Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-1996

Beverly Entr PA Inc v. Dist 1199C
Precedential or Non-Precedential:

Docket 95-2025




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Recommended Citation
"Beverly Entr PA Inc v. Dist 1199C" (1996). 1996 Decisions. Paper 125.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/125


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ____________
                           No. 95-2025
                           ____________

              BEVERLY ENTERPRISES-PENNSYLVANIA, INC.,
        d/b/a STENTON HALL NURSING AND CONVALESCENT HOME,

                                                   Appellant,

                               vs.

          DISTRICT 1199C NATIONAL UNION OF HOSPITAL AND
         HEALTH CARE EMPLOYEES, AFSCME, AFL-CIO; NATIONAL
           UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES,
                         AFSCME, AFL-CIO,

                           ___________

           Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                   (D.C. Civ. No. 95-cv-04755)
                           ___________

                       Argued June 6, 1996
         Before: BECKER and MANSMANN, Circuit Judges, and
SCHWARZER, District Judge

                      (Filed July 29, 1996)




                        J. FREEDLEY HUNSICKER, JR., ESQUIRE
                        (ARGUED)
                        Drinker Biddle & Reath
                        1345 Chestnut Street
                        Philadelphia, PA 19107-3496

                        HUGH L. REILLY, ESQUIRE
                        Chief Counsel for Labor & Employment
                        Beverly Enterprises
                        5111 Rogers Avenue
                        Ft. Smith, AR 72919

                        Attorney for Beverly Enterprises-
                        Pennsylvania, Inc. d/b/a Stenton
                        Hall Nursing and Convalescent Home,
                               Appellant

                        GAIL LOPEZ-HENRIQUEZ, ESQUIRE
                        (ARGUED)
                        Freedman and Lorry, P.C.
                        400 Market Street, Suite 900
                        Philadelphia, PA 19106

                        JAMES B. COPPESS, ESQUIRE
                        815 16TH Street, NW
                        Washington, D.C. 20006

                        MARSHA S. BERZON, ESQUIRE
                        Altshuler, Berzon, Nussbaum,
                        Berzon and Rubin
                        177 Post Street, Suite 300

                        San Francisco, CA 94108
                        Attorney for District 1199C, National
                        Union of Hospital and Health Care
                        Employees, AFSCME, AFL-CIO and National
                        Union of Hospital and Health Care
                        Employees, AFSCME, AFL-CIO, Appellees
                           ___________

                       OPINION OF THE COURT
                           ___________

SCHWARZER, District Judge:

         Beverly Enterprises-Pennsylvania, Inc., brought this action under
Section 301 of
the Labor-Management Relations Act, 29 U.S.C.   185(a) and (c)(2), for a
declaration that the
union security clause in its collective bargaining agreement violates
Section 8(a)(3) of the
National Labor Relations Act of 1935 (NLRA), 29 U.S.C.   158(a)(3). The
defendant unions
are District 1199C of the National Union of Hospital and Health Care
Employees and the
National Union itself. The defendants are labor organizations and Beverly
is an employer within
the meaning of the NLRA, 29 U.S.C.   152(2), (5). Beverly's complaint
alleges that the clause is
void and unenforceable under Communications Workers v. Beck, 

(1988).
Assuming subject matter jurisdiction, the district court dismissed for
lack of standing by Beverly.
We will affirm, but on a different ground.
         Beck was an action brought by a group of employees against their
union. The
plaintiff employees alleged that the union had violated Section 8(a)(3),
the duty of fair
representation, and their First Amendment rights, by using dues paid by
them under the
compulsion of a union-security clause in the collective bargaining
agreement for noncollective
bargaining activities. The Supreme Court held that the Section 8(a)(3)
claim "falls squarely
within the primary jurisdiction of the [NLRA]," but that the "court was
not precluded . . . from
deciding the merits of this claim insofar as such a decision was necessary
to the disposition of
respondents' duty-of-fair-representation challenge." 

. The Court noted
that the employees were not trying to circumvent the primary jurisdiction
of the Board, but were
claiming that the union failed to represent their interest fairly by
negotiating and enforcing an
agreement not in their interests and explained: "The necessity of
deciding the scope of 8(a)(3)
arises because [the unions] seek to defend themselves on the ground that
the statute authorizes
precisely this type of agreement." 

it most charitably, Beverly's claim turns Beck on its
head. It does not
invoke Section 8(a)(3) as a defense for its actions. Rather, it attempts
to use it to attack the
collective bargaining agreement which it negotiated with the unions.
Putting aside the anomaly
of an employer attacking the agreement it itself had negotiated, we hold
the claim that the unions
have violated Section 8(a)(3) falls squarely within the primary
jurisdiction of the Board.
         This Court's decision in Mack Trucks, Inc. v. International
Union, UAW, 

(3d Cir. 1988), makes clear that the district court lacked
subject matter jurisdiction over
this dispute. In that case, Mack brought a Section 301 action to enforce
a collective bargaining
agreement. 

The Union disputed the existence of the agreement
and, asserting that the
issue fell under the primary and exclusive jurisdiction of the NLRB,
challenged the court's
jurisdiction to decide the dispute. 

This Court held that
Section 301 conferred
jurisdiction on the district court to decide this particular contract
issue -- whether the contract
existed -- even if the Union's claim also constituted an unfair labor
practice under the NLRA. Id.at 590. In reaching its decision, this Court
distinguished cases holding that federal courts lacked
Section 301 jurisdiction over challenges to contracts on the basis that
they conflicted with the
NLRA or some other external agreement. 

         Mack does not confer jurisdiction here. Beverly's claim is not
that no contract
exists -- the basis of Section 301 jurisdiction in Mack. Rather, Beverly
claims that the contract is
in part void and unenforceable because it violates the NLRA. This is
exactly the type of situation
that Mack makes clear does not fall under the Section 301 jurisdiction of
the federal courts. Id.at 584.
         Consequently, since the federal court lacked subject matter
jurisdiction over this
dispute, the judgment of the district court dismissing the complaint was
correct and we will
affirm it.