Mead Packaging

National Labor Relations Board - Board DecisionsJan 15, 1985

273 N.L.R.B. 1451 (N.L.R.B. 1985)

MEAD PACKAGING 1451 Mead Packaging and Printing Specialties and Paper Products Union, Local #527 Mead Products and Printing Specialties and Paper Products Union, Local #527. Cases 10-CA- 16871 and 10-CA-16878 15 January 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 14 February 1983 Administrative Law Judge Robert A. Gritta issued the attached supplemental decision.' The General Counsel and the Respond- ents filed exceptions and supporting briefs, and the Respondents filed an answering brief to the Gener- al Counsel's exceptions. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recom- mended Order only to the extent consistent with this Decision and Order. The judge found that the Respondent Mead Products had violated Section 8(a)(5) and (1) of the Act by unilaterally ceasing to provide certain con- tractual benefits to a union officer who was on a union-related leave of absence. He also found, however, that the provision of such benefits to union officers beyond the contractually established maximum time periods for union-related leaves of absence discriminated in favor of employees elect- ed to, or selected for, union office. He recommend- ed, therefore, that the 8(a)(5) allegations regarding Respondent Mead Packaging's unilateral cessation of similar benefits to three other union officers be dismissed since these three had been on leaves of absence longer than permitted by the applicable collective-bargaining agreements. The Respondents except to the judge's failure to dismiss the complaint in its entirety. They contend that these contractual benefits (a) constituted "pay- ments" to the union officers which were proscribed by Section 302 of the Act and/or (b) unlawfully discriminated against employees who were not union officers. The Respondents contend, there- fore, that their unilateral discontinuance of such as- sertedly unlawful payments did not violate Section 8(a)(5). For the reasons set forth below, we agree with the Respondents that the complaint should be dismissed in its entirety. Sections 8(a)(3) and 8(b)(2) of the Act prohibit employers and unions, respectively, from discrimi- 1 On 26 January 1982, the judge withdrew his initial decision in this proceeding, dated 12 January 1983. His supplemental decision supersedes his initial decision for all purposes. nating against employees "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization . . . ." Absent ap- propriate justification, employer or union policies are unlawful if they treat employees disparately ac- cording to their level of union activity. 2 In addi- tion, the Board has held that collective-bargaining agreements which discourage or encourage union activities through a disparate grant of benefits are unlawful unless providing the benefit on such a basis serves legitimate statutory purposes and indi- rectly benefits all unit employees. Thus, in Dairylea Cooperative, 219 NLRB 656 (1975), 3 the Board found contract clauses which provided union stew- ards with superseniority for purposes of layoff and recall to be lawful because this extra benefit helped assure the presence of stewards on the job to proc- ess grievances and otherwise police the collective- bargaining relationship. On the other hand, the Board found similar clauses unlawful to the extent that they accorded stewards other job benefits which were unrelated to their on-the-job steward activities. Recently, in Gulton Electro-Voice, 266 NLRB 406 (1983), enfd. sub nom. Electrical Workers UE Local 900 v. NLRB, 727 F.2d 1184 (D.C. Cir. 1984), we reaffirmed Dairylea, but overruled cases decided subsequent to it in which the Board had expanded the Dairylea holding to allow clauses which gave superseniority to union officials who do not per- form steward or other on-the-job contract adminis- tration functions. We rejected the rationale set forth in those cases that superseniority for nonsteward union officers was lawful because it promoted "the effective and efficient representation of employees by their collective-bargaining repre- sentatives." Gulton, supra at 408, quoting Electrical Workers UE Local 623 (Limpco Mfg.), 230 NLRB 406, 407 (1977), enfd. sub nom. Anna M D'Amico v. NLRB, 582 F.2d 820 (3d Cir. 1978). In sum, we found, in agreement with former Members Jenkins' and Penello's dissent in Limpco, that "the Board should not be in the business of assuring that a union has an efficient and effective organization to conduct collective bargaining where this results in the linkage of job rights and benefits to union ac- tivities . . . . To broaden the proper objective of super-seniority; i.e., to protect the whole process of collective bargaining . . . discriminatorily tips the balance against individual employee rights." Gulton, supra at 409 quoting 230 NLRB at 409. 2 Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), and Radio Of- ficers v. NLRB, 347 U.S. 17 (1954). 3 Enfd. sub nom. NLRB v. Teamsters Local 338, 531 F.2d 1162 (2d Qr. 1976). 273 NLRB No. 181 1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the Respondents' collective-bargaining agreements with the Union as implemented by the Respondents' supplemental related policies, em- ployees may take leaves of absence for up to 4 years in order to accept employment as officers of the Union. During these union-related leaves, they continue to receive coverage under the Respond- ents' group insurance programs as well as contrac- tual increases in pension benefit multipliers. 4 In contrast, employees who take other types of leave are limited to considerably shorter time periods, do not receive insurance coverage and/or pension multiplier increases for as long a time, and are pro- hibited from engaging in gainful employment while on leave. As of 31 March 1981, union officers Meers, Moss, and Currie had been on union-related leaves of absence from their employment with the Re- spondent Mead Packaging for periods ranging from 10 to 16 years. Union Officer Turner had been on a similar leave of absence from his employment with Respondent Mead Products for nearly 4 years. While on leave, these four individuals were em- ployed by the Union and acted as the representa- tives of employees of the Respondents and other employers. They engaged in contractual negotia- tions and arbitrations and generally monitored the employers' compliance with applicable collective- bargaining agreements. Until 31 March 1981, when the Respondents unilaterally ceased providing these benefits, they received coverage under the Re- spondents' group insurance programs and contrac- tual increases in the pension multipliers. It is apparent that the Respondents provided benefits to union officers which were not available to other employees. In order to be found lawful, this disparate treatment must "further the effective administration of bargaining agreements on the plant level by encouraging the continued presence of the steward on the job." Dailylea, supra at 658. We find that the Respondents' provision of these extra benefits to union officers did not meet this standard and, therefore, that the discriminatory impact on nonunion officer employees is much more than simply an incidental side effect of a more general benefit accorded all employees. Ibid.6 The General Counsel contends that these bene- fits were provided legitimately to the union officers because, if the benefits were unavailable, individ- 4 Under the Respondents' pension plans, employees receive a flat dollar benefit for each year of credited service For example, an employ- ee with 20 years of credited service and a pension benefit multiplier of $10 per month would receive $200 per month tn retirement benefits The pension benefit multiplier has increased penodically over the years 5 See Radio Officers v NLRB, supra, and Scofield v NLRB, 394 U S 423 (1969) uals would be unwilling to serve as union officers for extended periods. The Union thus would lose continuity and experience in its leadership and ef- fectiveness as the employees' collective-bargaining representative. As noted above, however, we re- jected this position in Gulton, where we found that "assuring that a union has effective and efficient or- ganization" was insufficient justification for linking job rights and benefits to union activities. In light of the above, if the issue were before us, we would find that the Respondents' provision of additional benefits to union officers under their col- lective-bargaining agreements with the Union vio- lated Sections 8(a)(3) and 8(b)(2) of the Act. Since the Respondents merely declined to continue to provide a benefit to the union officers which, as discussed above, had an unlawful disparate impact on employees, we find that they did not violate Section 8(a)(5) and (1) by doing so without bar- gaining with the Union. See Interstate Paper Supply Co., 251 NLRB 1423, 1424 (1980). 6 Accordingly, we shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. 6 In light of our decision herein, we find it unnecessary to reach the Respondents' contention that these additional "payments" to the union officers were unlawful under Sec 302 of the Act DECISION STATEMENT OF THE CASE1 ROBERT A GRITTA, Administrative Law Judge. This case was tried before me on October 13, 1982, in Atlan- ta, Georgia, based on charges filed by Printing Special- ties & Paper Products Union, Local 527 (the Union), on April 9 and 10, 1981, and complaint issued by the Re- gional Director for Region 10 of the National Labor Re- lations Board on May 22, 1981. The complaints allege that Mead Packaging and Mead Products (Respondents) violated Section 8(a)(1) and (5) of the National Labor Relations Act by unilaterally, without notice to or con- sultation with the Union, ceasing coverage under group insurance plans and pension plans for certain employees on leave of absence Respondents' timely answers deny the commission of any unfair labor practices. All parties were afforded full