Filed March 4, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7012

CATERPILLAR INC., a Delaware Corporation doing
business in Pennsylvania

v.

INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA; and
its affiliated LOCAL UNION 786,

          Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil Action No. 92-01854)

Argued August 8, 1996

Before: NYGAARD, LEWIS and McKEE, Circuit Judges .

Reargued December 2, 1996

Before: SLOVITER, Chief Judge, and BECKER,
STAPLETON, MANSMANN, GREENBERG, SCIRICA,
COWEN, NYGAARD, ALITO, ROTH, LEWIS and McKEE,
Circuit Judges.

(Opinion filed March 4, 1997)



          DAVID M. SILBERMAN, ESQUIRE
          (Argued)
          Bredhoff & Kaiser
          1000 Connecticut Avenue,
          N.W.
          Suite 1300
          Washington, DC 20036

          DANIEL W. SHERRICK, ESQUIRE
          International Union of
          United Auto Workers
          8000 East Jefferson
          Detroit, MI 48214

          WENDY L. KAHN, ESQUIRE
          Zwerdling, Paul, Leibig,
          Kahn,
          Thompson & Driesen
          1025 Connecticut Avenue, N.W.
          Suite 712
          Washington, DC 20036

          Attorneys for Appellants

          GERALD C. PETERSON, ESQUIRE
          COLUMBUS R. GANGEMI, Jr.,
          ESQUIRE
          (Argued)
          Winston & Strawm
          35 West Wacker Drive
          Suite 4200
          Chicago, IL 60601

          Attorneys for Appellee

          JAMES B. COPPESS, ESQUIRE
          815 16th Street, N.W.
          Washington, DC 20006

          Attorney for Amicus-Appellant,
          American Federation of Labor &
          Congress of Industrial Organizations
          (AFL-CIO)

                                2


          ALLEN H. FELDMAN, ESQUIRE
          EDWARD D. SIEGER, ESQUIRE
          United States Dep't of Labor
          200 Constitution Avenue, N.W.
          Washington, DC 20210

          Attorneys for Amicus Curiae
          United States of America

          COUNCIL ON LABOR LAW
          EQUALITY
          Proposed Amicus-Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

In this appeal, we must decide whether an employer
granting paid leaves of absence to employees who then
become the union's full-time grievance chairmen violates
S 302 of the Labor Management Relations Act, 29 U.S.C.
S 186. The district court held that this practice is illegal,
relying on our decision in Trailways Lines, Inc. v. Trailways,
Inc. Joint Council, Amalgamated Transit Union, 785 F.2d
101 (3d Cir. 1986). We will reverse, and in doing so,
overrule significant portions of Trailways.

I.

The facts are stated comprehensively in the district
court's opinion, Caterpillar, Inc. v. International Union,
United Automobile Workers, 909 F. Supp. 254 (M.D. Pa.
1995). For our purposes it suffices to recount that the
United Auto Workers, its Local 786 and Caterpillar have
been parties to a collective bargaining agreement since
1954. Until 1973, the agreement contained a "no-docking"
provision allowing employees who were also union stewards
and committeemen to devote part of their work days to
processing employee grievances without losing pay, benefits
or full-time status. In 1973, this agreement was expanded
to allow the union's full-time union committeemen and
grievance chairmen to devote their entire work week to

                                3


union business without losing pay. These employees are
placed on leave of absence and are paid at the same rate as
when they last worked on the factory floor. They conduct
that business from the union hall, perform no duties
directly for Caterpillar, and are not under the control of
Caterpillar except for time-reporting purposes.

In 1991, a nationwide labor dispute erupted between
Caterpillar and the union, which resulted in the employees
returning to work without a contract. A year later,
Caterpillar unilaterally informed the union that it would
cease paying the grievance chairmen and questioned the
legality of such payments, notwithstanding that it had paid
them without complaint for eighteen years. The union filed
an unfair labor practice charge with the National Labor
Relations Board, alleging that, by unilaterally rescinding
the payments, Caterpillar refused to bargain in good faith.
A month later, Caterpillar filed this suit seeking a
declaratory judgment that those payments violate S 302 of
the LMRA.

The district court stayed its proceedings pending the
decision of the NLRB. An administrative law judge later
issued a recommended decision and order dismissing the
union's charges, finding that the payments violated S 8 of
the National Labor Relations Act.1 The district court then
lifted the stay and held that Caterpillar's payments to the
union's full-time grievance chairmen violated S 302. The
union now appeals.

II.

A.

Section 302(a) of the LMRA provides:

          It shall be unlawful for any employer . . . to pay, lend,
          deliver, or agree to pay, lend, or deliver, any money or
          other thing of value--
_________________________________________________________________

1. The ALJ, while questioning the validity of the payments under S 302
of the LMRA, did not reach that issue in his proposed holding.

                                4


          (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. S 186(a). Caterpillar is an employer in an
industry that affects commerce and the grievance chairmen
are representatives of Caterpillar's employees. On the face
of S 302(a), then, Caterpillar's wage payments to them
would appear to be unlawful. Section 302(c), however,
provides that

          [t]he provisions of this section shall not be applicable
          (1) in respect to any money or other thing of value
          payable by an employer . . . to any representative of his
          employees, . . . 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. S 186(c)(1). Thus, if the grievance chairmen
receive their compensation "by reason of" their "service as
employees," then Caterpillar's wage payments are lawful.

In Trailways, the employer agreed to continue making
contributions to a joint union-management trust fund on
behalf of employees who had taken leaves of absence to
devote their time to full-time union positions. 2 There, the
union argued that those payments could pass muster
under S 302(c)(1), which permits payments to former
employees "as compensation for, or by reason of,[their]
service as . . . employee[s.]" The Trailways court rejected
that possibility as a matter of statutory construction,
opining:
_________________________________________________________________

2. One issue before the court was whether the payments were lawful
under S 302(c)(5), which grants an exception for payments to pension
trust funds. The Trailways court concluded, however, that the S 302(c)(5)
exception applies only to current employees and held that the union
officials did not fit that description because Trailways did not have
sufficient control over their work and because their work was solely for
the benefit of the union. 785 F.2d at 104-07.

                                5


          To the Union, the pension fund contributions made on
          behalf of former employees currently on leave to serve
          as union officials were earned solely "by reason" of
          their past service to Trailways. But for their past
          employment by Trailways, the Union contends, these
          officials would not be eligible for pension fund
          contributions; therefore, these payments are "by reason
          of their service as an employee of" Trailways.

           A logical reading of the statute makes clear that the
          "payments to former employees' exemption" of
          S 302(c)(1) applies solely to payments made as
          "compensation or by reason of" the former employees
          past service to the employer. While the Union is correct
          in asserting that had these individuals never been
          Trailways' employees they would not be eligible for
          pension contributions made on their behalf, it does not
          therefore follow that the pension fund contributions
          made by Trailways pursuant to the collective
          bargaining agreement were made "in compensation for,
          or by reason of," their former service to Trailways so as
          to fall within the S 302(c)(1) exception. Clearly, the
          statute contemplates payments to former employees for
          past services actually rendered by those former
          employees while they were employees of the company.
          Just as clearly, however, the pension fund benefits
          paid on behalf of former employees serving as union
          officials while on leave from Trailways are not
          compensation for their past service to Trailways.

Id. at 105-06 (emphasis in original).3

Were we to follow Trailways, its holding would control
our decision in this case. The grievance chairmen cannot be
considered current employees of Caterpillar who are being
compensated for their current services. The chairmen
perform no services directly for Caterpillar. Instead, they
handle grievances and other labor matters for the union, a
situation that often places them in a position adverse to
_________________________________________________________________

3. In a footnote, the court noted that the pension contributions were
based on the employees' current union salary, indicating that the
payments were "geared to their contemporaneous services to the Union."
Id. at 106 n.5 (emphasis deleted).

                                6


Caterpillar's. Section 302(c)(1) legalizes payments to current
or former employees based on their "services" as employees,
not their "status" as such. Thus, the mere fact that the
chairmen remain on the Caterpillar payroll and fill out the
appropriate forms and time sheets to get paid is legally
irrelevant.

The union argues that, unlike the situation under
subsection (c)(5) in Trailways, under subsection (c)(1) the
chairmen can be employees of both the union and the
employer. It relies especially on NLRB v. Town & Country
Electric, 116 S. Ct. 450, 456 (1995), in which the Supreme
Court held that a paid union organizer who obtained a job
in order to "salt" the workforce and organize for the union
was still an employee within the meaning of the National
Labor Relations Act. But there, the Court noted that the
employee still performed services for the benefit and under
the control of the employer, even though part of his time
was spent organizing for the union. That situation is
different from ours. Here the chairmen do nothing for
Caterpillar's benefit.

Moreover, under Trailways we cannot conclude that the
chairmen's salaries were payments to former employees "as
compensation for" their past services as employees. The
chairmen were already compensated for their production
line work long ago in the form of wages and vested benefits.
A fair reading of Trailways does not support a finding that
the payments at issue here somehow "related back" to
these former employees' services on the factory floor.

B.

Nevertheless, after careful consideration and reargument
before the in banc court, we believe that Trailways was
wrongly decided and tends to subject innocuous,
bargained-for and fully disclosed payments to the criminal
sanctions of the LMRA.

