The National Labor Relations Board seeks to enforce an order determining that a local union and a statewide, multi-employer pension fund acting as the Local's agent violated § 8(b)(3) of the N.L.R.A. The Local and the Pension Fund were found to have attempted to coerce two employers to accept a midterm modification in their collective bargaining agreements by changing the Pension Fund eligibility requirements and demanding that employers make pension contributions for part-time employees.
Lumbard, Oakes, and Kearse, Circuit Judges.
This case presents the very narrow but difficult question whether the National Labor Relations Board (the Board) could properly find a union local and the executive administrator and trustees of a state-wide pension and retirement fund as the Union's agents, in violation of section 8(b)(3) of the National Labor Relations Act, 29 U.S.C. § 158(b)(3) (1976), by attempting to force certain employers to agree to a midterm modification of their collective bargaining agreements with the Union. We hold that the Board could not do so and accordingly we deny enforcement of the Board's decision and order, reported at 265 NLRB 391 (1982).
The Union here is Truck Drivers Local Union No. 449, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (hereinafter the Union). The Employers, who were the charging parties before the Board and are here as the intervenors, are Universal Liquor Corp. (Universal) and Erie Liquor Co., Inc. (Erie), wholesale liquor and wine distributors (the Employers). The pension and retirement fund is the New York State Teamsters Conference Pension and Retirement Fund (the Fund or the pension and retirement fund). The Fund, organized in 1954, operates a so-called multiemployer "Taft-Hartley Trust" under section 302(c)(5) of the Labor Management Relations Act, 29 U.S.C. § 186(c)(5) (1976), and now as well under the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1381 (1976 & Supp. V 1981). The Fund's board of trustees is comprised of eight members, half of whom are chosen by the fourteen or so participating local unions and the other half chosen by the more than 10,000 contributing employers.
The Employers charged that the Union and the Fund's administrator and trustees (collectively "the trustees") violated section 8(b)(3) of the Act, 29 U.S.C. § 158(b)(3) (1976), by attempting to force Universal and Erie to contribute to the Fund for seasonal, casual, and part-time employees, although the existing collective bargaining agreements between Erie and Universal, on the one hand, and the Union, on the other, did not provide for their coverage. Thus our first question is whether the collective bargaining agreements did exclude those employees from coverage. If they did, our second question is whether the Board properly found that, in seeking to force the Employers to contribute with threats of termination of participation in the Fund, the Fund's trustees acted as agents of the Union; absent that finding, the case for an unfair labor practice falls against both trustees and the Union.*fn1 On both questions the Board overturned its administrative law judge. We turn first to the collective bargaining agreements.
We hold that there is substantial evidence to support the Board's findings that the respective collective bargaining agreements, which had identical pension coverage provisions, did not provide for pension coverage for seasonal, casual, and part-time employees. Article VI of the original agreements, effective from August 1, 1976, to July 31, 1979, and covering bargaining units consisting of truck drivers and warehousemen, provided as follows:
The Employer may hire employees to work as a seasonal, casual, or part-time worker, provided in no case shall such an employee be hired for the purpose of displacing a regular full-time employee or for reducing the normal complement of regular, full-time employees. Such an employee shall not become a seniority employee under this Agreement where it has been agreed by the Employer and the Union that such employee was hired for seasonal, casual or part-time work. . . . Such seasonal, casual or part-time employees shall not be entitled to any fringe benefits under this Agreement or contributions with respect thereto, except as required by law.
(Emphasis added.) Article XV explicitly provided for contributions to the New York State Teamsters Council Welfare Trust Fund, not here in issue, on behalf of "all casual employees" in addition to "regular" employees. Article XVI, providing for contributions to the Pension and Retirement Fund, made no such specific exception to the general rule of Article VI that seasonal, casual, or part-time employees are not generally entitled to fringe benefits. Instead, contribution was required from each Employer on behalf of "any and all of its employees covered by this Agreement . . . ." That article further stated:
The Employer and the Union hereby agree simultaneously herewith to execute a stipulation submitted by the Pension Trustees setting forth the provisions relating to the Pension Fund as negotiated for the General Freight Agreement and certifying that the Employer has entered into a written agreement containing such provisions. The Fund Trustees may reserve the right to refuse to accept contributions from Employers who fail to execute such stipulation.
Both parties in 1976 had signed such a stipulation, the language of which on pension coverage closely tracked the language in Article VI of the collective bargaining agreements.
The Union argues that the provision in Article XVI that required contributions for "any and all of its employees covered by this Agreement" included by its own terms casual, seasonal, and part-time employees, since these employees are included in the collective bargaining agreement. The trustees argue that by "this Agreement" the contract was referring to the National Master Freight Agreement and to the New York State Supplement to that agreement. They claim the employees were bound to the pension terms of this agreement by the provision of the collective bargaining agreements cited above, under which all parties agreed to be bound by the pension provisions of the "General Freight Agreement," presumably the National Master Freight Agreement, a contract binding the parties before they signed individual collective bargaining contracts. The administrative law judge found that the New York Supplement to that Agreement provides for pension benefits for seasonal, casual, or part-time employees,*fn2 and the trustees claim that this coverage must be read into Article XVI of the collective bargaining agreements. The trustees also emphasize that the stipulations concerning the pension plan as signed under the 1976-1979 agreements themselves provided coverage for "any and all regular full-time and any and all other employees covered by this Agreement" (emphasis added).
The Board found, however, that the term "this Agreement" in the collective bargaining agreement referred to the stipulation submitted by the Fund's trustees which both parties to the collective bargaining agreements were obliged to sign, and not to the collective bargaining agreements themselves. 265 NLRB 391, 407 (1982). The Board further found that the 1976 stipulations themselves did not call for contributions for casual, seasonal, and part-time employees. Id. at 409. It interpreted the "any and all other employees" language in the stipulations to refer to certain non-Union employees and non-unit Union employees referred to elsewhere in the stipulations. The Board thus interpreted a clause in the stipulations stating that "the provisions, terms and wording in this Stipulation is identical to that in [the] Collective Bargaining Agreement," to mean that the phrase "any and all" employees appearing in the collective bargaining agreements had to be understood as it was meant to be understood in the stipulations -- that is, not to refer to casual, seasonal, and part-time employees.*fn3
The Board supported its conclusion by noting that any exception in the collective bargaining agreements to the general Article VI rule of no fringe benefits for other than full-time employees would presumably be stated explicitly, and that the agreements contain no specific language entitling casual, seasonal, and part-time workers to pension benefits. Most significantly, the Board relied on the past practices of the parties. Both Universal and Erie in the 1976-1979 period generally contributed to the welfare fund for their part-time, seasonal, and casual employees, but neither Employer intentionally contributed to the pension fund for these employees.*fn4 The Board also took note of the fact that this same question has been litigated in two other fora with ambiguous results: The New York State Department of Labor found that ...