Retail Clerks Union Local 1222 v. Alfred M. Lewis, Inc.

• Citation: 327 F.2d 442
• Decision Date: 03 February 1964
• Docket Number: No. 17724.,17724.
• Parties: RETAIL CLERKS UNION LOCAL 1222, AFL-CIO, et al., Appellants, v. ALFRED M. LEWIS, INC., et al., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

327 F.2d 442 (1964)

RETAIL CLERKS UNION LOCAL 1222, AFL-CIO, et al., Appellants, v. ALFRED M. LEWIS, INC., et al., Appellee.

No. 17724.

United States Court of Appeals Ninth Circuit.

February 3, 1964.

Arnold, Smith & Schwartz, George L. Arnold, Kenneth M. Schwartz, and Laurence D. Steinsapir and Peter Aronson, Los Angeles, Cal., for appellants.

Gibson, Dunn & Crutcher, William French Smith, William F. Spalding, and Willard Z. Carr, Jr., Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

The appeal in this action is from an order dismissing the action "for lack of jurisdiction over the subject matter." The order was based entirely upon the complaint. Plaintiffs and appellants are a retail clerks' union and its secretary. Defendants and appellees are a number of concerns, each of which is alleged to have entered into a collective bargaining agreement with the union. The individual plaintiff, secretary of the union, alleges that he fairly and adequately represents the interests of the union and of all members of the bargaining unit, who are too numerous to be named and brought before the court individually. It is alleged that there are approximately 3,000 employees covered by the agreements.

The dispute arises out of Article VI, paragraph 2 of the agreements which provides for a cost of living wage adjustment "beginning April 1, 1961 and on each April 1 and October 1 thereafter." In essence, the paragraph provides for an upward adjustment based upon the Bureau of Labor Statistics consumer price index for Los Angeles on such dates, as compared with such index for November, 1958. It is further alleged that an upward adjustment became payable (1 cent per hour for all employees except box boys and ½ cent per hour for box boys) on April 1, 1961, and that the defendant employers have failed and refused to comply with the agreement by making this upward adjustment on that date. In a second count of the complaint the same allegations are repeated, and it is further alleged that a dispute has arisen between the parties as to the dates on which, or as of which, the cost of living increase is to be computed. The plaintiffs prayed for a judgment requiring the defendants to comply with the agreement by making the required cost of living adjustment retroactive to April 1, 1961, or in the alternative, for declaratory judgment that April 1, 1961 is the date for computing and paying the cost of living increase.

The court based its grant of the defendants' motion to dismiss upon two grounds, each of which is here claimed to support the judgment.

The first ground is that the action is, in essence, an attempt by the union to enforce individual wage claims of its members and that such an action does not fall within the jurisdiction conferred upon the district court by section 301(a) of the Labor-Management Relations Act (29 U.S.C. § 185(a))¹ Appellees rely upon Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 1955, 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510 and subsequent lower court decisions that rely upon it.

We think that, by reason of certain recent decisions of the Supreme Court, this contention of appellees is a short horse that is soon curried. In Smith v. Evening News Ass'n, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, an individual employee, a member of a union having a collective bargaining contract with the defendant employer, brought an action on his own behalf and as an assignee of 49 other members, in a state court² for breach of a collective bargaining contract. He charged that other employees belonging to a different union were on strike, and that the employer allowed non-union employees to work, but did not permit him and his assignors to work, in violation of a clause in the contract stating: "There shall be no discrimination against any employee because of his membership or activity in the Guild." There it was sought to uphold a judgment of dismissal in reliance upon the Westinghouse case, but the Court, in an opinion by Mr. Justice White, said:

"However, subsequent decisions here have removed the underpinnings of Westinghouse and its holding is no longer authoritative as a precedent. Three of the Justices in that case were driven to their conclusion because in their view § 301 was procedural only, not substantive, and therefore grave constitutional questions would be raised if § 301 was held to extend to the controversy there involved. However, the same three Justices observed that if, contrary to their belief, `Congress has itself defined the law or authorized the federal courts to fashion the judicial rules governing this question, it would be self-defeating to limit the scope of the power of the federal courts to less than is necessary to accomplish this congressional aim.\' Id. 348 U.S., at 442 75 S. Ct. at 99 L.Ed. 510. Textile Workers Union v. Lincoln Mills, 353 U. S. 448 77 S.Ct. 912, 1 L.Ed.2d 972, of course, has long since settled that § 301 has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts. There is no constitutional difficulty and § 301 is not to be given a narrow reading. Id. 353 U.S., at 456, 457 77 S.Ct. at 917, 918, 1 L.Ed.2d 972. Section 301 has been applied to suits to compel arbitration of such individual grievances as rates of pay, hours of work and wrongful discharge, Textile Workers Union v. Lincoln Mills, supra; General Electric Co. v. Local 205, UEW, 353 U.S. 547 77 S.Ct. 921, 1 L.Ed.2d 1028; to obtain specific enforcement of an arbitrator\'s award ordering reinstatement and back pay to individual employees, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 80 S.Ct. 1358, 4 L.Ed.2d 1424; to recover wage increases in a contest over the validity of the collective bargaining contract, Dowd Box Co. v. Courtney, supra; 1962, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 and to suits against individual union members for violation of a no-strike clause contained in a collective bargaining agreement. Atkinson v. Sinclair Refining Co., supra. 1962, 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed. 2d 462

"The concept that all suits to vindicate individual employee rights arising from a collective bargaining contract should be excluded from the coverage of § 301 has thus not survived. The rights of individual employees concerning rates of pay and conditions of employment are a major focus of the negotiation and administration of collective bargaining contracts. Individual claims lie at the heart of the grievance and arbitration machinery, are to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based. To exclude these claims from the ambit of § 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law. This we are unwilling to do."

There was only one dissent. In accord is General Drivers, Warehousemen and Helpers, Local Union No. 89 v. Russ & Company, 1963, 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 in which the Court expressly repeated its statement regarding Westinghouse, that "its holding is no longer authoritative as a precedent." (See also International Union, United Auto, Aircraft and Agr. Implement Workers of America, UAW, A.F.L.-C.I. O. v. Textron, Inc., 6 Cir., 1963, 312 F.2d 688).

The type of case here before us comes precisely within the terms of section 301(a); it also falls within its policy, which is to make collective bargaining agreements enforceable in the district courts.

In Dowd Box Co. v. Courtney, 1962, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, the Supreme Court said:

"The Labor Management Relations Act of 1947 represented a far-reaching and many-faceted legislative effort to promote the achievement of industrial peace through encouragement and refinement of the collective bargaining process. It was recognized from the outset that such an effort would be purposeless unless both parties to a collective bargaining agreement could have reasonable assurance that the contract they had negotiated would be honored. Section 301(a) reflects congressional recognition of the vital importance of assuring the enforceability of such agreements."

The alternative would be to require each of the 3,000 or so employees involved to file suits in the state court, and there would, at least, be a question as to whether one or more of them could represent the others. To require separate suits, perhaps as many as 3,000, each involving back wages amounting to 1 cent or ½ cent per hour, does not seem to us to be sensible administration of justice. Moreover, such a relegation of individual employees or groups of employees to separate suits would defeat the purpose of section 301(a). The objective being to secure enforcement of collective bargaining agreements, the parties to those agreements, i. e., the union and the employer, should be the primary enforcing parties, rather than individual employees who are beneficiaries of, but not parties to, the agreements. Benefits flow to them from the performance of the agreement; obligations are imposed on them by it; that is what they expect when they authorize the union to bargain for them. It would be a rude shock to them, and could well weaken their confidence in the union, in the agreement, and in the collective bargaining process, to find that the union could not enforce the agreement, and that each of them was expected to resort, individually, to the courts, if the agreed upon wages were not paid to them.

We do not suggest that an employee whose employment is covered by a collective bargaining agreement has no remedy of his own if the employer fails to pay him a wage...