opportunity to be heard. The parties stipulated all facts and introduced joint ex- hibits In addition each party submitted a brief. Both briefs were duly considered On the entire record in this case, I make the following ' On January 12, 1983, my decision, JD-(ATL)-120-82 Issued The de- cision contained a substantive error and on January 26, 1983, I requested that the decision be remanded to me for correction and reissuance This supplemental decision supersedes for all purposes that prior decision MEAD PACKAGING 1453 FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION—PRELIMINARY CONCLUSIONS OF LAW The complaints allege, Respondents admit, and I find that Mead Packaging and Mead Products, Divisions of the Mead Corporation, an Ohio corporation, are engaged in the manufacture of school and office supplies and paper cartons in Atlanta, Georgia. Jurisdiction is not in issue. Mead Packaging and Mead Products in the past 12 months, in the course and conduct of their business oper- ations, shipped products from their Atlanta, Georgia fa- cilities valued in excess of $50,000 directly to points lo- cated outside the State of Georgia. I conclude and find that Mead Packaging and Mead Products are employers engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The complaints allege, Respondents admit, and I con- clude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ISSUES A. Whether Respondent Mead Packaging's cessation of providing pension benefits to employees Ralph Meers, Wilbert Currie, and Charles Moss was a violation of its statutory duty to bargain. B. Whether Respondent Mead Packaging's cessation of group insurance coverage to employees Ralph Meers, Wilbert Currie, and Charles Moss was a violation of its statutory duty to bargain. C. Whether Respondent Mead Products' cessation of providing pension benefits to employee Albert Turner Jr. was a violation of its statutory duty to bargain. D. Whether Respondent Mead Products' cessation of group insurance coverage to employee Albert Turner Jr. was a violation of its statutory duty to bargain. III. FACTS A. Admissions in Pleadings 1. Respondent Mead Packaging, Case 10-CA-16871 All production and maintenance employees employed at its packaging and container manufacturing plants lo- cated at 950 and 1010 West Marietta Street, Atlanta, Georgia, and all auxiliary warehouses in Atlanta, Geor- gia, including warehouse employees, plant clerical em- ployees, city truck drivers, leadmen, laboratory techni- cians; but excluding office clerical employees, planning and scheduling employees, production art employees, production control employees, professional and technical employees, guards, mail room employees, office janitors, chauffeurs, over-the-road drivers, lithographic produc- tion employees, sample makers and tracers (and assist- ants), inventory clerks, and supervisors as defined in the Act, constitute a unit appropriate for collective bargain- ing within the meaning of Section 9(b) of the Act. Respondent and the Union are parties to a collective- bargaining agreement, effective from March 28, 1981, until February 15, 1984, covering the employees of Re- spondent in the unit described in the paragraph above. At all times since about February 15, 1979, the Union has been, and is, the representative of a majority of the employees in the unit described in the paragraph above for the purpose of collective bargaining and, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of all employees in said unit for the pur- pose of collective bargaining. 2. Respondent Mead Products, Case 10-CA-16878 All production and maintenance employees and truck drivers, employed at its Atlanta, Georgia plant, including plant clerical employees and employees who work in the store-for-employees, but excluding office clerical em- ployees in the industrial engineering department, profes- sional employees, guards, manufacturing manager, per- sonnel director, traffic manager, superintendents, fore- men, stock control supervisor, and all other supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. Respondent and the Union are parties to a collective- bargaining agreement, effective from March 1, 1980, until February 27, 1983, covering employees of Respond- ent in the unit described in the paragraph above. At all times since about March 1, 1980, the Union has been, and is, the representative of a majority of the em- ployees in the unit described in the paragraph above for the purposes of collective bargaining and, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of all employees in said unit for the pur- poses of collective bargaining. B. Stipulated Facts At all times since about January 1, 1960, the Union has been the representative of a majority of the employees in the bargaining unit at Respondent Mead Packaging, for the purpose of collective bargaining and, by virtue of Section 9(a) of the Act, has been the exclusive represent- ative of all employees in this unit for the purpose of col- lective bargaining. At all times since