National Labor Relations Board v. Basf Wyandotte Corp.

WILLIAMS, Before JERRE S. E. GRA- DY JOLLY and PATRICK E. HIGGIN- BOTHAM, Judges. Circuit WILLIAMS, Judge: JERRE S. Circuit Petitioner National Labor Relations (NLRB) Board seeks enforcement of its decreeing order respondent BASF Wyandotte Corp. (company) un- committed 8(a)(5) fair labor in violation of § the National Labor Relations Act (NLRA), 29 U.S.C. grant We enforcement of the order.

I. FACTS plant owns a chemical Geisman, Louisiana. It has a collective Oil, with the Chemi- cal, and Atomic Workers’ Union 4- Local (union). Harold Nickens was union July resigned chairman until when he replaced by and was Esnard Gremillion. office, day after Gremillion took he was informed company’s Manager of Human Resources that he would not be privileges allowed the same that Nickens had been allowed. Gremillion was not al- paid per lowed four hours of day business, conduct union and he could be job released from his duties for union busi- permission ness of both his imme- supervisor company’s Manag- diate and the er of Human Resources. Gremillion was paid told that he not would for time Gill, Moore, S. Deputy John Elliott Asso- business, spent conducting except for Counsel, NLRB, Washington, ciate General meeting fifteen minute D.C., petitioner. for immediately prior grievance proceed- to a Silberman, D.C., Washington, David M. ing. telephone The office and which Nick- for intervenor. given company property ens had been on Kean, D’Armond, Miller, company copying William R. to use a Hawthorne, D’Armond, McCowan & Jar- machine were taken from Gremillion. The priv- er union business was not an unfair labor Gremillion informed person- practice had been because the time was

ileges granted to Nickens event, 8(a)(2) him, that, supplying of the LMRA and al to 302 of the NLRA. prohibited privileges Management Relations Act the Labor company appeal- Both the union and the (LMRA), 29 U.S.C. § ed the AU’s decision to the NLRB. The reversed on the 1981 collective Board the AU the issue of Article 3.6 of hours It held that four agreement provides that workers’ com- four time. stewards, members, pay per day hours with to conduct union and the chair of mittee was not a violation of 302 or committee “shall be allowed a business the workers’ during working illegal subject and was not an of time reasonable amount hours, pay, purpose and that the unilateral discon- loss of practice of conferring aggrieved employees or tinuance was an additional of 8(a)(5) respects, violation. In representatives of the all other complainants and/or upheld findings any complaints or the Board of the AU. Company relative employ- The Board ordered the to cease grievances filed an or Committeeperson, and desist from the unfair Chairperson, a ees. found; privileges formerly leaving pur- work for these reinstate the

or Steward granted unilaterally to the permission first as soon union that had poses shall obtain rescinded; reasonably permit, post appropriate and to notices. working conditions denied, pending compliance pro- shall The Board upon returning to their work and ... ceedings, company’s motion for recon- supervisor immediately.” report to their stay remedy. sideration and for of attempted to resolve this dis- The union granted Board the union’s motion that the procedures, pute through grievance but company reimburse the union for the four grievance. The company denied the com- paid per day paid hours that the union had interpretation its narrow pany stated that to Gremillion. provision could not be at of the contract Court, appeal On to this provision otherwise the issue because contends that both the AU and the Board The union then filed an unfair la- illegal. (1) practices formerly erred because: alleg- charge with the NLRB bor granted to the union chairman were ing company had violated 8(a)(2) 302 of the LMRA and of 8(a)(5) 8(a)(1) of the NLRA uni- and §§ subject the NLRA and therefore were not formerly terminating privileges laterally event, (2) bargaining; and An administrative extended to the union. bargaining agreement covers collective (AU) judge law found that although subjects, so the union byAct unilat- had of the violated § contract, have a claim for breach of it has erally requiring representatives union no claim under the NLRA. Manag- get permission from the engaging in er of Human Resources before II. DUTY TO BARGAIN: business; by unilaterally discontinu- union ILLEGALITY CLAIM office, telephone, the union’s use of the 8(d) machine; pro copying by unilaterally and Section and refusing permission representa- vides that the to union obligated company representative are tives to conduct union business on hours, wages, respect “with and time. The AU found that the employment.”1 terms and conditions of failure to about the disallowance perform- per day Paid time to union stewards for Gremillion of four hours time rates, ing. ment, example, wage Although expressly hours of the NLRA define For does not practices relating phrase procedures to dis- em- and “other terms and conditions of procedures practic- ployment,” charge suspensions, jurisprudence and arid substantial has sanitation, health, covering safety, vaca- defining categories and evolved several of items that es absences, tions, jury duty, holidays, mandatory subjects are considered leaves

