Tully v. Fred Olson Motor Service Co.

Decision Date30 April 1965
Citation134 N.W.2d 393,27 Wis.2d 476
Parties, 59 L.R.R.M. (BNA) 2194, 51 Lab.Cas. P 19,685 Loren TULLY, Appellant, v. FRED OLSON MOTOR SERVICE CO. et al., Respondents.
CourtWisconsin Supreme Court

Bernstein, Wessel, Weitzen & Lewis, Milwaukee, for appellant.

Federer & Ludwig, Milwaukee, for defendant-respondent Fred Olson Motor Service Co.

Goldberg, Previant & Uelmen, Milwaukee, for defendant-respondent Chauffeurs, Teamsters & Helpers, etc.

HEFFERNAN, Justice.

It is the opinion of this court that each of the three causes of action set forth in the plaintiff's complaint stated a cause of action under sec. 301(a) of the Labor Management Relations Act of 1947 (29 U.S.C.A. § 185), that none of these causes of action are exclusively within the jurisdiction of the National Labor Relations Board, and that the statute to be applied is the Wisconsin six year limitation.

The trial court held that a sec. 301(a) action was started by plaintiff's first and third actions, but did not so find in connection with the second cause of action (representation by the union). That section provides:

's 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.'

It is not disputed that causes of action One and Three state sufficient sec. 301(a) allegations. We hold that the second cause of action also does so. The case of Humphrey v. Moore (1964), 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370, is analogous to the second cause of action in the instant case. In Humphrey two auto-transport companies merged a portion of their operations. This necessitated a 'dovetailing' of employees, with consequent problems of seniority, layoff, etc. Each group of employees was represented by the same union, and both employers were subject to almost identical collective bargaining agreements. The agreement provided that in the event of mergers the dispute was to be resolved by agreement between the union and the employers involved--the controversy was to be submitted to the joint grievance committee. The action of the joint committee resulted in a larger number of layoffs for the employees of the 'Dealers' company. The respondent, Moore, on behalf of himself and other employees of 'Dealers,' asked in the Kentucky courts for an injunction to prevent the decision of the joint grievance committee from being carried out. The complaint, to the extent that it is pertinent here, alleged that the plaintiffs had relief upon the union to represent them. The decision was charged to be arbitrary and capricious, contrary to the existing practice in the industry and violative of the collective bargaining contract. Although arising out of different facts, the allegations in Humphrey, which also asked for damages, are substantially the same as those in the case at bar. In each case, the heart of the allegation is the failure of the union to conform with the provisions of the contract. The Supreme Court of the United States stated in Humphrey, supra, at page 342, 84 S.Ct. at page 368:

'The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation.'

The United States Supreme Court held that allegations were sufficient to charge a breach of duty by the union in the process of settling grievances at issue under the collective bargaining agreement. The court held that the action was one that arose under sec. 301 of the L.M.R.A. This decision appears to follow the explicit language of the statute, 'Suits for violation of contracts * * * may be brought.' In the instant case the plaintiff has alleged the violation of a contractual duty, and so states a cause of action under the statute.

The trial court, however, without making a determination whether this was a sec. 301(a) cause of action, held that the wrong alleged was solely within the jurisdiction of the N.L.R.B. on the ground that only '* * * if an action involves the internal affairs of a union and restoration of union membership * * * the state remedy has not been preempted by Congress through the Taft-Hartley Act.' It should be noted that the cases upon which the respondents rely are not cases arising under sec. 301(a). The United States Supreme Court in Local 100 of the United Association of Journeymen and Apprentices v. Borden (1963), 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, discussed the rules of Federal preemption and the exceptions that arose in International Association of Machinists v. Gonzales (1958), 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, and San Diego Building Trades Council, Millmen's Unions v. Garmon (1959), 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. The court there stated the rule:

'* * * that in the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8 of the National Labor Relations Act.' Local 100 of the United Association of Journeymen and Apprentices v. Borden, supra, page 693, 83 S.Ct. page 1425.

But significantly this statement carries the following footnote (Footnote 3, page 693, 83 S.Ct. page 1425):

'* * * We do not deal here with suits brought in state courts under § 301 or § 303 of the Labor Management Relations Act, 61 Stat. 156, 158, 29 U.S.C. §§ 185, 187, which are governed by federal law and to which different principles are applicable. See, e. g., Smith v. Evening News Assn., 371 U.S. 195, [83 S.Ct. 267, 9 L.Ed.2d 246].' (Emphasis supplied.)

