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.

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.

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 N.L.R.B. 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.

(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 and bargain collectively through representatives of their own choosing; or

(4) to any officer or employee of a labor organization engaged in an industry affecting commerce with intent to influence him in respect to any of his actions, decisions, or duties as a representative of employees or as such officer or employee of such labor organization.

Section 302(c)(1) provides an exception from this prohibition for payments by an employer to any representative of its employees when that person is an employee of the employer and the payment is made as compensation for "his services as an employee."3 The union's position is that these practices are not outlawed by Sec. 302 because they are permitted under the Sec. 302(c)(1) exception. The company responds that the phrase "services as an employee" in Sec. 302(c)(1) means that the exception applies only to payments made to union representatives for face to-face meetings with management.

On facts almost identical to the present case, the Second Circuit Court of Appeals has rejected the company's argument that Sec. 302 of the LMRA and Sec. 8(a)(2) of the NLRA outlaw payments made to union representatives by employers which go beyond face to face union/management meetings. BASF Wyandotte Corp v. Local 227, International Chemical Workers Union, 791 F.2d 1046 (2nd Cir.1986). In that case, BASF had a provision in the collective bargaining agreement which provided that the union president and secretary would be given four hours paid time per day during normal working hours of the company for the purpose of conducting union business. The company asserted it had decided that this provision violated Sec. 302 of the LMRA, and it discontinued that practice. The union filed an unfair labor practice charge against BASF with the NLRB. BASF then filed suit in district court seeking a declaratory judgment that the four hours paid time in the collective bargaining agreement (the "no-docking" provision) violated Sec. 302. The Second Circuit held that such payments do not violate Sec. 302 because they come within the exception in Sec. 302(c)(1) for payments to employees "for, or by reason of, his service as an employee of such employer."

The court first analyzed the statute logically, noting that the Sec. 302(c)(1) exception applies to many fringe benefits--such as vacation time, sick time, military leave, and jury duty--which no more directly benefit the employer than does union business. The common thread in all of these fringe benefits was "simply that the person to whom the employer makes payment is one who performs services as an employee." Id. at 1049. The court noted that, "just as jury leave is designed to permit the employee to serve his community, paid time off for the conduct of the union business is designed to permit the union official to serve his fellow workers." Id.

The Second Circuit next bolstered its analysis through the legislative history of Sec. 302. Section 302 of the LMRA, it made clear, was not intended to prohibit the types of practices at issue in the present case. At the time of enactment of Sec. 302, Congress was well aware that "[e]mployers generally ... allow representatives of the union, without losing pay, to confer not only with the employer but as well with employees, and to transact other union business in the plant." H.R.Rep. No. 245, 80th Cong., 1st Sess. 28-29 (1947). As the court noted, there is "nothing in the history of Sec. 302 to indicate that Congress viewed such no-docking practices as abuses or that it intended to curtail them." 791 F.2d at 1050. The intent of Sec. 302 was to "insure the integrity of union welfare funds as trust funds for the benefit of the employees, and to insure that payments by employers to the unions would not 'degenerate into bribes.' " Id. (quoting 93 Cong.Rec. 4804 (1947)). Subsequent amendments to Sec. 302 have reaffirmed the purpose of Sec. 302 as the limited one of "prevent[ing] bribery, extortion, shakedowns and other corrupt practices." See e.g., H.R.Rep. No. 286, 91st Cong., 1st Sess. 1-2, reprinted in 1969 U.S.Code Cong. & Admin.News at 1159-60.

The test of illegality is not whether the payments compensate only for face-to-face labor/management meetings; but, rather, "Sec. 302(c)(1) is appropriately interpreted by focusing not on whether the activities to be engaged in during the paid period directly benefit the employer but on whether they are to be engaged in by one who is a bona fide employee of the payor." BASF Wyandotte v. Local 227, 791 F.2d at 1049; see also Trailways Lines, Inc. v. Trailways Inc., 785 F.2d 101 (3rd Cir.1986). In the present case, the company does not contend that Gremillion is not a "bona fide employee" of the company.4 The BASF Wyandotte v. Local 227 case simply confirmed a long line of NLRB and court authority. 791 F.2d at 1053. We therefore reject the company's position that the privileges at issue are illegal under Sec. 302.

Applying the same analysis, we also reject the company's argument that Sec. 8(a)(2)5 of the NLRA outlaws these privileges. The legislative history of Sec. 8(a)(2) makes clear that Congress intended it, much as Sec. 302, to be a provision prohibiting bribery and company dominated unions, not prohibiting the kind of labor/management cooperation necessary to collective bargaining as is at issue in the instant case. BASF Wyandotte v. Local 227, 791 F.2d at 1051-1053.

The company makes no claim that Gremillion has shown favoritism in carrying out his duties. Indeed, as the Board found, the evidence indicates that the union "clearly is an independent entity with a well-established history of arm's-length dealing with BASF...." The practices discontinued by the company have not been shown to have had the purpose of furthering bribery and corruption of union representatives as intended to be prevented by Sec. 302 and Sec. 8(a)(2). This is so as to the circumstances of the case as they are now before us regardless of the unevaluated evidence concerning Nickens. Consequently, the practices at issue are not outlawed by either the LMRA or the NLRA.

We emphasize that it is not for us at this stage of the case to try to place limitations upon the bargaining on the ground that demands may be so unrealistic that insistence upon them establishes a refusal to bargain in good faith. It may be that union representation needs less in its perquisites than those granted by the company to Nickens. We point out again, however, that each element of those perquisites, the four hours paid per day for union business, an air conditioned office with telephone, the use of the copying machine, and the right to deal with employees without company permission, is justifiable and is lawful in many industrial situations.

