Opinion for the Court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
Five pressmen at the Washington Star were unhappy with the results of a collective bargaining agreement negotiated by their union with the newspaper. They brought this suit in the district court on a variety of claims against the newspaper company, the local union and the international union. The court below granted summary judgment for the defendants, concluding that there was no actionable contract violation, and no breach of federal labor law, either as to the unions' duty to render fair representation in collective bargaining or as to the plaintiffs' right to free speech and participation in union affairs. Baker v. Newspaper & Graphic Communications Union, Local 6, 461 F.Supp. 109 (D.D. C.1978). As to the Evening Star Newspaper Co. (Star), which publishes the Washington Star and employs these pressmen, we agree that there was no actionable claim. As to the unions, we are precluded from determining whether there were any contractual violations because the court's jurisdiction "must yield to the exclusive primary competence of the [National Labor Relations] Board." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). As for the plaintiffs' other claims against the unions, we affirm the judgment of the district court.
Prior to 1973, Local 6 of the International Printing Pressmen and Assistants' Union of North America represented the pressmen at the Star, and Local 19 of the International Stereotypers', Electrotypers' and Platemakers' Union represented the stereotypers. The two international unions merged into the International Printing and Graphic Communications Union (hereinafter called
The stereotypers, smaller of the two groups, had long been suffering the problems of automation and changing technology, and were something of an endangered species. As one of the conditions of the local merger agreement, the parties agreed that if the stereotype department was eliminated at the Star, the stereotypers would be able to retrain for available jobs in the pressroom before new personnel were hired. In return, the pressmen demanded and obtained a clause requiring that retrained stereotypers would be subject to "endtailing," as opposed to "dovetailing," for purposes of future layoffs and other work conditions. As the term implies, endtailing would put all of the stereotypers below any of the pressmen then employed with respect to seniority, thereby requiring that all stereotypers be laid off prior to any pressman. Dovetailing, on the other hand, would rank the stereotypers on the same roster as the pressmen: the seniority of each employee would be measured by his years of employment at the Star.
In 1975, at the time of collective bargaining negotiations with the merged Local 6, the Star was undergoing serious financial problems. One of the demands made by the Star was to close the stereotyping department and dovetail its employees with the pressmen in the pressroom. Underlying the Star's insistence on dovetailing, rather than endtailing, was its obligation to maintain an earlier pledge of lifetime employment to the stereotypers. See Washington, D. C. Stereotypers Union 19, 181 N.L.R.B. 784, 788 (1970). Because of that pledge, endtailing the stereotypers would have precluded any reduction of the pressroom force. Dovetailing, on the other hand, would allow the Star to discharge some of the pressmen and use instead the stereotypers who had been promised lifetime jobs. The expected savings in pressroom costs became a major bargaining goal of the Star. The endtailing provision of the local merger agreement was not raised by the union at the bargaining table.
The Star's proposal was ultimately accepted by the bargaining team for Local 6 and was incorporated into what the parties called the "Survival Agreement." In April of 1976, the Survival Agreement was submitted to the entire membership of the merged Local 6 for ratification. The ratification meeting was lengthy and apparently lively. After the agreement was read, item by item, a question and answer period followed. The entire agreement was then put to a vote and ratified, 99 to 44.
Following Local 6's acceptance of the Survival Agreement, the Star dovetailed seven stereotypers into the seniority list of approximately 75 pressmen. The plaintiffs are some of the pressmen whose seniority was adversely affected by this result. After an unsuccessful appeal to the International, they brought this lawsuit.
II. THE CONTRACT CLAIMS
Plaintiffs claim that the conduct of the defendants breached various contractual obligations owed to them. They contend that the commitment to endtail the stereotypers was contained not only in the merger agreement between the two local unions, but also in the post-merger International constitution and in the post-merger Local 6 constitution. The plaintiffs also complain of violations of pre-merger collective bargaining agreements between Local 6 and the Star. We turn first to the claims against the Star, which are the most attenuated, and then to the claims against the unions, which require more attention.
