Canuel v. Oskoian

• Decision Date: 12 May 1960
• Docket Number: C.A. No. 2361.
• Citation: 184 F. Supp. 70
• Parties: Theobald J. CANUEL et al., Plaintiffs, v. Gregory OSKOIAN et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

184 F. Supp. 70

Theobald J. CANUEL et al., Plaintiffs, v. Gregory OSKOIAN et al., Defendants.

C.A. No. 2361.

United States District Court D. Rhode Island.

May 12, 1960.

Milton Stanzler, Providence, R. I., for plaintiffs.

William J. Sheehan, of Adler, Pollock & Sheehan, Isadore Kirshenbaum, of Kirshenbaum & Kirshenbaum, Providence, R. I., for defendants.

DAY, District Judge.

This is a class action brought by the named plaintiffs on behalf of themselves and others similarly situated against the named defendants as representatives of a class comprising the membership of the Bakery & Confectionery Workers International Union of America, an unincorporated labor organization (hereinafter called "the International"). The complaint is in five counts and seeks recovery of money damages as compensation for injuries allegedly sustained by the members of the plaintiff class as a result of the alleged tortious conduct of the defendants. Federal jurisdiction is founded on diversity of citizenship and the existence of a controversy in the required amount. 28 U.S.C.A. § 1332, as amended.

In each count the complaint alleges in substance that the plaintiffs and all the members of the class which they purport to represent are former members of the now defunct Independent Bakery Workers Union (hereinafter called "the Independent"); that the defendants and all the members of the class which they are alleged to represent are members of the International; that on November 28, 1956, pursuant to an election conducted by the National Labor Relations Board (hereinafter called "the Board"), the Independent was selected as the collective bargaining agent for the production and maintenance employees of the Great Atlantic & Pacific Tea Company (hereinafter called "the A. & P.") at its bakery in Cranston, Rhode Island; that on December 6, 1956, the Independent was duly certified by the Board as the collective bargaining agent for the said employees of the A. & P.; that the International had notice of the plaintiffs' employment and union affiliation as aforesaid; and that, subsequent to the organization of the Independent on April 12, 1956, the International and its members (who constitute the defendant class), together with others unnamed, pursued a course of conduct designed to prevent the Independent from representing the said production and maintenance employees of the A. & P., despite the election and certification of the Independent as aforesaid.

It is further alleged that thereafter the defendant class "maliciously and unlawfully interfered with the employment contract and rights" of the members of the Independent (Count I); that the defendant class conspired with the A. & P. so to interfere (Count II); that the defendant class "intentionally and maliciously induced and persuaded" the A. & P. to discontinue the employment of the plaintiffs (Count III); that the defendant class conspired with the A. & P. to commit such inducement (Count IV); and that the defendant class conspired with the A. & P. to deprive the plaintiffs of their rights under the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq. (Count V). Money damages are demanded in each count by reason of loss of wages, suffering, humiliation and the like; punitive as well as compensatory damages are sought.

It should be noted parenthetically that the complaint also sets out at length allegations bearing on the propriety of a class action in the circumstances alleged and on the adequacy of representation of both the plaintiff class and the defendant class. These allegations are set out in detail in my earlier opinion herein, see Canuel v. Oskoian, 1959, D.C.R.I., 23 F.R.D. 307, and the sufficiency thereof has already been determined, see Canuel v. Oskoian, supra, affirmed sub nom. Oskoian v. Canuel, 1959, 1 Cir., 269 F.2d 311. No useful purpose would be served by covering this ground again at the present time.

The case is presently before me on the defendants' motion to dismiss, which motion is predicated on two grounds, viz.: (1) lack of jurisdiction over the subject matter, and (2) failure to state a claim upon which relief can be granted.

In support of the first ground of their motion, the defendants urge that the acts of which the plaintiffs complain and for which they seek damages are unfair labor practices within the purview of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq.; and that primary and exclusive jurisdiction to hear and decide the issues raised in this action is vested by said Act in the Board.¹ In this connection, the defendants place great reliance on my decision in a related case, Gallogly v. Bakery and Confectionery Workers International Union, D.C.R.I.1960, 180 F.Supp. 778, and on the authorities cited therein.

