Fowlkes v. International Broth. of Elec. Workers, Local No. 76
| Decision Date | 13 August 1990 |
| Docket Number | No. 11269-8-II,11269-8-II |
| Citation | 795 P.2d 137,58 Wn.App. 759 |
| Parties | , 139 L.R.R.M. (BNA) 2653, 117 Lab.Cas. P 56,501 Dave FOWLKES and Beverly Fowlkes, husband and wife, Respondents, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 76, Appellant. |
| Court | Washington Court of Appeals |
Jerome F. McCarthy, Vandeberg & Johnson, Tacoma, for respondents.
Dave Fowlkes brought this action, denominated by his counsel as a common law action sounding in contract/tort, in state court against the International Brotherhood of Electrical Workers, Local 76. A jury Local 76 is a signatory to a collective bargaining agreement with the Southwest Washington Chapter of the National Electrical Contractors Association. The agreement, which is binding on Local 76 and assenting employers, contains provisions governing employment referral. Under the agreement, employment applicants are registered in the highest of four groups for which they qualify. 1 Applicants in the highest group are given priority for job referral, followed by those in successive groups.
returned a verdict of $100,000 for Fowlkes, from which Local 76 appeals. Local 76 claims that state court jurisdiction was preempted by the jurisdiction of the National Labor Relations Board (Board); that the suit was barred by the six-month statute of limitations of section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b); that the complaint should have been dismissed because of Fowlkes's failure to exhaust available union remedies; and finally, that the evidence was insufficient to support the verdict. We affirm
To qualify in groups one and two, applicants must have passed a journeyman's examination or have been certified as a journeyman wireman by an apprentice and training committee. The agreement defines examination as "written and/or practical examinations, given by a duly constituted local union of the IBEW." Local 76 has administered only written examinations.
Local 76 must refer applicants for jobs according to the provisions of the collective bargaining agreement notwithstanding conflicting provisions in the union constitution or bylaws. Of the constitution and bylaws, only the bylaws contain any reference to employment referral. They state at Article XIV, § 7 as follows:
The handling of jobs for unemployed members shall be under the full supervision and direction of the Business Manager's office. He shall devise such means as he considers practical and fair in distributing available jobs to such members, if they are qualified to do the work. Members violating any rule or plan established shall be penalized as decided by the Executive Board.
There was evidence at trial that a group of between 20 to 25 Local 76 members had been qualified as journeymen without having taken the examination or having been certified by an apprentice and training committee. These members, known as Class D wiremen, had been hired as non-union employees by employers when Local 76 was out of referrals. Once employed, they became union members subject to the collective bargaining agreement. Under a directive from the international union, Class D wiremen who had been working a minimum of four years were certified as journeymen wiremen.
Fowlkes belonged to Local 76 during most of his career as an electrician, which began in the 1950's. Although he had never taken the journeyman's examination, Local 76 referred him for work with Groff Electric as a journeyman in the early 1970's. He worked at Groff Electric in that capacity for 11 years.
When work slowed at Groff Electric in 1982, Fowlkes sought new work through Local 76. However, he was not allowed journeyman status because he had not passed the Upon Fowlkes's request, the executive board of Local 76 agreed to provide him with study materials or a tutor to assist him in passing the journeyman's examination. Fowlkes contacted the international union when the promised assistance did not come through. The northwest representative of the international union then met with Fowlkes, his attorney, and the Local 76 business manager. At this meeting it was agreed that Local 76 would provide Fowlkes with information specifying subjects he should study. Thereafter, Fowlkes received one letter from the union. At trial, Fowlkes and his attorney testified that the letter was of no assistance. Fowlkes then attempted to take the examination but did not complete it, feeling he could not pass.
Local's written journeyman's examination, and thus he fell outside of groups one and two. Fowlkes was not thereafter referred for work
After attempting to obtain work through Local 76 for about eight months, Fowlkes began looking for non-union work, which he quickly obtained. He commenced this action in February 1985.
On appeal, Local 76 argues for the first time that the state court's jurisdiction was subject to preemption by the exclusive jurisdiction of the Board. The United States Supreme Court held in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), that in the absence of an overriding state interest such as the maintenance of domestic peace, state and federal court jurisdiction is preempted by the exclusive primary competence of the Board when the activity which is the subject matter of the litigation is arguably protected or prohibited by the provisions of the National Labor Relations Act, 29 U.S.C. § 151, et seq. The Court stated that preemption is essential "if the danger of state interference with national policy is to be averted." Garmon, 359 U.S. at 245, 79 S.Ct. at 780.
Local 76 contends that the crux of this suit is an allegation of a discriminatory hiring hall practice, a matter normally within the exclusive jurisdiction of the Board. See Fowlkes responds to the preemption claim by arguing that he sued Local 76 on § 7 of the bylaws, which brought this suit within § 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), an exception to Garmon preemption. That section provides:
Local 100 of the United Association of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963). Although Local 76 is tardy in raising the preemption issue, the issue concerns the subject matter jurisdiction of the state court and may be considered for the first time on appeal. See International Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 393, 106 S.Ct. 1904, 1913, 90 L.Ed.2d 389 (1986) ("A claim of Garmon pre-emption is a claim that the state court has no power to adjudicate the subject matter of the case, and when a claim of Garmon pre-emption is raised, it must be considered and resolved by the state court.")
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ..., or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). 2
State and federal courts have concurrent jurisdiction over a breach of contract action under this statute, Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S Ct. 519, 7 L.Ed.2d 483 (1962), but federal substantive law is controlling, Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 102, 82 S.Ct. 571, 576, 7 L.Ed.2d 593 (1962).
The Supreme Court held in Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), that the word "between" in § 301 referred to contracts, not suits. Therefore, to invoke federal court jurisdiction under § 301, the suit had to be on a contract between an employer Over the years, the concept of what constitutes a contract between labor organizations or between a union and an employer has been expanded. See United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. v. Local 334, 452 U.S. 615, 620-21, 101 S.Ct. 2546, 2549-50, 69 L.Ed.2d 280, 285-86 (1981); Kinney v. International Brotherhood of Elec. Workers, 669 F.2d 1222 (9th Cir.1981) (); Beriault v. Local 40, Super Cargoes & Checkers of the IL & WU, 501 F.2d 258 (9th Cir.1974) (); and Gable v. Local Union No. 387, 695 F.Supp. 1174, 1177 (N.D.Ga., 1988) (). No court has held that such a contract is not required, however.
and a labor organization, or between labor organizations. The Smith court held that a suit by a union member against his or her employer for breach of a collective bargaining agreement is judicially cognizable under § 301
In this case, there is such a contract: the collective bargaining agreement, as supplemented by the by-laws. The collective bargaining agreement provided for the establishment of the priority groups for referrals. It provided that assignment to Group I would be based on the passing of an examination given by the local union or certification by an apprentice and training committee. The by-laws authorized the business manager's office to distribute jobs in a fair and practical manner. Fowlkes contended that union officials acted arbitrarily in insisting that he pass a written examination, while qualifying certain other members as journeymen on the basis of experience. That is clearly a challenge to the implementation of both the by-laws and the collective bargaining agreement.
Neither should the fact that Fowlkes did not specifically allege a violation of the collective bargaining agreement preclude this argument. See Lewis v. Local Union No. 100 of the...
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