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. e du/thir dc ir c uit_1996/125UNITED 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; NA TIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOY EES, AFSCME, AFL-CIO,

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

___________ Argued June 6, 1996 Before: BECKER and MANSMANN, Circuit Judge s, 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 & E mployment Beverly Enterprises 5111 Rogers Avenue Ft. Smith, AR 72919

Attorney for Beverly Enterp rises- Pennsylvania, Inc. d/b/a St enton Hall Nursing and Convalesce nt Home, Appellant

GAIL LOPEZ-HENRIQUEZ, ESQUI RE (ARGUED)Freedman and Lorry, P.C.

400 Market Street, Suite 90 0 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 Healt h Care Employees, AFSCME, AFL-CIO and National Union of Hospital and Healt h Care Employees, AFSCME, AFL-CIO, Appellees

___________

OPINION OF THE COURT

___________ SCHWARZER, District Judge:

Beverly Enterprises-Pennsylvania, Inc., br ought 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 Hospita l and Health Care Employees and the National Union itself. The defendants are labor or ganizations 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 e mployees against their union. The plaintiff employees alleged that the union had viol ated Section 8(a)(3), the duty of fair representation, and their First Amendment rights, b y using dues paid by them under the compulsion of a union-security clause in the collec tive bargaining agreement for noncollectivebargaining 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 th e primary jurisdiction of the Board, but were claiming that the union failed to represent their i nterest fairly by negotiating and enforcing an agreement not in their interests and explained: "T he necessity of deciding the scope of  8(a)(3) arises because [the unions] seek to defend themselv es 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 ha d 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 distr ict 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 exi stence of the agreement and, asserting that the issue fell under the primary and exclusive jurisdic tion 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 p articular contract issue -- whether the contract existed -- even if the Union's claim also constitut ed an unfair labor practice under the NLRA. Id.at 590. In reaching i ts decision, this Court distinguished cases holding that federal courts lac ked Section 301 jurisdiction over challenges to contrac ts on the basis that they conflicted with the NLRA or some other external agreement. Id. at 589. Mack does not confer jurisdiction here. B everly'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 situationthat Mack makes clear does not fall under the Secti on 301 jurisdiction of

the federal courts. Id.at 584. Consequently, since the federal court lack ed subject matter jurisdiction over this dispute, the judgment of the district court dismiss ing the complaint was correct and we will affirm it.