Dunbar v. United Steelworkers of America

• Decision Date: 13 September 1979
• Docket Number: Nos. 12228,s. 12228
• Citation: 100 Idaho 523,602 P.2d 21
• Parties: , 103 L.R.R.M. (BNA) 2434, 88 Lab.Cas. P 11,982, 1980 O.S.H.D. (CCH) P 24,545 Laura DUNBAR et al., Mary Wood, et al., Bernice Johnson, et al., Tharon Rawson, et al., Plaintiffs-Appellants, v. UNITED STEELWORKERS OF AMERICA, an Unincorporated Association, and State of Idaho, Defendants-Respondents. to 12231.
• Court: Idaho Supreme Court

Page 21

602 P.2d 21

100 Idaho 523, 103 L.R.R.M. (BNA) 2434, 88 Lab.Cas. P 11,982,

1980 O.S.H.D. (CCH) P 24,545

Laura DUNBAR et al., Mary Wood, et al., Bernice Johnson, et al., Tharon Rawson, et al., Plaintiffs-Appellants, v. UNITED STEELWORKERS OF AMERICA, an Unincorporated Association, and State of Idaho, Defendants-Respondents.

Nos. 12228 to 12231.

Supreme Court of Idaho.

Sept. 13, 1979.

Rehearing Denied Nov. 23, 1979.

Bruce O. Robinson, Nampa, May, May, Sudweeks & Fuller, Twin Falls, Matthews, Lee & Wilson, Boise, Thomas A. Mitchell, Coeur d'Alene, Eli Rapaich, Lewiston, Cartwright, Saroyan, Martin & Sucherman, Inc., San Francisco, Cal., Philo, Maki, Cockrel, Robb, Spearman & Cooper, Detroit, Mich., Burgess, Joyce, Prothero, Whelan & O'Leary, Butte, Mont., and Lloyd J. Webb, of Webb, Burton, Carlson & Pedersen, Twin Falls, for plaintiffs-appellants.

Honorable Wayne L. Kidwell, Atty. Gen., Peter C. Jenkins, Sp. Asst. Atty. Gen., George H. Cohen, of Barr, Gottesman, Cohen & Peer, Washington, D. C., Eberle, Berlin, Kading, Turnbow & Gillespie, Chtd., Boise, Wayne P. Fuller, of Fuller & Radke, Caldwell, Michael E. McNichols, Orofino, David L. Gore, Chicago, Ill., Frederick V. Betts and Paul D. Carey, of Skeel, McKelvy, Henke, Evenseon & Betts, Seattle, Wash., and Kleiman, Cornfield & Feldman, Chicago, Ill., for defendants-respondents.

SHEPARD, Justice.

These are appeals from orders of summary judgment entered by the trial court in favor of both defendants, the United Steelworkers of America and the State of Idaho. As to the State, the court held that the activity upon which plaintiffs base their claim fell within the discretionary act exception to the Idaho Tort Claims Act. I.C. § 6-904. As to the Union, the court held that plaintiff's claim was preempted by the federal regulation of labor law. Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). We affirm the trial court's order for summary judgment as to the State, but reverse the trial court's order of summary judgment as to the Union.

The Coeur d'Alene Mining District is located in northern Idaho near Kellogg and Wallace, Idaho. Therein are located a number of "hard rock" mines, the shafts in some of which extend 6,000 feet below the surface and some of which contain up to 125 miles of underground tunnels and workings. The Sunshine Mine is one of such workings and is the largest producer of silver and antimony in the United States. On May 2, 1972, some 200 miners were at work in the mine when a fire broke out which claimed the lives of 91 of those workmen. Survivors or deceased miners brought these actions for wrongful death, which were consolidated for appeal.

I.

As to the Union, plaintiffs allege negligence on the part of the Union in that it undertook to act as accident prevention representative and enforcer of the "company-employees" agreement. It was asserted that the Union misrepresented its safety concern and expertise; that it failed to develop an adequate safety program for its members; that it undertook to inspect and enforce the accident prevention clauses of the company-employees contract and did so negligently in failing to require fire drills, personal protective equipment, adequate protection against spontaneous combustion, adequate emergency egress and failed to require evacuation on evidence of smoke.

