Gray v. INTERNATIONAL ASS'N OF HEAT & FROST I. & AW, L. NO. 51, 18858.

• Decision Date: 30 September 1969
• Docket Number: No. 18858.,18858.
• Parties: Ella GRAY, individually and as Administratrix of the Estate of Leo Gray, Plaintiff-Appellant, v. INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL NO. 51, and International Association of Heat and Frost Insulators and Asbestos Workers and North Brothers, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

416 F.2d 313 (1969)

Ella GRAY, individually and as Administratrix of the Estate of Leo Gray, Plaintiff-Appellant, v. INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL NO. 51, and International Association of Heat and Frost Insulators and Asbestos Workers and North Brothers, Inc., Defendants-Appellees.

No. 18858.

United States Court of Appeals Sixth Circuit.

September 30, 1969.

E. Gerry Barker, Robert L. Durning, Jr., Louisville, Ky., for appellant on the brief; Woodson, Barker & Durning, Louisville, Ky., of counsel.

Louis Sherman, Thomas X. Dunn, Washington, D. C., for International Assn. on the brief.

Herbert L. Segal and Charles R. Isenberg, Louisville, Ky., for Local No. 51 on the brief.

Thomas W. Speckman, Clay L. Morton, Marshall, Cochran, Heyburn & Wells, Louisville, Ky., for North Brothers, Inc. on the brief.

Before PECK, McCREE and COMBS, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from an order of the District Court dismissing with prejudice an action against plaintiff's decedent's international and local unions and against a company where he had sought employment. The questions presented are: whether the suit against North Brothers, Inc., hereinafter referred to as North Brothers, should be dismissed because of appellant's failure to state a claim upon which relief can be granted; whether the District Court properly granted the motion of the International Association of Heat and Frost Insulators and Asbestos Workers, hereinafter referred to as the International Union, to dismiss it from appellant's action for lack of jurisdiction; and whether the period prescribed by the law of Kentucky for bringing an action based on a liability created by statute is applicable and bars any recovery against Local 51 of the International Union, hereinafter referred to as Local 51.

Leo Gray, appellant's deceased husband, was a member of Local 51 at all times relevant to this appeal. Early in 1960, while he was residing in Freeport, Texas, he wrote several letters to Mr. Elmore, the business agent of Local 51, at the union's principal office in Louisville, Kentucky and informed him that he was returning to Kentucky to obtain work. Having received no response, Gray communicated with North Brothers, which he knew had contracted for a construction job in Lexington, Kentucky and was told that work would be available in mid-April, 1960. At North Brothers' suggestion, he then telephoned Mr. Elmore and was instructed to go to Lexington.

Gray, who was classified as a "mechanic",¹ arrived in Lexington in April, but failed to obtain a job from North Brothers. He complained to Local 51 when he learned that the company had hired an "improver" in apparent violation of a provision of the collective bargaining agreement requiring the maintenance of a minimum ratio between mechanics and improvers. However, Elmore told him that he was unable to help him. By the end of July, 1960, when Gray had still not obtained a job in Lexington, he returned to Texas and commenced employment there. At no time thereafter did he return to Kentucky.

On October 10, 1966, over six years later, appellant filed her complaint seeking damages. As subsequently amended pursuant to an order of the District Court, it alleges that Local 51 breached both its statutory duty as Gray's bargaining representative and its contractual duty under the terms of its constitution by failing to assist Gray in his attempt to obtain employment with North Brothers, and that the International Union wrongfully and knowingly acquiesced in this breach. The complaint also alleges that North Brothers breached its collective bargaining agreement with Local 51 by refusing to hire Gray. The District Court held that the action is barred by the applicable statute of limitations and dismissed it with prejudice. The court had previously dismissed the International Union because of insufficient service of process on it. This appeal followed.

We affirm the dismissal of appellant's suit against North Brothers because it appears on the face of the complaint, when read with the collective bargaining agreement between Local 51 and North Brothers, that she has failed to state a claim upon which relief can be granted. Her complaint alleges that North Brothers violated the agreement by refusing to hire Gray. She contends that because the company had hired an improver it was required to hire more mechanics in order to maintain the requisite minimum ratio between employees of those classifications. But even if North Brothers had hired an improver in violation of the contract (which it denies), plaintiff's decedent had no legal right under the agreement to be hired to replace him. The terms of the collective bargaining agreement did not require the hiring of any particular mechanics and even mechanics who were not union members were eligible for employment. This appears to be what the District Court meant when it concluded:

The plaintiff\'s claim against North Brothers is based on its breach of the above collective bargaining agreement. However, since the plaintiff\'s decedent was never employed by North Brothers during the times herein complained of, he must swing his action against North Brothers on the

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