N.L.R.B. v. Hospital and Institutional Workers Union, Local 250, No. 77-2081

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: EUGENE A. WRIGHT
• Citation: 577 F.2d 649
• Parties: 99 L.R.R.M. (BNA) 2431, 84 Lab.Cas. P 10,710 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Alsam G. Small, Intervenor, v. HOSPITAL AND INSTITUTIONAL WORKERS UNION, LOCAL 250, Respondent.
• Decision Date: 03 July 1978
• Docket Number: No. 77-2081

Page 649

577 F.2d 649 99 L.R.R.M. (BNA) 2431, 84 Lab.Cas. P 10,710 NATIONAL LABOR RELATIONS BOARD, Petitioner,
and
Alsam G. Small, Intervenor,
v.
HOSPITAL AND INSTITUTIONAL WORKERS UNION, LOCAL 250, Respondent. No. 77-2081. United States Court of Appeals,
Ninth Circuit. July 3, 1978.

Joseph Norelli (argued), Washington, D. C., for petitioner.

Page 650

Bari Stolmack (argued), of Van Bourg, Allen, Weinberg, Williams & Roger, San Francisco, Cal., for respondent.

On Application for Enforcement of an Order of The National Labor Relations Board.

Before TUTTLE, ^* DUNIWAY and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Board seeks enforcement of its order adopting the decision of an Administrative Law Judge (ALJ) that Hospital and Institutional Workers Union Local 250 violated § 8(b)(1)(A) and (2) of the National Labor Relations Act (Act) (29 U.S.C. § 158(b)(1)(A) and (2)) by agreeing with Kaiser Foundation Hospitals in 1974 to add non-member therapists to a bargaining unit without a showing of majority support and to require all therapists either to join the union or to pay the equivalent of monthly dues. 228 N.L.R.B. No. 57 (1977).

The Board's conclusion that Local 250 committed unfair labor practices rests upon the ALJ's finding that Local 250 had not represented non-member therapists before the 1974 contract became effective. Substantial evidence in the record supports the finding and we enforce the Board's order.

I.

A union violates § 8(b)(1)(A) of the Act (29 U.S.C. § 158(b)(1)(A)) when it attempts to impose a collective bargaining agreement upon a group of employees, the majority of whom it does not represent. International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731, 738-39, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961); see Retail Clerks Local 770 v. NLRB, 370 F.2d 205, 208 (9th Cir. 1966).

If such an agreement includes a union shop or agency shop provision, the union also violates § 8(b)(2) of the Act (29 U.S.C. § 158(b)(2)), by causing an employer to encourage union membership. See NLRB v. Food Employers Council, Inc., 399 F.2d 501 (9th Cir. 1968); Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970); Local 1424, IAM v. NLRB, 362 U.S. 411, 412-14, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960) (dictum).

Therefore, if the ALJ was correct in finding that Local 250 did not represent non-member therapists before the 1974 contract took effect, the union committed the unfair labor practices when it agreed with Kaiser to impose the agency-shop provision on all therapists without first obtaining a showing of majority support.

II.

Local 250 has had a collective bargaining relationship with Kaiser for more than 20 years. All of the bargaining agreements included a scale of wages and benefits for physical therapists which Kaiser provided regardless of union membership.

Before 1974, the collective bargaining agreements exempted physical, speech, and occupational therapists from the mandatory union membership required of other employees. Only therapists who chose to join Local 250 were required to maintain union membership.

A. 1953 Agreement.

The 1953 agreement, which first covered technical employees, defined "employees" to include professional therapists working in the hospital's physiotherapy department. Within Article III of the agreement, § 1 provided that the Hospital recognized Local 250 as exclusive bargaining agent for all covered employees, § 2 required maintenance of union membership by all employees and § 3 required all new employees to join the union within 31 days of employment. Section 4 provided:

Exceptions The provisions of Article III, Sections 1, 2, and 3, hereinabove, shall not apply to the following classifications except as hereinafter stated: Physical Therapists, Speech Therapists, and Occupational Therapists shall not be required to become members of the Union

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as a condition of employment; however, such Therapists who have become or shall become members of the Union shall be required to maintain membership in the Union thereafter as a condition of employment for the duration of the agreement.

Although it is argued that § 4 is susceptible to different interpretations, the plain meaning of its language is that Local 250 was not then the exclusive bargaining agent for non-member therapists.

B. 1962 Agreement.

The parties modified Article III in 1962. Section 1, providing for exclusive recognition, remained unchanged. Section 2 included the provisions contained in §§ 2 and 3 of the earlier contracts. The new § 3 contained exceptions and differed from former § 4:

The provisions of Article III, Sections 1 and 2 hereinabove, shall not apply to the classifications of Physical Therapists, Speech Therapists, and Occupational Therapists; provided, however, that Section 1 of this Article III shall be applicable to employees in these classifications who have become or shall hereafter become members of the Union and with respect to such employees they shall be required to maintain membership in the Union thereafter.

We agree with the ALJ's finding that § 3, which remained unchanged until 1974, accorded recognition to Local 250 as exclusive bargaining agent only of those therapists who were union members.

C. 1974 Agreement.

When Local 250 and Kaiser failed to agree upon certain provisions of a new agreement in 1974, they submitted to a nonbinding...