See also Footnote 9, Local 174, Teamsters Local v. Lucas Flour Co. (1962), 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. This position, making the distinction, was most strongly stated in Smith v. Evening News Ass'n (1962), 371 U.S. 195, 197, 83 S.Ct. 267, 268, 9 L.Ed.2d 246:

'Lucas Flour and Dowd Box, Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, as well as the later Atkinson v. Sinclair Refining Co., 370 U.S. 238 [82 S.Ct. 1318, 8 L.Ed.2d 462], were suits upon collective bargaining contracts brought or held to arise under § 301 of the Labor Management Relations Act and in these cases the jurisdiction of the courts was sustained although it was seriously urged that the conduct involved was arguably protected or prohibited by the National Labor Relations Act and therefore within the exclusive jurisdiction of the National Labor Relations Board. In Lucas Flour as well as in Atkinson the Court expressly refused to apply the pre-emption doctrine of the Garmon case; and we likewise reject that doctrine here where the alleged conduct of the employer, not only arguably, but concededly, is an unfair labor practice within the jurisdiction of the National Labor Relations Board. The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301. If as respondent strongly urges, there are situations in which serious problems will arise from both the courts and the Board having jurisdiction over acts which amount to an unfair labor practice, we shall face those cases when they arise. This is not one of them, in our view, and the National Labor Relations Board is in accord.'

We conclude, therefore, that the cases cited in support of the decision of the trial court are the applicable to this, a sec. 301(a) cause of action, and hence the second cause of action, like the first and third, is not subject to preemption by the N.L.R.B.

A cause of action brought under sec. 301(a) of the L.M.R.A. is within the jurisdiction of the state courts as well as the federal courts. Their jurisdiction in respect to these causes of action is concurrent. Dowd Box Co. v. Courtney (1962), 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483. However, it was decided later in Local 174, Teamsters Local v. Lucas Flour Co., supra, page 103, 82 S.Ct. page 576, that:

'The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the state. Comprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy.

'More important, the subject matter of § 301(a) 'is peculiarly one that calls for uniform law.'

However, Textile Workers v. Lincoln Mills (1957), 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, held that it was the federal law that was to be applied in state courts. But state law, if compatible with the purpose of sec. 301, could be used in order to find the rule that will best effectuate federal policy.

In Clark v. Hein-Werner Corp. (1959), 8 Wis.2d 264, 99 N.W.2d 132, 100 N.W.2d 317, we recognized this principle, but did not find a conflict between federal and state law that made necessary a determination of which law to use, and in addition the court bottomed its decision primarily on cases involving federal law.

The Lincoln Mills Case made it clear that:

'* * * the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * The Labor Management Relations Act expressly furnishes some substantive...

To continue reading

Request your trial
15 cases
  • Yanta v. Montgomery Ward & Co., Inc.
    • United States
    • Wisconsin Supreme Court
    • December 20, 1974
    ...statute of limitation applied to actions entirely created by statute.18 (1967), 35 Wis.2d 741, 749, 151 N.W.2d 721, 725.19 (1965), 27 Wis.2d 476, 134 N.W.2d 393.20 (1966), 32 Wis.2d 320, 145 N.W.2d 716.21 Concerning Tully and Cheese, the court in Green v. Granville Lumber & Fuel Co. (1973),......
  • Landahl v. PPG Industries, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • October 23, 1984
    ...a six-year statute of limitations established by the Wisconsin Supreme Court almost twenty years ago. See Tully v. Fred Olson Motor Service Co., 27 Wis.2d 476, 134 N.W.2d 393 (1965). We do not agree. Neither Hoosier Cardinal nor Mitchell represent the kind of "clear past precedent" contempl......
  • Jordi v. Sauk Prairie School Bd.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • January 30, 1987
    ...statute. In determining what the applicable statute of limitations for actions under § 111.70 should be, Tully v. Fred Olson Motor Service Co., 27 Wis.2d 476, 134 N.W.2d 393 (1965) is helpful authority. In Tully, the Supreme Court for the State of Wisconsin addressed the question of the app......
  • White v. Ruditys
    • United States
    • Wisconsin Court of Appeals
    • December 27, 1983
    ...in the circuit court. Therefore, we conclude the strictures of sec. 111.07 are not applicable. See Tully v. Fred Olson Motor Service Co., 27 Wis.2d 476, 488-89, 134 N.W.2d 393, 399 (1965). GRANTING OF The Union next argues that the trial court erred in granting White a permanent injunction ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT