrative Law Judge was in
error. Such a matter concerns the relations between
an employer and its employees 6 in that it is related to
the representation of the members of the bargaining
unit in negotiations with an employer over terms and
conditions of employment.
4 International Union of Operating Engineers, Local Union No. 12
(Associated General Contractors ofAmerica, Inc.). 187 NLRB 430. 432 (1970).
s See N.LRB. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342,
350 (1958).
The Supreme Court has pointed out that a matter that "vitally affects"
the relations between an employer and employees is a mandatory subject of
bargaining, whereas a matter that bears a "speculative and insubstantial"
impact on the relations between an employer and employees is a permissive
subject of bargaining. Allied Chemical & Alkali Workers of America, Local
Union No. I v. Pittsburgh Plate Glass Co., Chemical Division, et a., 404 U.S.
157, 178-180(1971).
We have previously found that the performance of
similar union functions can vitally affect an employ-
ee's relationship with his or her employer. For
instance, under circumstances similar to the instant
case, we have found that wages paid to employees
during the presentation of grievances constitutes a
mandatory subject of bargaining and that the unilat-
eral abrogation of such a contractual term 7 or past
practice s violates Section 8(aX5) and (1) of the Act.
Similarly, we have found that union-related functions
such as superseniority accorded to union representa-
tives, union security, and checkoff provisions are also
mandatory subjects of bargaining. 9 These union-
related matters inure to the benefit of all of the
members of the bargaining unit by contributing to
more effective collective-bargaining representation
and thus "vitally affect" the relations between an
employer and employee.
We see no distinction between an employee's
involvement in contract negotiations and involve-
ment in the presentation of grievances. In one
situation an employee is implementing a contractual
term or condition of employment and in the other
situation an employee is attempting to obtain or
improve contractual terms or conditions of employ-
ment. In both situations the activity is for the benefit
of all of the members of the bargaining unit.
Accordingly, we find that the payment of wages to
employees negotiating a collective-bargaining agree-
ment "constitutes an aspect of a relationship between
the employer and employees"' 0 and is, therefore, a
mandatory subject of bargaining.
Since the Administrative Law Judge found that the
remuneration of employee negotiators' lost produc-
tion was a nonmandatory subject of bargaining, he
found it unnecessary to determine if, in fact, Respon-
dent unilaterally ceased remunerating employee ne-
gotiators for lost wages and thereafter refused to
bargain collectively regarding that matter. Accord-
ingly, we must now consider whether, in fact,
Respondent engaged in such activity in violation of
Section 8(a)(5) and (I).
As indicated previously, on January 21, 1976,
Respondent refused to pay employee negotiators for
lost production wages and thereafter refused to
bargain collectively with regard to that matter.
Respondent contends that neither the contract nor
7 American Ship Building Conpany. 226 NLRB 788 (1976). Bethlehem
Steel Company (Shipbuilding Division), 133 NLRB 1347 (1961); Supplemen-
tal Decision 136 NLRB 1500 (1962), enforcement denied and case
remanded sub nom. Industrial Union of Marine and Shipbuilding Workers of
America, AFL-CIO v. N.LRB., 320 F.2d 615 (C.A. 3, 1963), cert. denied
375 U.S. 984 (1964); Second Supplemental Decision 147 NLRB 977 (1964).
s Ibid; The Hilton-Davis Chemical Corntyany, Division of Sterling Drug,
Inc., I85 NLRB 241, 242-243 (1970).
9 See, for example, Bethlehem Steel Co., supra, fn. 7.
o1 Allied Chemical A Alkali Workers of America, Local Union No. I v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 178 (1971).
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past practice requires it to pay employee negotiators
for lost production wages. Respondent claims that
the relevant provisions of the collective-bargaining
agreement (art. 6.4 and 6.5, cited previously) were
only intended to cover the payment of production
time spent in handling grievances and were not
intended to cover time spent in negotiations.
Our reading of the record and these contract
articles does not support this contention. Article 6.5
(B) specifies that shop committeemen "will receive
pay" for authorized excused time, and article 6.4 (D)
clearly contemplates that shop committeemen will be
"allowed" to attend negotiating sessions." In the
face of the plain meaning of these contractual terms,
we can find no language in the contract or viable
evidence in the record that supports Respondent's
contention that the shop committeemen would only
be paid for grievance handling. '2 The plain meaning
of these contract articles clearly contemplates that
shop committeemen will be paid for time spent in
negotiations. We also note that previous contracts
between the parties contained similar language and
that in the past shop committeemen had received
compensation for time spent in negotiations. Accord-
ingly, we find that the payment of production wages
lost during contract negotiations was a provision of
the then current contract and had also become an
established past practice.
