Neiger v. SHEET METAL WKRS. INTERN.

• Decision Date: 11 May 1979
• Docket Number: No. 76CV196-S.,76CV196-S.
• Citation: 470 F. Supp. 622
• Parties: Albert NEIGER, Plaintiff, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

470 F. Supp. 622

Albert NEIGER, Plaintiff, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, et al., Defendants.

No. 76CV196-S.

United States District Court, W. D. Missouri, S. D.

May 11, 1979.

Donald W. Jones, Springfield, Mo., for plaintiff.

Lincoln J. Knauer, Jr., Benjamin J. Francka, Springfield, Mo., John Gibson, Kansas City, Mo., Raymond J. Sweeney, Toledo, Ohio, for defendants.

MEMORANDUM AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

COLLINSON, District Judge.

From July 7, 1972, until January 3, 1974, when he was discharged, plaintiff Neiger was employed as a laborer by defendant Paul Mueller Company (hereinafter Company). From January 8, 1973, until December 31, 1973, Neiger was a member of Local 146, Sheetmetal Workers International Association, AFL-CIO (hereinafter Local 146). At the time of Neiger's dismissal from the Company, Article II, § 1, of the collective bargaining agreement in effect between the Company and Local 146 provided, in pertinent part:

As a condition of employment all employees covered by this agreement shall be required to become members of the Union in good standing thirty (30) days after the effective date of this agreement or thirty (30) days after the date of their employment, whichever occurs later, and to remain members in good standing for the duration of the Agreement. For purposes of this Agreement, membership in good standing shall consist of the payment, or tender of payment of regular monthly membership dues and the initiation fee (if owed by the employee).

In addition, Article 16, § 10, of Local 146's Constitution provided that:

Any member who becomes two (2) months in arrears shall be recorded suspended by the local financial secretary-treasurer and by the General Secretary-Treasurer without notice and under no circumstances shall any extension of time be granted. No back dues shall be accepted from any member suspended in accordance with this Section and no official receipt shall be issued to record such dues after the expiration of the two (2) month limit or predated to avoid suspension.

On January 8, 1973, Neiger signed an application for membership in Local 146, paid his initiation fee, and paid his first three months' dues in advance. Thereafter, Neiger paid his dues through October 31, 1973, but did not pay them after that date. He now claims that his reason for not paying them is that he merely forgot.

On January 1, 1974, Neiger then being over 60 days in arrears in his dues, the union business manager suspended him from membership in good standing in Local 146. On January 2, 1974, without notice to Neiger, Local 146 notified the Company that Neiger had become two months in arrears in the payment of his dues and had, therefore, been suspended from membership in Local 146. The Company treated the union's notice as a request to discharge and on January 3, 1974, notified Neiger that, pursuant to Article II, § 1, of the collective bargaining agreement, he was discharged from his employment because of his failure to pay his union dues. Upon being informed of his discharge, and the reason therefor, Neiger promptly tendered the tardy dues, but Local 146's business manager refused to accept the dues tendered.

On February 27, 1974, Neiger filed unfair labor practice charges with the National Labor Relations Board (hereinafter Board) against both the Company and Local 146. After investigation by the Board, the Regional Directors sent the following letter to Neiger:

Dear Mr. Neiger:

The above captioned cases charging violations under Section 8 of the National Labor Relations Act, as amended, have been carefully investigated and considered.

As a result of the above referenced charges, it does not appear that further proceedings on either of them are warranted. The evidence shows that you were covered by a collective bargaining agreement (effective from August 9, 1971, until midnight July 10, 1974) between the charged Company and the charged Union, that the agreement contains a valid union security provision (Article II Section 1), and that you were aware of your obligations under the agreement and of the pertinent Union rules with respect to retention and loss of membership in good standing in the Union, which is a requirement of the contractual union security provision. Nevertheless, you became delinquent in two consecutive monthly dues payments to the Union, which fact resulted in your automatic suspension from membership in it. Under these circumstances, neither the Union's request to the Company to discharge you, nor the Company's action in honoring its contractual commitment by actually discharging you, can be deemed to be violative of Section 8(b)(1)(A) and (2) or Sections 8(a)(1) and (3) of the act, respectively. I am, therefore, refusing to issue a complaint in either of these matters....

The Regional Director's letter went on to advise Neiger of his right to appeal to the General Counsel, but no appeal was taken from the Regional Director's decision.

On April 14, 1976, Neiger commenced this action in the Circuit Court of Greene County, Missouri. Neiger's petition set forth his claims against defendants herein in three separate counts. Count I alleges, in pertinent part, that:

Defendant Union on behalf of the International Union and by and through its agents aforesaid, in violation of its duty to fairly represent Plaintiff in connection with his employment unlawfully demanded the employer to discharge the Plaintiff, and the Defendant employer (Paul Mueller Company) complied with said unlawful demand, in violation of the collective bargaining agreement attached hereto as Exhibit "A", without the Plaintiff having had any opportunity to be advised fully of his dues paying obligations or of any claimed delinquency, or of his rights under the law in connection therewith and without any opportunity for the Plaintiff to correct any claimed delinquency or to have an impartial hearing before an arbitrator or otherwise to afford him an opportunity to fully protect his rights to employment at Paul Mueller Company.

12. The actions of Defendants aforesaid, through its aforesaid agents, were fraudulent, deceitful, dishonest, arbitrary and capricious . . .¹

Count I seeks actual and punitive damages in the amount of $300,000.00. Count II alleges a violation of the Missouri service letter statute, Section 290.140, RSMo (1969), and seeks actual and punitive damages in the amount of $75,000.00. In Count III, Neiger seeks an Order requiring defendants to reinstate him in his prior position. The defendants named in plaintiff's petition are the Sheet Metal Workers International Association, AFL-CIO (hereinafter International), and Edward J. Carlough and David S. Turner as officers, agents and representatives of the class of all members of the International, Local 146, and its successors Local 208 and Local 36,² Harold Tindell and Leo Hughes as officers, agents and representatives of the members of Local 146 and its successors,³ and the Paul Mueller Company.

On May 12, 1976, all defendants removed Neiger's state court action to this Court.

Each defendant has now filed a motion for summary judgment, and the case pends on those motions. The defendants urge several different arguments in support of their motions, but one common argument advanced by each defendant is that this Court lacks jurisdiction over the subject matter of this lawsuit. The substance of the common argument advanced by the defendants is that the National Labor Relations Act preempts the jurisdiction of state and federal courts to regulate the conduct of which plaintiff herein complains.

The preemption principle upon which defendants rely was first clearly set forth in San Diego Building Trades v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (hereinafter Garmon), where the Supreme Court held:

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, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.

359 U.S. at 244, 79 S.Ct. at 779. The preemption principle was recently reaffirmed by the Court when it held that, "the National Labor Relations Act pre-empts the jurisdiction of state and federal courts to regulate conduct `arguably subject to § 7 or § 8 of the Act.'" Motor Coach Employees v. Lockridge, 403 U.S. 274, 284, 91 S.Ct. 1909, 1916, 29 L.Ed.2d 473 (1971) (hereinafter Lockridge).

Section 8(b)(2) of the National Labor Relations Act, 29 U.S.C. § 158(b)(2) (1976) (hereinafter the Act), makes it an unfair labor practice for a union:

to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) . . . or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.

Section 8(a)(3), 29 U.S.C. § 158(a)(3) (1976), makes it an unfair labor practice for an employer:

by discrimination in regard to tenure of employment . . . to encourage or discourage membership in any labor organization: Provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later . . .: Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor

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