We have no difficulty with the Trailways holding
regarding "current employee" status. See  785 F.2d at 106-
07. We also believe that the salary payments to these union
officials were not in compensation for their past services
rendered as production employees. Our disagreement is

                                7


with the Trailways court's conclusion that the "by reason
of" language in S 302(c)(1) exempts only those payments for
past services actually rendered while the former employee
was still employed by the company. We think that
statement misinterprets the text of S 302(c)(1) and does
nothing to further the policy objectives Congress had when
it enacted the LMRA half a century ago.

The Trailways test would be quite appropriate if
S 302(c)(1) referred only to payments as compensation for
past services. It is difficult indeed to comprehend how
years, even decades, of paid union leave can realistically be
thought of as compensation for time spent on the factory
floor. The Trailways court, however, applied the same test
to the statute's "by reason of" language; with that we can
no longer agree.

First of all, Congress chose specifically to exempt
payments in "compensation for" or "by reason of" an
employee's service. By so doing, it must be presumed to
have intended that certain payments would be legal, even
though they were not, as Trailways recites, "for past
services actually rendered by those former employees while
they were employees of the company." Id. at 106 (emphasis
deleted). Nevertheless, the Trailways court, without any
explanation, conflated the two phrases and developed a
unitary test for whether former employee compensation is
permissible.

Under the Trailways test, there are three requirements
for a "former employee" payment to qualify for the
S 302(c)(1) exemption:

          (1) It must be for past, not present, services;

          (2) the services must be actually rendered; and

          (3) the services must have been rendered while the
          payee was still an employee.

Under this standard, the chairmen's wages fail the
Trailways test, because the payments are not for services
actually rendered to the company while they were still
employees. Indeed, under Trailways, it appears that pay or
continuation of benefits for time spent serving on a jury or
in the National Guard would be illegal.

                                8


Likewise, even the "no docking" provisions of many
collective bargaining agreements, including the Caterpillar-
UAW contract here, fail to meet the Trailways standard.
Under a no-docking clause, the employer agrees that shop
stewards may leave their assigned work areas for portions
of a day to process employee grievances without loss of pay.
By paying production workers for the part-time hours when
they leave their regular duties, the company is paying for
services not actually rendered for it, since those employees
are already receiving their regular hourly wages and
benefits for their production line work. Yet, no-docking
arrangements have been consistently upheld by the courts
as not in violation of S 302, see NLRB v. BASF Wyandotte
Corp., 798 F.2d 849, 854-56 (5th Cir. 1986); BASF
Wyandotte Corp. v. Local 227, 791 F.2d 1046 (2d Cir.
1986); Herrera v. International Union, UAW, 73 F.3d 1056
(10th Cir. 1996), aff'g & adopting dist. ct. analysis, 858 F.
Supp. 1529, 1546 (D. Kan. 1994); Communications Workers
v. Bell Atlantic Network Servs., Inc., 670 F. Supp. 416, 423-
24 (D.D.C. 1987); Employees' Independent Union v. Wyman
Gordon Co., 314 F. Supp. 458, 461 (N.D. Ill. 1970), and
Caterpillar does not even seek to have the contract's no-
docking clause declared illegal. Moreover, as the union
points out, it would be strange indeed if Congress intended
that granting four employees two hours per day of paid
union leave is permissible, while granting a single employee
eight hours per day of that same leave is a federal crime.

We believe that the payments at issue here, while they
were not compensation for hours worked in the past,
certainly were "by reason of" that service. We reach this
conclusion because the payments arose, not out of some
"back-door deal" with the union, but out of the collective
bargaining agreement itself. Caterpillar was willing to put
that costly benefit on the table, which strongly implies that
the employees had to give up something in the bargaining
process that they otherwise could have received. Thus,
every employee implicitly gave up a small amount in
current wages and benefits in exchange for a promise that,
if he or she should someday be elected grievance
chairperson, Caterpillar would continue to pay his or her
salary.4 As our colleague Judge Becker pointed out,
dissenting in Trailways:
_________________________________________________________________

4. We do not mean to imply that an employee hired after a collective
bargaining agreement could not be elected chairperson because he or

                                9


           The collective bargaining agreement contains the
          terms of workers' employment with Trailways; each of
          the benefits the workers receive under that collective
          bargaining agreement are part of the consideration for
          their services at Trailways. In addition to the standard
          terms for wages, overtime pay, and insurance, the
          collective bargaining agreement provides that persons
          who take a leave of absence to work as union officials
          have a right to reinstatement at Trailways after their
          union service and retain their seniority during their
          absence. The collective bargaining agreement also
          provides that the employer will make payments into the
          union's pension fund while the employee is on leave.
          Although these contributions are made during the
          leaves of absence, the employer's promise to pay them
          is nonetheless a term of the collective bargaining
          agreement and therefore a part of the consideration for
          work performed as a Trailways employee. There is no
          reason for distinguishing the pension fund payments
          from any of the other terms of the collective bargaining
          agreement. Like wages, overtime, insurance, or accrued
          seniority, the pension fund payments are consideration
          for services rendered and, as such, are permissible
          under S 302(c)(1).

Trailways, 785 F.2d at 109 (Becker, J., dissenting).

We find this line of reasoning persuasive. Indeed, it has
been taken by a number of decisions reached after
Trailways. See United States v. Phillips, 19 F.3d 1565, 1575
(11th Cir. 1994) (S 302(c)(1) satisfied when former
employee's entitlement to payments vests before  he or she
goes out on leave, but not after); Toth v. USX Corp., 883
F.2d 1297, 1301-04 (7th Cir. 1989) (criticizing Trailways
and opining that "[o]ne obvious instance in which
continuing payments constitute recompense for past
services is when those continuing payments were bargained
for and formed part of a collective bargaining agreement.");
_________________________________________________________________

she never "agreed" to an implicit wage reduction. Rather, like any other
term of a labor agreement, it would be binding on all employees,
whenever hired, until the expiration of the contract.

                                10


IBEW v. National Fuel Gas Dist. Corp., 16 Employee
Benefits Cases 2018, 2020-21 (W.D.N.Y. 1993) (same); Bell
Atlantic, 670 F. Supp. at 421-22 (same). We are aware of no
currently valid opinion that follows the Trailways holding.

Caterpillar maintains that, under the reasoning we have
utilized, employers and unions can themselves decide what
is legal regardless of federal law by agreeing in a labor
contract to a particular course of conduct. Our point,
however, is not that a collective bargaining agreement can
immunize unlawful conduct, but that: (1) under S 302(c)(1),
the lawfulness of the conduct ab initio turns on whether the
payment is "owed because of . . . service as an employee";
and (2) what is "owed" depends on the terms of the
contract. Put differently, the contract does not immunize
otherwise unlawful subjects but, by defining the basis for
the payments, speaks directly to the question posed by the
statute as to whether the payments are "compensation for,
or by reason of . . . service as an employee."

We also believe that any attempt to distinguish "no
docking" provisions from the payments at issue here is
unpersuasive. We perceive no distinction between union
officials who spend part of their time (which may be quite
substantial) in adjusting grievances from the type of
employees who are involved here. Instead, "the nature of
the absences and the payments made by the employer
owning them is the same." Trailways, 785 F.2d at 111.

III.

In sum, we simply do not view the payments at issue
here as posing the kind of harm to the collective bargaining
process that Congress contemplated when it enacted the
LMRA. Section 302 of that statute was passed to address
bribery, extortion and other corrupt practices conducted in
secret. See Trailways, 785 F.2d at 110 (Becker, J.,
dissenting). These expanded "no-docking" provisions, in
contrast, are contained in the collective bargaining
agreement on which each rank-and-file employee has the
opportunity to vote. Thus, the officials receiving the
payments can be held accountable to the membership. See

                                11


Toth, 883 F.2d at 1304. Without explicit statutory direction
from Congress, we cannot condemn these payments as
criminal. Accordingly, we will reverse.

                                12


MANSMANN, Circuit Judge, dissenting, with whom Judge
Greenberg joins.

In suggesting that "innocuous, bargained for and fully
disclosed payments" from an employer to an employee
representative should be lawful, the majority has placed its
own policy objectives above plain language. By its own
terms, the "by reason of" exception of 29 U.S.C. S 186(c)(1)
simply does not include payments made to an employee
representative merely because the payment is included in a
collective bargaining agreement and the representative
worked for the employer at one time. The plain language of
the section 186(c)(1) exception is supported by the
legislative history and purpose of the exception, and the
majority's conclusion is at odds with important federal
policy. Because I believe that the payments at issue in this
case do not fall within the exception of section 186(c)(1), I
respectfully dissent.

I.

Where statutory language is plain, we must enforce that
language according to its terms. Appalachian States Low-
Level Radioactive Waste Comm'n v. O'Leary, 93 F.3d 103,
108 (3d Cir. 1996); see also United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103
L.Ed.2d 290 (1989); New Rock Asset Partners, L.P. v.
Preferred Entity Advancements, Inc., ___ F.3d ___, ___, 1996
WL 708610, at *5 (3d Cir. Dec. 10, 1996) (unless literal
application will produce absurd result, plain meaning is
conclusive). It is for Congress, not the courts, to create
exceptions or qualifications at odds with the LMRA's plain
terms. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 490,
67 S.Ct. 789, 792, 91 L.Ed. 1040 (1947).

