Smith v. Local No. 25, Sheet Metal Workers Intern. Ass'n

• Decision Date: 11 September 1974
• Docket Number: No. 73-2338,73-2338
• Parties: 87 L.R.R.M. (BNA) 2211, 74 Lab.Cas. P 10,293 James SMITH et al., Plaintiffs-Appellants, v. LOCAL NO. 25, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 741

500 F.2d 741

87 L.R.R.M. (BNA) 2211, 74 Lab.Cas. P 10,293

James SMITH et al., Plaintiffs-Appellants, v. LOCAL NO. 25, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION Defendant-Appellee.

No. 73-2338.

United States Court of Appeals, Fifth Circuit.

Sept. 11, 1974.

Jack N. Price, Longview, Tex., for plaintiffs-appellants.

David R. Richards, Austin, Tex., for defendant-appellee.

Before BELL, THORNBERRY and DYER, Circuit Judges.

THORNBERRY, Circuit Judge:

Charlie Smith and James Smith were suspended and expelled from their Union for their failure to pay dues. Appellant Wylie Smith was suspended for the same delinquency, but was reinstated to membership in good standing after he had tendered the required payments. Subsequent to the suspension and expulsion episode, all three brought suit in federal court contending that the Union had consistently discriminated against them, and in favor of other Union members, in job referrals within the Union's trade area 'contrary to the provisions of section 8 of the National Labor Relations Act, as amended.' The two expelled members contended additionally that the Union had 'deliberately and fraudulently' refused to permit their membership reinstatement pursuant to the Union's constitution.

The district court concluded that appellants' first claim presented a matter within the exclusive jurisdiction of the NLRB because appellants accused the Union of engaging in conduct which is arguably an unfair labor practice under section 8(b)(2) of the Labor Management Relations Act, citing Local 100 of United Ass'n of Jour. & App. v. Borden, 1963, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, and San Diego Building Trades Council v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. The district court rejected appellants' effort to predicate the suit on section 301(a) of the Labor Management Relations Act, 29 U.S.C. 185(a), and thus to avoid preemption, William E. Arnold Co. v. Carpenters District Council, 1974, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620, by noting that section 301(a) was inapplicable since the appellants had neither alleged a violation of any collective bargaining agreement nor even introduced such an agreement in evidence. The district court concluded that the appellants' reliance upon a claim that the Union had breached its duty of fair representation was misplaced since a DFR claim is jurisdictionally cognizable only in the context of a section 301(a) action. The court further held that the two plaintiffs seeking reinstatement were not entitled, as nonmembers, to claim a duty of fair representation from the Union, and as nonmembers, could not avail themselves of section 102 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. 412.

Appellants contend that their claims are not preempted, that jurisdiction properly lies in the federal district court, and that this court should reverse and remand for trial. Although the issues involved have been briefed and argued, the procedural posture of this case is still somewhat puzzling. Shortly after the filing of the suit, depositions were taken and interrogatories were answered. Armed with the information there disclosed and with supporting affidavits, the Union filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs responded in kind, attempting to demonstrate that material issues of fact existed warranting a trial on the merits. The Union counter-attacked with a brief styled 'In Support of Motion for Summary Judgment and in Support of Motion to Dismiss for Want of Jurisdiction.' The plaintiffs, not to be outdone, responded with a brief of their own.

The result of the battle was the granting of a dismissal 'for lack of jurisdiction.' The order, however, does not stop with its decision of the jurisdictional question. There are references in the order to matters normally reserved for dispositions under Fed.R.Civ.P. 12(b)(6), where the plaintiff has failed to state a claim upon which relief can be granted. Additionally, however, the district court relied upon affidavits, other extra-pleading materials, and oral argument on the motion, thus automatically converting what might have been an alternative dismissal for failure to state a cause of action into a summary judgment on the merits, the requirements of which are governed by Fed.R.Civ.P. 56. Arrington v. City of Fairfield, Alabama, 5th Cir. 1969, 414 F.2d 687, 692; Carter v. Stanton, 1972, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569. Consequently, although styled a dismissal for lack of jurisdiction, we treat the order for what it is: a dismissal for lack of subject matter jurisdiction or alternatively a grant of summary judgment on the merits. ¹ While we disagree with much of what the district court said in its order, we are in agreement as to the result: the Union was entitled to summary judgment on both claims.

