Gable v. LOCAL UNION NO. 387

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: Michael Van Stephens, II, McNally Fox Mahler & Cameron, Fayetteville, Ga., for plaintiff
• Citation: Gable v. LOCAL UNION NO. 387, 695 F.Supp. 1174 (N.D. Ga. 1988)
• Decision Date: 06 April 1988
• Docket Number: No. 1:88-CV-26-RHH.,1:88-CV-26-RHH.
• Parties: Marvin Boyce GABLE, Plaintiff, v. LOCAL UNION # 387 INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND ORNAMENTAL IRON WORKERS, Defendants.

695 F. Supp. 1174

Marvin Boyce GABLE, Plaintiff, v. LOCAL UNION # 387 INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, AND ORNAMENTAL IRON WORKERS, Defendants.

No. 1:88-CV-26-RHH.

United States District Court, N.D. Georgia, Atlanta Division.

April 6, 1988.

Michael Van Stephens, II, McNally Fox Mahler & Cameron, Fayetteville, Ga., for plaintiff.

James T. Langford and Harris Jacobs, Jacobs & Langford, Atlanta, Ga., for defendants.

ORDER

ROBERT H. HALL, District Judge.

This case, which involves an employment contract dispute between a union's business agent and his union over three weeks vacation pay, is currently before the court on plaintiff's motion for remand. On November 20, 1987, plaintiff filed this action in the State Court of Fulton County, Georgia. Service was accomplished on December 8, 1987. On January 6, 1988, defendant filed a petition for removal with this court contending that a question of federal law is an essential element in this case. Plaintiff contends that his complaint presents no federal question and seeks an order remanding the case to state court.

In his complaint, plaintiff alleges that he was employed as a business agent for the defendant and as such accumulated three weeks of vacation pay pursuant to Article 7, Section 2, Paragraph 1, of the Bylaws of the defendant union local. The amount claimed totals $2,137.20. Plaintiff alleges that during January 1985, plaintiff submitted his request for vacation pay to the defendant union, but that defendant has failed to pay plaintiff the vacation pay earned. Plaintiff identifies the contract in dispute as the Bylaws and Constitution of Local 387 which he alleges entitle him to vacation pay in the amount claimed.

On motion to remand, the party originally seeking removal retains the burden of establishing that removal is proper. Thus, defendant has the burden of demonstrating that this court has jurisdiction to hear this case. If there is doubt concerning the court's jurisdiction, the case should be remanded. Jones v. General Tire & Rubber Co., 541 F.2d 660, 662 (7th Cir. 1976); Cowart Iron Works, Inc. v. Phillips Construction Co., 507 F.Supp. 740, 743-44 (S.D. Ga.1981).

The issue before the court is whether this case presents a federal question. While the well-pleaded complaint rule applies to removal of actions, the plaintiff cannot attempt to subvert a potential removal through the use of artful pleading to hide the federal question. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427, n. 2, 69 L.Ed.2d 103 (1981). Plaintiff's complaint does not allege any violation of federal law but appears to allege a cause of action for breach of contract. Defendant contends that plaintiff has artfully plead his complaint to hide a federal question and that the complaint actually states a cause of action that is pre-empted by the Labor Management Relations Act (LMRA).¹

The federal removal statute, 28 U.S.C. § 1441(b) provides:

Any civil action over which the district courts have original jurisdiction founded on the claim or right arising under the constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.

In In re Ben Carter, 618 F.2d 1093 (5th Cir.1980), the court reiterated the proper posture for a district court in inspecting a complaint on motion for remand.

For a case to "arise under" one of the stated sources of federal law, a right or immunity created by one of those sources "must be an element, and an essential one, of plaintiff's cause of action.... that right or immunity must be such that it will be supported if the Constitution or law as of the United States are given one construction or effect and defeated if they receive another." Gully v. First National Bank in Meridian, 299 U.S. 109 57 S.Ct. 96, 81 L.Ed. 70 (1936) (citations omitted). The federal controversy must be disclosed on the face of the complaint, unaided by the answer or by the petition for removal. Id. at 113 57 S.Ct. at 98; see also Louisville & R Co. v. Mottley, 211 U.S. 149 29 S.Ct. 42, 53 L.Ed. 126 (1908); Tennessee v. Union and Planter's Bank, 152 U.S. 454 14 S.Ct. 654, 38 L.Ed. 511 (1894). On the other hand, the accepted rule in this circuit is that upon removal, the removal court should inspect the complaint carefully to determine whether a federal claim is necessarily presented even if the plaintiff has couched his claim exclusively in terms of state law. See Romick v. Bekins Van & Storage Company, 197 F.2d 369 (5th Cir.1952). The reviewing court looks to the substance of the complaint not the labels used in it. See Smith v. Local 29, Sheet Metal Workers International Association, 500 F.2d 741, 748-49 n. 6 (5th Cir.1974).