Section 302(a) of the LMRA, 29 U.S.C. S 186(a), on its
face, makes it unlawful for any employer to pay any money
or thing of value to any representative of its employees. As
the majority recognizes, section 302(a), standing alone,
prohibits the payments at issue in this case. Maj. Op., at 4-
5.

Section 302(a) contains several exceptions. Section
302(c)(1), 29 U.S.C. S 186(c)(1), renders section 302(a)

                                13


inapplicable in respect to any money or other thing of value
payable by an employer "to any representative of his
employees, who is also an employee or former employee of
such employer, as compensation for, or by reason of, his
services as an employee of such employer."

The majority concedes that the payments at issue in this
case are not payments to a current or former employee "as
compensation for . . . his services." Maj. Op., at 7. The sole
issue, then, is whether the payments to a former employee,
who presently works as a grievance chairperson for the
union, are made "by reason of . . . his services as an
employee of such employer." Contrary to the position of the
majority, I must conclude that the language of section
302(c)(1) is plain and does not encompass the payments at
issue here.

The "by reason of" exception of section 302(c)(1) simply
recognizes that current and former employees might have a
right to receive payments from their employers that arise
from their services for their employers but that are not
properly classified as "compensation." The"by reason of"
exception includes pensions, 401(k) plans, life and health
insurance, sick pay, vacation pay, jury and military leave
pay, and other fringe benefits to which all employees may
be entitled "by reason of " their service. See United States v.
Phillips, 19 F.3d 1565, 1575 (11th Cir. 1994) ("by reason
of" exception applies to fringe benefits "such as vacation
pay, sick pay, and pension benefits"), cert. denied, ___ U.S.
___, 115 S.Ct. 1312, 131 L.Ed.2d 194 (1995); BASF
Wyandotte Corp. v. Local 227, Int'l Chem. Workers Union,
AFL-CIO, 791 F.2d 1046, 1049 (2d Cir. 1986) ("by reason
of" payments include "vacation pay, sick pay, paid leave for
jury duty or military service, pension benefits, and the
like"); see also Toth v. USX Corp., 883 F.2d 1297, 1303 n.8
(7th Cir.) (severance pay and payments to disabled
employees are "by reason of" former employment), cert.
denied, 493 U.S. 994, 110 S.Ct. 544, 107 L.Ed.2d 541
(1989). Although not properly called compensation,"by
reason of" payments "arise from" the employee's services
for the employer.

Without the section 302(c)(1) exception, these payments
would be illegal if paid to any employee or former employee

                                14


who also worked for the union. Thus, an employee who
worked full time for the company, but who held a part-time
position with the union (a practice permitted by the
Supreme Court's decision in NLRB v. Town & Country Elec.,
Inc., ___ U.S. ___, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995)),
would be unable to be paid his salary and could not receive
fringe benefits -- despite working full time. Section
302(c)(1) plainly exists to enable company employees to
obtain what is rightfully theirs. In other words, the section
302(c)(1) exception does not entitle union representatives to
receive payments because of their service for the union; the
exception allows union representatives to receive payments
in spite of their current service for the union.

The key, however, is that the employee must receive the
compensation or other payment because of his or her
service for the employer. See, e.g., Phillips, 19 F.3d at 1575
("by reason of" payments "from an employer to a union
official must relate to services actually rendered by the
employee"); id. (under plain meaning of exception, "payment
given to former employee must be for services he rendered
while he was an employee"); BASF Wyandotte Corp. v. Local
227, 791 F.2d at 1049 ("by reason of" payments are those
"occasioned by the fact that the employee has performed or
will perform work for the employer, but which is not
payment directly for that work"); Reinforcing Iron Workers
Local Union 426 v. Bechtel Power Corp., 634 F.2d 258, 261
(6th Cir. 1981) (under "literal construction" of section 302,
payment to industry steward who performs services for
union, not employer, are unlawful). The payments at issue
in this case are entirely unrelated to the representatives'
services for the employer. I believe that the plain language
of the section 302(c)(1) exception does not encompass the
payments at issue here and that we must affirm the
judgment of the district court.1
_________________________________________________________________

1. The majority overstates the effect of our decision in Trailways Lines,
Inc. v. Trailways, Inc. Joint Council, Amalgamated Transit Union, 785
F.2d 101 (3d Cir.), cert. denied, 479 U.S. 932, 107 S.Ct. 403, 93 L.Ed.2d
356 (1986).

Section 302(c)(1) states that all payments made to union
representatives -- whether they are in direct compensation for services

                                15


II.

Because the plain language of the "by reason of"
exception of section 302(c)(1) does not contemplate the
payments at issue here, I would affirm the judgment of the
district court without further discussion. Nonetheless, as I
now digress briefly to relate, the legislative history and the
purpose of section 302 support my conclusion that the
payments at issue are unlawful.

As the majority recognizes, section 302 is a conflict-of-
interest statute that is designed to eliminate practices that
have the potential for corrupting the labor movement. Maj.
Op., at 11; see Phillips, 19 F.3d at 1574. As the majority
also recognizes, Congress was concerned about, inter alia,
bribery and other secret, back-room agreements between
employers and employee representatives. See Toth , 883
F.2d at 1300.

The majority does not go far enough, however.
Recognizing that "any person in a position of trust" must
not "enter into transactions in which self-interest may
conflict with complete loyalty to those whom they serve,"
Congress stated that "no responsible trade union official
_________________________________________________________________

(wages) or merely by reason of those services (vacation pay, jury pay, et
cetera) -- must somehow relate to those individuals' services for the
employer. The Trailways opinion did not merge "compensation for" and
"by reason of" as the majority suggests; it does not dispute the fact that
"compensation for" and "by reason of" complement each other and that
the "by reason of" exception covers certain payments that are not truly
compensation. Instead, in Trailways we recognized that certain
payments to former employees may no longer be justified once the
individual stops performing services for the employer.

This makes sense. For example, it is apparent that jury-duty pay is "by
reason of" an employee's services to the employer. It would be strange
indeed if a former employee who retired five years ago could demand to
be paid by the employer for his upcoming jury duty. As Trailways
recognizes, payments to former employees, whether as compensation for
or by reason of their former services, must be related to that former
service. Just as former employees are no longer entitled to "by reason of"
pay such as jury-duty pay, they should not be entitled to payments for
performance of union work that is entirely unrelated to their former
service. Accordingly, I see no reason to reverse our decision in Trailways.

                                16


should have a personal financial interest which conflicts
with the full performance of his fiduciary duties as a
workers' representative." S. Rep. No. 187, 86th Cong. 1st
Sess., reprinted in 1959 U.S.C.C.A.N. 2318, 2330-31
(quoting ethical practices code of American Federation of
Labor and Congress of Industrial Organizations). 2 Congress
desired to close the loopholes "which both employer
representatives and union officials turned to advantage at
the expense of employees." Id. at 2330.

When he introduced section 302 in 1947, Senator Ball
expressed a concern that even negotiated payments from
employers might "degenerate into bribes." 93 Cong. Rec.
4805 (1947), reprinted in II NLRB Legislative History of the
Labor Management Relations Act, 1947, at 1305 (1948)
(discussing welfare funds). Senator Ball stated that absent
section 302, "there is a very grave danger that the funds
will be used for the personal gain of union leaders." Id.
Senator Byrd echoed the concerns of Senator Ball, noting
that funds from the employer should not be "paid into the
treasuries of the labor unions." Id. According to Senator
Pepper, unless authorized in writing by each individual
employee (in the form of dues check-off), "union leaders
should not be permitted . . . to direct funds paid by the
company . . . to the union treasury or union officers." Id.
(quoting committee report).

Section 302 therefore exists to prohibit "all forms of
extortion and bribery in labor-management relations." BASF
Wyandotte Corp. v. Local 227, 791 F.2d at 1053 (emphasis
supplied) (quoting S. Rep. No. 187, 86th Cong. 1st Sess. 13,
reprinted in 1959 U.S.C.C.A.N. 2318, 2329). Congress was
concerned with corruption through both (1) bribery of
_________________________________________________________________

2. I rely on the legislative history of the Labor-Management Reporting
and Disclosure Act of 1959 (an act that strengthened section 302),
instead of the official history of the Labor Management Relations Act of
1947 (the act that contained section 302), because the Congressional
Comments to the Labor Management Relations Act do not include a
discussion of the provisions at issue here. See  H.R. Conf. Rep. No. 510,
80th Cong., 1st Sess. 66-67, reprinted in 1947 U.S.C.C.A.N. 1135, 1173.
In the text, I include the comments of three senators made prior to the
passage of section 302 that were not included in the official conference
report.

                                17


employee representatives by employers and (2) extortion by
those representatives. Toth, 883 F.2d at 1300 (citing
legislative history and cases). Congress explained:

          The national labor policy is founded upon collective
          bargaining through strong and vigorous unions.
          Playing both sides of the street, using union office for
          personal financial advantage, undercover deals, and
          other conflicts of interest corrupt, and thereby
          undermine and weaken the labor movement. . . . The
          Government . . . must make sure that the power [to act
          as exclusive bargaining representative] is used for the
          benefit of workers and not for personal profit.

S. Rep. No. 187, 86th Cong. 1st Sess., reprinted in 1959
U.S.C.C.A.N. 2318, 2331.

Thus, Congress was not merely concerned about secret,
back-room deals. Congress was concerned about any form
of payment that could upset the balance between labor and
management. The payments at issue in this case do exactly
that. They create a conflict of interest for union negotiators
who may agree to reduced benefits for the employees in
exchange for financial support for the union.

