RIVES, Circuit Judge.
This appeal is from a judgment dismissing an action for failure of the complaint to state a claim upon which relief might be granted or, in the alternative, of which the district court has jurisdiction.
According to the complaint, plaintiff was employed by Wiscombe Painting Company, Inc. (hereinafter called "Wiscombe") in 1951 at which time he was an active member of the Brotherhood of Painters, Decorators and Paper Hangers of America, a labor organization within the meaning of the Labor Management Relations Act. He became General Superintendent of Field Operations for Wiscombe in December, 1955, and was then issued a withdrawal card by said Brotherhood. The complaint alleges that, "Plaintiff has been an inactive member of said Union subsequent to said date."
In February 1958, the stockholders of Wiscombe organized and incorporated Wiscombe Southern Painting Company, Inc. (hereinafter called "Wiscombe Southern"), and plaintiff was transferred to Wiscombe Southern as Vice President and later became General Manager. He acted at all times under the direction and control of one Leland M. Wiscombe, the President of both Wiscombe and Wiscombe Southern.
The first labor difficulties encountered by Wiscombe Southern were at Tullahoma, Tennessee, with Local 456 of the Brotherhood. The negotiations were handled on behalf of Wiscombe Southern ostensibly by plaintiff but under explicit and detailed instructions from Leland M. Wiscombe.
In May 1958, Wiscombe and Wiscombe Southern "as a joint-venture of the two corporations" contracted for painting on the Jackson Lock and Dam on the Warrior River at Coffeeville, Alabama. Work started on said joint-venture in July 1959. Arrangements for labor were made through Local 779 of the Brotherhood.
Shortly after beginning work on the joint-venture, Wiscombe and Wiscombe Southern experienced labor difficulties in securing labor for the joint-venture and on August 26, 1959, they filed a suit, signed and sworn to by plaintiff, against the defendant Brotherhood of Painters, Decorators and Paper Hangers of America Local Union No. 779, Dulaney Parker, its business agent, and others, in the Circuit Court of Choctaw County in Equity, praying for an injunction and damages against said defendants by reason of said labor difficulties caused by them. In addition to said bill for injunction and damages, in October 1959 three charges were filed with the National Labor Relations Board against defendant Brotherhood of Painters, Decorators and Paper Hangers of America and defendant Brotherhood of Painters, Decorators, and Paper Hangers of America Local No. 779.
The plaintiff appeared in said cases, "and testified fully, freely and truthfully by oral testimony or affidavit against the defendants named therein."
All of the labor negotiations pertaining to the joint-venture at Jackson Lock and Dam, the bill for injunction and the charges filed with the NLRB were handled by plaintiff under the direction, control and instructions of Leland M. Wiscombe. Leland M. Wiscombe did thereafter falsely and maliciously represent to defendant Brotherhood at a joint meeting of the Union and an Association of Painting Contractors, known as Painting and Decorating Contractors of America, at LaFayette, Indiana, in November 1959, that the plaintiff had conducted the labor negotiations contrary to his orders and instructions and without his knowledge.
The defendant Unions threatened Wiscombe and Wiscombe Southern with coercive measures, such as strikes and the like, wherever Wiscombe and Wiscombe Southern had contracts unless and as a
In February 1960, he secured employment with Earl Paint Corporation of Utica, New York, and in March 1960 was working on a job for Earl Paint Corporation in Bartow, Florida. A jurisdictional dispute arose over the question of whether or not a member of the Brotherhood of Painters, Decorators and Paper Hangers of America should apply foam insulation to certain tanks on the job. Carl Griffin, a business or area representative for the Brotherhood and its locals, investigated the incident and falsely and maliciously reported to the Brotherhood that the plaintiff was the cause of said dispute. The Brotherhood demanded of Earl Paint Corporation that it discharge the plaintiff and threatened Earl Paint Corporation that if it did not discharge the plaintiff the Brotherhood would take coercive measures against Earl Paint Corporation in the form of strikes and the like throughout the United States. As a proximate consequence of the threats and coercive measures the Earl Paint Corporation discharged the plaintiff on March 30, 1960. Plaintiff requested a hearing before the Brotherhood to present the true factual situation in connection with each of the labor difficulties in which he was involved. The Brotherhood failed and refused to allow plaintiff a hearing.
