Case v. INTERN. BROTH. OF ELEC. WORKERS, ETC.

• Decision Date: 13 October 1977
• Docket Number: Civ. No. A77-65.
• Citation: 438 F. Supp. 856
• Parties: Benny Lee CASE et al., Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NUMBER 1547, etc., et al., Defendants, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, (I.B.E.W.), Third Party Plaintiffs, v. ALASKA CHAPTER, NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, Third Party Defendant.
• Court: U.S. District Court — District of Alaska

438 F. Supp. 856

Benny Lee CASE et al., Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NUMBER 1547, etc., et al., Defendants, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, (I.B.E.W.), Third Party Plaintiffs, v. ALASKA CHAPTER, NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, Third Party Defendant.

Civ. No. A77-65.

United States District Court, D. Alaska.

October 13, 1977.

Edmund J. Rice, Anchorage, Alaska, for plaintiffs.

Thomas X. Dunn, Sherman, Dunn, Cohen & Leifer, Washington, D. C., Hugh Hafer, Hafer, Cassidy & Price, Seattle, Wash., Howard S. Trickey, Josephson & Trickey, Inc., Anchorage, Alaska, for defendants IBEW, Pillard, Vinson & Taylor.

Robert M. Goldberg, Anchorage, Alaska, for defendant International Brotherhood of Electrical Workers, Local Union 1547.

Allen McGrath, Paul W. Koval, Graham & James, Anchorage, Alaska, for third party defendants.

MEMORANDUM AND ORDER

VON DER HEYDT, Chief Judge.

THIS CAUSE comes before the court on plaintiffs' motion for summary judgment and motion to file an amended complaint.¹

Plaintiffs are individual members of the International Brotherhood of Electrical Workers, Local 1547 (hereinafter IBEW local or local union). Defendants are the local union, the International Brotherhood of Electrical Workers (hereinafter IBEW or international union) and individual officers of both the IBEW local and international union.² Third party defendant is the local chapter of an organization which represents employers in the electrical industry. This organization frequently negotiates and contracts on behalf of employers of IBEW members with the IBEW on labor/management matters. It appears that this arrangement has succeeded in promoting labor peace in the industry. See generally Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 894 (4th Cir. 1963).

In 1974 a resolution was passed at a convention of the IBEW authorizing the International officers to "negotiate" with NECA for improvements in pension benefits paid to the National Electrical Benefit Fund (NEBF). This fund essentially is a pension fund for IBEW members which is funded by NECA members.

In December, 1976, the local union received notice that a contract between the IBEW and NECA had been entered into. The international union required the local union to incorporate the terms of the new contract into the local contracts. Those terms admittedly and obviously involved some concessions by the IBEW for which contributions to the pension fund were increased from $30,000,000 per year to $90,000,000 per year. The effective date of the new contract was July 1, 1977.

The essence of the complaint by these individuals is that under the international union's constitution the members of the local union were required to vote on the new contract before it was effective. It is uncontradicted that neither this local nor any other was given the right to vote on this contract.

In addition the complaint states claims based on the union discipline of individual members and failure to inform union members of their rights.

I. Jurisdiction

Contract Claims

In its memorandum issued on plaintiffs' motion for a preliminary injunction the court considered certain jurisdictional issues. It declined to rule upon those issues at that time, however, as the motion was deemed not well taken substantively. Those issues must now be resolved.

Plaintiffs' first basis for jurisdiction is § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185. Their contention is that the constitution forms a contract between the international union and its members which provides a basis for a § 301 claim. While some courts have so held, see Parks v. IBEW, 314 F.2d 886, 914-915 (4th Cir. 1965), those cases have generally involved actions between local unions and their parent union. In the Ninth Circuit it is well established that in an action between individuals and their union over issues unrelated to a collective bargaining agreement, the constitution will not support § 301 jurisdiction. Hotel and Restaurant Employees Local 400 v. Svacek, 431 F.2d 705, 706 (9th Cir. 1970). Not answered definitively in this Circuit is whether the constitution provides a basis for jurisdiction under § 301 when the dispute is between individuals and the union over their constitutional rights yet also relates to a collective bargaining agreement such as the present case. The court holds that it does not.

