that 'as long as such 'representative' does not receive from the employer 'any money or other thing of value,' there is no violation of Section 302.'
In the case of Local 2 Operative Plasterers, etc. v. Paramount Plastering, Inc., 9 Cir. 1962, 310 F.2d 179, cert. den. 372 U.S. 944, 83 S. Ct. 935, 9 L. Ed. 2d 969 the Court pointed out, at p. 186, that 'costs of apprenticeship training had been held a lawful purpose in South Louisiana Chapter * * *' and that "Congress * * * has been required to spell out its intent in order that courts will not strike down, as illegal, labor and management-agreements, such as the one in suit, which promote harmony in an industry and redound to the benefit of the employer and employee alike.' But until Congress has spelled out such an intent, with respect to the activities specifically exempted, it is not the function of the courts to create additional exemptions. * * * Congress proscribed certain practices and permitted others in labor-management agreements, and permitted 'joint trust funds for certain purposes only." The fund to be created under the agreement in suit would be a trust fund, but subject to administration, for as yet undisclosed purposes, by the plaintiff International and the defendant employer. Such a fund is not authorized by Section 302.
ITT insists, however, that because the purpose for which the fund mentioned in the Strike Settlement Agreement is not within the expressed exceptions to the proscriptions of Section 302, the agreement must be deemed to provide for a violation of the Section because the fund is to be administered jointly by the employer and the plaintiff labor organization. Citing Mechanical Contractors, supra, and Bey v. Muldoon, D.C.Pa.1962, 217 F.Supp. 401, ITT argued that 'the proscribed act of 'paying or agreeing to pay * * * to any labor organization' (Section 302(a)) when read contextually has reference not only to direct payments to Unions and Union officials, but also to payments into any fund over which the Union has control.' In Mechanical Contractors, supra, 265 F.2d at p. 611, Judge Staley summarized the essence of Section 302 in the following language:
'No fund derived from employer contributions may be administered by persons designated by a union unless the fund meets the standards set forth in Section 302(c)(5).'
It is obvious that the agreement which we are considering contemplates, if it does not expressly direct, that payments from the fund to be established may be made only with the joint approval of the employer and the plaintiff International. If this provision is to be equated with the statement that the fund is to be administered by persons designated by the International, either jointly with or to the exclusion of representatives of the employer, then by Judge Staley's pronouncement, the establishment of the fund could serve no lawful purpose, and therefore the defendant should not be required to establish it.
In the Paramount Plastering case, supra, the agreement between the association of employers and the defendant unions called for the payment by the employers to a corporation representing its employees of 4 3/4 cents for each hour a man is to receive pay, pursuant to the terms of a collective bargaining agreement. The Court of Appeals affirmed the District Court in holding that the payments provided for by the terms of the agreement between the association of employers and the corporation representing their employees was violative of the provisions of Section 302, and that the action was appropriately instituted under the Declaratory Judgments Act.
In Mechanical Contractors, supra, the Third Circuit held that the union members of a joint board to administer a labor-management industrial fund to which the association of contractors agreed to contribute, were representatives of the employees of the members of the association within the proscription contained in Section 302. The agreement in that case required all employers to contribute 19 cents for each hour worked by each of its employees to a fund deposited in a stipulated bank to be administered by a joint board of trustees consisting of three members to be appointed by the contractors' association and three by the union. Mechanical Contractors, supra, as well as Paramount Plastering, supra, followed United States v. Ryan, 1956, 350 U.S. 299, 76 S. Ct. 400, 100 L. Ed. 335, which held that the term 'representative' used in Section 302 includes any person authorized by the employees to act for them in dealings with their employers and that a narrow reading of the term would substantially defeat the Congressional purpose.
In the case at bar the fund contemplated by paragraph XIV is to be established by the defendant employer 'subject to application by the Company and the International Union for the purpose of equalizing rates as between comparable job classifications in the three bargaining units.' The agreement in suit fails to prescribe the mechanics by which the fund is to be established and applied. Assuming that the 'establishment' of the fund contemplates setting it up on the books of the employer, there is no provision for the deposit of the amount so set up in any specific or separate bank account under the power of withdrawal by either of the parties, and no method is provided for the application of the fund 'by the Company and the International Union' in the equalization process. As recently as May 1, 1963, the president of Local 400 wrote to the president of the plaintiff International pointing out that the 2 cents equalization fund provision of the 1961 Strike Settlement Agreement was then still an unresolved problem and requesting that the International call all interest union parties together either separately or collectively, 'for testimony on' the subject.
