Maas & Feduska, Inc. v. National Labor Relations Board, and Local No. 12, International Union of Operating Engineers, Afl-Cio, Intervenor

632 F.2d 714 102 L.R.R.M. (BNA) 2185 , 87 Lab.Cas. P 11,615 MAAS & FEDUSKA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local No. 12, International Union of Operating Engineers, AFL-CIO, Intervenor. No. 78-1832. United States Court of Appeals, Ninth Circuit. Aug. 1, 1979. Rehearing Denied Aug. 31, 1979. Howard C. Hay, Sandra L. Price, Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for petitioner. Julius Reich (argued), Reich, Adell, Crost & Perry, Los Angeles, Cal., on brief; Christopher Katzenbach, Washington, D. C., for respondent. Petition for Review of an Order of the National Labor Relations Board. Before BRIGHT, * HUFSTEDLER, and ANDERSON, Circuit Judges. PER CURIAM: 1 Maas & Feduska, Inc. (the Company), appeals from an unfavorable decision by the National Labor Relations Board (the Board) upon its complaint that Local No. 12, International Union of Operating Engineers, AFL-CIO (the Union) committed an unfair labor practice, in violation of section 8(b)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158 (b)(3) (1976), by threatening to strike to force payment by the Company of about $18,000 it allegedly owed…

Maas & Feduska, Inc. (the Company), appeals from an unfavorable decision by the National Labor Relations Board (the Board) upon its complaint that Local No. 12, International Union of Operating Engineers, AFL-CIO (the Union) committed an unfair labor practice, in violation of section 8(b)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158 (b)(3) (1976), by threatening to strike to force payment by the Company of about $18,000 it allegedly owed to Union fringe-benefit trust funds. The Board determined that because the matter of the Company’s contributions to the trust funds on behalf of Messrs. Maas and Feduska, two Company supervisors, was a mandatory subject of bargaining, the Union could lawfully exert economic pressure as a means of compelling the Company’s payment. 1

On this petition for review, the Company seeks reversal of the Board’s decision on the ground that the issue of Company contributions to the fringe-benefit trust funds constitutes a permissive subject of bargaining over which the Union cannot employ threats of a strike to compel agreement. The Company requests that the Union be required to return all contributions the Company made to the trust…

concurring.

I concur in the result for reasons stated below.

I believe that if the Company’s conduct in reporting and contributing for the supervisors on a minimum-hour basis constituted a substantial economic detriment to the various fringe benefit trust funds, the Board properly could have determined that such conduct vitally affected the employees’ terms and conditions of employment. However, on the record before us, it cannot be said that the failure of the Company to fully pay assessments for two supervisory employees to the benefit funds vitally affects employee interests.

The Board asserts that a large number of employers contribute to the trust funds and that a substantial number of union members participating in the benefits program move from job to job. See majority opinion at 719-720. It then states that delinquencies by contributing employers on behalf of supervisors and bargaining unit employees moving from job to job, and on behalf of supervisors reported as bargaining unit employees, significantly erode the trust fund plan. The Board, however, has offered no proof that the inadequacy of the Company’s contributions substantially affected the pooled trust funds.…