ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD Petition for review of a National Labor Relations Board Order after the Board had found a per se violation by the union of Sections 8 (b)(1)(A) and (2) of the Act by the maintenance of a joint employer-union pension fund, the rules of which favored employees who had been union members prior to 1937 over other unit employees who had not been union members prior to 1937; and the Board's cross-application for enforcement of its Order.
Danaher*fn*, Feinberg and Mulligan, Circuit Judges.
DANAHER, Senior Circuit Judge:
Certain individual pension claimants charged that they unlawfully had been denied pension credits for service with a trucking company employer in that Local No. 807 had restrained and coerced employees in the exercise of their Section 7 rights. In due course the Regional Director notified the claimants that investigation had failed to establish their charges. Accordingly the Regional Director refused to issue a complaint. The several claimants appealed the Regional Director's ruling to the General Counsel and each appeal was denied.
The Regional Director nevertheless issued a complaint alleging that Local No. 807 was in violation of Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act by being a party to and by maintaining a Pension Fund,*fn1 the Rules and Regulations for the administration*fn2 of which provided pension credits as a preference to employees who were members of the Teamsters prior to January 1, 1937, as against employees who had not been members of the Union prior to that date.
After hearings, an Administrative Law Judge concluded that the record disclosed a per se*fn3 violation of the Act. He also recommended that the Board issue a cease and desist order with a posting of the usual notices. But he also concluded, specifically, that Local 807 had "not engaged in any violation of the Act in the actual administration of the Fund".
The Board adopted the findings and the conclusions of the Administrative Law Judge and issued its own cease and desist order. The Union was directed to refrain from participating in the pension program by allowing pension service credits arising out of union membership or any other discriminatory basis in violation of the Act so as to favor union members over nonunion employees employed under the same collective agreement or in the same collective-bargaining unit.*fn4
Our issue stems from certain language incorporated by the Trustees into Rules and Regulations of February 28, 1972, reading in pertinent part:
(a) It is recognized that it would be difficult for many, if not most, of the employees to establish their periods of Covered Employment prior to January 1, 1937. Consequently, anyone who was a member of Local 807 prior to the period commencing January 1, 1937 may, at the sole discretion of the Trustees, be given a year of Pension Credit for each year he was a member of Local 807 during this period. . . . Pension Credit shall also be granted for any period of time that an employee can prove that he worked in covered employment through employer records. (Emphasis added.)
It may readily be noticed that the Trustees were looking back some 35 years or more as they undertook evaluation of claims of pension credits. Each year of pension credit beyond 30 years was worth a substantial increment in benefits. Such an award obtained whether an applicant prior to January 1937 had been a member of a union or not, but evidence to establish eligibility quite properly was required. An applicant for pension benefits was required to fill out a form which included authorization to obtain Social Security information, but such data had not been available prior to January 1, 1937. Each applicant was bound to submit details which included his trucking-industry employment, his union initiation date and period of membership, if any, the name and address of his current employer and, in general, evidence pertinent to establish the applicant's status prior to January 1, 1937. All evidentiary details were compiled and analyzed by the Fund's administrative staff, and the applicant's file thereafter was transmitted to the Fund's Trustees for final determination.
As Section 2(a) supra noted, the Trustees recognized the difficulty confronting many if not most of such employees as they sought to establish their periods of covered employment prior to January 1, 1937.
Some employers had records reflecting the trucking-industry employment of a particular applicant prior to 1937. If so, Section 2(a) provided that Pension Credit "shall" be granted by the Trustees. Some employers, however, retained no such records that far back, indeed some earlier employers had gone out of business. Whether a pension claimant was or had been a nonunion employee or not, the Trustees were bound to evaluate the evidence, whatever it was and from whatever source derived. The administrative problem was alleviated in some measure, at least, if an applicant proffered evidence of pre-1937 union membership which the Trustees "at their sole discretion" were authorized to consider. If Section 2(a) had never been adopted, proof of pre-1937 union membership was some evidence of entitlement. Certainly such evidence created no "presumption"*fn5 of covered employment.
The Administrative Law Judge analyzed the evidence with respect to pre-1937 applications, some ...