For emphasis, we reiterate that this appeal is from the orders of summary judgment issued by the trial court solely on legal theories under which the character of the two defendants, the Union and the State, were held to bar plaintiff's recovery.

We begin our analysis with the argument advanced by the Union and adopted by the trial court, I. e., the jurisdiction of the courts of Idaho to hear and adjudicate plaintiffs-appellants' claim against the Union is preempted and superseded by the pervasive federal regulation of labor law and that such matters are committed exclusively to the primary jurisdiction of the National Labor Relations Board.

In Ray v. Atlantic Ritchfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978), it is stated:

"The Court's prior cases indicate that when a State's exercise of its police power is challenged under the Supremacy Clause, 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " 435 U.S. at 157, 98 S.Ct. at 994.

Quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). The preemption of state law or of state court jurisdiction is not to be readily inferred. Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978).

The primary philosophy of the United States Supreme Court in the labor law preemption area was announced in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). There the Court said:

"In determining the extent to which state regulation must yield to subordinating federal authority, we have been concerned with delimiting areas of potential conflict; potential conflict of rules of law, of remedy, and of administration. * * * We have necessarily been concerned with the potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes." 359 U.S. at 241-42, 79 S.Ct. at 778.

In some cases the desire to avoid the conflicts delineated in Garmon has led the Court to declare that some matters are committed exclusively to the primary jurisdiction of the National Labor Relations Board, and states, and A fortiori state courts, are without jurisdiction to regulate or hear the disputes. Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976); San Diego Bldg. Trades Council v. Garmon, supra. In other cases, however, the Court has held that state courts have concurrent jurisdiction. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962).

A substantial factor as to whether state courts are ousted from all jurisdiction or share concurrent jurisdiction appears to be whether the activity involved is "arguably subject to (paragraph) 7 or (paragraph) 8 of the (National Labor Relations) Act." San Diego Bldg. Trades Council v. Garmon, 359 U.S. at 245, 79 S.Ct. at 780. In Garmon the Court stated:

"When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8 (29 U.S.C.A. § 158 (a)-(b)), due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes." 359 U.S. at 244, 79 S.Ct. at 779.

That language continues to be viable and has been quoted on several occasions since Garmon. See Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977); Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Comm'n, supra; Motor Coach Employees v. Lockridge, supra.

It is the Union's position that the claims of plaintiffs-appellants are based on the breach of the duty of fair representation. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). That being the case, the Unions argue, federal labor law must be applied even when the case is brought in state court. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842. The Union's argument continues that the plaintiffs-appellants must show that the Union discriminated against the deceased Union members in order to prove a breach of the duty of fair representation, Motor Coach Employees v. Lockridge, supra, and since the plaintiffs-appellants have not made such a showing, summary judgment was properly entered in favor of the Union. We disagree. Plaintiffs-appellants' claims are not necessarily based on the violation of the duty of fair representation and such is not the only duty owed by a union to its members. Further, we believe that even assuming the claims of plaintiffs-appellants fall within the general scope of the doctrine of preemption, nevertheless we deem it clear that the case also falls within the narrow exceptions to that same preemption doctrine which were described in Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977).

The duty of fair representation has never been carefully or precisely defined and its contours appear vague but, a fair summation of it is that it is designed "to enforce fully the important principle that no individual union member may suffer invidious, hostile treatment at the hands of the majority of his coworkers." Motor Coach Employees v. Lockridge, 403 U.S. at 301, 91 S.Ct. at 1925. See Clark, The Duty of Fair Representation: A Theoretical Structure, 51 Tex.L.Rev. 1119 (1973); Cox, The Duty of Fair Representation, 2 Vill.L.Rev. 151 (1957); Rosen, Fair Representation, Contract Breach and Fiduciary Obligations: Unions, Union Officials and the Worker in Collective Bargaining, 15 Hastings L.J. 391 (1964).

In Steele v. Louisville & N. R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), the Court held that the exclusive...