about January 1, 1970, the Union has been the representative of a majority of the employees in the bargaining unit at Respondent Mead Products, for the purpose of collective bargaining and, by virtue of Section 9(a) of the Act, has been the exclusive represent- ative of all employees in this unit for the purpose of col- lective bargaining. At all times material here, pursuant to the applicable labor agreement, Respondents Mead Packaging and Mead Products have each maintained a group insurance program covering employees in their respective bargain- ing units. At all times material here, pursuant to the applicable labor agreement, Respondents Mead Packaging and Mead Products have each maintained a pension plan for employees in their respective bargaining units. Under these pension plans, employees receive a flat dollar bene- fit for each year of credited service (e.g., $10 per month x 20 years of credited service = $200 per month retire- 1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment benefit). The pension benefit multiplier (e.g., $10 per month) has periodically increased over the years through negotiations with the Union. Ralph Meers, Wilbert Currie, Charles Moss, and Albert Turner Jr. are, and at all times material here have been, agents, officers, representatives, and employees of the Union. At all times material here, these individuals have acted on behalf of the Union in dealing with the Respondents and other employers, including acting as representatives of employees of Respondents and other employers, and being involved in negotiations and in ar- bitrations, and otherwise overseeing the Respondents' and other employers' compliance with the applicable labor agreements. Since about October 4, 1965, Ralph Meers has been on leave of absence from Respondent Mead Packaging to hold a full-time position as president of the Union. During this time, Meers has been employed full time by the Union, has been compensated for his employment by the Union, and has performed no work for Respondent Mead Packaging. Prior to October 4, 1965, Ralph Meers was employed by Respondent Mead Packaging in the bargaining unit. Since about January 11, 1971, Wilbert Currie has been on leave of absence from Respondent Mead Packaging to hold full-time positions as vice president and then sec- retary-treasurer business agent of the Union. During this time, Currie has been employed full time by the Union, has been compensated for this employment by the Union, and has performed no work for Respondent Mead Pack- aging. Prior to January 11, 1971, Wilbert Currie was em- ployed by Respondent Mead Packaging in the bargaining unit Since about November 1, 1965, Charles Moss has been on leave of absence from Respondent Mead Packaging to hold full-time positions as secretary-treasurer business agent and then secretary-treasurer representative at the district level of the Union. During this time, Moss has been employed full time by the Union, has been compen- sated for this employment by the Union, and has per- formed no work for Respondent Mead Packaging. Prior to November 1, 1965, Charles Moss was employed by Respondent Mead Packaging in the bargaining unit Since about May 2, 1977, Albert Turner Jr. has been on leave of absence from Respondent Mead Products to hold a full-time position as vice president of the Union. During this time, Turner has been employed full time by the Union, has been compensated for this employment by the Union, and has performed no work for Respondent Mead Products. Prior to May 2, 1977, Albert Turner Jr. was employed by Respondent Mead Products in the bar- gaining unit. Prior to April 1, 1981, while on leave of absence, Ralph Meers, Wilbert Currie, Charles Moss, and Albert Turner Jr. were covered under the respective group in- surance programs During this period, Respondent Mead Packaging paid all group insurance premiums for Meers, Currie, and Moss, as it did for active bargaining unit em- ployees. During this period, Respondent Mead Products partially paid Turner's group insurance premiums, as it did for active bargaining unit employees. In the year 1980, for example, Respondent Mead Packaging paid monthly insurance premiums of $133.15 per individual for Meers, Currie, and Moss. In 1980, Respondent Mead Products paid monthly insurance premiums of $29 47 for Turner. Prior to April 1, 1981, while on leaves of absence, Ralph Meers, Wilbert Currie, Charles Moss, and Albert Turner Jr. received the negotiated improvements in the pension benefit multiplier. About April 1, 1981, Respondent Mead Packaging, by letter, individually informed Ralph Meers, Wilbert Currie, and Charles Moss that their participation in Re- spondent Mead Packaging's group insurance program would be discontinued effective April 30, 1981, and that their pension benefits under Respondent Mead Packag- ing's pension plan would be frozen as of March 31, 1981, with no future increases in the pension benefit multiplier. Respondent Mead Packaging notified the above individ- uals that this