Magallanes v. Local 3 Laborers' Internat. Union of North America

• Decision Date: 22 July 1974
• Citation: 115 Cal.Rptr. 428,40 Cal.App.3d 809
• Court: California Court of Appeals Court of Appeals
• Parties: , 88 L.R.R.M. (BNA) 2446, 74 Lab.Cas. P 10,277 Alfred P. MAGALLANES and Antonio E. Clea, in behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. LOCAL 300, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, an unincorporatedassociation, et al., Defendants and Respondents. Civ. 42801.

Page 428

115 Cal.Rptr. 428

40 Cal.App.3d 809, 88 L.R.R.M. (BNA) 2446,

74 Lab.Cas. P 10,277

Alfred P. MAGALLANES and Antonio E. Clea, in behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. LOCAL 300, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, an unincorporatedassociation, et al., Defendants and Respondents.

Civ. 42801.

Court of Appeal, Second District, Division 1, California.

July 22, 1974.

Hearing Denied Sept. 19, 1974.

Finkel & Herring, and Neil M. Herring, Los Angeles, for plaintiffs and appellants.

Richman & Garrett, Ivan J. Potts, Walter C. Appling, and Lionel Richman, Los Angeles, for defendants and respondents.

THOMPSON, Associate Justice.

In this appeal from a judgment of dismissal after a demurrer was sustained to appellants' complaint without leave to amend, we consider the issue of state court subject matter jurisdiction to enforce the rights of a union member against his union created by a contract negotiated by the union on his behalf with an employer and created by a union's 'duty of fair representation.' We conclude that the facts alleged in the complaint at bench state causes of action cognizable in the state courts and accordingly reverse the judgment.

The complaint alleges the following facts which we accept as true for the purpose of this proceeding. Appellants are members of Local 300, Laborers' International Union of North America (Union). Union entered into a collective bargaining agreement with construction contractors denominated 'Laborers' Short-Form Agreement, Eleven Southern Counties of California, 1970--1974' (Agreement). Article II, section D of the Agreement is entitled 'Referral Procedure.' Describing the manner in which workers are to be dispatched to jobs, article II requires the contractor parties to the Agreement to call the Union's hiring hall serving the geographic area of the hiring contractor's project. In response to the call, the hiring hall is required to dispatch workers for the project 'strictly in accordance with the provisions of (the) Agreement.' The Agreement states that then skilled applicants who have registered their names on employment lists 'shall be referred on a first-in, first-out basis; . . . the first man registered in that group shall be the first man referred.' The only exception to 'first-in, first-out' referral to work deals with employees laid off by the contractor within the preceding 270 days and is not here applicable. Subsection 7 of section D of the Agreement states: '. . . The selection of applicants for dispatchment to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by Union membership, by-laws, rules, regulations, constitutional provisions, or any other aspect or obligation of Union membership, policies or requirements.'

Appellants were internal political opponents of the incumbent administration of Union. Because of that opposition, Union discriminated against appellant and other members similarly situated by repeatedly and arbitrarily refusing to dispatch them for employment in violation of article II, section D of the Agreement. As a result, on July 27, 1972, appellant Magallanes filed a charge with the National Labor Relations Board alleging that Union had caused or attempted to cause employer discrimination against employees in violation of section 8(a)(3) of the National Labor Relations Act. (29 U.S.C. § 158(a)(3).) While the matter was before the National Labor Relations Board, appellants, suing for themselves and the class of others similarly situated, commenced the action which is the case at bench. ¹ They asserted that the superior court had jurisdiction of the matter by reason of section 301 of the National Labor Relations Act (29 U.S.C. § 185). Appellants named Union as a defendant and joined Manuel Renteria and Carlos Enriquez in their capacities as officer, agent, and employee of Union. The complaint is framed in two counts: the first alleging the breach of the collective bargaining agreement and the second alleging malicious, oppressive, and fraudulent breach of a duty of fair representation owed by Union to all members of the collective bargaining group. The latter cause of action includes allegations that the discrimination in dispatching for jobs practiced by Union against named appellants and others similarly situated was for the purpose of silencing appellants' political opposition to policies of the incumbent management of Union and for the purpose of favoring other members of Union who politically or financially supported that management. Damages are alleged as proximately caused by the conduct of Union and other named defendants.

