MacKenzie v. LOCAL 624, INTERN. U., ETC.

• Decision Date: 04 June 1979
• Docket Number: No. EC 78-217-S-O.,EC 78-217-S-O.
• Parties: George A. MacKENZIE, Plaintiff, v. LOCAL 624, INTERNATIONAL UNION OF OPERATING ENGINEERS, Al Johnson Construction Co., R. H. Byrd, Business Agent, James H. Holloway, Business Agent, Clyde Kilpatrick, Business Agent, International Union of Operating Engineers, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

472 F. Supp. 1025

George A. MacKENZIE, Plaintiff, v. LOCAL 624, INTERNATIONAL UNION OF OPERATING ENGINEERS, Al Johnson Construction Co., R. H. Byrd, Business Agent, James H. Holloway, Business Agent, Clyde Kilpatrick, Business Agent, International Union of Operating Engineers, Defendants.

No. EC 78-217-S-O.

United States District Court, N. D. Mississippi, E. D.

June 4, 1979.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George A. MacKenzie, pro se.

Charles T. Sykes, Jr., Gulfport, Miss., for Unions.

Taylor B. Smith, Threadgill & Smith, Columbus, Miss., for defendant Al Johnson Construction Co.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

I.

Plaintiff brings this action, pro se, against defendants International Union of Operating Engineers (I.U.O.E.), Local 624 of the International Union of Operating Engineers (Local 624), Al Johnson Construction Company (Company), R. H. Byrd, James Holloway and Clyde Kilpatrick.¹ Plaintiff asked the court for permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which was denied by the court on December 3, 1978. The complaint charges the defendants with "illegal blacklisting, refusal to refer, conspiracy to deny employment, illegal hiring monopoly by unions, coercive and illegal means of collecting dues, initiation fees and service fees, use of Federal Funds to further the aims of unions, breach of contract, breach of collective bargaining contract, contempt for known and established laws and judicial decision, violations of State and Federal Right to Work laws, violations of National Labor Relations Act, violations of Labor Management Reporting and Disclosure Act, and other State and Federal Laws." To support these alleged violations, the complaint sets forth the following factual allegations.

Plaintiff was employed from October to December, 1974, as a crane operator by a company conducting work on the construction of the Tennessee-Tombigbee Waterway Project (hereafter "Waterway Project"). While employed as a crane operator, plaintiff paid $5.00 each week to the union, but was not permitted to become a member. Subsequently, he was involved in an accident while operating a crane and was laid off from work. After his layoff, plaintiff contacted Local 624 asking for a referral to another job but was never referred. In an effort to obtain employment, plaintiff also contacted various construction companies performing work on the Waterway Project, but each company told him that they would not hire him unless the union referred him for employment.

In August 1977, plaintiff called defendant Kilpatrick and asked if his earlier accident was preventing him from being referred for work. Defendant Kilpatrick told plaintiff that the accident did not affect his chances of being referred for work and assured him that his name would be placed on the out-of-work list.

In August, 1978, plaintiff asked defendant Holloway, who had become Business Agent for Local 624, if the accident prevented him from being referred for work and whether Local 624 was intentionally refusing to refer plaintiff for work. Defendant Holloway stated that the accident did not affect his eligibility for work-referral, and denied that the union was refusing to refer plaintiff.

In October, 1978, plaintiff asked defendant Company for a job as a crane operator and was told by the Company's project manager that he had been having difficulty retaining crane operators but that plaintiff could be hired only if the union referred him for employment. The Company's project manager called defendant Holloway and then told plaintiff that he would be called when a crane operator was needed. Plaintiff states that he never received a call.

On October 24, 1978, plaintiff mailed a letter to defendant Byrd, reciting the difficulty plaintiff had experienced in obtaining a job referral from the union and accusing the union of violating various laws by refusing to refer plaintiff for a job. On October 25, 1978, defendant Holloway called plaintiff and told him that he was being referred for work with defendant Company. On October 26, 1978, plaintiff picked up his referral slip and reported to work with defendant Company. Plaintiff was placed on a type of a crane that he had never operated and which had numerous mechanical defects. After operating the crane for about six hours, a supervisor of defendant Company told plaintiff that he did not think plaintiff could perform the work and then fired him.

