Central Florida Sheet Metal Contractors Ass'n, Inc. v. N.L.R.B.

• Decision Date: 21 December 1981
• Docket Number: No. 79-2396,AFL-CI,E,79-2396
• Parties: 109 L.R.R.M. (BNA) 2638, 92 Lab.Cas. P 13,172 CENTRAL FLORIDA SHEET METAL CONTRACTORS ASSOCIATION, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Sheet Metal Workers, International Association,dward J. Carlough, and Local 493, Sheet Metal Workers, Intervenors. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 489

664 F.2d 489

109 L.R.R.M. (BNA) 2638, 92 Lab.Cas. P 13,172

CENTRAL FLORIDA SHEET METAL CONTRACTORS ASSOCIATION, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,

Sheet Metal Workers, International Association, AFL-CIO,

Edward J. Carlough, and Local 493, Sheet Metal

Workers, Intervenors.

No. 79-2396.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Dec. 21, 1981.

Gerard C. Smetana, Chicago, Ill., for petitioner.

Elliott Moore, Deputy Assoc. Gen. Counsel, Richard B. Bader and Marion Griffin, Attys., NLRB, Washington, D. C., for respondent.

Donald W. Fisher, Toledo, Ohio, Mark F. Kelly, Richard H. Frank, Tampa, Fla., for Intervenors.

On Petition for Review of an Order of the National Labor Relations Board.

Before GODBOLD, Chief Judge, TUTTLE and HILL, Circuit Judges.

GODBOLD, Chief Judge:

This is another labor dispute concerning union efforts to secure collective bargaining contracts in the sheet metal industry that provide for employer contributions to a trust fund for the benefit of employees. It is decided together with Mobile Mechanical Contractors Association, Inc. v. Carlough 664 F.2d 481 (5th Cir. 1981). We review a decision by the National Labor Relations Board that a union did not commit an unfair labor practice by striking to obtain the trust fund.

Petitioner, Central Florida Sheet Metal Contractors Association, Inc., is a nonprofit Florida corporation that conducts multi-employer collective bargaining on behalf of its employer members. The first contract negotiated by the association with Local 493 of the Sheet Metal Workers International Association expired by its terms July 31, 1974. In early July the association and the local commenced negotiations for a new contract. At the urging of intervenor Sheet Metal Workers International Association ("the international") and Edward J. Carlough, president of the international, the local insisted upon inclusion in the contract of the National Stabilization Agreement for the Sheet Metal Industry, which provided for a trust fund for the benefit of employees funded by employer contributions.

The association resisted the local's demand, and the local struck. After a month the association surrendered and agreed to a contract containing the trust fund. The union membership ratified the proposed contract and returned to work. The association and the local formally executed a three-year agreement incorporating the trust fund retroactively to August 1, 1974, the date of the strike. Thereafter the association filed unfair labor practice charges that form the basis for this case, alleging that the local, the international and Carlough violated §§ 8(b)(1)(B) and 8(b)(3) of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 158(b)(1)(B) and 158(b)(3), by insisting to impasse on incorporation of the trust fund into the contract. ¹

The trust fund was established by the international in 1973 to provide supplemental economic assistance to "under-employed" union members. The Board found that the international's intention was "to achieve a rough approximation in disposable income and fringe benefits between union members who were fully employed and those who were unemployed, due to local economic conditions, for a substantial portion of the year." The trust fund was to be funded by contributions at 3% of total payroll wages from all sheet metal contractors who agreed to incorporate it into their collective bargaining agreements. The Sheet Metal Contractors Association of San Francisco was the first employer association to include the trust fund in a collective bargaining agreement, and, accordingly, it selected the first employer trustee. The portions of the trust fund agreement relevant to this proceeding are set forth in the margin. ²

The Administrative Law Judge found that the provisions of the trust fund agreement precluded the association from "equal" representation in the administration of the fund, and the trust fund therefore violated § 302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186. ³ The ALJ looked at other cases in which the Board had considered conduct that violated statutes other than the NLRA in finding an unfair labor practice ⁴ and reasoned that "(i)f it is right for the Board to consider violations of laws other than this entire statute, and in part predicate unfair labor practice findings upon such misconduct surely it may, and ought, take like heed of violations of related provisions of the very statute it is charged with enforcing." The ALJ concluded that by bargaining to impasse for a trust fund that violated § 302 of the LMRA, the international and the local had committed an unfair labor practice in violation of § 8(b)(3) of the NLRA. ⁵ The ALJ recommended that the Board order the international and local to delete the provisions for the trust fund from the 1974 contract or at the option of the association to void the entire agreement and renew the collective bargaining process; to refund any contributions made by members of the association to the trust fund; and to cease and desist from demanding the trust fund.