The complaint alleges that:
The first count bases jurisdiction on 42 U.S.C.A. § 1985, and avers that:
The second count bases jurisdiction on Sections 101 (a) (5) and 102 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 411(a) (5) and 29 U.S.C.A. § 412; and alleges that:
The fourth count bases jurisdiction on Section 704(a) (4) (ii) (B) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 158(b) (4) (ii) (B) and Section 303 of the National Labor Relations Act as amended, 29 U.S. C.A. § 187; and alleges that:
The fifth count bases jurisdiction on 28 U.S.C.A. §§ 1331 and 1337, and alleges that:
The sixth count bases jurisdiction as follows:
That count alleges:
The district court, in dismissing the action, opined as follows:
The first count in this case charges a violation of the civil rights statute, 42 U.S.C.A. § 1985. In the Lankford case Judge Grooms disposed of a charge similar in some respects:
Collins v. Hardyman, 1951, 341 U.S. 651, 660, 71 S.Ct. 937, 95 L.Ed. 1253, settled the principle that the kind of conspiracy covered by what is now subsection (3) of section 1985 is of a very limited character, and repeated for emphasis that such conspiracy must be, "for the purpose of depriving * * * of the equal protection of the laws, or of equal privileges and immunities under the laws." (Emphasis the Court's.) That opinion continued:
341 U.S. at 661, 662, 71 S.Ct. at 942. There is, and can be, no claim that the
The averments of the first count are within the language of subsection (2) of section 1985. The operation of that subsection is, however, confined to "any court of the United States." The criminal counterpart of subsection (2) was considered in Todd v. United States, 1895, 158 U.S. 278, 15 S.Ct. 889, 39 L.Ed. 982, where it was held that a United States Commissioner was not "a court of the United States within the constitutional sense." Clearly, neither the National Labor Relations Board, nor the Circuit Court of Choctaw County, Alabama, is "a court of the United States."
That, however, is not the final answer to whether the first count states a claim within the jurisdiction of the district court. As we commented in Lewis v. Brautigam, 5 Cir., 1955, 227 F.2d 124, 127, 55 A.L.R.2d 505 the theory of the plaintiff in stating his claim is not so important and the complaint should not be dismissed on motion unless, upon any theory, it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved in support of his claim.
A further part of our opinion in Lewis v. Brautigam, supra, appears pertinent to our consideration of the sufficiency of the first count:
The complaint does not however, allege that the deprivation of rights was "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory," which is necessary to give jurisdiction under section 1983. We conclude that the first count does not properly state a claim under any provision of the Civil Rights Act.
The second count undertakes to state a claim under the Labor Management Reporting and Disclosure Act of 1959 Sections 101 (a) (5) and 102, 29 U.S.C.A. §§ 411(a) (5) and 412:
An individual employed as a supervisor may remain a member of a labor organization. Section 14(a) of the Taft-Hartley Act, 29 U.S.C.A. § 164(a) so provides. In commenting on that section, it is said in 1 C.C.H. Labor Law Reporter, paragraph 1675:
The same section is discussed at some length in Local 636 of the United Ass'n of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry Plumbers v. N. L. R. B., 109 U.S.App. D.C. 315, 287 F.2d 354, 361, 362, with the conclusion reached that supervisors may retain their union membership in order that they may protect their seniority and fringe benefits. The kind of membership which the plaintiff might retain after becoming a supervisor and withdrawing from active participation, while more than merely nominal, is of a very limited type, that is, such membership as would protect his seniority and any fringe benefits. Otherwise, supervisors are excluded from the definition of employee. 29 U.S.C.A. § 152(3). It would seem to follow that in order to discipline a supervisor member of a labor organization who has withdrawn from active participation and remains a mere inactive member something must be done to affect his membership insofar as it protects his seniority or fringe benefits.