In finding that the appellants' job referral claim was preempted by the NLRB's exclusive jurisdiction, the district court relied upon tests announced by the Supreme Court. In enacting the National Labor Relations Act and later the Labor Management Relations Act,

Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies . . . A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law . . .

Garner v. Teamsters, etc., Union, 1953, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228. Consequently, as a general rule, neither state nor federal courts have jurisdiction over suits directly involving 'activity (which) is arguably subject to 7 or 8 of the Act.' San Diego Building Trades Council v. Garmon, supra, 359 U.S. at 245, 79 S.Ct. at 780.

It is true of course that union discrimination in job referrals against a member of the bargaining unit is a matter normally within the exclusive jurisdiction of the NLRB. Journeymen & Apprentices Local 100 v. Borden, 1963, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638. But even this general rule is not without exception. In Int'l. Brotherhood of Boilermakers v. Hardeman, 1971, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10, the Court held that a federal district court had jurisdiction to entertain a suit arising under the Labor Management Reporting and Disclosure Act, 29 U.S.C. 401 et seq., even though the subject matter of the suit was a claim of union discrimination against a member in job referrals. Our first task is to decide whether an exception to the general rule is available here, in light of the preemption doctrine. ²

The appellants contend that their first claim falls within the exception to the preemption doctrine first recognized in Smith v. Evening News Ass'n, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, for suits brought pursuant to section 301(a) of the Taft-Hartley Act, 29 U.S.C. 185(a). They argue that this is a section 301(a) action because the duty of fair representation is imposed upon the Union by the very nature of the collective bargaining agreement. Therefore, they contend, a suit to remedy a breach of the duty of fair representation is one of the class of 'suits for violation of contracts between an employer and a labor organization,' 29 U.S.C. 185(a), which the federal courts are expressly empowered to hear.

We agree with the district court that section 301(a) provides no jurisdictional basis for this suit. The duty of fair representation arises not out of the collective bargaining agreement but out of sections 8(b) and 9(a) of the Labor Management Relations Act, 29 U.S.C. 158(b), 159(a). Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 686, 97 L.Ed. 1048; Sanderson v. Ford Motor Co., 5th Cir. 1973, 483 F.2d 102, 109-110; Local Union No. 12, United Rubber, C.,L. & P. Wkrs. v. NLRB, 5th Cir. 1966, 368 F.2d 12, 17, 5 A.L.R.Fed. 353; Humphrey v. Moore, 1964, 375 U.S. 335, 351, 84 S.Ct. 363, 373, 11 L.Ed.2d 370 (Goldberg, J., concurring). It is the Union's statutory recognition as exclusive bargaining agent both before and after the execution of a collective bargaining agreement which imposes upon the Union the duty to represent fairly the interest of each employee in the unit in dealings with the employer. Retana v. Apartment, Motel, Hotel & El. Op. Union, 9th Cir. 1972, 453 F.2d 1018, 1024; Sanderson v. Ford Motor Co., supra.

However, for the very reason that the Union's duty of fair representation is not wholly dependent upon the existence of a collective bargaining agreement, we reject the district court's holding that suits claiming a DFR breach are cognizable only in the context of an action jurisdictionally predicated on section 301(a). In Vaca v. Sipes, 1967, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, an employee complained that his Union's failure to press a grievance had contributed to his employer's action in discharging him in violation of the collective bargaining agreement. The Supreme Court held not only that the employer might be guilty of a breach of the labor contract but also that the Union may have breached its duty as exclusive bargaining agent to represent plaintiff employee fairly. The wrong charged to the Union was not a violation of the collective bargaining agreement but rather a DFR breach.

The district court interpr...