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December 8, 1995

CATERPILLAR, INC., a Delaware Corporation doing business in Pennsylvania, plaintiff

The opinion of the court was delivered by: CALDWELL

 We are considering the parties' cross motions for summary judgment.


 Plaintiff, Caterpillar Inc. ("Caterpillar"), is engaged in the manufacture, sale, and distribution of heavy equipment at plants throughout the United States, including a facility in York, Pennsylvania. Defendants are the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW") and its Local Union 786 ("Local 786"). *fn1" Since 1954, Caterpillar has recognized the UAW and Local 786 as the exclusive collective bargaining representative for certain of its employees at its York plant. *fn2"

 Prior to 1973, the parties' collective bargaining agreements contained provisions specifically authorizing union representatives such as stewards, chief stewards, and committeemen to leave their jobs to handle grievance related matters, without loss of pay and while maintaining their status as full-time Caterpillar employees. In 1973, Caterpillar agreed to allow union committeemen and grievance committee chairmen to work full-time in their union capacities while still receiving wages and benefits from the company. These individuals are paid the wages and benefits earned on their last job with the company, but are considered to be on leave of absence. At Caterpillar's York facility, these individuals are Local 786's Grievance Committee Chairman and its Alternate Chairman (collectively "the Chairman").

 The parties' most recent collective bargaining agreement expired on November 30, 1991. The UAW and many of its locals subsequently began a strike against Caterpillar, although members of Local 786 did not participate. The striking employees eventually returned to work without a contract. On October 30, 1992, Caterpillar notified the UAW that it would stop paying the Chairman, and the other grievance committee chairs at other plants, as of November 16, 1992. In the letter informing the UAW of its decision, Caterpillar stated that

Indeed, one may even question the legality of such payments. Therefore, effective November 16, 1992, and continuing until a new agreement is reached, Caterpillar no longer intends to subsidize the UAW by paying wages to or by providing coverage at no cost under the Group Insurance Plan for the Union's various chairmen of grievance committees . . .

 [Letter from J.L. Brust to Elliott Anderson of 10/30/92]. On November 17, 1992, the UAW responded by filing an unfair labor practice charge with NLRB offices in Baltimore, Maryland, and Peoria, Illinois, alleging a violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158. *fn3"

 On December 21, 1992, the NLRB notified the parties that, if no settlement was imminent, the NLRB would file a similar complaint against Caterpillar. The next day, Caterpillar filed the instant action, seeking a declaration that the payments to the Chairman are illegal under § 302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186.

 Because of the pending NLRB proceedings, on May 24, 1993, this action was stayed. Thereafter, the UAW and its locals, including Local 786, began another strike against Caterpillar. *fn4" On January 31, 1995, NLRB Administrative Judge James L. Rose issued a Decision and Recommended Order dismissing the Union's unfair labor practice charges. He concluded that the Union is responsible for the duties performed by the Chairman and decides the manner in which they are performed. He then determined that Caterpillar's payment of wages and benefits to the Chairman violated sections 8(a)(3) and 8(b)(2) of the NLRA. *fn5" Although the Administrative Judge's recommendation is not a final decision of the NLRB, because of the pendency of this case since 1992, we lifted the stay and both parties filed motions for summary judgment.


 A. Standard of Review

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).

 When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (emphasis in original) (citation omitted). However, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986) (internal citations omitted).

 B. Section 302

 Plaintiff seeks a declaration that payments to the Chairman are unlawful under section 302(a) of the LMRA. That section provides that

It shall be unlawful for any employer . . . to pay, lend, deliver, or agree to pay, lend, or deliver, any money or other things 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 . . . any of the employees of such employer who are employed in an industry affecting commerce;
. . .

 29 U.S.C. § 186(a). It is undisputed that Caterpillar is an employer in an industry that affects commerce and that the Chairman is a representative of Caterpillar's employees. Thus, it would appear that Caterpillar's payment of his wages would be unlawful. However, section 302(c) of the LMRA provides that

 29 U.S.C. § 186(c). *fn6" Defendants argue that the Chairman is an employee of Caterpillar, that the payments are for his services to Caterpillar, and that the payments are permissible under section 302(c)(1). *fn7"

 The Third Circuit addressed these issues in Trailways Lines v. Trailways, Inc. Joint Council, 785 F.2d 101 (3d Cir.), cert. denied, 479 U.S. 932, 107 S. Ct. 403, 93 L. Ed. 2d 356 (1986). In that case, the employer instituted an action against the union seeking a declaration that a section of the parties' collective bargaining agreement, which required the employer to make contributions to a joint union-management pension trust fund for employees who took leaves of absence to accept full-time positions with the union, violated section 302. 785 F.2d at 102. The court first noted that "there is no dispute that Trailways' payments to the Pension Trust Fund would be prohibited by § 302(a) unless they fall within one of the express statutory exemptions provided by section 302(c). . . ." Id. at 103-04. Similarly, there is no dispute in this case that the payments to the Chairman would violate section 302(a) unless one of the enumerated exceptions apply.

 The defendant in Trailways argued that two exceptions, section 302(c)(1) and section 302(c)(5), were applicable there. *fn8" The court held that the exception in section 302(c)(5) was inapplicable because the employees were not "current employees" of the employer, but were instead "former employees" of the employer who had become current employees of the union. Id. However, the court could not use the same analysis with respect to section 302(c)(1) because that exception applies to "an employee or former employee of such employer, as compensation for, or by reason of, his services as an employee of such employer." 29 U.S.C. § 186(c)(1) (emphasis added). *fn9" In addressing the claimed exemption of the former employees, the court found that "clearly the statute contemplates payments to former employees for past services actually rendered by those former employees while they were employees of ...

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