On the other hand, in his affidavit of April 20, 1964, the president of Local 400 states in part, with respect to the establishment of the fund referred to in the Strike Settlement Agreement, and in the complaint herein, that 'what was left unresolved was the application of this fund to effect equalization of rates as between comparable job classifications as referred to in the agreement. The letter from Weihrauch to Carey dated May 1, 1963 * * * in referring to what was unresolved in the inequity fund, was referring to the application and not establishment of the fund. Agreement had been reached as to establishment of a fund in a dollar amount, computed as provided in Article XIV * * *.'
The provisions of the Strike Settlement Agreement which refer to the equalization fund fail to indicate when, upon what basis, in what respective amounts, by whom or to whom moneys from the fund are to be paid. The relationship of the respective prospective payors and payees to the parties to the agreement is not stated therein. This indefiniteness and incompleteness of the Agreement make it impossible to effectively require specific performance of its terms. Nothing is said as to how the fund is to be established or administered, except that it 'shall be subject to application by the Company and the International Union'. Neither is the nature or extent of the participation of each of the parties to the agreement in the determination of the identity of the recipients or amounts of payments from the fund either specified in or inferable from the language of the Agreement.
The absence of any time limitation in the Agreement for the establishment of the fund is not to be construed as precluding the performance of the Agreement, assuming that it is enforcible, and that it is susceptible of performance within the year contemplated by N.J.S.A. 25:1-5. Consequently that statute does not avail the defendant as a defense to the present action.
With respect to the contention of the defendant that the plaintiff lacks standing to enforce the provisions of the Strike Settlement Agreement, the Seatrain case, supra, is precedent to the contrary.
A copy of the complete Strike Settlement Agreement is before me. It expressly provides that the collective bargaining agreements between the parties, which expired September 25, 1961, shall be continued in full force and effect for a term running from the date of ratification to September 9, 1964, except as modified by the Strike Settlement Agreement. The collective bargaining agreements so extended provided for arbitration and for the selection and replacement of an arbitrator. The agreement recites that it is recognized that for purposes of efficiency it may become necessary to move work from the bargaining unit of one of the facilities of the employer to the bargaining unit of another, and provides that when this occurs, it shall be subject to rules established by the International and the Company. Because the parties were eager to terminate the strike as rapidly as possible, they agreed to defer establishment of specific rules to be applied when the inter-unit movement of work occurred. The parties agreed to meet to discuss these rules, and if, after sixty days, there were any differences as to the rules to be established, either party might request the arbitrator to resolve such differences, and his award would be final and binding.
It appears to the Court that the Strike Settlement Agreement, by its very terms, is incomplete, particularly with regard to the establishment and application of the equalization fund. It further appears that the parties expressly contemplated that they would further negotiate after they had secured the settlement of the strike, for the purpose of setting up rules relating to the transfer of labor between units and the application of the contemplated equalization fund. Evidently the parties have neglected to further negotiate as they agreed, or their negotiations, if any, have proved unproductive. Under such circumstances, by the terms of the Strike Settlement Agreement the parties were required to submit their problem to the arbitrator. There is nothing before the Court to indicate what, if any, efforts have been made to adopt the rules necessary to render effective and enforcible the bare contract provision that an equalization fund be established. Accordingly, defendant's motion to dismiss the action on the ground that the complaint fails to state a claim against the defendant upon which relief can be granted must prevail.
Joined with its motion to dismiss under Rule 12(b)(6) is defendant's motion for summary judgment under Rule 56(b) for summary judgment. Rule 12(b) provides that 'if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, * * *.' Decision in favor of movant on the Rule 12(b)(6) motion does not preclude consideration of the motion under Rule 56(b). Gager v. ' Bob Seidel', 1962, 112 U.S.App.D.C. 135, 300 F.2d 727, 731. Finding no genuine issue as to any material fact, and that defendant is entitled to judgment as a matter of law that the establishment of the equalization fund provided for in Paragraph XIV of the Strike Settlement Agreement in suit is violative of Section 302, defendant's motion for summary judgment is granted, and plaintiff's cross-motion for summary judgment is denied.
An order may be presented in conformity with the conclusions expressed in this opinion.