BASF Wyandotte Corp. v. Local 227, Intern. Chemical Workers Union, AFL-CIO

• Decision Date: 30 May 1986
• Docket Number: L,No. 388,AFL-CI,D,388
• Citation: 791 F.2d 1046
• Parties: 122 L.R.R.M. (BNA) 2750, 54 USLW 2637, 104 Lab.Cas. P 11,975 BASF WYANDOTTE CORPORATION, Plaintiff-Appellant, v. LOCAL 227, INTERNATIONAL CHEMICAL WORKERS UNION,eMountain, Joseph, President and in his individual capacity and Scales, Roger, Secretary and in his individual capacity, Defendants-Appellees. ocket 85-7214.
• Court: U.S. Court of Appeals — Second Circuit

Page 1046

791 F.2d 1046

122 L.R.R.M. (BNA) 2750, 54 USLW 2637,

104 Lab.Cas. P 11,975

BASF WYANDOTTE CORPORATION, Plaintiff-Appellant, v. LOCAL 227, INTERNATIONAL CHEMICAL WORKERS UNION, AFL-CIO LeMountain, Joseph, President and in his individual capacity and Scales, Roger, Secretary and in his individual capacity Defendants-Appellees.

No. 388, Docket 85-7214.

United States Court of Appeals Second Circuit.

Submitted Nov. 13, 1985.

Decided May 30, 1986.

Solotoff & Spivak, Great Neck, N.Y. (Joel Spivak, of counsel), for plaintiff-appellant.

Dominick Tocci, Albany, N.Y. (David Silberman, Laurence Gold, Washington, D.C., Sal Falletta, Akron, Ohio, of counsel), for defendants-appellees.

Before TIMBERS, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff BASF Wyandotte Corporation ("BASF") appeals from a judgment of the United States District Court for the Northern District of New York, Roger J. Miner, then-District Judge, dismissing its complaint seeking, principally, a declaration that a provision of its collective bargaining agreement with defendant Local 227, International Chemical Workers Union, AFL-CIO (the "Union"), requiring BASF to allow Union officials time off with pay for the purpose of conducting Union-related business other than direct meetings with BASF management (the "no-docking provision") violated Sec. 302(a) of the Labor Management Relations Act, 1947 ("LMRA"), as amended, 29 U.S.C. Sec. 186(a) (1982). The district court ruled that the no-docking provision was permitted by LMRA Sec. 302(c)(1), 29 U.S.C. Sec. 186(c)(1) (1982). On appeal, BASF renews its contention that the no-docking provision violated Sec. 302(a). We conclude that the district court's interpretation of Sec. 302 was correct, and we therefore affirm.

I. BACKGROUND

The material facts are not in dispute. BASF has operated a plant in Rensselaer, New York (the "Plant"), for the manufacture of chemicals since 1978. The Union has been the exclusive bargaining representative of the production and maintenance workers at the Plant since the 1940's, prior to BASF's purchase of the Plant. All of the Union's approximately 200 members are employed at the Plant. The Union's President and Secretary are full-time BASF employees elected from the ranks of the Union membership. When this action was filed in 1982, defendant Joseph LeMountain was the Union's President, and defendant Roger Scales was its Secretary.

From August 28, 1981, until August 31, 1984, the Union and BASF were parties to a collective bargaining agreement (the "Agreement"), which contained the following no-docking provision:

Official representatives of the Union shall be permitted time as necessary during scheduled working hours to attend meetings with the Company. Representatives released for these purposes shall be paid for time spent in attending meetings with the Company to the extent that time spent at these meetings is during their regularly scheduled working hours, at their regular basic straight time rate, exclusive of all premiums and differentials.

The Company will permit the Union President and/or Secretary time off to an aggregate of four (4) hours each day for the purpose of conducting union business during normal working hours on Company property, and will pay the time at regular basic straight time rate, exclusive of all premiums and differentials.

Pursuant to the Agreement, Union representatives have been released from work to meet with BASF representatives when necessary and have been paid their regular salaries for that time. BASF does not dispute its obligation to pay for employee time spent in such meetings. In addition, until mid-1982, LeMountain as President and Scales as Secretary were each released from work for two hours a day--an aggregate total of 20 hours per week--for the purpose of conducting Union business. In their depositions in the present case, LeMountain and Scales estimated that they spent approximately one to two of those 20 hours in meetings with management and spent the remaining 18 hours (1) preparing for Union activities by, for example, reading labor periodicals and investigating employee grievances, (2) conducting such intra-Union business as writing Union reports, preparing notices of Union meetings, and preparing for lawsuits against BASF, and (3) engaging in non-Union-related social activities such as making personal telephone calls and reading newspapers.

