Ryan v. International Union of Operating Engineers, Local 675, 85-5751

Decision Date24 July 1986
Docket NumberNo. 85-5751,85-5751
Citation794 F.2d 641
Parties123 L.R.R.M. (BNA) 2072, 55 USLW 2152, 105 Lab.Cas. P 12,011 Thomas RYAN and Beverly Eileen Ryan, Plaintiffs-Appellants, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 675, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

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 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 agreement and, on behalf of Ryan, an affidavit by him, which states that he was a member of the "Millwrights, Piledrivers and Drivers Union, Local 1026," employed by Raymond International Builders, Inc., and that on August 30, 1982, members of defendant union were employed, in common with him, on a project in Fort Lauderdale, Florida. The affidavit further states defendant union had no Craft Foreman or Assistant Craft Foreman responsible to supervise operating engineers and oilers at the site; Lindsley Mosley lacked the requisite qualifications as "construction project steward" (presumably he was the union steward); and on the date given, plaintiff was crushed by a crane operated by an oiler and IUOE member named Joe, who lacked the requisite qualifications to operate such a crane and was not properly supervised.

The court was unable to find anything in the collective bargaining agreement between IUOE and Raymond International that places on IUOE the duty to provide competent employees to Raymond International or to assure the safety of Raymond International's workplace. However, the opinion/order also deals with an issue we deem unnecessary to address, holding that Ryan lacks standing as a third-party beneficiary to enforce rights under the collective bargaining agreement, whatever they might be. It entered summary judgment on the second and third counts for defendant IUOE, the first having been earlier dismissed, and the motion to remand earlier denied. This appeal followed.

Discussion

Taking the motion to remand to the state court first, it is clear to us that the suit below was in all three counts a suit to assert rights under a collective bargaining agreement. Even as to the tort count, Ryan has stated that the duty of care owed him derives from the agreement. He has never been able to designate any other source. The suit was actually, therefore, one for violation of a contract "between an employer and a labor organization," (28 U.S.C. Sec. 185(a)) to the extent all three counts require interpretation of that contract in order to establish a basis for the litigation. Cf. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed. 206 (1985). As that decision holds, any such contract suit under state law is preempted and the federal court jurisdiction is exclusive. As also held in Allis-Chalmers, that conclusion is not avoided by dressing up a count to make it sound in tort, with the hope, perhaps, of making it a basis for punitive damages, though actually it depends on the express or implied provision of the contract.

On the other hand, this court has held since Allis-Chalmers, and with full reference to its teaching, that a state law tort claim is not preempted in case of a claim by an injured employee which is not a merely dressed-up contract count to secure punitive damages. Hechler v. International Brotherhood of Electrical Workers, 772 F.2d 788 (11th Cir.1985), cert. granted, --- U.S. ----, 106 S.Ct. 1967, 90 L.Ed.2d 652 (1986). In that case the union had a contract with the employer enabling and obliging it to monitor the workplace for safety. Plaintiff was a member of the union. The employer assigned her to work for which, she alleged, she was inadequately trained by the union and she was injured. She said the union owed her a duty to see to it she did no work for which she was not properly trained. While it would require some reference to the collective bargaining agreement to determine what duties the union might owe one of its members in this situation, this court stated that a claim so founded was of only peripheral concern to federal law, because the National Labor Relations Act, in 29 U.S.C. Sec. 185(a), addressed issues connected with the union's duty of fair representation of its members.

The second and third counts support the jurisdiction of the federal courts. The district court's decision to dismiss the first count seems, in light of the count itself, to be based on the proposition that no law, state or federal, imposes any duty on the union to see to the safety of the employer's workplace in the absence of an express agreement, or assumption by the union of that responsibility, not alleged in the first count. Thus, issues of preemption of state law do not arise in our review of that decision when the plaintiff can cite no law. That is the case here as plaintiffs' counsel admitted he could cite no case, federal or state, that supported the contention he was then making, i.e., that the claim was not under federal law, was not preempted, and should have been remanded as a state law claim, under which law it would be decided. So far as the decision below related to state law, it relied on pendent jurisdiction.

In Michigan Mutual Insurance Co. v. United States Steelworkers of America, 774 F.2d 104 (6th Cir.1985) that court holds on authority of Allis-Chalmers v. Lueck, federal law preempts any state law claim against a union for personal injury or death at the workplace if it is based on alleged agreement by a union pursuant to a collective bargaining agreement to perform safety services for its members. Under this authority, a remand to the state court would be precluded. It is not inconsistent with Heckler v. International Brotherhood of Electrical Workers, supra, of this court, as Heckler deals with a union's obligation to train a union...

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