The basis for this holding is found in the language of Svacek, supra. In that case the court stated "Nor do we believe that it was the intent of Congress for the courts to use the Labor Management Relations Act to police intra-union problems." Id. at 706. This suit, as between the individuals and their union, although relating to a collective bargaining agreement, is essentially an intra-union dispute over constitutional or statutory rights. Jurisdiction does not lie under § 301 for such disputes. See also Smith v. United Mine Workers, 493 F.2d 1241, 1244 (10th Cir. 1974).

The second basis for jurisdiction is § 101 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411. It is asserted under this claim that these members have been denied the equal right to vote as is required by § 101. The claim here, however, is not that these union members have been denied rights conferred on others. Rather they contend that no one has been given this right. In Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964), the Supreme Court stated in a § 101 case that

The complaining union members here have not been discriminated against in any way and have been denied no privilege or right to vote or nominate which the union has granted to others.

Based on this rationale the Court held that there was no claim under § 101. This reasoning has been adopted by other courts in circumstances similar to that herein. See Aikens v. Abel, 373 F.Supp. 425, 434 (W.D.Penn.1974); Cf. Lux v. Blackman, 546 F.2d 713, 716 (7th Cir. 1976); Smith v. United Mine Workers, 493 F.2d 1241, 1244 (10th Cir. 1974). Whether or not these members were treated properly or fairly, they were treated equally and there is no § 101 claim.

As the final basis for the claim plaintiffs allege a violation of § 501 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 501. Defendants assert that § 501 may only be invoked to protect financial or monetary trust obligations. Plaintiffs assert a broader reading. The court notes that here again the issue squarely presented remains unresolved in this Circuit. Kerr v. Shanks, 466 F.2d 1271, 1275 n. 2 (9th Cir. 1972). For reasons that subsequently appear the court is not compelled to reach this issue with regard to the injunctive relief sought.

Assuming that jurisdiction is appropriate under § 501 and that plaintiffs are successful in their claim they have requested two types of remedies which relate to the NECA-IBEW contract. In both their first amended complaint and proposed second amended complaint they seek a declaratory judgment and injunctive relief.

The essence of their prayer for injunctive relief is a request that the court set aside the NECA-IBEW contract and require union approval thereof. This remedy clearly is a request to void the contract or declare it void, and it is a request to which NECA is an indispensible party. 7 Wright & Miller, Federal Practice and Procedure, § 1613, pp. 135-136; Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir. 1975).

Plaintiffs, however, steadfastly maintain their position that they do not desire to join NECA. This position appears to be related to their assertion that the contract sued upon is the union's constitution. While that constitution may relate to their ability to obtain § 301 jurisdiction it has little to do with the nature of the relief sought herein, i. e., voiding the NECA-IBEW agreement.

It is unlikely that plaintiff could obtain jurisdiction over NECA under § 501 and they have conceded as much. See Supp.Memo., S.J., p. 2, Ins. 25 et seq. It is also clear that NECA cannot be joined as a pendent party. Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977). The issue then is whether this claim should be dismissed based on the failure or inability to join NECA. Rule 19(b), Fed.R.Civ.Pro., delineates four factors which should guide the court in making this determination. They are

First, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

From the previous discussion it is clear that factors first, second, and third, weigh strongly against plaintiffs. While it might be possible to fashion some remedy relating solely to the unions other than voiding the NECA-IBEW contract plaintiffs have made it quite clear that this is the essence of the relief they seek.

The fourth factor presents a more difficult problem. As is clear from the previous discussion these plaintiffs do not have claims under the other bases pleaded and a dismissal of this claim for nonjoinder may leave them without a remedy. However, it first should be noted that this is but one of four factors and must be balanced against the other three. 7 Wright & Miller, Federal Practice and Procedure, § 1608, p. 81. In this case the balance tips toward dismissal. Lomayaktewa v. Hathaway, 520 F.2d 1324, 1326 (9th Cir. 1975).

Secondly, it is probable that these plaintiffs could assert a claim over which the court would have jurisdiction for the breach of the duty of fair representation. Beriault v. Local 40, Super Cargoes & Check. of I. L. & W. U., 501 F.2d 258, 263-64 & 266 (9th...