Richardson v. United Steelworkers of America

• Decision Date: 06 February 1989
• Docket Number: No. 87-1875,87-1875
• Citation: 864 F.2d 1162
• Parties: 130 L.R.R.M. (BNA) 2571, 57 USLW 2474, 110 Lab.Cas. P 10,939, 13 Fed.R.Serv.3d 138 Altheus RICHARDSON, et al., Plaintiffs-Appellants, Gilberto Miranda, et al., Appellants, v. UNITED STEELWORKERS OF AMERICA, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1162

864 F.2d 1162

130 L.R.R.M. (BNA) 2571, 57 USLW 2474,

110 Lab.Cas. P 10,939,

13 Fed.R.Serv.3d 138

Altheus RICHARDSON, et al., Plaintiffs-Appellants, Gilberto Miranda, et al., Appellants, v. UNITED STEELWORKERS OF AMERICA, Defendants-Appellees.

No. 87-1875.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 1989.

Rehearing and Rehearing En Banc Denied March 8, 1989.

Mike T. Milligan, El Paso, Tex., for plaintiffs-appellants.

Richard J. Brean, Asst. General Counsel, United Steelworkers of America, Pittsburgh, Pa., Bruce Alan Fickman, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, GARWOOD, and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

The plaintiffs-appellants in this case are former employees of Phelps Dodge Copper Refinery in El Paso, Texas (Phelps Dodge) who were replaced while on strike. Defendant-appellee United Steelworkers of America, AFL-CIO-CLC (the Union) was their collective bargaining representative. Plaintiffs sued the Union in state court for alleged breach of its duty as their bargaining agent by failing to warn them of Phelps Dodge's statutory right to replace them. The Union removed the case to federal court and several other former employees sought leave to intervene. The district court determined that it had subject matter jurisdiction over the case, denied the motions for leave to intervene, and dismissed plaintiffs' action as time-barred by the six-month federal statute of limitations for federal duty of fair representation claims, section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(b). We affirm.

Facts and Proceedings Below

Plaintiffs filed this action against the Union in Texas state court on Monday, April 6, 1987, alleging in their original petition that:

"Between July 1, 1983, and April 5, 1985, Defendant acted as bargaining agent for Plaintiffs in connection with their employment by the Phelps Dodge Refinery in El Paso, Texas. As the bargaining agent for Plaintiffs, Defendant had a duty to advise them of measures which their employer could, and in reasonable probability would, take, should members of the bargaining unit (including Plaintiffs and others) either vote to reject their employer's final offer or vote to go out on strike. Among the employer's rights in this dispute was the right to put into effect its final offer after bargaining to impasse, and to hire permanent replacements in the event of a strike. Defendant, without legal justification or excuse, failed to advise Plaintiffs that their employer had these rights. Thereafter, the employer exercised these rights, and all Plaintiffs were permanently replaced by the employer. Had Plaintiffs known that their employer had the rights which it in fact had, they would have either persuaded the other members of the bargaining unit to vote in favor of the employer's final offer, and if that had failed, then Plaintiffs would have accepted the final offer individually.

"....

"The cause of action herein accrued on the 5th day of April, 1985, when Defendant informed Plaintiffs that Defendant no longer represented them...." (Emphasis added.)

Plaintiffs' original petition does not allege that plaintiffs are or ever were members of the Union. And, this pleading does not expressly mention or refer to any federal or state statute, regulation, or court decision, nor does it expressly refer to federal or state law or expressly identify the jurisdiction the law of which it seeks to invoke.

The Union was served with plaintiffs' state court original petition on May 6, 1987 and on May 20, it removed the case to the United States Court for the Southern District of Texas pursuant to 28 U.S.C. Sec. 1441 on the basis of jurisdiction under section 301 of the NLRA, 29 U.S.C. Sec. 185(a) (jurisdiction of the district court over suits for violations of collective bargaining agreements). The Union then moved to dismiss plaintiffs' action as time-barred under the six-month limitations period of section 10(b) of the NLRA, 29 U.S.C. Sec. 160(b), asserting that the plaintiffs' action was actually for breach of its duty of fair representation under the NLRA, though plaintiffs had not pleaded the NLRA as the basis for their state action. On May 26, plaintiffs moved to remand and filed a response to the Union's motion to dismiss, contending that their claim was for negligent breach of a Texas common-law tort duty owed by a union to its members and that either the Texas four-year, or two-year, statute of limitations applied. On May 29, the Union moved to amend its petition for removal, and tendered an amended removal petition alleging federal jurisdiction based on 29 U.S.C. Sec. 159(a) (bargaining representative for majority of unit members shall be exclusive representative for unit), 28 U.S.C. Sec. 1331 (original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States"), and 28 U.S.C. Sec. 1337 (jurisdiction over civil actions "arising under" federal laws regulating commerce). The district court granted leave to file the amended removal petition, noting that since it was tendered within the original thirty-day period provided by 28 U.S.C. Sec. 1446(b) the amendment should be allowed. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction Sec. 3733 at 537 (2d ed. 1985).