Upon this factual background, plaintiff makes the following allegations: (1) Defendant Local 624 refused to refer plaintiff for work because plaintiff was not a member of the union; (2) defendant Local 624 has not allowed plaintiff to become a member of the union; (3) defendant Company will not hire anyone unless the applicant for employment is referred to the Company by Local 624; (4) defendants Company and Local 624 have conspired to justify Local 624's refusal to refer plaintiff for work; (5) defendant Local 624 has breached a contractual relationship existing between it and plaintiff; (6) defendants Local 624 and Company have conspired to violate the collective bargaining agreement existing between them by allowing unqualified employees to operate heavy equipment, including cranes; (8) before defendant Local 624 will refer an applicant for employment for work, the applicant must agree to give the employer permission to deduct from the applicant's paycheck a service fee which is given to Local 624; and (9) by placing final authority for hiring in defendant Local 624, defendants Local 624 and Company have created a "closed shop".

Plaintiff alleges that this conduct violates the following state and federal statutes: Sections 8(b)(1), (2), and 14(b) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(1), (2), 164(b); Sections 101 and 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 411, 412 and Miss. Code Ann. § 71-1-47 (1972). Plaintiff cites these same statutes, except Section 14(b) of the National Labor Relations Act, 29 U.S.C. § 164(b), for the purpose of showing that this court has jurisdiction over the action. No other statutes are cited even though plaintiff alleges that defendants have violated "other State and Federal Laws".

II.

Separate motions to dismiss have been filed by defendant Company and by defendants Local 624, Byrd and Holloway (hereafter sometimes referred to as "the Labor Defendants"). Each motion seeks dismissal of the complaint. Defendants argue that dismissal is warranted under Fed.R.Civ.P. 12(b)(1) because the court lacks jurisdictions over the subject matter covered by the particular statutes, or that dismissal should be ordered pursuant to Fed.R.Civ.P. 12(b)(6) because plaintiff has failed to state a claim under the particular statutes upon which relief can be granted.

Since defendants rely on the same grounds for dismissal and since their arguments are similar, the court will examine each statutory provision first to determine whether it has jurisdiction over the subject matter, and if jurisdiction exists, then to determine whether plaintiff has stated a claim upon which relief can be granted. See 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1350 at 548 (1969).

In considering the motion to dismiss under Rule 12(b)(1),

The complaint will be construed broadly and liberally, in conformity with the principle set forth in Rule 8(f), . . . The pleading will be read as a whole with any relevant specific allegations found in the body of the complaint taking precedence over the formal jurisdictional allegation and all uncontroverted factual allegations being accepted as true. . .

. . . . .

The burden of proof on a Rule 12(b)(1) motion is on the party asserting jurisdiction. If jurisdiction is based on diversity of citizenship, real and complete diversity must be shown; if it is based on a federal question, the pleader need show that he has alleged a claim under federal law and that the claim is not frivolous.

Id. § 1350 at 551-52, 555-56. (footnotes omitted).

In considering the motion to dismiss under Rule 12(b)(6),

The complaint is construed in the light most favorable to plaintiff and its allegations are taken as true. The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a). . . .

. . . . .

The test most often applied to determine the sufficiency of the complaint was set out in the leading case of Conley v. Gibson 355 U.S. 41, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957) in which the Supreme Court stated that

in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

The question therefore is whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief.

Id. § 1357 at 594, 600-601. (footnotes omitted).

A.

Section 101 of the Labor Management and Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 411, establishes a "Bill of Rights" for members of the labor organization, provides that the dues, initiation fees and assessments of members of labor organizations may be increased only in accordance with the procedures established therein, protects the right to sue of members of labor organizations and establishes certain procedural safeguards for members of labor organizations. Section 102 of the LMRDA, 29 U.S.C. § 412, gives to any person guaranteed the rights and safeguards established in Section 101, 29 U.S.C. § 411, the right to bring a civil action against a labor organization for any alleged violation of the provisions of Section 101, 29 U.S.C. § 411 and also provides that such civil actions may be brought in a district court of the United States. It is clear from a...