775 F.2d 1042 (9th Cir. 1985), 84-4218, Lumber Production Indus. Workers Local No. 1054 v. West Coast Indus. Relations Ass'n, Inc.

Docket Nº:84-4218.
Citation:775 F.2d 1042
Party Name:LUMBER PRODUCTION INDUSTRIAL WORKERS LOCAL # 1054, et al., Plaintiffs- Appellees, v. WEST COAST INDUSTRIAL RELATIONS ASSOCIATION, INC., a California Corporation; American Executive Services, Inc., a California corporation, Defendants- Appellants.
Case Date:November 01, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1042

775 F.2d 1042 (9th Cir. 1985)


Plaintiffs- Appellees,



California Corporation; American Executive

Services, Inc., a California

corporation, Defendants- Appellants.

No. 84-4218.

United States Court of Appeals, Ninth Circuit

November 1, 1985

Argued and Submitted June 26, 1985.

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[Copyrighted Material Omitted]

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Harlan Bernstein, Portland, Or., Herman L. Wacker, Davies, Roberts, Reid, Anderson, & Wacker, Seattle, Wash., for plaintiffs-appellees.

Garry G. Mathiason, Henry D. Lederman, Jennifer J. Walt, San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE, FARRIS, and HALL, Circuit Judges.

WALLACE, Circuit Judge:

Lumber Production Industrial Workers (the union) brought suit against two labor consultants, West Coast Industrial Relations Association, Inc. and American Executive Services, Inc., for tortious interference with a prospective contractual relationship. The labor consultants appeal from the district court's order denying their motion to dismiss which was based upon a theory of preemption. We have jurisdiction under 28 U.S.C. Sec. 1292(b), and we reverse and remand.


The union has represented employees at the Everett facility of E.A. Nord Company, Inc. (Nord) for over 25 years. During that time, Nord and the union have entered into a number of collective bargaining agreements to govern the terms and conditions of employment. The most recent agreement expired on June 30, 1983, and contained no language indicating that it was to remain in effect after that date during the negotiation for a new contract. Nord retained one of the labor consultants to negotiate a new contract with the union.

The parties held a series of unsuccessful bargaining sessions between June 16 and July 13, 1983, to negotiate the terms and conditions of a new contract. Negotiations broke off on July 13, and the union initiated a strike against Nord. On July 29, the union filed an unfair labor practice claim with the Regional Director of the National Labor Relations Board (the Board), alleging that Nord had engaged in bad faith bargaining in violation of sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158. The Regional Director investigated the union's claim and determined that there was insufficient evidence of bad faith to support the charge and dismissed the complaint. The Board upheld the dismissal on appeal.

On November 14, 1983, the union filed an action in state court against the labor consultants on behalf of itself and its Nord-employee-members. The union alleged that the labor consultants had deliberately

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and maliciously interfered with the union's prospective contractual relationship by inducing Nord to utilize their services in order to frustrate the union's collective bargaining objectives, to encourage employee dissatisfaction with the union, and to force a strike that would enable Nord to replace its existing work force and to decertify the union. The union sought damages for itself in the amount of lost union dues and for its members in the amount of lost wages and fringe benefits.

The labor consultants removed the action to federal district court under 28 U.S.C. Sec. 1441(a) on the basis of diversity and arguably federal question jurisdiction. 28 U.S.C. Secs. 1331, 1332. They then filed a motion to dismiss pursuant to rule 12, Fed.R.Civ.P., or, in the alternative, for summary judgment under rule 56, Fed.R.Civ.P., claiming that the union's complaint was based on conduct that arguably constituted bad faith bargaining within the exclusive jurisdiction of the Board and that the union's state law claim was preempted by section 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185. The district court issued an order denying in part and striking in part the motion of the labor consultants. The district court recharacterized the union's complaint as stating a federal cause of action under section 301(a), which creates an exception to the general rule that the Board possesses exclusive jurisdiction over unfair labor practices.

The labor consultants filed a motion asking for reconsideration and for certification of an interlocutory appeal under 28 U.S.C. Sec. 1292(b). The district court denied the motion for reconsideration but certified the order for interlocutory appeal. The labor consultants timely petitioned for permission to bring an interlocutory appeal, which we granted.


The labor consultants contend that the district court erred in assuming subject matter jurisdiction under section 301(a), and that the conduct alleged in the union's complaint is within the exclusive jurisdiction of the Board. We review the district court's determination of subject matter jurisdiction de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The Board possesses exclusive jurisdiction over activities that threaten to interfere with national labor policy. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242-45, 79 S.Ct. 773, 778-79, 3 L.Ed.2d 775 (1959) (Garmon ). Congress entrusted the administration of labor policy to the Board in order "to avoid conflicting regulation of conduct by various official bodies" and to promote a unified development of labor policy. Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 285-86, 91 S.Ct. 1909, 1917, 29 L.Ed.2d 473 (1971) (Motor Coach Employees ); Garmon, 359 U.S. at 242...

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