For example, let us assume that ABC Corporation and
the union are engaged in difficult negotiations over a
pension plan. Also assume that the employer was
stonewalling on this issue, that the union had the "correct"
position, and that the company could have accepted the
union's proposal without suffering noticeable financial
impact. Assume ABC said to the union negotiator: "I know
your local is having financial trouble. We will pay the
salaries of the grievance chairmen if you stop pushing for
this pension plan." The negotiator, who knows that her
local can no longer pay the full salaries of all the grievance
chairmen, agrees, and the pension plan is dropped in favor
of the financial security of the union. The agreement is
included in the bargaining agreement, and both the union
and ABC effectively "sell" the agreement to the employees,
who ratify it (not aware that the pension plan was sacrificed
in this way). According to the majority, this scenario is
perfectly lawful because it was included in the agreement.
According to the language, legislative history and purpose

                                18


of section 302, however, this scenario represents just what
Congress sought to avoid.

III.

As the majority concedes, the grievance chairmen in this
case do not perform any services whatsoever for
Caterpillar. Maj. Op., at 6. Instead, the chairmen perform
services exclusively for the union. The majority concludes,
however, that payments to such union employees are "by
reason of" the employees' services to the employer. First,
the majority reasons that such payments were negotiated
and appear in the collective bargaining agreement. Second,
the majority states that, because each employee must "give
up something" in negotiations with the employer so that
these payments may be included in the agreement, such
payments are somehow "by reason of" the employees'
service for the employer. Finally, the majority contends that
the payments at issue in this case are no different than so-
called "no-docking" payments made to current employees
who process employee grievances during working hours. I
do not believe that the majority's reasoning withstands
scrutiny.

The majority first relies on the fact that the payments
were negotiated and included in the collective bargaining
agreement. Maj. Op., at 9-11. Simply including a payment
provision in a collective bargaining agreement does not,
however, make the payment "by reason of" an employee's
prior service.

Section 302(a)(1) provides that it shall be unlawful for
any employer to "agree to pay" any money to any
representative of any of his employees. 29 U.S.C.
S 186(a)(1). Thus, actual payments to union representatives
are prohibited, but so are agreements to pay union
representatives. The majority places special emphasis on
the fact that the payments in this case were negotiated and
were not, in effect, secret agreements. Congress, on the
other hand, was not concerned about the secrecy of these
agreements. If an agreement to pay is unlawful under
section 302(a)(1), it is illogical to use that same agreement
as a basis for finding that the resultant payment is lawful

                                19


under section 302(c)(1). Congress could easily have written
an exception for payments by employers to union
representatives pursuant to a collective bargaining
agreement. Instead, Congress limited its section 302(c)(1)
exception to payments in compensation for or by reason of
a representative's services for the employer.3

The majority does not find support in the statute (and
indeed there is none) for its conclusion that bargained-for
payments should be any more legal than secret agreements.
Without support, the majority asserts that an open
agreement makes a payment "by reason of" services for the
employer. In so doing, the majority expands the exception
such that the rule is rendered a nullity.4 

The majority next reasons that since current employees
must surely "give up something" during negotiations in
exchange for an agreement by the employer to pay former
employees to perform union work, then those payments
must be "by reason of" their services. Maj. Op., at 9. The
majority contends that "the employees had to give up
something in the bargaining process that they otherwise
could have received . . . in exchange for a promise that, if
he or she should someday be elected grievance chairperson,
Caterpillar would continue to pay his or her salary." Id.

Under the majority's reasoning, the union and the
company could also agree to have the employer pay the
_________________________________________________________________

3. Senator Ball stated that the section 302(c)(1) exception allows
payment of "money due a representative who is an employee or a former
employee of the employer, on account of wages actually earned by him."
93 Cong. Rec. 4805 (1947), reprinted in II NLRB Legislative History of the
Labor Management Relations Act, 1947, at 1304 (1948) (emphasis
supplied). It is apparent that Senator Ball did not contemplate that the
narrow exception of section 302(c)(1) would someday encompass
payments to a former employee that are entirely unrelated to the
employee's services.

4. I am also concerned that by placing so much emphasis on the fact
that the payments were negotiated and included in the collective
bargaining agreement, the majority effectively permits employers and
unions to negotiate over otherwise unlawful subjects of bargaining. It is
beyond dispute that employers and unions cannot bargain over illegal
subjects of bargaining. Nonetheless, the majority uses the bargaining
process to legitimize a payment that is otherwise prohibited by statute.

                                20


salary of the international union's president and subsidize
the pension fund of the union's permanent staff-- all
because the company's employees might "give up
something" during negotiations in the hopes that they too
might someday receive those payments if elected to serve
the union in the proper capacity. In deciding that "giv[ing]
up something" is sufficient to bring the payments at issue
in this case within the "by reason of" exception contained
in section 302(c)(1), the majority has embarked on a
slippery slope that will legitimize virtually any type of
payment from the employer to the union so long as the
payment is negotiated and included in the collective
bargaining agreement.

The majority's reasoning violates the plain language of
section 302(c)(1) in yet another way. This section allows an
employer to make payments to a current or former
employee by reason of "his" services as an employee. 29
U.S.C. S 186(c)(1). The majority reasons that the payments
at issue in this case are lawful by reason of all of the
employees' collective service. This is contrary to the plain
meaning of the statute. If a union official is to be paid by
the employer, it must be by reason of that official's service
to the employer -- not because of the service of others who
might aspire to his position. Indeed, if the collective
bargaining agreement allowed, but did not require, that the
grievance chairperson be a former employee of the
company, then the company might find itself paying an
individual who was never an employee of the company by
reason of other employees' services for the company -- a
result clearly not permitted by section 302(c)(1). By relying
on the collective service of the employees, the majority
ignores the plain language of the statute.

I also fear that the majority's reasoning could be
construed to apply to several situations which would defy
logic. For example, let us assume that an individual applies
for (and obtains) a job with the employer. One day after
beginning work, the individual is elected grievance
chairperson. For the next thirty years,5  the individual
_________________________________________________________________

5. While the agreement in this case may contain a time restriction, that
restriction did not play any part in the majority's reasoning. Therefore,
I presume that an agreement that does not contain a time restriction will
not be unlawful under the majority's decision.

                                21


serves as grievance chairperson and performs no services
for the employer. Thus, the individual performed eight
hours' worth of services for the employer, but was paid by
the employer for thirty years. The majority's claim that this
individual is being paid for thirty years "by reason of" his
one-day service for the employer is illogical.

In another example, let us assume that two grievance
chairpersons are elected on the same day. One ("Michael")
worked for the employer for twenty years. The other
("Mary") was active in the union but never worked for the
employer. Under the collective bargaining agreement in this
case, the employer is required to pay Michael, but is
prohibited from paying Mary. At present, both Michael and
Mary perform exactly the same services, but Michael's prior
employment (for which he was already fully compensated)
entitles him to continued payment from the employer. 6

The majority's reasoning also fails as a matter of logic in
"open shops." In an open shop, not all employees governed
by the collective bargaining agreement will necessarily be
members of the union. An employee who is not a member
of the union (and who therefore cannot aspire to become a
grievance chairperson) will nonetheless be forced to endure
a lower salary or reduced benefits due to his co-workers'
decision to "give up something." In addition, unions will be
able to circumvent the problems that arise when some
employees elect not to join the union or pay union dues --
they will seek agreements from the employer to subsidize
representatives' salaries in exchange for reductions in pay
or benefits. These agreements will be negotiated and ratified
without the input of the non-union employees. Thus, an
employee who elects not to pay union dues may
nonetheless face reductions in salary or benefits so that the
_________________________________________________________________

6. Altering this example somewhat, let us assume that Michael worked
for twenty years before being elected grievance chairperson, but that
Mary worked one day. In this situation, the employer would be required
to pay both Michael and Mary. Michael, however,"gave up" significantly
more than Mary, as Michael worked for twenty years at reduced wages,
while Mary only worked one day. The employer does not take into
account what each individual gave up -- the employer considers what
the collective group gave up. I contend that the employer may not do
that under the plain terms of section 302(c)(1).

                                22


union (which he or she does not support) may prosper. The
payments at issue here are surely not "by reason of" the
non-union employees' services -- yet those same payments
are made possible by the non-union employees' reduced
salary and benefits.

IV.

Finally, the majority contends that since no-docking
provisions are lawful under section 302, the payments at
issue here should also be lawful. The majority writes that
"it would be strange indeed if Congress intended that
granting four employees two hours per day of paid union
leave is permissible, while granting a single employee eight
hours per day of that same leave is a federal crime." Maj.
Op., at 9.

In reasoning that the payments at issue here are
analogous to no-docking payments, the majority assumes
(without deciding) that no-docking provisions are lawful.
While some courts have so held, we have not yet addressed
the lawfulness of no-docking payments. Until we do so (and
until we explain our reasons for finding such payments
lawful), the majority should not analogize such payments to
those at issue here.

Assuming that no-docking provisions are lawful, however,
we are still not required to reach the conclusion that the
payments at issue in this case must also be lawful. Indeed,
there are substantial differences between no-docking
payments and the payments at issue here. The primary
difference is that no-docking payments are made to
individuals who are current employees of the company
currently performing services for the company. In contrast,
the payments at issue here are made to former employees
of the company not performing any services for the
company.