853 mandatory subject ens took office in 1976. a duties is a Where anee of union Axelson, 8(d). particu- embodies a bargaining under Inc., (1978), enforced, Axel- working past practice lar condition and NLRB 414 NLRB, (5th Cir.1979). son v. demonstrates that an had admin- 599 F.2d particu- istered that condition addition, 8(d) bargaining makes In manner, lar is forbidden from present mandatory the context changing unilaterally. condition bargaining over case Inc., NLRB v. Eagle, Dothan F.2d change attempt modify (5th Cir.1970); NLRB v. Frontier existing practice in an collec an established Corp., Homes (8th Cir. agreement.2 The collective bargaining tive Axelson, see also 1967); 599 F.2d at 95 agreement provides for “a rea (contract interpreted light past prac- to be allowed amount” of sonable tices). business. officials to conduct union union granted to There is evidence in the record that privileges at issue had been incumbent, prior Nickens, union since Nick- used chairman of the the local se lectively party sub- shall also mean no sick leave are considered to such addition, security impor- jects. modify is an contract shall terminate or such con bargaining, tract, subject as is the party desiring of collective tant right unless such termi present grievances. We have held that nation modification— mandatory subjects (1) common to the theme a written serves notice the other they "benefit all of the members of that bargaining party proposed to the contract of the termi- through encouraging unit collec- sixty days prior nation or modification to vitally affecting bargaining process and tive relationship thereof, expiration date or the event employer and between the date, expiration such contract contains no Axelson, at 94. ees.” sixty days prior proposed to the time it is Subjects lawfully may be included in a modification; which such make termination or contract but fall outside the area of labor "wages, (2) offers to meet or confer with the other hours, and other terms and conditions party purpose negotiating for the of a new permissive employment" are classified as sub- of containing pro- contract or a contract subjects may jects be of Permissive modifications; posed bargaining by party, proposed table either at the (3) notifies the Federal Mediation and Con- position proponent may insist on its but "the not thirty days Service after ciliation within point impasse a of to the of or as condition dispute, such notice of the existence of a party may reaching agreement, a and the other simultaneously any and notifies therewith altogether to discuss the issue decline agency State or Territorial established to Gorma, violating law.” R. Basic Text on disputes and conciliate within the mediate (1976). p. Labor Law 523 Territory dispute State or where the oc- illegal subjects. category of A final consists curred, agreement no has been over, Illegal subjects bargained and cannot be time; by reached and any party upon inclusion of such a that insists effect, (4) in full force and with- continues agreement a of a has as condition lock-out, resorting to strike or all the out practice committed an unfair labor in violation existing and conditions of the con- terms 8(b)(3). Examples of or Id. at 530. period sixty days after such tract for a illegal subjects of union are certain forms expiration given date notice is or until the security prohibited by such as closed the Act contract, of such whichever occurs later. shops preferential hiring (except under cer 158(d). 29 U.S.C. building in the and construc tain circumstances company comply any did not of the addition, shop, agency industry). tion shop, maintenance-of-membership agreements, 8(d) pro- procedures outlined in but instead unilaterally modify prior perform- its ceeded statutory re check-offs' which do not meet the bargaining agreement. ance under the collective quirements, any or other forbidden 8(d) company complied Even had the with § illegal subject Act is an and cannot amount procedures, modifica- notification its unilateral permissive subject or of bar to a existing condition "contained in" an tion a gaining. Rela See 1985 Guidebook to Labor bargaining would violate contract tions, cases). (CCH) (citing ¶ Indus., Inc., 8(d). N.L.R.B. 454 C & S. 8(d) provides, perti- existing in subject 2. Section If a is "contained in” an part: employer agreement, nent "it is for the alter has [Wjhere collective-bargain- conditions in midterm —even if it there is in effect a given industry to the R. Gor- covering employees in notification union...." contract man, commerce, p. affecting duty on Labor Law 464. col- Basic Text plied telephone (a) any office and and the four It employer shall unlawful for day paid part in hours a at least for or employers any per- association of or purposes carry his own and not to out son acts expert, who labor relations union business. The consideration of this adviser, or consultant to an or evidence is not called for in this case. The who acts in the interest of an evidence has no relevance to the decision of lend, deliver, pay, agree pay, or or the NLRB. The sole issue is whether a lend, deliver, any money or or other change it and thing of value— recognized past the union had could (1) any representative any or of his unilaterally by be made or