The Board did not adopt the ALJ's findings of fact and conclusions of law on the grounds that it lacked jurisdiction to interpret § 302 and that Congress had granted the federal district courts exclusive jurisdiction to determine the structural validity of trust funds under § 302. As a general rule, the Board posited, it does not enforce other statutes except at the express direction of the Supreme Court as in Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), where the Court held that the Board must assess union rules to determine if they frustrate the overriding policy of all federal labor law, not just the NLRA. ⁶ The Board pointed out that when considering other statutes at the Court's direction it only evaluates facial compliance with the statutes. In contrast the Board said neither the Court nor Congress had directed the Board to enforce § 302, which in the present case would require interpretation of complex multiemployer trust agreements.

The Board distinguished an earlier decision, John F. Boyle Co., 222 NLRB 1309 (1976), from its decision in the present case. In Boyle the employer had refused to appoint a trustee to administer a trust fund, even though he had agreed to the collective bargaining agreement that provided for the trust fund. The Board did not adopt the ALJ's finding that the employer had refused to bargain in good faith or his recommendation that the employer be compelled to comply with the trust provisions. Instead, because the proposed trust fund violated § 302(c)(5)(C) by mixing pension benefits with other fringe benefits, the Board held that the employer had not refused to bargain in good faith. In the present case the Board explained that it had merely used § 302 as an aid in Boyle to determine whether the employer had refused to bargain collectively in violation of § 8(a)(5). However, in Central Florida, the Board had the view that it would first have to determine the validity of the trust fund under § 302 and then predicate an unfair labor practice finding upon any such violations.

The Board acknowledged its obligation to accommodate other statutory policies in administering the NLRA. It discerned an intent by Congress to compel compliance of trust funds with the requirements of § 302 without depriving the employees of their benefits. This intent the Board said could only be achieved by the district courts, which have the equitable powers to correct technical defects in a fund without disturbing employer contributions and employee benefits. By contrast, the Board only has the power to jettison the whole trust fund from the collective bargaining agreement. Therefore, the Board concluded, it would not extend its jurisdiction to determine the validity of the trust fund under § 302.

The Board also decided the association's other claims, which the ALJ had found unnecessary to address. ⁷ The Board found that the employer-appointed trustee of the trust fund was not a collective bargaining agent of the employer within the meaning of § 9 of the NLRA, 29 U.S.C. § 159, and that the trustee's sole responsibility is to the employees as a fiduciary. Thus, although the association had been denied the choice of a trustee, who had been appointed by the first participating employers association, by striking for the trust fund the union local had not coerced the members of the association in violation of § 8(b)(1)(B).

Second, the Board held that the general counsel had not sustained the burden of proving that the trust fund authorizes strike benefits. The Board reviewed the trust documents and found no mention of strike benefits and no evidence that the trustees interpreted the trust agreement to authorize such benefits.

Finally, the Board held that the trustee designation clause was a mandatory subject of bargaining. The Board noted that the payments from the trust fund were clearly wages within the meaning of § 8(d), ⁸ and concluded that the trustee designation scheme was "inextricably interwoven and subservient" to the trust fund as a whole because multi-employer, industrywide trust funds, which cannot add a trustee for every employer who participates, afford greater financial benefits to the employees.

The association raises the following as error:

1. The Board erred in deciding it lacked jurisdiction to rule upon the validity of the trust fund under § 302. To the contrary, the Board has the statutory authority and obligation to assess the legality of a trust under § 302(c)(5) in determining whether the fund is an illegal subject of collective bargaining.

2. The Board erroneously concluded that trustees are not collective bargaining agents of the parties who appointed them.

3. In holding that the trust fund did not authorize strike benefits, which would render it a nonmandatory subject of bargaining, the Board ignored the...