action was being taken upon advice of legal counsel that continuation of these benefits, while they were on leaves of absence for full-time employment with the Union, violated the provisions of Section 302, Labor Management Relations Act, 29 U.S.C., § 186 This was the first notification to these individuals of the intended action The Union, through Meers, responded in writing to the Company on April 14. About March 31, 1981, Respondent Mead Products in- formed Albert Turner Jr. that his participation in Re- spondent Mead Products' group insurance program would be discontinued effective April 30, 1981, and that his pension benefits under Respondent Mead Products' pension plan would be frozen as of March 31, 1981, with no future increases in the pension benefit multiplier Re- spondent Mead Products notified Turner that this action was being taken upon advice of legal counsel that con- tinuation of these benefits, while he was on leave of ab- sence for full-time employment with the Union, violated the provisions of Section 302, Labor Management Rela- tions Act, 29 U.S.C., § 186. This was the first notification to Turner of the intended action. The Union, through Meers, responded to the Company in writing on April 14, 1981 Other than for union employment as elected or ap- pointed union officials, Respondents Mead Packaging and Mead Products never allow a leave of absence to take another job. Under the Mead Products labor agreement, leaves of absence, other than for union employment as elected or appointed union officials, are limited to 2 years. Mead Products employees on leave of absence, for any reason other than union employment as elected or appointed union officials, cannot continue and have not continued to participate in the group insurance program or to re- ceive negotiated improvements in the pension benefit multiplier for a period longer than 2 years. At all times material here, the policy of Respondent Mead Packaging, and the practice under that policy, has been as follows: personal leaves of absence are less than 1 year; individuals on medical leaves of absence are not permitted to continue participation in the group insur- ance program for more than 18 months and medical leaves of absence are less than 3 years. Mead Packaging MEAD PACKAGING 1455 employees on leave of absence for any reason other than union employment as elected or appointed union officials cannot continue, and have not continued, to participate in the group insurance program for longer than 18 months or to receive negotiated improvements in the pension benefit multiplier for longer than 3 years. This specific policy was not established through negotiations with the Union. Participation in Respondent Mead Packaging or Re- spondent Mead Products' group insurance plan, even if the individual pays the full premium, is a substantial ben- efit and thing of value to the individual. Premiums under either of Respondents' group insurance plans are much lower than premiums for equivalent coverage under an individual policy. For example, the full premium cost per individual under Mead Products' group insurance plan is $84.50 per month. However, the premium cost if an indi- vidual converts from Mead Products' group plan to an individual policy of comparable, but less inclusive, cov- erage is $169.70 per month. Analysis and Conclusions In order to prove a violation of Section 8(a)(5), the General Counsel must prove that a company unilaterally changed conditions of employment either embodied in the collective-bargaining agreement or established as a past practice. It is undisputed that a change was made by the Respondents and without notice to, or consultation with, the Union. However, whether the admitted unilat- eral change constitutes a violation of Section 8(a)(5) is another matter.2 The General Counsel contends that because pension plans and health insurance benefits are mandatory sub- jects of bargaining and because employees on leaves of absence can participate in such benefits through the Re- spondents' past practices, any change in benefits received must be negotiated between the parties. To support its contention, the General Counsel quotes Board language, "the bargaining representative is entitled to an opportuni- ty to present arguments to the employer, to dissuade him from effecting the change, and also an opportunity to propose alternatives or compromises which might mod- erate the change so as to accommodate the interests of the employees as welt as the employer." (Emphasis added.) The General Counsel argues that to allow the Respondents to alter the benefits received by employees on leaves of absence would dissuade employees from serving their Union because they would be unwilling to sacrifice their pension and health benefits which in turn would cause unions to lose continuity and experience of leadership. Respondents contend that the change was made to correct what had progressed into a violation of Section 302, thus requiring the Respondents to discontinue the