Morgan Drive Away v. INTERNATIONAL BROTHERHOOD, ETC., IP 57-C-285.

• Decision Date: 28 October 1958
• Docket Number: No. IP 57-C-285.,IP 57-C-285.
• Citation: 166 F. Supp. 885
• Parties: MORGAN DRIVE AWAY, Inc., an Indiana Corporation, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A Labor Organization, and as a representative of all other defendants, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

166 F. Supp. 885

MORGAN DRIVE AWAY, Inc., an Indiana Corporation, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A Labor Organization, and as a representative of all other defendants, et al., Defendants.

No. IP 57-C-285.

United States District Court S. D. Indiana, Indianapolis Division.

September 29, 1958.

Order Filed October 28, 1958.

Thompson, O'Neal & Smith, Indianapolis, Ind., Russell J. Ryan, Jr., and Robert D. Morgan, Indianapolis, Ind., of counsel, for plaintiff.

Padway, Goldberg & Previant, Milwaukee, Wis., David Leo Uelman, Milwaukee, Wis., Gregg Fillion, Fillenwarth & Hughes, Indianapolis, Ind., Edward J. Fillenwarth, Indianapolis, Ind., of counsel, for defendants.

HOLDER, District Judge.

Plaintiff commenced its action on December 2, 1957, against the defendants. The complaint is in two paragraphs.¹

The defendants, San Soucie, Cors and Jones, filed a joint motion to dismiss as to paragraph one of the complaint and another motion to dismiss as to paragraph two of the complaint.²

Paragraph one of the complaint is based on Section 303 of the Labor-Management Relations Act of 1947, Title III, 61 Stat. 158, 29 U.S.C.A. Section 187, which reads in part as follows:

"(a) It shall be unlawful, for the purposes of this section only, * * *, for any labor organization to engage in * * *

"(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue * * * subject to the limitations and provisions of section 185 of this title * * *, and shall recover the damages by him sustained * * *."

Paragraph two of the complaint is based on Section 301 of said Act, 29 U.S. C.A. Section 185, which reads in part as follows:

"(a) Suits for violation of contracts between an employer and a labor organization * * *, may be brought in any district court of the United States, * * *. (b) Any labor organization which represents employees in an industry * * * shall be bound by the acts of its agents. * * *."

The complaint does not charge these three defendants with being a labor organization within the meaning of the quoted sections of the statute.

Neither of the sections of the statutes creating the right of action and establishing the jurisdiction in this Court gives the plaintiff any right of action against, or this Court jurisdiction over San Soucie, as a member and/or representative of all other defendants and/or individually; or Cors, individually and as a member and/or representative of all other defendants; or Jones, individually and as a member and/or representative of all other defendants. Cases to this effect: Square D. Co. v. United Electrical Radio & Machine Workers of America, D.C. E.D.Mich.1954, 123 F.Supp. 776; Disanti v. Local 53, D.C.W.D.Pa.1954, 126 F. Supp. 747; Copra v. Suro, 1 Cir., 1956, 236 F.2d 107; Ketcher v. Sheet Metal Workers' International Ass'n, D.C.E.D. Ark.1953, 115 F.Supp. 802; United Automobile Workers Amalgamated Local No. 286 v. Wilson Athletic Goods Mfg. Co., Inc., D.C.N.D.Ill.1950, 119 F.Supp. 948; Evening Star Newspaper Co. v. Columbia Typographical Union No. 101, D.C. 1954, 124 F.Supp. 322; and United Protective Workers of America v. Ford Motor Co., 7 Cir., 1952, 194 F.2d 997.

The plaintiff would have the Court construe the language of Section 301(b) and (e) of said Act, 29 U.S.C.A. Section 185, to authorize an action against an individual even though any judgment against the individual may not be enforced against his personal assets. Such an interpretation is contrary to the clear expression of congressional intent that any judgment against a labor organization cannot be satisfied from the personal assets of its members as distinguished from the assets of the organization.

The plaintiff has its remedy by the statute against the labor organization for the forbidden acts of it and its agents.

The motions of San Soucie, Cors and Jones to dismiss paragraphs one and two of the complaint are hereby sustained.

