Bebensee v. Ross Pierce Elec. Corp.

• Decision Date: 02 June 1977
• Docket Number: No. 7,I,AFL-CI,7
• Citation: 400 Mich. 233,253 N.W.2d 633
• Parties: , 95 L.R.R.M. (BNA) 2659, 81 Lab.Cas. P 13,273 Norman H. BEBENSEE, Plaintiff-Appellant, v. ROSS PIERCE ELECTRIC CORP., a Michigan corporation, Defendant, and Local 58 of the International Brotherhood of Electrical Workers,nternational Brotherhood of Electrical Workers, and William Galvin, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 633

253 N.W.2d 633

400 Mich. 233, 95 L.R.R.M. (BNA) 2659,

81 Lab.Cas. P 13,273

Norman H. BEBENSEE, Plaintiff-Appellant, v. ROSS PIERCE ELECTRIC CORP., a Michigan corporation, Defendant and Local 58 of the International Brotherhood of Electrical Workers, AFL-CIO, International Brotherhood of Electrical Workers, and William Galvin Defendants-Appellees.

No. 7.

Supreme Court of Michigan.

June 2, 1977.

Gerald E. Mugan, McIntosh, Mugan & Huegli, Port Huron, for plaintiff-appellant.

Miller, Klimist, Cohen, Martens & Sugerman, P. C., by Bruce A. Miller and Samuel C. McKnight, Detroit, for defendants-appellees Local 58 of the International Brotherhood of Elec. Workers, AFL-CIO; and William Galvin.

WILLIAMS, Justice.

The primary issue posed here is whether the National Labor Relations Act preempts plaintiff from bringing, in a Michigan court, this tort action charging a common We hold that under Farmer v. United Brotherhood of Carpenters & Joiners of America, Local 25, --- U.S. ---- 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), plaintiff's suit is preempted. We need not consider the other questions posed.

law conspiracy by a former employer, a labor union, and a business agent for the union, to deprive him of his right to work. Defendant also asserts that plaintiff should be barred from bringing his complaint to state court due to the principle of collateral estoppel and due to a failure to exhaust internal union remedies.

I FACTS

Plaintiff moved from Windsor to Detroit in 1954, intending to work at his electrician's trade in the Detroit area. At about that time, plaintiff attempted to transfer his membership in a Windsor local of the International Brotherhood of Electrical Workers to defendant Local 58 in Wayne County.

Plaintiff was unsuccessful despite repeated attempts over a period of 19 years, and was consequently disadvantaged in obtaining job referrals. According to plaintiff's testimony in the trial court, repeated requests for a hearing before the Executive Board of the local, pursuant to the union's grievance procedure, were a part of plaintiff's efforts to transfer membership, and these requests were ignored (Appellant's Appendix, pp 68a-71a). Finally in September of 1967, plaintiff wrote a letter to the president of the International Brotherhood requesting assistance in securing transfer to Local 58.

The union responded by requesting that plaintiff's employer at that time, defendant Ross Pierce Electric, Inc., discharge plaintiff, a request that employer granted.

Plaintiff subsequently contacted the National Labor Relations Board, and in February of 1968 the Board issued a Complaint and Notice of Hearing charging Local 58 with unfair labor practices under § 8(b)(1) and § 8(b)(2) of the National Labor Relations Act, specifically asserting that Local 58 had without justification refused to allow plaintiff to become a member of the local, caused Ross Pierce to discharge plaintiff without cause in October of 1967, and by these and other acts interfered with plaintiff's rights under § 7 of the Act.

Before the hearing date, the NLRB proposed a settlement agreement under which the union was to pay plaintiff $1,200 and agreed to refrain from discriminating against plaintiff. The union agreed to this settlement in mid-April of 1968.

Plaintiff, however, refused to become a party to this agreement. After unsuccessfully appealing the settlement agreement, plaintiff refused to accept the $1,200 judgment and filed a civil complaint in St. Clair County Circuit Court.

In Count I of his complaint, plaintiff charged Ross Pierce Electric, Inc., with conspiring with the other defendants, such conspiracy resulting in the wrongful discharge of plaintiff. This discharge was said to be contrary "to the provisions of the National Labor Relations Act, laws of the State of Michigan and the common law" (p 6a of plaintiff's appendix).

In Count II, plaintiff charged Local 58 with repeatedly denying his application for membership, and conspiring with the other defendants to wrongfully discharge plaintiff and to blackball him from gaining further employment in his profession.