In BASF Wyandotte Corp. v. Local 227, 791 F.2d 1046,
the Second Circuit observed that payments made to current
employees for short absences (such as vacation pay, sick
pay, or military leave pay) are all made to current
employees "by reason of" their current, ongoing services for
their employer. The court then reasoned that payment to

                                23


current employees for short absences to perform union
work is no different from vacation pay, sick pay, and
military leave pay. Id. at 1049. Thus, no-docking payments
made to current employees who occasionally performed
union work during working hours should be treated the
same as other payments for short term absences.

Importantly, the court recognized that each of these
payments were made to persons whose entitlement to the
payments was "by reason of" current service. As the court
noted, "no-docking provisions have relevance only to
persons who are currently serving as employees." Id. at
1049 n.1. The common element linking sick pay and no-
docking pay "is simply that the person to whom the
employer makes payment is one who performs services as
an employee." Id. at 1049 (footnote omitted). If we assume
that no-docking payments are analogous to sick pay, we
must conclude that they can only be made to current
employees who perform services to their employers. This
makes sense -- former employees do not accrue sick pay or
vacation pay. Likewise, they should not accrue "union-
work-time pay." See also Phillips, 19 F.3d at 1575 n.18
(recognizing difference between no-docking provision and
payments to non-employees who perform no work for
company).

The majority cites several cases from our sister courts of
appeals where courts concluded that no-docking provisions
are lawful. In several of those cases, however, the courts
carefully distinguished no-docking payments from
payments made to union officials who did not perform work
for the company. In BASF Wyandotte Corp. v. Local 227,
Int'l Chem. Workers Union, AFL-CIO, 791 F.2d 1046 (2d Cir.
1986), for example, the court stated:

          [W]e do not suggest that section [302(c)(1)] would allow
          an employer simply to put a union official on its payroll
          while assigning him no work. . . . [A] union official
          who, though on an employer's payroll, performed no
          service as an employee, would not be within
          S 302(c)(1)'s exception.

Id. at 1050. In another case cited by the majority, the court
agreed that payments to a union official put on an

                                24


employee payroll but not assigned any meaningful work
would violate section 302. NLRB v. BASF Wyandotte Corp.,
798 F.2d 849, 856 n.4 (5th Cir. 1986).

The majority also cites Toth v. USX Corp., 883 F.2d 1297
(7th Cir.), cert. denied, 493 U.S. 994, 110 S.Ct. 544, 107
L.Ed.2d 541 (1989). There the court of appeals stated:

          At some point, it is conceivable that a bargain struck
          by the union and the employer might yet violate section
          302 -- if, for example, the terms of compensation for
          former employment were clearly so incommensurate
          with that former employment as not to qualify as
          payments "in compensation for or by reason of" that
          employment . . . .

Id. at 1305. As an example of a case that would violate
section 302, the court stated that "fulltime pay for no
service cannot reasonably be said to be compensation`by
reason of ' service as an employee." Id. (citing BASF
Wyandotte Corp. v. Local 227, 791 F.2d at 1050).

Indeed, the distinction between no-docking payments and
the payments at issue here is reinforced elsewhere in the
labor laws. For example, 29 U.S.C. S 158(a)(2) provides that
it shall be an unfair labor practice for an employer to
contribute financial support to any labor organization. This
rule contains one exception: "an employer shall not be
prohibited from permitting employees to confer with him
during working hours without loss of time or pay." Id.
Thus, while employers may allow employees to confer with
their employer during working hours without loss of pay,
the employer may not contribute financial support to the
labor organization. The rule bans the payments at issue
here; the exception allows no-docking provisions.

Other realities dictate that no-docking payments are
simply not analogous to the payments at issue here. For
example, employees subject to no-docking payments are
more likely to do union work on an "as needed" basis. They
are also more likely to be able to schedule grievance
meetings and other union work at the mutual convenience
of the employees and the employer. In contrast, the
grievance chairmen in this case are paid full time
regardless of whether there is any union work to be done.

                                25


They are never available to perform services for the
employer. Thus, the four individuals who spend two hours
per day performing union work (from the majority's
hypothetical) are less of a burden for the employer than one
employee's absence all day every day.

V.

While the majority emphasizes its policy determination
that bargained-for payments should not be unlawful, it
does not discuss several compelling policy reasons why we
should affirm the judgment of the district court. These
policy considerations go far beyond the need to avoid
conflict of interest among union negotiators, a policy that is
clear on the face of the statute and in the legislative
history.

Initially, as the majority recognizes, the grievance
chairperson will often take a position at odds with the
position of management. Maj. Op., at 6-7. Indeed, the
grievance chairperson is most needed when the employee's
position is adverse to the employer's. In order to be
effective, the grievance chairperson often willfight zealously
for the aggrieved employee and against the employer.
Meanwhile, the employer must pay the chairperson's
salary. It seems illogical to me to force the employer to pay
the salary of an individual whose sole function is to oppose
the employer.7
_________________________________________________________________

7. I recognize that the word "force" may be strong since the employer
need not agree to pay the grievance chairperson during negotiations.
Assuming that this pay practice is not unlawful, however, the practice
undoubtedly constitutes a mandatory subject of bargaining. NLRB v.
BASF Wyandotte Corp., 798 F.2d 849, 852-54 (5th Cir. 1986). Thus, if
the employer refused to accede to such a pay provision, the employees
could strike over this issue.

Indeed, those employees who may have the most influence in swaying
other employees' opinions regarding strike decisions are probably the
same individuals who are most likely to be elected to the position of
grievance chairmen. I envision the situation where an employee who
seeks the position of grievance chairperson may seek to insure that his
or her desired position is fully funded by the employer before he or she
accepts the position -- even if that means encouraging a strike. Even the
possibility that this might occur demonstrates the conflict of interest
that will surely arise among those individuals who may seek the funded
positions.

                                26


Next, by sanctioning an agreement whereby the company
pays grievance chairmen to perform services for the union,
the majority unnecessarily creates uncertainty over whether
the chairmen are employees of the union or employees of
the company. In NLRB v. Town & Country Elec., Inc., ___
U.S. ___, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995), the
Supreme Court addressed the question of who is an
employee under the NLRA. The Court favorably cited
several common definitions of "employee"-- including
"person in the service of another . . . where the employer
has the power or right to control and direct the employee
. . . ." Id. at ___, 116 S.Ct. at 454 (citation omitted). Under
this definition, a grievance chairperson appears to be an
employee of the union. Citing an excerpt from the NLRA's
legislative history, however, the Court noted that
"employee" includes "every man on a payroll." Id. at ___,
116 S.Ct. at 454 (citation omitted). Since grievance
chairmen remain on the company's payroll, perhaps they
remain employees of the company. The majority does not
decide whether the company or the union is the chairmen's
employer.8
_________________________________________________________________

8. This uncertainty will extend beyond cases arising under the NLRA.
The Supreme Court recently held that, under Title VII of the Civil Rights
Act of 1964, the test for deciding whether an employer "has" a particular
employee is whether the employer has "an employment relationship" with
the individual. Walters v. Metropolitan Educ. Enters., Inc., ___ U.S. ___,
117 S.Ct. 660, ___ (1997). The Court noted, however, that "the
employment relationship is most readily demonstrated by the
individual's appearance on the employer's payroll." Id. at ___, 117 S.Ct.
at ___; see also Equal Employment Opportunity Commission Notice No.
N-915-052, Policy Guidance: Whether Part-Time Employees Are
Employees (Apr. 1990), at 24, reprinted in 3 EEOC Compl. Man. (BNA),
at N:3311 (interpreting both Title VII and ADEA; while one's status as an
employee is defined by examining the employment relationship, "[t]he
payroll is a reliable indicator of those individuals who have an
employment relationship with the employer and therefore are
employees."). While grievance chairmen have an employment relationship
with the union (indicating that the employer is the union), their
relationship with the company is not completely severed, and they
continue to appear on the company's payroll (indicating that the
employer is the company).

I would note also that this is not a traditional dual-employer case
where both the union and the company may be considered employers of

                                27


The failure of the majority to decide whether the
grievance chairmen are employees of the union or the
employer may lead to numerous problems: Is a grievance
chairperson considered part of the bargaining unit while on
leave? Who will be liable if a grievance chairperson injures
a third party while performing union work? Who will be
responsible for providing a reasonable accommodation to a
grievance chairperson with a disability who needs
assistance performing her union job on the employer's
premises? What if a grievance chairperson decides to take
FMLA leave -- will his eligibility depend on whether the
union is an FMLA employer or whether the company is an
FMLA employer?9 If a grievance chairperson is injured while
performing union duties, will she nevertheless be entitled to
disability or workers' compensation from the company? May
the company terminate, suspend or discipline a grievance
chairperson if he engages in activity that would qualify for
termination, suspension or discipline for other employees?
These questions are admittedly outside the scope of the
narrow issue before us, but the majority's decision will
assuredly lead to innumerable disputes about the proper
classification of individuals who remain on the company's
payroll without performing any services for the company. If
we affirm the judgment of the district court, however, it is
clear that individuals who leave the company to work for
the union are union employees, and the above questions
resolve themselves.
_________________________________________________________________

the grievance chairmen. In the traditional dual-employer case, the
individual performs services for both the company and the union and is
paid by both the company and the union for the services performed for
the respective payor. In this case, in contrast, the individuals perform
services exclusively for one entity and are paid exclusively by another.