The Central Conference of Teamsters and Central Drivers Council filed an additional joint defense to the second paragraph of the complaint in the nature of a motion to dismiss.³ The remaining defendants, except Joint Council No. 43, filed a joint second defense to the second paragraph of the complaint in the nature of a motion to dismiss.⁴ These motions were supported by the following stipulation and no other evidence was offered by either party:

"That the unfair labor practice charge in Case No. 7-CC-18, before the National Labor Relations Board, Seventh Region, in the matter of General Drivers, Warehousemen, Helpers and Gas Station Attendants, Local No. 614, and others, and Morgan Drive Away, Inc., was withdrawn in due course as provided by the agreement which is attached as Exhibit A and A-1 to plaintiff's complaint."

The second paragraph of the complaint does not seek recovery of damages for a wrong committed prior to the settlement contract of 1951.⁵ It is on the theory that the provisions of paragraph one of the contract were breached by the alleged wrongs of defendants and resulting damage to plaintiff some six years later in Richmond, Indiana.

It is unnecessary to pursue the many questions involved, such as, whether the same defendants were involved in the contract as were involved in the Richmond matter.

The contract must be interpreted to ascertain the intention of the parties as to whether the 1951 contract was in effect at the time of the alleged wrongs and damage in the year 1957 in Richmond, Indiana. I conclude that the contract was terminated and the obligations and duties of the parties thereto were fully discharged upon the dismissal of the charges before the National Labor Relations Board.

The contract did not contemplate the labor organizations performing paragraph one in futuro and in perpetuity after consummation of the issue of the proceeding before the Board. The intention of the contract is further clearly stated in paragraph two in the following:

"* * * when the Regional Director is satisfied that the terms of this agreement have been carried out by the unions, requests leave to withdraw the charge herein." (Italics added.)

The stipulation confirms that the Regional Director was satisfied that the defendants carried out the terms of the contract.

The contract, having been performed by both parties thereto is terminated and cannot be the basis of the action set forth in paragraph two of the complaint. Vol. II Restatement of the Law of Contracts, Section 386. Also see following cases discussing elements of discharge and holding against contracts in perpetuity: Town of Readsboro v. Hoosac Tunnel & W. R. Co., 2 Cir., 6 F. 2d 733; Holt v. St. Louis Union Trust Co., 4 Cir., 52 F.2d 1068; Miller v. Miller, 10 Cir., 134 F.2d 583; Freeport Sulphur Co. v. Aetna Life Ins. Co., 5 Cir., 206 F.2d 5, 41 A.L.R. 2d 762; J. C. Millett Co. v. Park & Tilford Distillers Corp., D.C.Cal., 123 F.Supp. 484.

The same defendants also filed other motions to dismiss or strike paragraph two of the complaint for other reasons. They have been overruled for the reason that the second paragraph has already been dismissed and the questions raised by these motions are moot. The Court did not determine these motions to dismiss or strike upon the grounds asserted.

Joint Council No. 43, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, one of the defendants, moved the Court to dismiss the action as to it.⁶ The motion was supported by an affidavit and further evidence was heard.

The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America filed motions to dismiss the action entitled third and fourth defenses.⁷ A motion of the International Union for a preliminary hearing of its third and fourth defenses was granted and evidence was heard.

Plaintiff's second paragraph of the complaint having been dismissed, referred to in this opinion, the question raised by the motion of Joint Council No. 43 and the International Union are moot as to it.

Plaintiff's first paragraph of the complaint seeks to identify all of the defendants liable for the alleged wrong asserted to have been committed in the Richmond, Indiana, area of the defendant, Local Union No. 691 of Richmond, Indiana. Whether this liability exists is a fact question for the requested jury. These motions preliminarily raise the question, aside from the question of liability, as to whether Joint Council No. 43 and the International Union are properly brought into this Court by process to stand trial to a jury on the issues. Does the Court and jury have jurisdiction of their persons? This is a legal question to be decided by the Court.

Joint Council No. 43 and the International Union were hailed into Court upon process of twelve summons. The returns of the United States Marshal disclose that each summons for each of the twelve defendants for each of them individually, "and as a representative of all other defendants", was served upon one or more of the following as representatives of or agents of the defendant associations and individuals: Alfred W. Cors, Gene San Soucie, Norman C. Murrin, and William H. Jones.

The unquestioned evidence is that the officers, and those agents designated for the receipt of process of the defendants Joint Council No. 43 and the International Union are not those served by the Marshal, none reside in Indiana. The principal offices of the two moving defendants respectively are situated in the State of Michigan, and in the District of Columbia.

The plaintiff contends that the persons served were agents of the International Union and Joint Council No. 43 and it is unnecessary that they be officers or expressly designated agents for process. The plaintiff asserts those served were not autonomous entities and were merely part of the two moving defendants through whom they carry on their work, citing Claycraft Co....