In Count III, plaintiff charged William Galvin, a business agent for Local 58, with the same wrongs outlined in Count II, again asserting that such conduct was contrary to the NLRA as well as the laws of Michigan.

In Count IV, plaintiff directed these same charges against the International Brotherhood of Electrical Workers.

The trial court without jury held that, with the exception of Ross Pierce Electric, Inc., all defendants were guilty of engaging in a common-law conspiracy to deprive plaintiff of the right to be gainfully employed as an electrician. Liability was set at $25,000.

The Court of Appeals reversed the trial court, holding that due to federal preemption under the NLRA, the trial court did We granted leave to appeal on May 1, 1974.

not have subject matter jurisdiction over plaintiff's complaint.

II FEDERAL PREEMPTION UNDER THE NLRA

The threshold issue in the instant case is whether the trial court lacked jurisdiction to hear plaintiff's complaint due to federal preemption under the National Labor Relations Act. Defendants argue that plaintiff's complaint could be considered only by the National Labor Relations Board.

In enacting the National Labor Relations Act, Congress established a policy of national uniformity in labor relations. This policy was to be served not only through the enactment of substantive federal labor law, but also through the creation of centralized administration, the National Labor Relations Board, to administer that law. ¹

It has been the task of the United States Supreme Court to shape the federal preemption doctrine in this area so as to protect this Congressionally established policy of uniformity, and the cornerstone of this effort is the landmark case of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

In Garmon, the Court was confronted with the question of whether a California court had jurisdiction to award damages for tort liability arising out of peaceful union activity that the California court had earlier found to be an unfair labor practice under the NLRA. The NLRB had refused to exercise its jurisdiction in the matter.

The Supreme Court held that the state court had no jurisdiction to award damages in such a situation due to federal preemption by the NLRA. In so holding, the Court established a broad test of preemption, expressed as follows:

" * * * When an activity is arguably subject to § 7 or § 8 of the (National Labor Relations) Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S. 236, 245, 79 S.Ct. 773, 780.

The Garmon preemption test was reaffirmed by the United States Supreme Court in Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 293, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 2552-2553, 49 L.Ed.2d 396 (1976); and Farmer v. United Brotherhood of Carpenters, --- U.S. ----, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977).

There is no question that under the basic Garmon doctrine, plaintiff's suit would be preempted. The conduct here in question is clearly "arguably subject" to § 7 or § 8 of the NLRA. In point of fact, prior to the trial, the NLRB had explicitly charged in its complaint that the conduct of the union did in fact constitute an unfair labor practice under the act. Moreover, plaintiff himself contended in his complaint that the activities of the union and the employer constituted an unfair labor practice under the NLRA.

However, if the conduct which is the subject matter of the instant litigation falls within one of the exceptions to the Garmon doctrine established by the United States Supreme Court or by Congress, ² plaintiff's Plaintiff argues that his suit is not preempted under the exception to the Garmon doctrine recognized in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) for suits involving breaches of the duty of fair representation.

suit in state court would not be preempted and the trial court would have jurisdiction to consider that suit.

In Vaca, an employee alleged in state court that he had been wrongfully discharged by his employer in violation of the collective bargaining agreement, and that his union had arbitrarily refused to take his grievance to arbitration under the final step of the bargaining agreement grievance procedures.

On review, the United States Supreme Court held that where there is a complaint of a breach of a union's statutory duty to fairly represent all its members, state and federal courts may exercise jurisdiction even if the conduct complained of was arguably subject to the National Labor Relations Act. 386 U.S. 171, 188, 87 S.Ct. 903.

Defendants argue that the instant case is not within the Vaca exception for three reasons:

(1) Defendants assert that the Vaca exception is limited to cases where there is an alleged breach of the collective bargaining agreement as well as an alleged breach of the duty of fair representation, and that plaintiff here has not alleged a breach of the collective bargaining agreement. (Defendant's brief, p 30)

(2) Defendants assert that the conduct that is the subject of this litigation is not of the type exempted from the Garmon doctrine by Vaca. (Defendants' brief, pp 31-32)

(3) Defendants assert that the fact that plaintiff's complaint labeled the conduct complained of a "tortious conspiracy" to deprive plaintiff of the rights he was entitled to under his contract of employment takes this case outside of the Vaca exception. (Defendants' brief, p 30) ³

Defendant is clearly...