9. The Senate Report accompanying the Family and Medical Leave Act of
1993 states that the term "employ" means "maintain on the payroll." S.
Rep. No. 103-3, 103d Cong. 1st Sess. 22, reprinted in 1993 U.S.C.C.A.N.
3, 24 (individuals on leaves of absence are considered employees "so long
as they are on the employer's payroll."). It would seem, therefore, that
grievance chairmen are employees of the company for purposes of the
FMLA. The Report also states, however, that Congress desired that
"employ" under the FMLA mean the same as "employ" under Title VII. As
noted supra note 8, it is not clear whether the union or the company
employs grievance chairmen for the purposes of Title VII.

                                28


The final and most important policy consideration not
addressed by the majority is that federal labor policy
demands that labor organizations and employers remain
separate and distinct from one another. The majority would
sanction a pay practice that violates this important policy.

By enacting the labor laws as written, Congress insisted
that the NLRB and the courts observe a sharp line between
management and labor. NLRB v. Hendricks County Rural
Elec. Membership Corp., 454 U.S. 170, 192-93, 102 S.Ct.
216, 230, 70 L.Ed.2d 323 (1981) (Powell, J., concurring in
part and dissenting in part). Indeed, the dividing line
between management and labor is "fundamental to the
industrial philosophy of the labor laws in this country." Id.
at 193, 102 S.Ct. at 230; see also NLRB v. Bell Aerospace
Co., Div. of Textron, Inc., 416 U.S. 267, 284-85 n.13, 94
S.Ct. 1757, 1767 n.13, 40 L.Ed.2d 134 (1974) (recognizing
"traditional distinction between labor and management");
Packard Motor Car Co. v. NLRB, 330 U.S. 485, 494-95, 67
S.Ct. 789, 794-95, 91 L.Ed.2d 1040 (1947) (Douglas, J.,
dissenting) ("industrial philosophy" recognizes that
management and labor are "basic opposing forces");
Cedars-Sinai Medical Center v. Cedars-Sinai Housestaff
Assoc., 223 NLRB 251, 254 (1976) (Fanning, member,
dissenting) ("underlying Federal labor policy . .. seeks to
draw a line between labor and management"). Congress'
desire to preserve the distinction between labor and
management is evinced throughout the labor laws. See,
e.g., 29 U.S.C. S 158(a). I believe that allowing an employer
to provide financial support to a union, as the majority
does here, blurs the important line between labor and
management and creates the potential for conflict that our
labor laws do not tolerate.

VI.

I recognize that labor organizations and employers have
begun to embrace a more cooperative method of negotiating
and dispute resolution, and I applaud labor-management
efforts to retreat from the adversarial approach that has
often marred the labor landscape in this country. I believe,
however, that the payments sanctioned by the majority go
too far. The financial support sought by the United Auto

                                29


Workers in this case contravenes the longstanding tradition
of separation of labor and management. I accept and
encourage arm's length cooperation between labor and
management. I cannot condone payments that threaten the
independence of labor, create conflicts of interest for union
negotiators, and violate the plain language of our laws. It is
for Congress, not the courts, to determine if and when to
permit labor organizations and employers to blur the line
between them.

Accordingly, I respectfully dissent.

                                30


ALITO, Circuit Judge, dissenting:

If I were a legislator, I would not vote to criminalize the
payments to grievance chairmen that are at issue here. I
agree with the majority that these payments differ from the
corrupt practices that usually figure in prosecutions under
Section 302 of the Labor Management Relations Act, 29
U.S.C. S 186. Moreover, I am not certain that the Congress
that enacted Section 302 would have chosen to outlaw
such payments if it had focused specifically on that
question.

Our job, however, is to interpret Section 302 as it is
written. "The plain meaning of legislation should be
conclusive, except in the `rare cases [in which] the literal
application of a statute will produce a result demonstrably
at odds with the intentions of its drafters.' " United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571
(1982)). Here, the majority has not heeded the plain
meaning of Section 302 and has not shown that the literal
application of the statutory language would lead to a result
that is "demonstrably at odds" with congressional intent. I
therefore dissent.

As the majority acknowledges, Section 302 prohibits
Caterpillar from paying the grievance chairmen unless
those payments fall within one of the exceptions set out in
Section 302(c), 29 U.S.C. S186(c). See Maj. Op. at 4-5. The
exception at issue here is that contained in subsection
(c)(1), which applies to "any money or other thing of value
payable by an employer . . . to any representative of his
employees, . . . 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.
S 186(c)(1). The union argues that these payments fall
within this exception for three separate reasons: (1) they
are compensation for the grievance chairmen's current
service as Caterpillar employees; (2) they are compensation
for the grievance chairmen's former service as Caterpillar
employees; and (3) they are made "by reason of" the
grievance chairmen's former service as Caterpillar
employees. I briefly discuss each of these theories below.

                                31


I.

"As Compensation For" Current Service
as a Caterpillar Employee

Although the union's primary arguments appear to be
that the payments are made "as compensation for" or "by
reason of" the grievance chairmen's past service as regular
Caterpillar employees, the union also maintains that these
payments are legal because they may be viewed "as
compensation for" the grievance chairmen's work as current
Caterpillar employees. The union contends that the
grievance chairmen, who are officially on leaves of absence
from Caterpillar, are joint employees of Caterpillar and the
union. Among other things, the union notes that Section
302(c)(1) seems to contemplate such joint employment,
since it permits an employer, under certain circumstances,
to make payments to "any representative of his employees
. . . who is also an employee . . . of such employer." And the
union argues that under National Labor Relations Board
decisions the grievance chairmen qualify as joint
employees.

I find it unnecessary to reach the question whether the
grievance chairmen may be considered joint employees.
Assuming that they are, I am convinced that Caterpillar's
payments to them are not made "as compensation for" their
service as current Caterpillar employees. In their capacity
as grievance chairmen, they owe their complete loyalty to
the workers they represent. See Dist. Ct. Op. at 14-15.
They plainly work for the union and not for Caterpillar, and
as the majority notes, their representation of the workers
"often places them in a position adverse to Caterpillar's."
Maj. Op. at 6-7.1

It is noteworthy that the union's excellent brief, while
arguing strenuously that the chairmen are joint employees,
makes little effort to show that the pay and benefits they
receive are compensation for services performed for
Caterpillar. The union's brief merely states:
_________________________________________________________________

1. I note that the union's brief acknowledges that "the Union certainly
exercises primary control over the chairman and derives the primary
benefit from his work." Appellant's Br. at 45.

                                32


          Caterpillar . . . realizes substantial benefit from the
          chairman's work. As the record shows, the chairman's
          job . . . is "to make sure that contract works" and if he
          succeeds, "everyone benefits -- the workers, the
          Company and its production needs, and the Union."
          App. 260.

Appellant's Br. at 48.

This argument seems to me to obliterate the distinction,
which is surely significant in the real world, between
services performed for an employer and services performed
for a union. I do not question the proposition that "everyone
benefits" if the contract works; nor do I question the
proposition that the grievance chairmen can help to make
the contract work; but I do not think that it follows that the
work that they do should be regarded under Section
302(c)(1) as services performed for Caterpillar. By this
reasoning, everyone who helps to make the contract work,
including presumably the union officers, could be viewed as
working for Caterpillar. And since the union, as well as
Caterpillar, benefits when the contract works, everyone who
helps to make the contract work, including Caterpillar
officers and supervisors, could be viewed as working for the
union. Thus, the union's logic leads to preposterous
results. Therefore, regardless of whether or not the
chairmen may be technically considered to be joint
employees of both Caterpillar and the union, I reject the
argument that the payments in question here can be
permitted on the theory that they constitute payments
made to the chairmen "as compensation for" current
services performed by them for Caterpillar. See  Dist. Ct.
Op. at 16 n.14 (because chairmen perform no functions on
behalf of Caterpillar, payments are not for services rendered
by chairmen to Caterpillar whether or not they can be
considered current Caterpillar employees).

II.

"As Compensation For" Past Service
as a Caterpillar Employee

I agree with the majority that the payments made to a
grievance chairman do not constitute "compensation for . . .

                                33


his service" as a company employee prior to his selection
for a grievance position. This point can be demonstrated by
considering the following situation. Suppose that an
employee works for a number of years in a certain job
category and receives during that period the same wages
and other benefits as all the other employees in the same
job category with the same seniority. Suppose that the
employee is then selected to serve as a grievance chairman,
and that he then entirely ceases his prior work and devotes
his full time to grievance work, but continues to receive
wages and benefits from the employer. It is plain that the
wages and benefits that this employee receives after
becoming a grievance chairman are compensation for his
grievance work, not for the work that he did prior to his
selection as a grievance chairman. If these payments were
compensation for his prior work, then his compensation for
that work would exceed that of the other employees with
equal seniority who had labored in the same job category.
Moreover, if the payments were compensation for previously
completed work (in other words, if the payments had been
fully earned before the employee's selection as a grievance
chairman), the employee would presumably be entitled to
receive those payments if, instead of serving as a grievance
chairman, he went fishing. But of course that is not the
case.

Accordingly, I agree with the majority that the payments
at issue here are not compensation for a grievance
chairman's work prior to his selection for that position. As
the majority states: "[t]he chairmen were already
compensated for their production line work long ago in the
form of wages and vested benefits." Maj. Op. at 7. "It is
difficult indeed to comprehend how years, even decades, of
paid union leave can realistically be thought of as
compensation for time spent on the factory floor." Maj. Op.
at 8.