Id. at 1100-1101.

Defendant contends that this court has jurisdiction because plaintiff's complaint states a cause of action that falls within the scope of section 301 of the LMRA, 29 U.S.C. § 185(a). Section 301 states as follows:

Suits for violations of contracts between an employer and a labor organization representing employees in any industry affecting commerce as defined in this chapter, 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) (emphasis added).

The parties contest essentially three issues: (1) Does Section 301 give the court jurisdiction over a dispute between an individual union member and the union to which he belongs? (2) Are the bylaws to the union constitution "contracts" within the meaning of section 301? (3) Does the Supreme Court's decision in United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry v. Local 334, 452 U.S. 615, 101 S.Ct. 2546, 69 L.Ed.2d 280 (1981) abolish the "significant impact" requirement in a suit by an individual union member against his or her union based on a violation of the bylaws of the union constitution?²

There is a conflict among the federal circuits concerning whether section 301 confers jurisdiction on federal courts to entertain contract disputes between individual union members and their union based on the union constitution. The Second and Ninth Circuits and one district court in the Eighth Circuit have held that section 301 encompasses such suits by individual union members. See Abrams v. Carrier Corp., 434 F.2d 1234, 1247 (2d Cir.1970), cert. denied sub. nom. Steelworkers v. Abrams, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971); Kinney v. International Brotherhood of Electrical Workers, 669 F.2d 1222 (9th Cir.1981) (as amended in 1982) (citing Stelling v. International Brotherhood of Electrical Workers Local Union Number 1547, 587 F.2d 1379 (9th Cir.1978)); Alford v. National Post Office Mail Handlers, 576 F.Supp. 278 (E.D.Mo.1983).

The Sixth Circuit and a district court in the Third Circuit have held that section 301 does not embrace suits by individual union members against their unions. See Trail v. International Brotherhood of Teamsters, 542 F.2d 961 (6th Cir.1976); Frenza v. Sheet Metal Workers' International Association, 576 F.Supp. 580, 585 (E.D.Mich. 1983); Petrowski v. Kilroy, 609 F.Supp. 220 (E.D.Pa.1985) (adopting the position of the Sixth Circuit in Trail).

This issue is not a novel one in the Eleventh Circuit. In Alexander v. International Union of Operating Engineers, AFL-CIO, 624 F.2d 1235 (5th Cir.1980), the former Fifth Circuit confronted a suit on behalf of two individual union members against their local and international union. Although not explicitly discussing the issue, the court assumed jurisdiction over the section 301 claim in deciding the case. The court discussed Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) (holding that an individual union member could sue under section 301 for breach of an arbitration agreement), and noted that jurisdiction under section 301 was proper as long as the suit was based on a contract between labor organizations or between a labor organization and an employer. 624 F.2d at 1238; See also Alford v. National Post Office Mail Handlers, 576 F.Supp. 278, 283 (E.D. Mo.1983). The court went on to conclude that a union constitution could be a "contract" between labor organizations and effectively held that an individual union member could state a claim under section 301 for violations of the union constitution. Thus, this court believes the rule in this circuit is that union members may sue their union under section 301 for breach of contract based on their union constitution.³

This court also believes that under the reasoning in Alexander, 624 F.2d at 1238-39 and Plumbers & Pipefitters, 452 U.S. at 621-22, 101 S.Ct. at 2550, the bylaws of a union constitution may also be considered a "contract" under the meaning of section 301. Extending the contract analogy, bylaws are analogous to specific contract terms or to an addendum adding terms to the original contract. Both the employer union and the employee member are bound by these terms. The court sees no reason to draw a distinction between a constitution and its bylaws. See Pruitt v. Carpenters, Local 225, No. 86-CV-101-GET (Tidwell, J.) (N.D.Ga. June 2, 1987) (construing a union constitution and bylaws as a "contract" within the meaning of section 301).

Following the lead of numerous other circuits, the former Fifth Circuit held that for purposes of conferring jurisdiction under section 301, the alleged violation "must create a threat to industrial peace or have a significant impact upon labor-employer relations." Alexander, 624 F.2d at 1238. The court clarified that jurisdiction depends on whether there is a contract between an employer and a labor organization or between two labor organizations. While the lawsuit "need not necessarily be between an employer and a labor organization...