The issue, then, is good faith bargaining about the perquisites. That issue cannot be decided by the NLRB or this Court in advance of the bargaining. We are not at this time concerned at all with the substantive aspects of the bargaining. We have authority only to consider whether bargaining was required in lieu of the company's unilateral changes. On this narrow issue, the law is clear and the NLRB order correctly enforces it.

III. ONLY A CONTRACT VIOLATION?

The company next urges that this case involves only a contract violation and not an unfair labor practice. We find this position to be without merit. First, the company's argument represents a reversal of the reasons it gave for the unilateral changes to the union in 1983. When the union in 1983 filed a grievance contending that the changes violated the contract, the company stated that the changes were not made because of the contract, but because it believed the privileges formerly given to Nickens were illegal. The company then refused to accept the grievance. Thus, it is the company's own adamant refusal that barred the issue of contract violation from properly being considered through the grievance procedures. There is no authority justifying the company's claimed right now to reverse its prior position and start all over, after full litigation is completed, with a claim that the dispute should have been submitted to the grievance procedures it itself denied.

In any event, the company's argument rests upon the faulty premise that a contract violation cannot amount to a Sec. 8(a)(5) violation. This view has been expressly rejected by the Supreme Court. Where the contract violation is also a unilateral change by the employer in working conditions subject to mandatory bargaining, as is the situation in this case, there can be both a contract violation and a Sec. 8(a)(5) violation. NLRB v. C. & C. Plywood Corp., 385 U.S. 421, 87 S. Ct. 559, 17 L. Ed. 2d 486 (1967).

Nor does the fact that this dispute arose during the term of a negotiated collective bargaining agreement bar the obligation to bargain. An employer is not permitted to make unilateral changes as to contract terms which are mandatory subjects of bargaining during the term of the agreement. There is a continuing duty to bargain on such subjects during the agreement if the employer desires to change them. NLRB v. Acme Industrial Co., 385 U.S. 432, 436, 87 S. Ct. 565, 568, 17 L. Ed. 2d 495 (1967).6 Indeed, Sec. 8(d) of the NLRA provides that the employer must bargain in good faith with respect to questions arising under existing agreements. See text accompanying note 2, supra. Under Sec. 8(d), the "true interpretation of a contract, as well as requested modifications, must be bargained collectively." See 1985 Guidebook to Labor Relations (CCH) p 1202.

The company urges that the union agreed that the privileges were personal to Nickens and would automatically cease when Nickens left the chairman position. The ALJ, affirmed by the Board, found that no such agreement had been made. There is evidence in the record to support that determination. "Credibility resolutions are peculiarly within the province of the [administrative law judge] and the National Labor Relations Board and are entitled to affirmance unless inherently unreasonable or self-contradictory." NLRB v. Proler International Corp., 635 F.2d 351, 355 (5th Cir.1981). Because we do not find the determinations of the ALJ and the Board to be unreasonable or self-contradictory, we must accept those factual findings.

The company contends that it reinstituted the practices susceptible to reinstitution7 and then bargained to impasse with the union over them upon expiration of the collective bargaining agreement. The company complains that the Board has ordered it to redo what it has already done. We do not address this issue because it is most appropriately left to determination by the Board during the compliance stage of the proceedings. See NLRB v. Mangurian's, Inc., 566 F.2d 463, 468 (5th Cir.1978).

We reject the company's argument that the perquisites the company has denied the local chairman, Gremillion, are shown to be illegal under Sec. 302 or Sec. 8(a)(2). We hold that the Board was justified in finding that the company had violated Sec. 8(a)(5) by making unilateral changes in the perquisites provided union representatives. We stress that the issue before the Board was whether the company had the obligation to bargain with the union about removal of the perquisites it had in the past furnished to the local union chairman. We only enforce the NLRB order requiring the company to bargain with the union as required by the NLRA instead of making unilateral changes in the interpretation of the collective agreement. We do not define legal limitations upon the bargaining. That must await possible challenge to the substantive bargaining process itself.

The Board's remedy ordered the employer to reimburse the union for four hours per day which the union had paid to Gremillion and to restore the privileges granted under the Nickens administration. This action was proper in that it preserved the status quo existing before the unilateral changes. The order of the Board is

ENFORCED.

E. GRADY JOLLY, Circuit Judge, specially concurring:

I concur in Judge Williams' carefully and narrowly written opinion that decides only that the unilateral withdrawal of an established benefit whose nature relates to wages, hours and working conditions is an unfair labor practice. I write specially to express concern, however, that the particular practices in question are probably excessive in relation to their stated purpose. The benefit is estimated to be worth $20,000 per year. It includes four hours of paid time each day to process slightly more than one grievance per week. It includes a telephone and an airconditioned office that hardly appear necessary to process the few grievances arising on the floor of the plant where the union representative may conveniently visit the workers. In short, the company seems to be paying a substantial part of the union's administrative expenses. If this is so, then the benefit may exceed in quantum what the union can require the company to bargain over. But, as Judge Williams notes, this is an issue for another day; it is a fact specific question that cannot subsume the issues presented by the unilateral withdrawal of an established benefit that is reasonably related to wages, hours and working conditions. Because Judge Williams has written narrowly, I concur in the conclusion that the company violated section 8(a)(5) of the National Labor Relations Act when it unilaterally withdrew an established benefit.