A. Claims Against the Star
It is difficult to comprehend how the collective bargaining agreements covering the period prior to the merger may have been breached. The law is clear that any seniority rights founded on those agreements terminated upon the advent of the new agreement. "Seniority is wholly a creation
In view of the plaintiffs' inability to support their naked allegation that the Star colluded with Local 6, see note 12 infra, and since the Star clearly lacked any fiduciary duty toward the plaintiffs in the course of collective bargaining, cf. Harrison v. United Transportation Union, 530 F.2d 558, 561 (4th Cir.1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1739, 48 L.Ed.2d 203 (1976), there is no other basis for liability on the part of the Star.
Plaintiffs insist they have a contractual claim arising under the local merger agreement and the union constitutions. Whatever the merit of the plaintiffs' position, we must conclude that a federal court is not the place to seek its vindication. At most the plaintiffs present a question which lies within the special province of the Labor Board.
In reviewing the undisputed facts, the plaintiffs appear to have stated at least a colorable breach-of-contract claim under local law. While they point to three different sources for their alleged contractual rights,
The defendant unions argue that since the merger agreement also called for the merged organization to preserve jobs,
The crucial difficulty with the plaintiffs' position, however, is their choice of forum. The federal scheme of labor regulation proscribes our consideration of the claim because, under the preemption doctrine formulated in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959), state and federal courts are precluded from encroaching upon the primary jurisdiction of the Labor Board. The Court held in Garmon that "[w]hen an activity is arguably subject to § 7 or § 8 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board ...." 359 U.S. at 245, 79 S.Ct. at 779-780. While the Garmon rule has undergone some refinement over its 20-year existence, it has retained its essential vitality. See Sears, Roebuck & Co. v. San Diego County Dist. of Carpenters, 436 U.S. 180, 98, 1745, 56 L.Ed.2d 209 (1978); Farmer v. United Carpenters & Joiners Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338
In Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), an employee brought a breach-of-contract suit against his union. He claimed that his suspension from the union for failing to pay his dues violated the union's constitution and bylaws. The Idaho Supreme Court, recognizing the presence of an unfair labor practice, nevertheless asserted jurisdiction because resolution of the claim depended upon the proper construction of the union constitution and bylaws. In the state court's view, deciding the breach-of-contract claim did not invade the province of the Labor Board's powers. The Supreme Court reversed on the basis of the preemption doctrine, stating:
Id. at 288, 91 S.Ct. at 1918 (footnote omitted). The Court made clear that "[i]t is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern." Id. at 292, 91 S.Ct. at 1920.
The instant case clearly falls within the preemption doctrine. The conduct which the plaintiffs assail is the union's acceptance of the dovetailing proposal in collective bargaining with the Star and the plaintiffs' consequent loss of seniority. Nothing could be more central to national labor policy than the conduct of parties in the course of collective bargaining. Absent the most compelling of circumstances,
What makes this case unusual is the presence of the endtailing provision in the merger agreement between the local unions. But this fact only highlights the reasons for application of the preemption doctrine here. That the same subject matter is treated one way in the collective bargaining agreement and a different way in the merger agreement highlights the need for a court to avoid potential conflict with the national labor forum. Court involvement here would undermine the unified administration of federal labor policy which Congress plainly intended. As Lockridge explained, cases involving alleged interference with a plaintiff employee's existing or prospective employment relations have a "real and immediate" possibility of implicating principles of federal labor law, and therefore are preempted from consideration by the courts. 403 U.S. at 295-96, 91 S.Ct. at 1922-23. This is such a case. It deals with the plaintiffs' loss of seniority at the Star, a matter which has been given over to the Labor Board's primary jurisdiction.