While the respective motions to dismiss and to remand were under submission, fourteen additional ex-employees of Phelps Dodge moved to intervene, asserting they had identical claims.

The district court ultimately agreed with the Union's analysis of plaintiffs' claim, finding that plaintiffs had "stated a claim for breach of the duty of fair representation," which "arose in the context of a collective bargaining agreement." Based on this conclusion, the district court denied plaintiffs' motion to remand; applied the six-month limitations period of section 10(b) of the NLRA prescribed by DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), for duty of fair representation claims, and dismissed plaintiffs' claims as time-barred. It also denied the motion for intervention. ¹ This appeal followed.

Discussion

Plaintiffs alleged that the Union had a duty to advise them of Phelps Dodge's right to replace them if they went on strike. They alleged that this duty arose from the Union's status as their collective bargaining agent (and their original petition asserts no other source of this duty). The Union's right to act as plaintiffs' bargaining agent is conferred by the NLRA, and we hold that the duties corresponding to this right conferred by federal labor law are likewise defined solely by federal labor law. As a result of this complete preemption of state law, we further hold that the district court had removal jurisdiction over these actions. Finally, we find that the district court did not err in denying the motion to intervene.

The Duty of Fair Representation and Preemption

Plaintiffs simply alleged that the Union was "the bargaining agent for Plaintiffs" and that it "acted as bargaining agent for Plaintiffs in connection with their employment by" Phelps Dodge. Taken in the context of plaintiffs' original petition as a whole, these statements clearly imply that the Union was the exclusive bargaining agent under the NLRA for the collective bargaining unit of which plaintiffs (and the putative intervenors) were members, and the subsequent briefs and motions of all parties, here and below, in fact treat the Union as such. The duty which the Union allegedly breached is described in the original petition as "a duty" which the Union had "[a ]s the bargaining agent for Plaintiffs" (emphasis added). No other source of duty is alleged in the original petition. The nature of the relationship between a collective bargaining agent and the employees in the bargaining unit is well established:

"Sections 8(b) and 9(a) of the Labor Management Relations Act, 29 U.S.C. Secs. 158(b), 159(a), empower a union that represents a majority of the employees in an appropriate bargaining unit to act as the exclusive representation of all the employees in collective bargaining. Because the union acts as agent of all the employees, it owes each of them, whether or not a union member, the duty of fair representation.... The scope of this duty was outlined in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842, 850 (1967). The Supreme Court there held that, when a union acts as the collective bargaining agent of its members, it is obliged 'to secure the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty and to avoid arbitrary conduct.' Id. at 177, 87 S.Ct. at 910, 17 L.Ed. at 850." Bass v. International Broth. of Boilermakers, 630 F.2d 1058, 1062 (5th Cir.1980).

See also In re Carter, 618 F.2d 1093, 1104 (5th Cir.1980), cert. denied sub nom. Sheet Metal Workers' Intern. Ass'n v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981).

This duty of fair representation generally governs a union's conduct vis-a-vis the bargaining unit members when the union is representing them. ² See Swatts v. United Steelworkers of America, 808 F.2d 1221, 1224 (7th Cir.1986) (applying NLRA duty of fair representation to determine whether defendant union liable for failure to advise plaintiffs, replaced striking unit employees, that employer could replace them); Acri v. Intern. Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1397 (9th Cir.1986), cert. denied, 479 U.S. 816, 107 S.Ct. 73, 93 L.Ed.2d 29 (1986) (applying NLRA duty of fair representation to determine whether defendant union liable to plaintiffs, former unit employees of closed plant, for misrepresenting to them that proposed collective bargaining contract with employer, which employees later ratified,...