employees employed who are in- an something about which dustry commerce; affecting or bargain. past had to If Nickens had in the (2) any organization, any or office, his made a sinecure of this did not thereof, rep- officer or which ground mean was on the resents, represent, seeks to or would any way demanding union was membership, supplied perqui- any admit to of the em- the local chairman be personal ployees sites for his use rather than for of such who are em- of his service to the benefit the union. ployed industry affecting an com- Thus, purposes analysis of our we must merce; or assume, assumed, just as the NLRB if (3) any employee group or com- concerning true, the evidence Nickens was employees mittee of of such personal matter of was a misconduct and employed in industry affecting com- union-company agreement. not a matter of merce excess of their normal com- simply support no There can be evidence pensation purpose causing for the possibility of the latter until after group such or committee ing, when the nature demands is directly or indirectly to influence revealed. in the exercise of the disputed has never organize to collec- illegality, at issue that absent tively through representatives of their present case in the constitute choosing; own or Rather, subjects compa of (4) any employee to officer or of a argues ny that 302 of the LMRA and § organization engaged in in- an prohibit practic § affecting dustry commerce with intent es the union seeks to reinstate. which respect any to influence him in of company inescapably in is correct its asser actions, decisions, his or duties aas employer may tion that no representative employees of or as such engage over or in activity employee orga- officer or of such labor activity if necessary comply even that nization. bargaining agree the terms of the Power, ment. Iron v. Workers Bechtel 634 302(c)(1) provides exception Section an (6th Cir.1981). We, therefore, F.2d 258 prohibition payments by from this an sup evaluate the assertion that employer any representative of its em- plying perquisites carrying these for the ployees person employee an when of out of union business nevertheless violates payment is made as § compensation em- for “his services as an provides pertinent part: ployee.” position Section 302 in The union’s is that 186(c)(1) provides: personnel 3. 29 U.S.C. labor relations or administration or § any employees, representative of his or to Exceptions any employee organization, of a labor officer provisions of this section shall not be employee (1) applicable who is also an or a former respect any money or other for, employer, compensation thing payable by of value of such of of, his reason his services as an of such whose established duties include acting openly employer. for such matters community, paid 302 ee to serve his time not outlawed off practices are § permitted under of the union they are for the conduct business is 302(c)(1) company re- exception. The designed permit the union official to § phrase “services as an em- sponds that serve his fellow workers.” Id. 302(c)(1) excep- means that the ployee” § next bolstered The Second Circuit its un- payments made to applies tion legislative through history analysis meet- for face to-face representatives ion LMRA, 302 of the it made 302. Section § management. ings with clear, prohibit intended to was not present to the facts almost identical On present issue in the types practices at case, Appeals Court of the Second Circuit 302, time of enactment of case. At the § argument that rejected has “[ejmployers Congress was well aware 8(a)(2) of the 302 of the LMRA and § representatives allow generally ... rep- made to union payments NLRA outlaw union, losing,pay, to confer not go by employers beyond which resentatives but as only with well with meetings. union/management face to face and to employees, transact other union 227, Corp Local In- Wyandotte BASF plant.” H.R.Rep. No. business Union, Workers ternational Chemical Cong., 1st 28-29 80th Sess. As the case, (2nd Cir.1986). In that F.2d 1046 noted, “nothing history court there is in the bar- provision the collective BASF had Congress 302 to indicate that viewed provided that the gaining agreement which no-docking practices as such abuses or that giv- secretary would be president and it intended to curtail them.” F.2d at day during per time en four hours 1050. The intent of 302 was to “insure company for working hours of the normal integrity of union welfare funds as conducting purpose of union business. trust funds for the benefit of the decided that company asserted it had ees, payments by and to insure that em- LMRA, 302 of the this violated § ‘degener- ployers to the unions would not practice. The un- and it discontinued ” (quoting Cong. into bribes.’ Id. ate practice charge filed an unfair labor ion (1947)). Subsequent Rec. 4804 amend- then against BASF with the NLRB. BASF pur- ments to 302 have reaffirmed the seeking declara- filed suit district court “pre- pose of 302 as the limited one of judgment the four hours tory extortion, vent[ing] bribery, shakedowns the collective practices.” (the “no-docking” corrupt e.g., provision) violated 302. and pay- Cong., H.R.Rep. The Second Circuit held that such No. 91st 1st Sess. they 1-2, Cong. ments do not violate 302 because reprinted in 1969 U.S.Code & § 302(c)(1) exception in for come within the at 1159-60. § Admin.News “for, payments employees by reason illegality of, The test of is not wheth employee his service as an of such compensate only payments the for face- employer.” er but, labor/management meetings; to-face logi- analyzed The court first the statute rather, 302(c)(1) appropriately is inter “§ 302(c)(1) cally, noting exception that the § focusing the ac preted by not on whether applies many fringe as benefits —such engaged during in the to be tivities time, time, leave, military vacation sick and directly the on period benefit but jury duty no directly more benefit —which they engaged by to be one whether are employer than does union business. payor.” bona fide of the who is a fringe The common thread all of these 227, 791 F.2d at Wyandotte v. Local BASF “simply person was that benefits Lines, 1049; Trailways Inc. v. see also payment makes whom the is one Cir.1986). (3rd Inc., Trailways 785 F.2d 101 performs employee.” who services as an case, company does not present In the that, “just The court noted Id. at 1049. is not a “bona fide contend that Gremillion jury designed permit is leave company.4 The 302 and employee” of the BASF This is so as to the § § they circumstances of the simply Local 227 case con- case as are now Wyandotte v. regardless before us of the long NLRB unevaluated a line of and court firmed concerning Consequent- evidence Nickens. 1053. therefore authority. 791 F.2d at We ly, practices at issue are not outlawed company’s position privi- reject the by either the LMRA or the NLRA. leges are 302. at issue § emphasize that for We it is not us at this analysis, Applying the same we also stage try place of the case to limitations argument that reject upon bargaining ground on the 8(a)(2)5 privi of the NLRA outlaws these § may demands be so unrealistic that insis- leges. legislative history of The § tence them establishes refusal it, Congress intended makes clear good faith. It be that provision prohibit much as to be a representation per- needs less its unions, ing bribery and dominated quisites granted by than those prohibiting labor/manage not the kind of however, point again, to Nickens. We out cooperation necessary to ment perquisites, that each element of those bargaining as is at issue in the instant case. business, paid per day four hours for union Wyandotte v. Local 791 F.2d at BASF telephone, an air conditioned office with 1051-1053. machine, copying use of the to deal with makes no claim The permission, justifiable and is lawful carry- favoritism in Gremillion has shown many industrial situations. Indeed, ing as the Board out his duties. found, evidence indicates that the union issue, then, good faith independent entity “clearly is an with perquisites. about the That issue cannot history arm’s-length well-established by be decided the NLRB or this Court BASF____” dealing dis- bargaining. advance of the We are not at company have not continued been this time concerned at all with the substan- purpose had the of further- aspects shown to have tive of the We have ing bribery corruption repre- authority only of union and consider whether prevented by as intended to be was lieu of the sentatives payroll Cong., put 1st Sess. Paid 4. A union official on an 80th activities, however, meaningful generally assigned no work for the em- these additional but given only ployer would not amount to a "bona fide em- was to officials of national or inter- ployee,” payments to him would violate national unions and their local affiliates and Wyandotte, independent F.2d at 302. BASF to officials of or com- was denied pany Id. unions. Rather, 8(2). Congress 8(a)(2), 8(2) did not amend original 5. The then NLRA, adopted by Congress proposal became it was an unfair labor Report the LMRA. House Conference for an to "dominate or inter- plain expansion of or administration of “makes it that the fact of the fere with the formation organization oth- or contribute financial time to include union-related business pro- manage- support meetings to it." That section also er than attendance at prohibit disapproved vided that it did not from ment was not in the Con- least "permitting employees gress. Congress dur- disapproved to confer with him the dis- What ing working pay.” parity hours without loss of time in treatment of affiliated and nonaffiliat- as Wyandotte, The as renumbered 1947 F.2d at ed unions ...” BASF 791 8(a)(2) keeps wording. the same report § of the NLRA “The makes clear that 1053. conference See 29 U.S.C. Congress that these both branches of envisioned expanded privileges be the would continue to original pro- The as a § 302 was introduced solely granted than the ones rather posed amendment to the 1935 NLRA. In con- manage- meetings one of attendance at amendment, sidering Congress this noted that 8(2) expanded the and that ment many employers expanded had taken an view widely privileges avail- become more would 8(2), time to union officials allowed 510, Id; H.R.Conf.Rep. No. 80th able.” see only “to confer not with the but as (1947), Cong. reprinted U.S. in 1947 1st Sess. 40 employees, well with the and to transact other 245, Cong.Serv. 1146. Code plant.” H.R.Rep. No. union business in the

