Coleman v. Kroger Company

• Citation: 399 F. Supp. 724
• Decision Date: 26 August 1975
• Docket Number: Civ. A. No. 74-118(R).
• Court: United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
• Parties: Ben Franklin COLEMAN, Plaintiff, v. The KROGER COMPANY et al., Defendants.

399 F. Supp. 724

Ben Franklin COLEMAN, Plaintiff, v. The KROGER COMPANY et al., Defendants.

Civ. A. No. 74-118(R).

United States District Court, W. D. Virginia.

August 26, 1975.

COPYRIGHT MATERIAL OMITTED

Raymond R. Robrecht, Salem, Va., for plaintiff.

Gerry M. Miller, Milwaukee, Wis., Norman Olitsky, Portsmouth, Va., Jack V. Place, Roanoke, Va., Hugh J. Beins, Jonathan G. Axelrod, Washington, D.C., William B. Poff, Roanoke, Va., for defendants.

OPINION

TURK, Chief Judge.

In this suit, Ben Franklin Coleman alleges that the defendants, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereafter the "International") and Local No. 171 of the International (hereafter "Local 171"), violated the duty of fair representation owed to him by negotiating and executing a collective bargaining agreement with the Kroger Company which removed him from the Kroger Retirement Income Plan and made him subject to the union's retirement plan. The Kroger Company is also named as a defendant on the theory that they aided and abetted the unions in this alleged violation and denied him a vested right to a pension. The unions have moved to dismiss the complaint on the following grounds: (1) that the complaint fails to state a claim upon which relief may be granted; (2) that the court lacks subject matter jurisdiction over the suit; (3) that the suit is barred by the statute of limitations; and (4) that the suit is premature because plaintiff has failed to exhaust his internal union remedies or contractual remedies. The Kroger Company has joined with the unions in moving to dismiss the complaint on the above grounds and in addition has moved for summary judgment on basis that the undisputed facts reveal that plaintiff has no cognizable claim against it.

Plaintiff was employed as a truck driver by the Kroger Company at its warehouse in Salem, Virginia from January, 1947 until January, 1973.¹ During this time he was a member of the International and Local 171 which were recognized by Kroger as the collective bargaining agents for plaintiff and others. Kroger had in effect a "Retirement Income Plan" (the Kroger plan) which provided retirement benefits for its employees who met certain age and service requirements. Basically, under this plan, an employee with 15 years of "participating service" and good standing in the company was eligible for normal retirement benefits at age 65, reduced early retirement benefits at age 60, and disability retirement benefits at age 55. Disability retirement benefits were subject to written approval by Kroger's Board of Directors. Kroger paid the entire cost of this plan. By amendments to this plan adopted in 1956 and 1962, Kroger employees, who became subject to a union pension plan, were excluded from the Kroger plan.

The International and Kroger reached an agreement on July 13, 1970 which provided that certain employees, including the plaintiff, would be transferred from coverage under the Kroger plan and become subject to the Central States, Southeast and Southwest Areas Pension Fund (the union's plan). This change was effected as to Local 171 by a supplemental agreement dated December 23, 1970 and effective January 3, 1971. For an employee to be eligible under the union's plan, it was required that Kroger have made contributions to the union's pension fund for the employee for a period of 450 weeks ÔÇö about 8Z years. Because of this requirement, which would leave certain older employees ineligible under the union's plan at retirement age, those employees who were over 56 years and 4 months of age remained subject to the Kroger plan. As of January 3, 1971, the effective date of this agreement, plaintiff was 55 years and 8 months of age.

Plaintiff left his employment with Kroger in November, 1972 because of permanent physical disability. He thereafter inquired as to his eligibility for disability retirement benefits under the Kroger plan and was informed by company officials that as of January 3, 1971 his eligibility under the plan had ceased because he was subject to the union's plan. Plaintiff accordingly looked to his local union for benefits but was informed that he was ineligible for benefits under the union's plan because Kroger had not made the requisite 450 weekly contributions on his behalf. Plaintiff filed this suit on June 28, 1974 seeking joint and several damages against the defendants for the amount of money he would have been entitled to under the Kroger plan.