Unquestionably, the activity underlying the plaintiffs' claim fits squarely within the Garmon test of being "arguably subject to § 7 or § 8" of the National Labor Relations Act (NLRA). The pressmen and stereotypers agreed to the endtailing provisions in their merger agreement. Section 7 of the NLRA, 29 U.S.C. § 157, grants employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection ...." Arguably, the actions of the pressmen in insisting upon the endtailing provision in the merger agreement are protected by section 7 as "concerted activities" for "mutual aid or protection." Local 6's acceptance of
C. Section 301
Plaintiffs propose a statutory basis for enforcing their alleged contractual rights in an attempt to avoid the strictures of the Garmon rule. Section 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), provides federal jurisdiction for "[s]uits for violation of contracts between an employer and a labor organization ..., or between ... labor organizations...."
"The dominant congressional objective behind the enactment of Section 301 of the LMRA appears to have been a relatively simple one, namely, to eliminate certain technical obstacles to suits for breach of collective bargaining agreements." Meltzer, The Supreme Court, Congress, and State Jurisdiction over Labor Relations: II, 59 Colum.L.Rev. 269 (1959). Opening federal courts to contract suits between unions appears to have been a decidedly secondary concern. In fact, the "between ... labor organizations" clause on which the plaintiffs rely, was not included in the LMRA until the House-Senate conference on the legislation. As a result, there is practically no legislative history pertaining to that provision, and the courts have struggled to determine which contracts Congress intended to come within its purview. See, e. g., Parks v. IBEW, 314 F.2d 886, 914-17 (4th Cir.1963), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963).
Some courts have held that those disputes involving "an intra-union problem unrelated to a collective bargaining agreement," Hotel & Restaurant Employees Local 400 v. Svacek, 431 F.2d 705, 706 (9th Cir.1970), do not come within the scope of section 301. E. g., DiGrazia v. United Bhd. of Carpenters & Joiners, 452 F.Supp. 582 (W.D.Pa. 1978), aff'd mem., 594 F.2d 854 (3rd Cir.1979) (alleged violation of union constitution). On the other hand, jurisdiction under section 301 has been found to exist where the controversy has a clear impact on labor-management relations. E. g., United Textile Workers v. Textile Workers Union, 258 F.2d 743 (7th Cir.1958) (no-raiding agreement between unions violated by conduct designed to disrupt bargaining relationship). Cf. Retail Clerks Int'l Ass'n, Local Nos. 128 & 633 v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503 (1962) (enforcement of strike settlement agreement between employer and local unions).
This court's decision in 1199 DC, Nat'l Union of Hospital & Health Care Employees v. Nat'l Union of Hospital & Health Care Employees, 533 F.2d 1205 (D.C.Cir.1976), comports with these formulations.
Similarly, the instant case is essentially an intra-union conflict. The alleged "contracts" here in question are union constitutions and an agreement which merged two unions into one; the controversy is between a union and some of its members. Plaintiffs allege that their union failed to abide by an agreement with them. This is strictly an internal union affair. The fact that the situs of the alleged union wrongdoing was the bargaining table does not alter the intra-union nature of the alleged misconduct. Likewise, the plaintiffs' contention that the union's acceptance of dovetailing in the Survival Agreement was at odds with a contractual obligation owed to them does not transform the internal union problem into one related to the collective bargaining agreement. The underlying question in the plaintiffs' breach-of-contract claim is whether the union was bound to pursue endtailing at the bargaining table because of the union constitutions or merger agreement. The answer does not depend upon the Survival Agreement.
Moreover, it is apparent that this case does not have the requisite general effect on labor-management relations. While it affects the seniority of individual employees at the Star, it is not equivalent to the inter-union conflict in Textile Workers, supra, 258 F.2d 743, or the employer-union strife in Retail Clerks, supra, 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503. Cf. 1199 DC, supra, 533 F.2d 1205.
For these reasons we hold that section 301 does not provide a jurisdictional basis for the plaintiffs' contractual claim.
