1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 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, 487 U.S. 735 

(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." Beck, 487 U.S. at 

742-43. 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." Id. 

 To put 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, 856 

F.2d 579 (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. Id. at 583. 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. Id. at 583-84. 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. Id. at 589.

 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.