857 issue, changes. Nor On this narrow does the fact that this dis unilateral pute during negotiated arose the term NLRB order cor- of a law is clear and the the bargaining agreement collective bar the ob rectly enforces it. ligation bargain. to An employer is not permitted changes to make unilateral as to III. A CONTRACT ONLY contract which terms are sub VIOLATION? jects bargaining during the term of the urges agreement. next that this continuing duty The There is a bargain subjects during agree on such case involves a contract violation and the ment if the employer change desires to practice. unfair labor We find this not an Co., them. First, NLRB Acme Industrial 385 merit. the position to be without 432, 436, 565, 568, U.S. 87 S.Ct. 17 L.Ed.2d represents company’s argument a reversal (1967).6 Indeed, 8(d) gave for the unilateral of the reasons it provides that the must When the changes to the union good respect questions faith arising grievance contending in 1983 filed a existing agreements. text ac contract, changes violated the the that the 2, 8(d), companying supra. note Under § changes that the were not company stated contract, interpretation the “true of a contract, made because of the but because modifications, requested well as must be formerly given privileges it believed bargained collectively.” See 1985 Guide illegal. were The then Nickens ¶ 1202. (CCH) book to Labor Relations Thus, accept grievance. it is refused to company’s own adamant refusal company urges that the union the issue of contract violation from barred agreed privileges personal were being through considered properly automatically Nickens and would cease grievance procedures. There is no authori position. left the when Nickens chairman ty justifying ALJ, Board, claimed affirmed found prior position and start agreement now to reverse its that no had been made. such over, litigation completed, support full all after There is evidence the record “Credibility dispute that determination. resolu with a claim that the should have peculiarly province tions are within the grievance procedures submitted to the been judge] and the Na law it itself denied. [administrative Relations Board and are enti tional Labor event, argu inherently to affirmance unless unrea tled faulty premise ment rests that a self-contradictory.” sonable or NLRB v. 351, amount to a contract violation cannot Corp., Proler International 8(a)(5) Cir.1981). (5th This view has been ex violation. Because we do not find rejected by Supreme Court. pressly the determinations of the AU and the the contract violation is also a uni Board to be unreasonable or self-contra Where dictory, accept must those factual find change by lateral we ings. mandatory bargain subject conditions case,