In conclusion we find that the payment to the
employees of production wages lost during negotia-
tions is a mandatory subject of bargaining and that
Respondent unilaterally ceased making such pay-
ments in violation of the then current contract and
established past practice and refused to bargain with
regard to that matter and thereby violated Section
8(a)(5) and (1).
THE REMEDY
Having found that Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by unlawfully refusing
to bargain with the Union, we shall order that it
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act. As we
have found that Respondent violated Section 8(a)(5)
and (1) by unilaterally changing the wages, hours, or
working conditions of its employees, as established
by contract and past practice, by refusing to pay the
wages of employee members of the negotiating
committee for time spent in bargaining sessions that
would otherwise have been spent in production, we
direct that Respondent pay the Union for all money
spent in reimbursing employee members of the
11 It is not disputed that the shop committeemen in fact received
permission to attend the negotiation sessions.
ii The unsupported testimony of Respondent's witness, Drew West, that
art. 6.4 and 6.5 only referred to grievance handling is unconvincing in the
negotiating committee for production wages lost
during negotiations by its refusal to do so, and pay
any employee members of the negotiating committee
for production wages lost during the negotiations
that have not already been reimbursed by the Union:
The reimbursement for the lost wages plus interest
will be determined in accordance with the formula
set forth in F. W Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).'3
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has
been and is the exclusive representative of all
employees in the following appropriate unit within
the meaning of Section 9(a) of the Act:
All production and maintenance hourly rated
employees at the Respondent's Longview, Texas,
plants, excluding employees classified as experi-
mental, guard, office, janitorial, and shop office
employees, and all clerical, administrative, and
technical office employees, and supervisors as
defined in the Act.
4. By refusing, since on or about January 21,
1976, to bargain collectively with the Union as the
exclusive representative of its employees in the
aforesaid bargaining unit, by unilaterally refusing to
pay the wages of employee members of the negotiat-
ing committee for time spent in bargaining sessions
that would otherwise have been spent in production,
and by refusing to bargain collectively with regard to
that matter, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(aX5) and (1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Axelson, Inc., subsidiary of U.S. Industries, Inc.,
Longview, Texas, its officers, agents, successors, and
assigns, shall:
fact of the plain meaning of the contractual terms and Respondent's past
practice.
13 See, generally, Isis Plwnbing & Heating Co., 138 NLRB 716 (1962).
416
AXELSON, INC.
1. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit by unilaterally changing the wages,
hours, and working conditions of its employees as
established by contract or past practices, by refusing
to pay the wages of employee members of the
negotiating committee for time spent in bargaining
sessions that would otherwise would have been spent
in production:
All production and maintenance hourly rated
employees at the Respondent's Longview, Texas,
plants, excluding employees classified as experi-
mental, guard, office, janitorial, and shop office
employees, and all clerical, administrative, and
technical office employees, and supervisors as
defined in the Act.
(b) Refusing, upon request, to bargain with regard
to pay for employee union members of the negotiat-
ing committee for time spent in bargaining session
that otherwise would have been spent in production.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to the payment to employee members of the
negotiating committee for time spent in bargaining
sessions that otherwise would have been spent in
production.
(b) Reimburse the Union for all money, plus
interest, spent in reimbursing employee members of
the negotiating committee the production wages lost
during negotiations by Respondent's unlawful refus-
al to do so, and pay any employee members of the
negotiating committee for production wages lost
during negotiations, plus interest, that have not
already been reimbursed by the Union.
(c) Post at its facilities in Longview, Texas, copies
of the attached notice marked "Appendix." 14 Copies
of said notice, on forms provided by the Regional
Director for Region 16, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
14 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
the International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
representative of all our employees in the bargain-
ing unit described below with respect to pay for
employee members of the negotiating committee
for time spent in bargaining sessions which
otherwise would have been spent in production.
All production and maintenance hourly
rated employees at Respondent's Longview,
Texas, plants, excluding employees classified
as experimental, guard, office, janitorial, and
shop office employees, and all clerical, ad-
ministrative, and technical office employees,
and supervisors as defined in the Act.
WE WILL NOT unilaterally change the wages,
hours, or working conditions of our employees as
established by contract or past practices by
refusing to pay the wages of employee members
of the negotiating committee for time spent in
bargaining sessions that would otherwise have
been spent in production.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by
Section 7 of the Act.
WE WILL pay the Union for all money, plus
interest spent in reimbursing employee members
of the negotiating committee for production
wages lost during negotiations by our refusal to
do so.