This approach, however, overlooks a fundamental distinction between the Gallogly case and the case at bar. In Gallogly, no attempt was made to join the individual members of the International as defendants; and proper service was never obtained over the said union as an entity. Thus, the only defendant before the Court in Gallogly was the employer (the A. & P.). I held in that case that the complaint charged said defendant with acts constituting unfair labor practices, and held that this Court must therefore defer to the primary jurisdiction of the Board. But Gallogly was a case involving activities allegedly perpetrated by an employer to the detriment of its employees. It involved, as I there said at page 784 of 180 F.Supp., an alleged "violation of the fundamental rights which the federal law has undertaken to protect."² The situation is totally different in the case at bar, where the defendants are neither labor organizations nor employers—but merely individual members of a class.

In Oskoian v. Canuel, supra, the Court of Appeals clearly indicated that the International itself was not a party to the instant action.³ This is not a case such as Sanders v. International Ass'n of Bridge, Structural and Ornamental Iron Workers, D.C.Ky.1954, 120 F.Supp. 390, where a class action was instituted against a union by virtual representation. Rather, the defendants constitute a "true" class within the meaning of Rule 23(a) (1), 28 U.S.C.A.; and while that class, as defined in the complaint, comprises all the members of the union, it is not synonymous with the union as an entity. The distinction may seem technical at first blush, but it has many important implications. For example, any judgment entered herein would run against the individual members severally and not against the International's treasury (there being no applicable statute altering the common-law rule). See Lowry v. International Brotherhood of Boilermakers, 1958, 5 Cir., 259 F.2d 568, 574 note 21; Sperry Products, Inc. v. Ass'n of American Railroads, 1942, 2 Cir., 132 F.2d 408, 410, 145 A.L.R. 694; cf. United Mine Workers of America v. Coronado Coal Co., 1922, 259 U.S. 344, 390, 42 S.Ct. 570, 66 L.Ed. 975. Similarly, the plaintiffs must here prove the liability of the individual members of the International because of their participation in, ratification of, or authorization of the tortious conduct alleged. See Oskoian v. Canuel, supra, 269 F.2d at page 317; cf. Martin v. Curran, 1951, 303 N.Y. 276, 101 N.E.2d 683, 684, 686. And the Court must take precautions to see that each of the members of the defendant class, considered individually, is afforded due process. Oskoian v. Canuel, supra, 269 F.2d at page 317; cf. Hansberry v. Lee, 1940, 311 U.S. 32, 44-45, 61 S.Ct. 115, 85 L.Ed. 22.

Having in mind these distinctions and giving due weight to the statutory provision that activities of the sort complained of are unfair labor practices within the provisions of 29 U.S.C.A. § 158(b) only when committed by a "labor organization or its agents" it is difficult to perceive how the Board could in the circumstances of this case have any jurisdiction, primary or otherwise, over the members of the defendant class qua individuals.⁴ An action brought against the membership of a union as individuals as opposed to one brought against such union as an entity is at best a merely peripheral concern of the National Labor Relations Act. Cf. International Association of Machinists v. Gonzales, 1958, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. It is clear that at common law the accepted remedy for the tort of an unincorporated association (such as a labor union) was a suit against all the members of that union. United Mine Workers of America v. Coronado Coal Co., supra. While one method of suit against an unincorporated labor union under the law of Rhode Island is defined by 2 Gen.Laws R.I. (1956) §§ 9-2-10 through 9-2-15, there is no reason to believe that said common-law remedy has been abolished by the above mentioned statutory provisions. On the contrary, "that a suit against all the members may be maintained despite the statute is indicated by the permissive phraseology of § 9-2-12, and by the express terms of § 9-2-15 barring suits against the members while an action under the statute is pending." Oskoian v. Canuel, supra, 269 F.2d at page 315. In my judgment the possibility of conflict here with a uniform federal policy is too remote to justify depriving the federal or state courts of jurisdiction to vindicate the personal rights of ousted employees against the individual members of a rival union. It follows, therefore, that this Court has jurisdiction over the subject matter of this action.

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