ing, in this there as is the situation IV. COMPLIANCE a contract violation and a can be both Ply violation. NLRB v. C. & C. contends that susceptible Corp., wood 385 U.S. S.Ct. reinstituted bargained and then to im- reinstitution7 L.Ed.2d course, any attempt the four hours 7. The states that 6. Of in the absence change, susceptible make a unilateral obligated is not was not time to the union chairman because, about modifications to the the time of the of reinstitution at decision, that the union a lockout had commenced and Board’s proposes is in while the working. The union chairman was not the Gorman, 158(d); See 29 U.S.C. R. Ba- force. company fully bargained states that it about this p. sic Text on Labor Law 457. expi- wages, working them hours and passe the union over conditions is an practice. specially unfair labor I write agree- ration of the collective concern, express however, particu- complains that the company ment. question lar probably are ex- to redo what it has Board has ordered it cessive relation to purpose. their stated do not address this issue already done. We $20,- The benefit is estimated to be worth left appropriately it is most per year. It includes four hours of during Board by the determination day process slightly time each more stage proceedings. compliance grievance per than one week. It includes a Inc., Mangurian’s, v. NLRB telephone and an airconditioned office that (5th Cir.1978). appear hardly necessary process the few grievances arising plant on the floor of the V. CONCLUSION representative may the union where conve- company’s argument reject We short, niently visit the workers. company perquisites has denied the company paying seems to substantial chairman, Gremillion, are to be local shown part expenses. of the union’s administrative so, exceed If We hold this then the benefit quantum require what the union can justified finding the Board was But, Judge over. 8(a)(5)by had violated mak- notes, Williams this is an issue for another changes perquisites unilateral specific day; question it is a fact that can- stress representatives. We presented by not subsume the issues the Board was wheth- that the issue before unilateral withdrawal of an established obligation company had the to bar- er the reasonably wages, benefit that related to removal of the gain with the union about hours and conditions. Because past in the furnished to perquisites it had Judge narrowly, Williams has I written only enforce local union chairman. We concur in the conclusion that the requiring the NLRB order violated section of the National La- the union as unilaterally bor Relations Act when it with- making instead of unilateral NLRA drew an established benefit. interpretation of the collec- changes in the legal do not define agreement. tive We upon the That

limitations possible challenge to

must await the sub- bargaining process itself.

stantive remedy

The Board’s ordered the the union for four hours er to reimburse SERVICE, NEW ORLEANS PUBLIC per the union had to Gremil- day which INC., Plaintiff-Appellant, privileges granted and to restore the lion This ac- under the Nickens administration. ORLEANS, the Coun- CITY OF NEW proper preserved in that tion was Orleans, City Sidney cil for the of New quo existing before the unilateral status al., Barthelemy, Defendants-Appel- J. et changes. The order of thé Board is lees. ENFORCED. 85-3654. No. Appeals, United States Court JOLLY, Judge, spe- E. GRADY Circuit h Fift Circuit. cially concurring: Sept. Judge carefully I concur Williams’ narrowly opinion that decides written

that the unilateral withdrawal of an estab- nature relates to

lished benefit whose agreement. negotiations gaining bar- issue for a new collective

Case Details

Case Name: National Labor Relations Board v. Basf Wyandotte Corp.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 2, 1986

Citation: 798 F.2d 849

Docket Number: 85-4503

Court Abbreviation: 5th Cir.