Respondents, the defendants named in the complaint, demurrer to it, contending that: (1) exclusive jurisdiction of the controversy is vested in the National Labor Relations Board to the exclusion of the state courts because the activity which is the subject matter of the dispute is 'arguably subject to the protections . . . of the National Labor Relations Act'; (2) the action is not properly maintainable as a class action; and (3) no cause of action is stated against the individual defendants. The trial court sustained the demurrer solely on the ground that it lacked jurisdiction of the subject matter. We conclude that the complaint states a cause of action within state court jurisdiction, that class maintainability is not here reachable on demurrer, and that as to the individual defendants, the complaint fails to state a cause of action, but that leave to amend should be granted.

Subject Matter Jurisdiction. 'The statutory implications concerning what (jurisdiction) has been taken from the States (by the National Labor Relations Act) and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation.' (Machinists v. Gonzales, 356 U.S. 617, 619, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018.) In the oracular process of elucidation, the United States Supreme Court has successively adopted and abandoned a number of tests of federal preemption of subject matter jurisdiction of disputes in the area involving management, unions, and working people. At first, the high court focused on consistency of state court remedies with the provisions of the federal act as the touchstone of state jurisdiction. (Automobile Workers v. Wisconsin Employment Relations Bd., 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651.) Discarding that approach, the United States Supreme court suggested that state court jurisdiction depended upon the state supplying a remedy not available in the federal scheme. (Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546.) Subsequently, the high tribunal suggested that states had subject matter jurisdiction of labor related disputes whenever general common law was applied. (Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030.)

In San Diego Unions v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the Supreme Court adopted still a new, and more encompassing view of federal preemption of the field. In Garmon, the court dealt with an action filed by an employer in the California court seeking damages from a union for picketing to compel the execution of a collective bargaining agreement where the employer's employees had not indicated membership in the union. In holding that the state court lacked jurisdiction to proceed because subject matter jurisdiction was preempted by the federal law, the United States high court said: 'When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act (29 U.S.C. § 157, establishing the right of employees to organize and bargain collectively), or constitute an unfair labor practice under § 8 (of the National Labor Relations Act, 29 U.S.C. § 158, proscribing various forms of employment discrimination), due regard for the federal enactment requires that state jurisdiction must yield.' When it is not clear whether the activities are governed by section 7 or section 8, such initial determination must be made by the National Labor Relations Board. (San Diego Unions v. Garmon, Supra, 359 U.S. 236, 244--245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775.)

The broad sweep of the Garmon rule is subject to two classes of exception, one developed in decisional law and the other from judicial construction of section 301(a) of the National Labor Relations Act (29 U.S.C. § 185(a)).

Where a dispute focuses solely upon internal union affairs and does not have a direct and immediate effect upon an employee's present or future employment status, the litigation is deemed of merely peripheral concern to the National Labor Relations Act and hence cognizable in the state courts despite the potential incidental applicability of the federal act. (Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, confirmed in Motor Coach Employees v. Lockridge, 403 U.S. 274, 295, 91 S.Ct. 1909, 29 L.Ed.2d 473; NLRB v. Boeing Co., 412 U.S. 67, 75--76, 93 S.Ct. 1952, 36 L.Ed.2d 752.) Where, however, the dispute involving internal union affairs also has a direct and immediate effect upon present or future employment, it is 'arguable' that the conduct violates section 8(b)(2) of the National Labor Relations Act so that the Garmon rule applies. (Plumbers' Union v. Borden, 373 U.S. 690, 697, 83 S.Ct. 1423, 10 L.Ed.2d 638.) In the first category of cases, unfair discrimination in employment is deemed merely incidental so that the National Labor Relations Act is not sufficiently involved to preempt state court jurisdiction. In the second category, the involvement with federal law preempts the field.

In addition to the decisional law exception to the Garmon rule permitting state court jurisdiction in a limited class of disputes involving solely the internal affairs of a union, section 301 of the National Labor...