III.

"By Reason Of" Past Service as a Caterpillar Employee

While the majority holds that the payments to the
grievance chairmen are not "compensation" for their past

                                34


service, the majority concludes that the payments are
"payable . . . by reason of" the grievance chairmen's former
service as Caterpillar employees. In reaching this
conclusion, however, the majority does not explain with any
specificity what it understands the phrase "by reason of" to
mean. Nor does the majority take note of the clear meaning
of that phrase in common parlance. If the majority paid
more attention to the meaning of this language, it would be
forced to recognize that the payments in dispute here are
not made "by reason of" the grievance chairmen's past
service as Caterpillar employees.

A. Dictionaries define the phrase "by reason of" to mean
"because of" or "on account of." See The Random House
Dictionary of the English Language 1197 (1967); 2 The
Compact Edition of the Oxford English Dictionary 2431
(1971). When x is said to have occurred "by reason of" y,
what is usually meant is that y was, if not the sole cause
of x, at least the or a major cause. If y was simply a "but-
for" cause but not a major cause of y, x is not said to have
occurred "by reason of" y.

This pattern of usage can be demonstrated by
constructing sentences that use the phrase "by reason of"
to refer to weak "but-for" causes. Such sentences invariably
seem inapt and make it apparent that this use of the
phrase "by reason of" is inappropriate. Here are some
examples.

President Clinton could not have become President had
he not reached the age of 35, but it would be ridiculous to
say that he became President "by reason of" having
attained his thirty-fifth birthday.

The Green Bay Packers could not have won Super Bowl
XXXI without defeating the San Francisco Forty-Niners in
the first round of the playoffs. However, it would seem quite
odd to say that the Packers won the Super Bowl "by reason
of" defeating the Forty-Niners.

The judges of this court almost certainly would not have
been appointed if they had not graduated from law school.
Yet it would seem very strange to say that the judges of this
court were appointed "by reason of" having obtained law
degrees.

                                35


I believe that these examples show that the phrase"by
reason of x" refers at a minimum to a major reason for x,
not simply a relatively minor "but-for" cause, and it
therefore seems clear that Caterpillar's payments to the
grievance chairmen are not made "by reason of" their prior
service as Caterpillar employees. Such past service may be
necessary for election as a grievance chairman (perhaps
because Section 302 is thought to require this) and thus to
the receipt of the payments at issue, but past service as a
regular Caterpillar employee is certainly not the or a major
cause for the payments.2 One way to see this is to consider
the fact that Caterpillar has thousands of former
employees, but only a very few of them are ever selected as
grievance chairmen. Since all have prior service for the
company in common, yet only a handful become chairmen,
factors other than prior service for the company must be
much more important in influencing their selection.

B. It should be noted that nowhere in its briefs does the
union urge that the phrase "by reason of" should be
interpreted as requiring merely "but-for" causation. In fact,
the government's brief supporting the union agrees with my
interpretation of "by reason of". Gov't Br. at 12 (discussing
"common understanding of `by reason of,' as synonymous
with `because,' `on account of,' `owing to,' `due to' etc."). See
also Appellant's Reply to Suppl. Br. at 3 ("there is no
question" that "an employer may pay a former employee
who is also a union official what he is owed because of his
service as an employee and not one cent more") (emphasis
in original) (quotation omitted).

Rather, the union's argument is that "the most natural
reading [of `by reason of'] is that this phrase refers to
payments which an individual earns the right to receive by
serving as an employee but which are not, strictly
_________________________________________________________________

2. In Trailways Lines, Inc. v. Trailways, Inc. Joint Council, Amalgamated
Transit Union, 785 F.2d 101, 106 (3d Cir.), cert. denied, 479 U.S. 932
(1986), we noted that "[w]hile the Union is correct in asserting that had
these individuals never been Trailways' employees they would not be
eligible for pension contributions made on their behalf, it does not
therefore follow that the pension fund contributions made by Trailways
. . . were made `in compensation for, or by reason of,' their former service
to Trailways . . . ."

                                36


speaking, remuneration for particular hours of work."
Appellant's Br. at 21 (emphasis added). Accord id. at 34 ("so
long as the right to such payments is earned by previously
having performed `service to the employer' "); Appellant's
Reply Br. at 18-19 (" `preexisting wage and benefit
payments' for an employee elected to a full-time union
position qualify as `payments by reason of' service as an
employee, at least where the right to such payments has
been collectively bargained and accrued as a result of the
employee's work for the employer.") (emphasis added) (other
emphasis omitted); id. at 21 (the "by reason of" exception
"leaves no room for payments which were not earned by
prior service"). The union contends that the Eleventh
Circuit's opinion in United States v. Phillips , 19 F.3d 1565
(11th Cir. 1994), cert. denied, 115 S. Ct. 1312 (1995),
supports its position that Caterpillar's payments to the
chairmen were "by reason of" their service as Caterpillar
employees. Phillips held that payments by a company to a
union official were illegal if the union official "did not have
a right to such payment before he severed his employment
relationship with the company." Id. at 1575. The union
relies (Br. at 37) on the court's explanation that"[w]hen an
employee's right to a benefit has fully vested before the
leave of absence begins, there is no danger of corruption
when the employer delivers the benefit after that employee
leaves the company to work for the union . . . ." Id. at 1576.

I agree that a payment from Caterpillar to a former
employee now working as a grievance chairman would be
legal under Section 302 if the chairman's right to that
payment vested before he became a former employee. This
interpretation of the "by reason of" exception has been
adopted by several other courts of appeals. See Phillips, 19
F.3d at 1575; Toth v. USX Corp., 883 F.2d 1297, 1303 n.8
(7th Cir.), cert. denied, 493 U.S. 994 (1989). Cf. BASF
Wyandotte Corp. v. Local 227, Int'l Chem. Workers Union,
791 F.2d 1046, 1049 (2d Cir. 1986).

But the union's argument fails on its own terms here,
because it is simply not true that the chairmen's rights to
receive the payments at issue vested before they left
Caterpillar's employ. On the contrary, their rights to receive
these payments are conditioned upon their performance of

                                37


certain duties in their current positions as grievance
chairmen. If, as the union argues, the chairmen's rights to
these payments were earned before their employment with
Caterpillar terminated, then the chairmen could gofishing
all day, every day, instead of processing grievances. Here,
contrary to the government's argument, see Gov't Br. at 16,
the payments made by Caterpillar are measured by the
chairmen's current services for another employer, i.e., the
union; they can earn as much as 46 hours' pay if they
perform sufficient work, but if they perform less work they
receive less and if they perform no work -- if they just go
fishing -- they get nothing at all. In this respect, then, this
case is identical to Trailways, and the union fails
completely in its attempt to distinguish it on the ground
that the chairmen are paid at a rate set by Caterpillar
rather than by the union.

The basic problem with the union's argument is that it
confuses an employee's eligibility for a payment with his
right to it. The chairmen's prior service as employees of
Caterpillar rendered them eligible to receive their
Caterpillar salaries if they were elected as chairmen, but
their prior service in no way gave them any right to receive
any amount of money. In my view, it is obvious that their
prior service is not the sole or even a major reason for their
receipt of the disputed payments. It thus cannot be said --
absent outright linguistic torture -- that the payments are
made "by reason of" their prior service.

C. The majority's main argument in support of its"by
reason of" holding is that under the collective bargaining
agreement "every employee implicitly gave up a small
amount in current wages and benefits in exchange for a
promise that, if he or she should someday be elected
grievance chairperson, Caterpillar would continue to pay
his or her salary." Maj. Op. at 9. In other words, the
majority views the collective bargaining agreement as
providing each employee with the contingent right to receive
future payments from the company after that employee's
regular service has terminated (the contingencies being the
employee's selection and subsequent work as a grievance
chairperson). Moreover, the majority appears to argue that
a bit of each employee's work under the collective

                                38


bargaining agreement goes to pay for this contingent right,
and the majority therefore reasons that if an employee is
later selected as a grievance chairman and receives salary
and benefits from Caterpillar, those payments are received
"by reason of" the bit of that employee's past service that
went to pay for this contingent right.