WE WILL pay employee members of the negoti-
ating committee for production wages lost during
negotiations, plus interest that have not already
been reimbursed by the Union.
WE WILL, upon request, bargain collectively
with the above-named Union, as the exclusive
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of all our employees in the afore-
said unit with respect to pay for employee
members of the negotiating committee for time
spent in bargaining sessions that would otherwise
have been spent in production.
AXELSON, INC.,
SUBSIDIARY OF U. S.
INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Tyler, Texas, on March 24, 1977.
The charge was filed January 30, 1976, by International
Association of Machinists and Aerospace Workers, AFL-
CIO (Union). The complaint issued December 29, 1976,
alleging that Axelson, Inc., subsidiary of U.S. Industries,
Inc., (Respondent) had violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended Act.
The parties were permitted at the hearing to introduce
relevant evidence, examine and cross-examine witnesses,
and argue orally. Posttrial briefs were filed for the General
Counsel and for Respondent.
I. JURISDICTION
Respondent is a Delaware corporation engaged in the
manufacture of oilfield equipment in Longview, Texas. It
annually ships goods valued in excess of $50,000 from
Texas directly to customers in other States.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. ISSUE
The complaint alleges that, during 1976 contract negotia-
tions between Respondent and the Union, Respondent
"unilaterally changed working conditions by refusing to
pay employee members of the Union negotiating commit-
tee for time spent in contract negotiations," thereby
violating Section 8(a)(5) and (1).
The answer denies any wrongdoing.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
Since 1959, Respondent and the Union have been party
to a succession of bargaining contracts covering the
production and maintenance employees at Respondent's
plants in and around Longview.' The current contract
became effective on March 25, 1976, and runs until 1979.
The complaint alleges, the answer admits, and it is found that this is an
appropriate unit for purposes of the Act: All production and maintenance
hourly rated employees at Respondent's Longview, Texas, plants, excluding
The Union has been represented in the negotiation of these
contracts by a so-called shop committee comprised of
bargaining unit employees. The shop committee has con-
sisted of four people in recent years.
The dispute in question arose during the negotiation of
the current contract. The evidence is uncontroverted that,
in all negotiations from 1963 through 1974 with the
possible exception of 1969, the members of the shop
committee were paid by Respondent at their regular hourly
rates for time spent in bargaining sessions that otherwise
would have been spent in production. This included
negotiations in 1963, 1965, 1967, 1971, and 1974, plus mid-
term pension negotiations in 1973. The record is silent
concerning the practice in 1969 negotiations.
On January 14, 1976, during the first bargaining session
leading to the current contract, the shop committee asked
that one of its members, Harvey Cross, be reassigned from
the night to the day shift for the duration of bargaining.
When Drew West, Respondent's personnel manager and
bargaining spokesman, asked why, it was explained that it
would be inequitable to require Cross to work a full
production shift to maintain his income level during
negotiations while the day-shift committee members were
excused from production to participate in negotiations
without any income detriment. A similar shift change had
been made during 1974 negotiations on behalf of one of the
committee members, C. C. McKee. West replied that he
was uncertain if any of the committee members would be
paid for time spent in 1976 negotiations, but that he would
confer with his superior, Jacob Harris, vice president of
operations, and let the committee know.
At the next bargaining session, on January 21, West
reported to the shop committee that Respondent would not
pay the committee members for time in negotiations in
1976. West offered the alternative of negotiating on
nonwork time, such as weekends, so that the members
would suffer no economic detriment. The committee
rejected that, citing the past practice and certain provisions
of the 1974-76 contract.
Those provisions read:
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.
employees classified as experinmental, guard, office, janitorial, and shop
office employees, and all clerical, administrative, and technical office
employees, and supervisors as defined in the Act.
418
AXELSON, INC.
* * S
(B) The ... shop committeeman will receive pay
for time so spent when authorized by his supervi-
sor prior to, during, and after normal working
hours at his regular straight time hourly rate
except on scheduled overtime.
Article 6.4(D) had carried over from five preceding
contracts verbatim. Article 6.5(B) in the contracts preced-
ing the 1974-76 contract had read:
(B) The ... shop committeeman will receive pay
for time so spent during his normal working hours
only and only at his regular, straight time rate of
pay ....
West testified that article 6.5(B) was amended during 1974
negotiations at the Union's request, and is intended to
cover only grievance-handling, not contract negotiations.
The General Counsel and the Union dispute that interpre-
tation.
On January 27, 1976, the Union instituted action under
the grievance-arbitration procedure of the 1974-76 con-
tract, contending that Respondent's refusal to pay violated
article 6.5(B); and, on January 30, it filed the charge herein.