Certainly the alleged "discipline" must have some relation to the plaintiff's membership in the labor organization. While the second count alleges by way of conclusion "that he has been disciplined," it continues "as described hereinabove," thus bringing before the court all of the facts as theretofore alleged in the complaint, the substance of which has already been stated in this opinion. Under those facts it does not appear that the plaintiff's discharge from Wiscombe Southern, his discharge from the Earl Paint Corporation, or any of the other injuries which plaintiff has suffered have any relationship to his membership in the Brotherhood. The complaint alleges that the plaintiff is to this good day an inactive member of the Brotherhood. We conclude therefore that, while the complaint alleges that the plaintiff has been punished, it does not show that he has been disciplined as a member of the Brotherhood, and we agree with the district court that Count 2 fails to state a claim upon which relief can be granted.
Count 3 is based on Section 102 of the Labor Management Reporting and Disclosure Act, 29 U.S.C.A. § 412, which has been heretofore quoted, and upon Section 609 of said Act, 29 U.S.C.A. § 529:
To state a claim upon which relief can be granted under those sections it is also necessary that the injury to which the plaintiff has been subjected have some relation to his membership in the labor organization in order for it to constitute "discipline," and that element is again lacking in the third count.
The fourth count is based on Section 303 of the Taft-Hartley Act, 29 U.S.C.A. § 187, which permits a suit in a district court for injuries to business or property by reason of any violation of subsection (a) of said section. Specifically, the claim under this count is based on the 1959 amendment to section 303 of the Taft-Hartley Act, 29 U.S.C.A. § 187, which reads as follows:
29 U.S.C.A. § 158(b) (4) defines unfair labor practices of a labor organization and, among other provisions, contains the following:
It is the appellant-plaintiff's contention that the labor organization caused his injury by "forcing or requiring any person * * * to cease doing business with any other person * * *," that is, by requiring his employers, Wiscombe Southern and Earl Paint Corporation, to discharge the plaintiff. We are cited to no case where the language "to cease doing business with any other person" as used in this section has the same meaning as to discharge an employee. Literally, it could have that meaning but that would be foreign to the whole purpose of the section which has to do with a secondary boycott ban. No secondary boycott was involved in this case.
29 U.S.C.A. § 158(b) (2), specifically dealing with a union's causing an employer to discharge "an employee" as defined by the act, tends to indicate that the ordinary relation of employer and employee is not contemplated by the words in section
The fifth count undertakes to state a claim under general federal jurisdictional statutes, 28 U.S.C.A. §§ 1331, 1337. The plaintiff argues that it was his right as a citizen to report a violation of the federal law to proper federal authorities and to give affidavits and testimony concerning such violation, and that it is the inherent power and duty of the federal government to protect persons reporting and giving evidence of such violations. Whether any such duty exists and, if so, how the government's duty should be discharged are matters more properly addressed to the Congress than to the Courts. If the federal courts should assume jurisdiction on any such broad theory there would be little reason for the strict limitations imposed on the operations of civil rights acts, as heretofore discussed in our consideration of the sufficiency of Count 1. Under the principles recently and fully discussed in International Association of Machinists v. Central Airlines, Inc., 5 Cir., 1961, 295 F.2d 209, we think that the fifth count fails to disclose affirmatively a federally-created cause of action. Hence, the action does not "arise under" federal law for purposes of the general federal jurisdictional statutes, 28 U.S.C.A. §§ 1331 and 1337.
The sixth count is admittedly not a separate and distinct federal claim, but is a claim based on state law pendent to the claims asserted in the first five counts. Since the first five counts fail to state claims upon which relief can be granted within the jurisdiction of a federal district court, there is no basis on which the court can retain jurisdiction of the sixth count. We conclude that the district court properly dismissed the action and its judgment is