Tully v. Fred Olson Motor Service Co.

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: HEFFERNAN
• Citation: 134 N.W.2d 393,27 Wis.2d 476
• Decision Date: 30 April 1965
• 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.

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134 N.W.2d 393 27 Wis.2d 476, 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. Supreme Court of Wisconsin. April 30, 1965.
Rehearing Denied June 25, 1965.

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 [27 Wis.2d 481] 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,'[27 Wis.2d 482] 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

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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 [27 Wis.2d 483] 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

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S.Ct. 1318, 8 L.Ed.2d 462],...