794 F.2d 641 (11th Cir. 1986), 85-5751, Ryan v. International Union of Operating Engineers, Local 675

Docket Nº:85-5751.
Citation:794 F.2d 641
Party Name:Thomas RYAN and Beverly Eileen Ryan, Plaintiffs-Appellants, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 675, Defendant-Appellee.
Case Date:July 24, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 641

794 F.2d 641 (11th Cir. 1986)

Thomas RYAN and Beverly Eileen Ryan, Plaintiffs-Appellants,




No. 85-5751.

United States Court of Appeals, Eleventh Circuit

July 24, 1986

Page 642

Gerald E. Rosser, Miami, Fla., for plaintiffs-appellants.

Jayne E. Zanglein, IUOE LOCAL 675, Pompano Beach, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, Circuit Judge, HENDERSON [*] and NICHOLS [**], Senior Circuit Judges.

NICHOLS, Senior Circuit Judge:

This appeal places before us the novel contention that a collective bargaining agreement in the construction industry, calling for operation of a "hiring hall" by the International Union of Operating Engineers (IUOE), imposes on the union a duty to refer to the general contractor for employment as operating engineers only persons competent to operate the employer's heavy machinery, and makes it liable in tort in case any incompetent person the union has referred may injure a third party. In the absence of any provision so stating, expressly or by reasonable implication, our answer is in the negative. Plaintiff, Thomas Ryan, a member of a different union, alleges injury to him on the job, inflicted by a member of defendant union. Plaintiff also asserts, in contract counts, that he was a third-party beneficiary of the operating engineers' collective bargaining agreement. The absence of any legal duty owed to the employee to refer only competent people, or to supervise them once on the job, is obviously fatal to the supposed existence of a like duty to any third-party beneficiary, so we need not consider plaintiff's standing as a third party further.

Proceedings Below

Plaintiffs-Appellants filed this action in the Circuit Court of the Seventeenth Judicial Circuit of the State of Florida, but defendants/appellees petitioned the United States District Court for removal, asserting it was a civil action, of which the United States District Court had original jurisdiction under 29 U.S.C. Sec. 185(a). That Act grants district courts jurisdiction of "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * *." If brought in a state court, such a suit is removable without regard to the citizenship or residence of the parties. 28 U.S.C. Sec. 1441. The original complaint was in three counts of which the

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first, or tort count, alleges negligence by the operator of the crane and the shop steward. The second, or contract count, alleges a breach by the union of obligation under the collective bargaining agreement to the employer and to Mr. Ryan. The third repeats the second, except that Mrs. Ryan alleges loss of society, services, and consortium. Amended complaints do not alter the structure of the causes of action, but add details such as the crane operator was "an oiler named Joe."

The district court on motion dismissed the first count on the ground that merely by "entering into collective bargaining agreements, unions do not impliedly assume a general duty of care to provide a safe environment." Apparently it was applying under its pendent jurisdiction the general common law, or Florida law, since that count does not refer to any federal law as the source of the duties asserted. The court withheld action on a motion to dismiss the other two counts because it did not yet know the employer's identity or the terms of the collective bargaining agreement. On being provided these (employer was Raymond International Builders, Inc.), the court converted the pending motion to dismiss into a motion for summary judgment under Fed.R.Civ.P. 56, while denying a motion by plaintiffs to remand to the state court. All parties were then given reasonable opportunity to present the material pertinent to a summary judgment, as Rule 12(b) requires.

Usually a Rule 56 summary judgment motion generates a plethora of material for the court to consider: pleadings, depositions, answers to interrogatories, admissions on file, "together with the affidavits, if any * * *," employing which the moving party endeavors to show there is no genuine issue of fact and it is entitled to summary judgment as a matter of law. Rule 56(c); see also Rule 56(e). Be it noted that by the latter section, a party may not rely on his pleadings to avoid judgment against him. This case went to summary judgment on an extraordinarily thin record, comprising the aforesaid collective bargaining...

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