Disposition of the charge was deferred under the NLRB's
Collyer doctrine 2 pending the outcome of the grievance
proceeding. The charge was later reactivated when the
grievance proceeding failed to reach the merits of the
dispute.
Negotiations meanwhile continued unabated until the
current contract was reached in March. The Union
reimbursed the members of the shop committee for
production wages lost during negotiations in the face of
Respondent's refusal to do so.3
B. Analysis
In Allied Chemical & Alkali Workers of America, Local
Union No. I v. Pittsburgh Plate Glass Co., Chemical
Division, 404 U.S. 157 (1971), the Supreme Court dealt with
whether an employer's unilateral mid-term modification of
a contract provision relating to a nonmandatory subject of
bargaining-in that instance, pension benefits for retired
employees-is an unfair labor practice. The Court stated,
at 185-186:
[W]e hold that . . . a "modification" is a prohibited
unfair labor practice only when it changes a term that is
a mandatory rather than a permissive subject of
bargaining.
[J]ust as §8(d) defines the obligation to bargain to be
with respect to mandatory terms alone, so it prescribes
the duty to maintain only mandatory terms without
unilateral modification for the duration of the collec-
tive-bargaining agreement.
The Court continued, at 188:
2 Colyer Insulated Wire, a Gulf and Western Svsrerns Co., 192 NLRB 837
(1971).
3 Transcript p. 26,1. 1,. is corrected to read "1976" instead of"1972."
The remedy for a unilateral mid-term modification to a
permissive term lies in an action for breach of contract,
. . .not in an unfair-labor-practice proceeding.
The bedrock issue in the present case, then, is whether
the matter of remunerating members of the shop commit-
tee for time in negotiations is or is not a mandatory subject
of bargaining. If not, the case just cited precludes a finding
of violation, based upon Respondent's refusal to pay
during the 1976 negotiations, assuming but not deciding all
other questions of fact and law adversely to Respondent. 4
As defined by the Board in International Union of
Operating Engineers, Local Union No. 12 (Associated
General Contractors of America, Inc.) 187 NLRB 430, 432
(1970), mandatory subjects of bargaining
. . . are those comprised in the phrase "wages, hours,
and other terms and conditions of employment" as set
forth in Section 8(d) of the Act. While the language is
broad, parameters have been established, although not
quantified. The touchstone is whether or not the proposed
clause sets a term or condition of employment or regulates
the relation between the employer and its employees.
[Emphasis supplied.]
Or, again adverting to Pittsburgh Plate Glass Co., supra at
179, the test in the present case is whether the matter of
paying employees for performing union, as distinct from
production, functions "vitally affects" the terms and
conditions of employment of the bargaining unit employ-
ees. The Supreme Court previously had concluded, in
N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356
U.S. 342, 350 (1958), that matters dealing "only with
relations between the employees and their unions" do not
qualify as mandatory; and the Board, adopting without
qualification the decision and reasoning of an administra-
tive law judge, has since reached the same conclusion
regarding matters that "concern themselves with the
relationship between union and employer," as opposed to
employee and employer. Hall Tank Company, 214 NLRB
995, 1000(1974).
There seemingly are no cases on the precise point at
hand. It nevertheless is concluded that the matter of
remunerating employees for performing union functions
goes more to the relationship between union and employer
than to that between employee and employer; and, far
from having a vital affect on the employment conditions of
the unit employees, bears a "speculative and insubstantial"
impact at best. Pittsburgh Plate Glass Co., supra at 180. It
follows that the payments in question did not involve a
mandatory subject of bargaining.
This conclusion is not without ample policy justification.
It would be in fundamental conflict with the arm's length if
not adversary design of bargaining relationships under the
Act to permit unions to condition entry into contracts
upon employer willingness to contribute financial support
to the unions in the form of payments to their negotiators
for time spent negotiating. This, however, would be a
4 Most notably, that art. 6.5(B) of the 1974-76 contract contemplated
such remuneration.
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary implication should such matters be deemed
mandatory subjects of bargaining.5
The payment of the Union's negotiators not being a
mandatory subject of bargaining, Respondent did not
violate the Act by refusing to make such payments in 1976. c;
5 This is not to suggest that such payments necessarily exceed the limits
of "allowable cooperation" under the Act. N.LR.B. v. The Summnners
Fertilizer Company, et al., 251 F.2d 514, 518 (C.A. I, 1958).
CONCLUSION OF LAW
Respondent did not violate the Act as alleged.
[Recommended Order for dismissal omitted from publi-
420