In September 1982, BASF adopted the position that Sec. 302 of the LMRA and Sec. 8(a)(2) of the National Labor Relations Act ("NLRA"), as amended, 29 U.S.C. Sec. 158(a)(2) (1982), forbade it to pay the President and Secretary for time spent engaging in the last three categories of activities. Accordingly, BASF notified the Union that it would cease paying those officials for time spent on Union business other than labor relations meetings with BASF management.

The Union filed unfair labor practice charges against BASF with the National Labor Relations Board ("NLRB" or "Board"), alleging, inter alia, that BASF's unilateral repudiation of the Agreement's no-docking provision violated Sec. 8(a) of the NLRA. In November 1982, the Board's General Counsel issued a complaint against BASF based on the Union's charges. A Board administrative law judge ("ALJ") subsequently found that BASF's repudiation of the no-docking agreement was a violation of Sec. 8(a) of the NLRA, noting that he had no jurisdiction to determine BASF's contention that its repudiation was mandated by LMRA Sec. 302. The ALJ's decision was affirmed and adopted by the Board. BASF Wyandotte Corp., 278 N.L.R.B. No. 28 (Jan. 22, 1986).

In the meantime, BASF filed the present suit in district court in December 1982, seeking a declaration that the no-docking provision of the Agreement "violates Section 302 ... insofar as provides [sic ] for the payment of money to Union officials for time spent not in direct meetings with [BASF]," and requesting other relief subsidiary to such a declaration. Defendants filed a counterclaim seeking an injunction compelling BASF to comply with the no-docking provision and an award of damages in the amount of $100,000.

After conducting discovery, BASF moved for summary judgment. In an opinion reported at 591 F.Supp. 339 (N.D.N.Y.1984), the court denied BASF's motion, ruling that an employer's paying its employees their regular wages for time off to conduct union business did not present the type of opportunity for employer interference in union affairs that Sec. 302 was designed to prevent, and that the payments in question fell within an exemption found in Sec. 302(c)(1), permitting employer payments to a union officer if he is also an employee of the employer and the payment is made "by reason of" his service as an employee.

On the basis of this reasoning, defendants promptly moved for partial summary judgment in their favor, dismissing BASF's complaint. Defendants' motion was granted. Pursuant to Fed.R.Civ.P. 54(b), the court ordered that a final judgment be entered dismissing the complaint. This appeal followed.

II. DISCUSSION

On appeal, BASF contends that the district court erred in construing Sec. 302(c)(1) of the LMRA to permit the challenged no-docking provision. Our review of the language of Sec. 302 and of its legislative history in the context of the history of other provisions in the bill that contained Sec. 302 leads us to conclude that the district court correctly interpreted Sec. 302 as not prohibiting no-docking provisions such as the present one, and we therefore affirm.

A. Section 302

Section 302 of the LMRA, as amended, provides in part as follows:

(a) It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value--

(1) to any representative of any of his employees who are employed in an industry affecting commerce; or

(2) to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer who are employed in an industry affecting commerce;

....

(b)(1) It shall be unlawful for any person to request, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section.

29 U.S.C. Secs. 186(a) and (b)(1). Section 302(c) sets forth a number of exceptions to Secs. 302(a) and (b). Section 302(c)(1) makes the prohibitions of those two provisions inapplicable

in respect to any money or other thing of value payable by an employer to ... any representative of his employees, or to any officer or employee of a labor organization, who is also an employee or former employee of such employer, as compensation for, or by reason of, his service as an employee of such employer; ....

29 U.S.C. Sec. 186(c)(1). Thus, subsection (a) of Sec. 302 makes it generally unlawful for an employer to make payments to an official of a union representing its employees, but subsection (c)(1) makes the general prohibition inapplicable if the union official is the employer's employee and the payments are compensation either "for" or "by reason of" his service as an employee. While the boundaries of Sec. 302(c)(1)'s exemption are not spelled out in the statute, we think its language and its fundamental logic suggest that no-docking provisions may fall within its protection.

It appears that in using the alternative formulations "for" and "by reason of," Congress intended to cover two general categories of employee compensation: (1) wages, i.e., sums paid to an employee specifically for the work he performs, and (2) compensation occasioned by the fact that the employee has performed or will perform work for the employer, but which is not...