Plaintiff initially asserted that subject matter jurisdiction over this suit was conferred by section 301 of the Labor Management Relations Act, 29 U.S. C. ž 185, which authorizes suits in federal court for violations of collective bargaining agreements. It is clear that plaintiff's suit is not predicated on a breach of a collective bargaining agreement and plaintiff does not now seriously contend that jurisdiction is conferred by section 301. Instead, plaintiff now relies on 28 U.S.C. ž 1337 which confers federal jurisdiction over suits arising under any Act of Congress regulating Commerce. The Labor Management Relations Act (LMRA) is unquestionably an Act of Congress regulating commerce, Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 561-562, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), and therefore if plaintiff's complaint states a claim arising under the LMRA jurisdiction exists in this court.

Plaintiff's claim against the unions is based on the alleged breach of their duty of fair representation. Such a cause of action judicially evolved from sections 8(b) and 9(a) of the LMRA, 29 U.S.C. žž 158(b) and 159(a). Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Smith v. Local No. 25, Sheet Metal Workers, 500 F. 2d 741, 746 (5th Cir. 1974), and thus unless this alleged violation is preempted as being within the exclusive jurisdiction of the NLRB, jurisdiction exists under 28 U.S.C. ž 1337. Retana v. Apartment, Motel, Hotel El. Op. U. Loc. No. 14, 453 F.2d 1018, 1021 (9th Cir. 1972).

The basic test of pre-emption was stated by the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236 at 245, 79 S.Ct. 773 at 780, 3 L.Ed.2d 775 (1959) as follows:

When an activity is arguably subject to ž 7 or ž 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board . . .."

Although this doctrine would seemingly encompass violations of a duty of fair representation, this is not necessarily the case. In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) the Court held that an employee's suit against his union for an alleged breach of the duty of fair representation was not preempted by the NLRB. This exception to the pre-emption doctrine was reaffirmed in Amalgamated Ass'n of St., E.R. & MC. Emp. v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971) where the Court stated:

This Court's refusal to limit judicial competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot, in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy. The duty of fair representation was judicially evolved, without the participation of the NLRB, to enforce fully the important principle that no individual union member may suffer invidious, hostile treatment at the hands of his coworkers. Where such union conduct is proved it is clear, beyond doubt, that the conduct could not be otherwise regulated by the substantive federal law. And the fact that the doctrine was originally developed and applied by courts, after passage of the Act, and carries with it the need to adduce substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives ensures that the risk of conflict with the general congressional policy favoring expert, centralized administration, and remedial action is tolerably slight. Vaca v. Sipes, supra, 386 U.S. at 180-181 87 S.Ct. 903, at 911-912. So viewed, the duty of fair representation, properly defined, operates to limit the scope of Garmon where the sheer logic of the preemption principle might otherwise cause it to be extended to a point where its operation might be unjust. Vaca v. Sipes, supra, at 182-183 87 S.Ct. 903, at 912-913. If, however, the congressional policies Garmon seeks to promote are not to be swallowed up, the very distinction, . . . between honest, mistaken conduct, on the one hand, and deliberate and severely hostile and irrational treatment, on the other, needs strictly to be maintained. 403 U.S. at 301, 91 S.Ct. at 1925.

Defendant unions submit that plaintiff's complaint does not come within the above-quoted exception to the pre-emption doctrine because the acts complained of were not hostile or irrational. However, plaintiff has alleged that the actions of the unions in failing to protect his interests were "arbitrary capricious, discriminatory, unreasonable and in bad faith," and given the presently undisputed facts supporting this allegation it is by no means inconceivable that upon consideration of the merits of the case, plaintiff's allegations will be sustained. In Griffin v. UAW, 469 F.2d 181 (4th Cir. 1972), the court stated:

Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable or arbitrary as to constitute a violation of the duty of fair representation. 469 F.2d at 183.

In Jones v. Trans World Airlines, Inc., 495 F.2d 790 (2nd Cir. 1974) the court similarly stated:

While it is true that situations in which a union violates its duty have been identified by such phrases as `hostile discrimination,' citations omitted, and `arbitrary, discriminatory,' or `bad faith' conduct, Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), these

...