benefits or be liable for a Section 302 violation. The General Counsel correctly states that the Board does not possess jurisdiction to construe substantive pro- visions of Section 302 and has in the past declined to do 2 NLRB v. Katz, 369 U.S. 736 (1962). so. 3 However, the Board cannot and does not ignore the language nor the intent of Section 302 when deciding unfair labor practices. As in the Metal Workers case there is a balance to be struck. Respondents would tip this balance toward immunity for unilateral changes resulting in a refusal to bargain, citing the Boyle case.4 In my view, both the Sheet Metal Workers case and the Boyle case are distinguishable from the instant case. The Sheet Metal Workers case turned on the Board's refusal to analyze a trust agreement in terms of compliance with Section 302. Thus, the Board would not determine that an agreement was valid under Section 302 and enforce compliance therewith. In Boyle, the Board simply ac- knowledged the expressed language of Section 302 and determined that it could not force an employer to affirm- atively perform under a contract where the conduct would not conform to Section 302. In neither case was the Board dealing with past affirmative conduct that in itself constituted an alleged refusal to bargain. Here, ad- mitted conduct in the past has been changed and that change is alleged as a refusal to bargain. The facts of this case, albeit simple, do not lessen the paradoxical nature of the circumstances. All parties acknowledge and claim the dual capacity of the individuals involved supports their respective conten- tions. In my view, such dual capacity presents the real issue to be resolved. I find the single identity of Meers as a claimant for benefits and the spokesman of the Union arguing for enforcement of the contract and past prac- tices to be instructive to my determination. I find further support for this instruction in the General Counsel's con- tention (supported by facts) that, failing an unfair labor practice finding, unions could not get employees to serve as officers because the officers would not be allowed preferential treatment. The parties negotiated terms for leaves of absence for employees. The terms in the contracts place limitations and restrictions on such employee leaves of absence. The past practice of implementing the leave clauses of the contracts also enforces limitations on employees granted a leave of absence. The maximum leave of absence which can be granted is 4 years for employees elected or appointed to official positions with the Union. Clearly, the parties contracted that an employee on leave of ab- sence to serve the Union could only do so for 4 years.5 At the end of the 4 years the employee could either return to his employment classification with no loss of seniority and other benefits, or the employee could con- tinue with the Union and sever his employee relation- ship. No other purposes could be served for a 4-year lim- itation. 6 Additionally, only employees granted union-re- 3 Sheet Metal Workers (Central Florida Sheet Metal), 234 NLRB 1238 (1978) 4 John F. Boyle Co, 222 NLRB 1309 (1976). 5 The contracts state that the leave is restricted to 2 years, but can be extended for an additional 2 years by agreement. 6 Thus, all leaves of absence would have the same effect under the contracts. 1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated leaves of absence can be employed while on leave from Respondent. Under the contracts' terms and preex- isting practices, employee leaves of absence for reasons unrelated to the Union were more restricted in that leaves were not allowed in excess of 3 years with some leaves limited to less than 1 year. In all nonunion em- ployee leaves of absence, the maximum enjoyment of contractual benefits, including group health insurance and pension benefits, was for 3 years.7 Of the four individuals involved only one, Turner, had been on a union-related leave less than 4 years at the time of Respondent's unilateral change in benefits. The other three, Meers, Moss, and Currie, have exceeded the 4-year restriction considerably. In each case the group insurance benefits and the pension benefits have contin- ued as if each was an active employee on the Respond- ents' payrolls or otherwise entitled to such benefits by past practices or by contract. Respondents recognized the continued receipt of em- ployee benefits as an error and corrected it by ceasing benefits for all. The General Counsel and the Union view the cessation as a violation since the Respondent did not bargain over the cessations but rather unilaterally ceased the benefits The General Counsel's case is based upon the contract terms respecting leaves of absence which the Union ne- gotiated with Respondent and the past practices em- ployed under the negotiated contract. One thing is crys- tal clear. The Union and the Respondent could not nego- tiate a leave of absence clause that would dictate loss of benefits for nonunion employee leaves of absence