This argument is inventive -- but wrong. At the outset, it
should be noted that the majority's argument logically leads
to strange results that the majority does not seem to
contemplate. The majority's argument is dependent on a
grievance chairman's having "paid," while working as a
regular employee, for the contingent right to receive future
payments from the employer. Thus, the argument cannot
justify the initial negotiation of a collective bargaining
agreement containing a provision such as the one in
question here. Suppose that a particular company and
union had never before agreed on an arrangement under
which the company would pay the grievance chairmen but
that the company and the union then enter into such an
arrangement. The first group of employees chosen as
grievance chairmen would not have previously made any
"payments" to the employer in exchange for the contingent
right to receive future wages and benefits from the
employer. Therefore, even under the majority's theory, the
company's payments to the initial group of grievance
chairmen would be illegal. In other words, the majority's
theory leads logically to the weird result that the company
and the initial group of grievance chairmen would have to
commit federal felonies in order to set in motion the type of
arrangement that the majority sanctions.3 

Moreover, although the majority postulates that regular
employees "pay" for the contingent right to receive future
compensation from the employer, it is by no means clear
that this is true in most cases. Obviously, each regular
employee gives up wages and/or other benefits in exchange
for the employer's payments to the grievance chairmen, but
what each regular employee is chiefly "paying" for is not the
contingent right to receive future payments from the
_________________________________________________________________

3. I would assume that the same would be true every time a new
collective bargaining agreement took effect.

                                39


employer but rather the current improvement in the
handling of grievances that presumably results from the
work of the grievance chairmen. Indeed, under most
circumstances, I suspect that virtually all, if not all, of the
"payments" made by a regular employee in any particular
year go to fund the employer's payments to the grievance
chairmen in that year and not in future years when that
employee might himself be a grievance chairman. 4

Finally and most importantly, postulating that each
regular employee "pays" something for the contingent right
to future compensation by the employer does not obviate
the problem that past service as a regular employee is not
the sole or even a major cause of this future compensation.
Assuming that each regular employee makes such
"payments" and that the payments are a but-for cause of
any compensation that this employee may receive in the
future as a grievance chairman, there are two other, more
important causes of that compensation: selection as a
grievance chairman and the satisfactory performance of the
_________________________________________________________________

4. It makes sense that a regular employee should pay little if anything for
the contingent right discussed in the text (as distinct from a current
improvement in grievance handling) because, from the standpoint of a
wealth-maximizing regular employee, this contingent right has little if
any value. This is so for two reasons. First, this contingent right carries
little prospect of financial gain. A regular employee, if selected as a
grievance chairman, will have to make future contributions of labor
(performing the work of a grievance chairman) that are fully worth the
wages and benefits that the employer will provide. (Indeed, under the
collective bargaining agreement before us here, a regular employee
selected as a grievance chairman does not realize any gain in wages or
benefits; he continues to receive the same wages and benefits as he did
before.) Second, this contingent right probably does little to increase an
employee's chances of obtaining whatever non-monetary gratification
may flow from doing the work of a grievance chairman as opposed to the
work of a regular employee. Assuming that employees in a particular
bargaining unit who are willing to forgo $x per year in exchange for their
employer's payments to the grievance chairmen would be willing to pay
the same amount per year in increased union dues so that the union
could make these payments, there will be approximately the same
number of grievance chairman positions (and therefore approximately an
equal chance of performing the work of a grievance chairman) whether
or not the grievance chairmen are paid by the employer.

                                40


work of a grievance chairman on a daily basis. Thus, to say
that a grievance chairman is paid year after year after year
"by reason of" his past service as a regular employee
makes no more sense than to say that a regular employee
is paid year after year after year "by reason of" his having
acquired the qualifications that were necessary for his
original hiring.

For these reasons, it seems clear to me that the
payments at issue in this case are made "by reason of" the
chairmen's grievance work and not "by reason of" their
prior service as regular employees. Consequently, these
payments cannot be squeezed into the "by reason of"
exception in Section 302(c)(1), 29 U.S.C. S186(c)(1), and I
am therefore constrained to conclude that these payments
are prohibited by the plain language of Section 302.

D. The majority also argues that by exempting
payments made "by reason of " a former employee's past
service in addition to payments made "as compensation for"
that service, Congress must have intended that the two
phrases refer to different things. I have no quarrel with this
elementary principle of statutory interpretation, but I do
not agree with the majority's application of it. The majority
fails to acknowledge that three courts of appeals have
construed "by reason of " to refer to a class of payments
distinct from those covered by the "as compensation for"
exemption, and that those courts have not adopted
anything like the interpretation espoused by the majority.
Because the Eleventh Circuit's discussion in Phillips
precisely answers the majority's contention, I quote it at
length:

          Congress, in using the alternative formulations of"as
          compensation for" and "by reason of" in that provision,
          intended to remove from the statute's prohibitions two
          general categories of payments to employees: (1) wages,
          i.e., sums paid to an employee specifically "as
          compensation for" work performed; and (2) payments
          not made specifically for work performed that are
          occasioned "by reason of " the fact that the employee
          has performed (or will perform, in the case of a current
          employee) work for the employer. The latter category
          includes employee "fringe" benefits, such as vacation

                                41


          pay, sick pay, and pension benefits. Whether "as
          compensation for" or "by reason of" service to an
          employer, all payments from an employer to a union
          official must relate to services actually rendered by the
          employee for the section 186(c)(1) exception to apply.
          * * *

          An employee's "right" to receive a "benefit" while on
          leave with the union has been upheld when it vested
          before the employee began the leave of absence . . . . In
          contrast, the section 186(c)(1) exception does not apply
          when a company pays a union official who was a
          former employee, but who did not have a right to such
          payment before he severed his employment relationship
          with the company.

19 F.3d at 1575 (first and third emphases added) (citations
omitted). BASF Wyandotte Corp., on which Phillips
principally relied, deemed "fring[e] benefits" such as
"vacation pay, sick pay, paid leave for jury duty or military
service, pension benefits, and the like" to be within the "by
reason of" exception. 791 F.2d at 1049. Accord Toth, 883
F.2d at 1303 n.8 (severance payments are "by reason of"
former employee's past service). These decisions are
consistent with Trailways' holding that the payments to
former employees contemplated by section 302(c)(1) are
those that relate to "past services actually rendered by
those former employees while they were employees of the
company." Trailways, 785 F.2d at 106 (emphases in
original).

Thus, the distinction between the "alternative
formulations" is that "compensation" refers to wages paid
for specific work performed, while "by reason of" refers to
non-wage payments made after an employee becomes a
former employee but earned while he or she was still an
employee.5 In contrast to the Second, Seventh, and
_________________________________________________________________

5. In Toth, the Seventh Circuit interpreted our decision in Trailways as
resting on the proposition that "any compensation continuing beyond the
time of an employee's `past' employment could not be `by reason of'
[that] employment." 883 F.2d at 1302. While I am less confident than the
Toth court that Trailways should be read so to hold, I agree with the

                                42


Eleventh Circuits, the majority here holds that the "by
reason of" exception refers to wage payments that would
not be made but for the recipient's prior service as an
employee.

E. The only justification for disregarding the plain
meaning of the "by reason of" exception would be that it
would produce "a result demonstrably at odds" with
congressional intent or "would thwart the obvious purpose
of the statute." Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982) (quotation omitted), but the majority does
not even attempt to make such a showing. I see nothing
that demonstrates that following the plain meaning of the
statutory language would produce a result that is
demonstrably at odds with Congress' intent. I find nothing
conclusive in the legislative history, and while I agree with
the majority that the payments in question here are quite
different from "bribery and extortion," Maj. Op. at 11, there
are reasons, many of which are set out in Judge
Mansmann's opinion, why Congress might have wished to
preclude such employer payments. I will simply note that
this very case serves as an example of why Congress might
have wanted to prohibit the payments at issue. The
majority's description of these payments as "innocuous"
(Maj. Op. at 7) ignores the fact that Caterpillar's decision to
stop paying the chairmen's salaries was designed to "put
economic pressure on the Union" during the strike. (App.
144) Prohibiting company control over such payments
furthers the goal of union independence by removing this
weapon from the company's arsenal. In short, while I am
unsure whether this prohibition is on balance desirable or
undesirable, I am certain that it is far from absurd. The
"explicit statutory direction" that the majority purports to
find wanting (Maj. op. at 11) is plainly contained in the text
of Section 302.
_________________________________________________________________

Toth court that some payments made after the termination of the
recipient's employment with the company can be made"by reason of"
his or her prior employment. What is important is whether the recipient
has a right to the payment before he or she leaves the company, not the
date on which the payment is actually made or received. See Toth, 883
F.2d at 1302 (criticizing Trailways for this reason).

                                43


The history of "no docking" provisions, which seems to
form the centerpiece of the union's submission, also does
not persuade me to disregard the plain statutory language.
"No docking" provisions differ, at least in degree, from the
type of arrangement that is before us, and there are times
in the law when differences in degree are dispositive. In any
event, the legality of "no docking" provisions is unsettled;
that question is not before us; and, like Judge Mansmann,
I would not reach it here.

Since Section 302 is a criminal statute, I would apply the
rule of lenity if I thought that the statutory language was
ambiguous, see, e.g., Crandon v. United States, 494 U.S.
152, 158 (1990), but since I see no ambiguity, Ifind that
rule inapplicable. See Reno v. Koray, 115 S. Ct. 2021, 2029
(1995), (rule of lenity applies only "if, `after seizing
everything from which aid can be derived,' we can make `no
more than a guess as to what Congress intended' ")
(citations omitted). I would therefore affirm the decision of
the district court. If this result is not desirable as a matter
of public policy, the union and its amicus, the United
States, surely understand how to seek correction in 
Congress.6

A True Copy:
Teste:

          Clerk of the United States Court of Appeals
          for the Third Circuit
_________________________________________________________________

6. Indeed, the government's amicus brief seems at places to amount to
a request that we craft a legislative solution to the problem of collective
bargaining agreements that call for employers to make payments to
former employees who become union officials. According to the
government's brief, such payments may violate Section 302 if they are
"incommensurate" with the recipient's former compensation as a regular
employee, if the recipient negotiated the right to receive those payments,
or if the recipient has not worked for the employer in his or her regular
job for an extended period and is unlikely ever to return to such work.
U.S. Amicus Br. at 26-28. These may be sensible rules, but I am unable
to tease them out of the current language of Section 302. They provide
material for legislative, not judicial, consideration.

                                44