N.L.R.B. v. BASF Wyandotte Corp.

Decision Date02 September 1986
Docket NumberNo. 85-4503,85-4503
Citation798 F.2d 849
Parties123 L.R.R.M. (BNA) 2320, 55 USLW 2158, 105 Lab.Cas. P 12,039 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BASF WYANDOTTE CORP., Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

John S. Gill, Elliott Moore, Deputy Associate General Counsel, NLRB, Washington, D.C., for petitioner.

David M. Silberman, Washington, D.C., for intervenor.

William R. D'Armond, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, La., William Jenkins, Corporate Dir. of Industrial Relations, Parsippany, N.J., for respondent.

Fred A. Lewis, Dir., N.L.R.B., New Orleans, La., other interested persons.

Application for Enforcement and Amended Application for Enforcement of an Order of the National Labor Relations Board.

Before JERRE S. WILLIAMS, E. GRADY JOLLY and PATRICK E. HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Petitioner National Labor Relations Board (NLRB) seeks enforcement of its order decreeing that respondent BASF Wyandotte Corp. (company) committed unfair labor practices in violation of Sec. 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158(a)(5). We grant enforcement of the order.

I. FACTS

The company owns a chemical plant in Geisman, Louisiana. It has a collective bargaining agreement with the Oil, Chemical, and Atomic Workers' Union Local 4-620 (union). Harold Nickens was union chairman until July 1983, when he resigned and was replaced by Esnard Gremillion.

The day after Gremillion took office, he was informed by the company's Manager of Human Resources that he would not be allowed the same privileges that Nickens had been allowed. Gremillion was not allowed four hours of paid time per day to conduct union business, and he could be released from his job duties for union business only with permission of both his immediate supervisor and the company's Manager of Human Resources. Gremillion was told that he would not be paid for time spent conducting union business, except for a fifteen minute meeting with employees immediately prior to a grievance proceeding. The office and telephone which Nickens had been given on company property and the right to use a company copying machine were taken from Gremillion. The company informed Gremillion that the privileges granted to Nickens had been personal to him, and that, in any event, supplying these privileges was prohibited by Sec. 302 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 186.

Article 3.6 of the 1981 collective bargaining agreement provides that workers' committee members, stewards, and the chair of the workers' committee "shall be allowed a reasonable amount of time during working hours, without loss of pay, for the purpose of conferring with aggrieved employees or complainants and/or representatives of the Company relative to any complaints or grievances filed by an employee or employees. The Chairperson, a Committeeperson, or Steward leaving work for these purposes shall first obtain permission as soon as working conditions reasonably permit, and ... upon returning to their work shall report to their supervisor immediately."

The union attempted to resolve this dispute through grievance procedures, but the company denied the grievance. The company stated that its narrow interpretation of the contract provision could not be at issue because otherwise the provision was illegal. The union then filed an unfair labor practice charge with the NLRB alleging that the company had violated Secs. 8(a)(1) and 8(a)(5) of the NLRA by unilaterally terminating privileges formerly extended to the union. An administrative law judge (ALJ) found that the company had violated Sec. 8(a)(5) of the Act by unilaterally requiring union representatives to get permission from the company's Manager of Human Resources before engaging in union business; by unilaterally discontinuing the union's use of the office, telephone, and copying machine; and by unilaterally refusing permission to union representatives to conduct union business on company time. The ALJ found that the company's failure to bargain about the disallowance to Gremillion of four hours paid time per day for union business was not an unfair labor practice because the paid time was illegal under Sec. 302 of the LMRA and Sec. 8(a)(2) of the NLRA.

Both the union and the company appealed the ALJ's decision to the NLRB. The Board reversed the ALJ on the issue of four hours paid time. It held that four hours with pay per day to conduct union business was not a violation of Sec. 302 or Sec. 8(a)(2) and was not an illegal subject of bargaining and that the unilateral discontinuance of that practice was an additional Sec. 8(a)(5) violation. In all other respects, the Board upheld the findings of the ALJ. The Board ordered the company to cease and desist from the unfair labor practices found; to reinstate the privileges formerly granted to the union that it had unilaterally rescinded; and to post appropriate notices. The Board denied, pending compliance proceedings, the company's motion for reconsideration and for stay of remedy. The Board granted the union's motion that the company reimburse the union for the four paid hours per day that the union had paid to Gremillion.

On appeal to this Court, the company contends that both the ALJ and the Board erred because: (1) the practices formerly granted to the union chairman were illegal under Sec. 302 of the LMRA and Sec. 8(a)(2) of the NLRA and therefore were not subject to bargaining; and (2) in any event, the collective bargaining agreement covers these subjects, so although the union may have a claim for breach of contract, it has no claim under the NLRA.

II. DUTY TO BARGAIN: ILLEGALITY CLAIM

Section 8(d) of the NLRA provides that the employer and the employee representative are obligated to bargain "with respect to wages, hours, and other terms and conditions of employment." 1 Paid time to union stewards for performance of union duties is a mandatory subject of bargaining under Sec. 8(d). See Axelson, Inc., 34 NLRB 414 (1978), enforced, Axelson v. NLRB, 599 F.2d 91 (5th Cir.1979).

In addition, Sec. 8(d) makes bargaining mandatory in the context of the present case because bargaining is required over an attempt to modify a provision or change an established practice in an existing collective bargaining agreement. 2 The collective bargaining agreement provides for "a reasonable amount" of paid time to be allowed union officials to conduct union business. The privileges at issue had been granted to the local chairman of the union since Nickens took office in 1976. Where a collective bargaining agreement embodies a particular working condition and past practice demonstrates that an employer had administered that working condition in a particular manner, the employer is forbidden from changing that condition unilaterally. NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir.1970); NLRB v. Frontier Homes Corp., 371 F.2d 974, 978 (8th Cir.1967); see also Axelson, 599 F.2d at 95 (contract interpreted in light of past practices).

There is evidence in the record that the prior incumbent, Nickens, used the supplied office and telephone and the four hours a day paid time in part at least for his own purposes and not to carry out union business. The consideration of this evidence is not called for in this case. The evidence has no relevance to the decision of the NLRB. The sole issue is whether a change by the company in practices it and the union had recognized in the past could be made unilaterally by the company or was something about which the company had to bargain. If Nickens had in the past made a sinecure of his office, this did not mean bargaining was on the ground that the union was in any way demanding that the local chairman be supplied these perquisites for his personal use rather than for the benefit of his service to the union. Thus, for purposes of our analysis we must assume, just as the NLRB assumed, that if the evidence concerning Nickens was true, it was a matter of personal misconduct and not a matter of union-company agreement. There simply can be no evidence in support of the latter possibility until after bargaining, when the nature of the demands is revealed.

The company has never disputed that absent illegality, the practices at issue in the present case constitute mandatory subjects of bargaining. Rather, the company argues that Sec. 302 of the LMRA and Sec. 8(a)(2) of the NLRA prohibit the practices which the union seeks to reinstate. The company is inescapably correct in its assertion that no employer may be required to bargain over or engage in illegal activity even if that activity is necessary to comply with the terms of the bargaining agreement. Iron Workers v. Bechtel Power, 634 F.2d 258 (6th Cir.1981). We, therefore, evaluate the company's assertion that supplying these perquisites for the carrying out of union business nevertheless violates Sec. 302.

Section 302 provides in pertinent part:

(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 or 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; or

(3) to any employee or group or committee of employees of such employer employed in an industry affecting commerce in excess of their normal compensation for the purpose of causing such employee or group or committee directly or indirectly to influence any other employees in the exercise of the right to organize...

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