while allowing union-related employee leaves of absence to continue enjoying contractual benefits ad infinitum. Such attempts would be proscribed because the receipt of ben- efits would be discriminatory in favor of employees elected or selected to union offices. Albeit terms of union leaves can, by contract, be in excess of any other leaves of absence, the ultimate employment relationship cannot be jeopardized or favored depending upon any employ- ee's union affiliation. Likewise employees granted union- related leaves of absence can engage in outside employ- ment (for the Union) throughout the term of the leave but at its termination the employee must make an elec- tion to return to the bargaining unit or remain in the Union's employ. All employees must be treated equally with regard to the contractual benefits received as a result of the employment relationship. To allow other- wise would place a greater emphasis upon serving the union in an official capacity and would unnecessarily in- volve the employer in encouraging union participation at expense of the employee work force. I find no probative support for the General Counsel's case in the fact that Meers and Moss have received contractual benefits from Respondent Packaging for the 16 years that each has been an officer of the Union pursuant to a union-related leave of absence begun in 1965. Nor is Turner's similar situation since 1977 and Curne's since 1971 any different. The General Counsel's argument in brief that any cessa- 7 Contractual benefits for employees on leaves of absence are generally ceased at some point in time by practical considerations which are no less obvious than in the instant case tion of benefits for the union officials would be detrimen- tal to the Union's administration of its affairs is unavail- ing on two counts. The Union could not demand in ne- gotiations preferential treatment for prounion employees, resulting in greater benefits for the prounion employees, than for employees in the bargaining unit who have no desire to serve the Union Additionally, Respondents are not required to negotiate aid for administration of the af- fairs of the Union. Contract terms are negotiated for the benefit of employees in the bargaining unit and must be uniform for all employees without regard for individual desires to serve the Union outside the workplace. Respondents cite Kaiser Steel Corp. v. Mullins, 109 LRRM 2268, 92 LC lj 13,128 (1982), reversing 642 F.2d 1302 (1982), for the proposition that the Federal court must consider an 8(e) defense, notwithstanding the Na- tional Labor Relations Board's special jurisdiction of Sections 7 and 8 of the National Labor Relations Act. The high court stated that a Federal court has a duty to determine whether a contract violates Federal law before enforcing it. The court acknowledged the general rule that illegal promises (contract terms) will not be en- forced in cases controlled by Federal law. No less of a duty exists for the Board when substan- tive terms of a contract are subject to scrutiny. Particu- larly, where the illegality raised in defense is cognizable by Section 7 and 8 of the National Labor Relations Act. A contract which on its face or in practice is contrary to the stated violative provisions of Section 8 cannot be en- forced by the Board. To put it another way, an employer cannot be made to perform under a contract when the performance itself constitutes an unfair labor practice or protracts a prior error which tends to coerce, restrain, or interfere with employees' basic Section 7 rights. I therefore conclude and find that the contractual group insurance benefits and pension accrual benefits for employees in the bargaining unit should have ceased for Meers, Moss, and Currie when each had amassed 4 years on their extended leaves of absence as such benefits would have ceased for any other employee not returning to the bargaining unit at the termination of any leave of absence. Only in this way can the rights of all employees in the bargaining unit be protected by the negotiated terms of the contract. No employee should be allowed to receive greater benefits under the contract simply be- cause he or she chooses to request a leave of absence to serve the Union in an official capacity, particularly in view of the fact that employees serving the Union in an official capacity have access to union-sponsored group insurance plans and union-sponsored pension plans for those employed by the Union on a full-time basis. Bar- gaining unit employees on leaves of absence unrelated to union business have no such access to group insurance or group pension plans and must, by the contracts' terms, forgo further benefits if they choose not to return to em- ployment upon the termination of their leaves of absence. In my view, Respondent has the right to correct the ob- vious wrongs relating to the leaves of absence of Meers, Moss, and Currie. Accordingly, I conclude and find that Respondent Mead Packaging has not refused to bargain with the