III. FAIR REPRESENTATION
Plaintiffs further claim that Local 6 and the International violated the duty of fair representation. Section 9(a) of the NLRA, 29 U.S.C. § 159(a), has been construed to mandate that a bargaining representative deal fairly with the members of the bargaining unit. "The undoubted broad authority of the union as exclusive bargaining
After the Labor Board first held that a union's breach of the duty of fair representation was an unfair labor practice in Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enforcement denied, 326 F.2d 172 (2d Cir.1963), the Supreme Court was confronted with the question of whether the Garmon preemption doctrine applied to such claims. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The Court held that Garmon does not apply to cases involving alleged breaches of the union's duty of fair representation. Id. at 176-88, 87 S.Ct. at 909-915; accord, Lockridge, supra, 403 U.S. at 301, 91 S.Ct. at 1925. Among other considerations, the Court cited the unique role played by the judicially-created duty of fair representation doctrine in federal labor law:
Vaca v. Sipes, supra, 386 U.S. at 181-83, 87 S.Ct. at 912-913 (citation and footnote omitted). We turn, then, to the merits of the plaintiffs' contention.
Plaintiffs claim that the International violated its duty of fair representation by denying their appeal of the Local's action. However, the International was neither the bargaining representative nor a party to the collective bargaining agreement. Under these circumstances, there is no basis for impaling the International on the horns of the dilemma faced by the Local. Hughes v. Shoreline Beverage Distributing Co., Inc., 85 L.R.R.M. 2071 (S.D.Cal.1973).
As for Local 6, it is difficult to view the undisputed material facts
We know of no case which has held that an internal union agreement can restrict the union's power to negotiate with respect to seniority in collective bargaining.
IV. FREE SPEECH RIGHTS
The plaintiffs' final claim is that Local 6 violated their rights of free speech and political participation, rights secured by section 101(a) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411(a),
We think that there is ample support for the district court's grant of summary judgment in favor of Local 6 on this point. Even ignoring the affidavits adduced by Local 6, the plaintiffs' own affidavits reveal that there was considerable discussion of the proposed contract.
This sequence of events does not suggest an infringement of the plaintiffs' statutory rights. The membership was fully informed on what was in the agreement, they discussed it, and they voted on it. The nature of the vote — a single up-or-down vote on the entire agreement — did not contravene
Davey v. Fitzsimmons, 413 F.Supp. 670, 677 (D.D.C.1976).
What emerges is a picture of a ratification meeting where difficult choices had to be made. In a way that is clearly contemplated by national labor law, those choices were made by the persons voting at the meeting. The plaintiffs have failed to persuade this court that any union misconduct was responsible for their inability to muster a majority of the voting members.
For the foregoing reasons, the judgment of the district court is affirmed except that with respect to the breach-of-contract claim against the unions, it is vacated and the case remanded with instructions to dismiss for lack of jurisdiction.
It is so ordered.
A "flyman" is an employee who performs general chores in the pressroom, as opposed to more specialized lithographers.
The post-merger International constitution provided, inter alia:
In the printing trades, "priority" is the equivalent of "seniority." It determines the order of layoffs, vacation scheduling and other related matters. (J.A. 357) A "sub-line" is considered to be a department, in this instance the pressroom.
The post-merger Local 6 constitution provided, inter alia:
403 U.S. at 300-01, 91 S.Ct. at 1925.
In addition, the plaintiffs' allegation of complicity between Local 6 and the Star's negotiators is totally unsupported. To argue that "[t]he opportunity for complicity cannot be doubted," Brief for Appellant at 20, and that "the negotiators had developed over the years a very close working relationship and met together in both a business and social context," id., does not gainsay anything for the plaintiffs. Nor does the union's failure to raise the merger agreement's endtailing requirement in opposition to the dovetailing proposal suggest collusion with the Star in view of the unquestioned precariousness of the Star's financial ability to stay in business.
Finally, the plaintiffs contend that there is undisputed evidence which casts doubt upon the district court's finding that Local 6 agreed to dovetailing in order to save jobs. The evidence does not have that effect. Overall, it demonstrates that cost savings were expected to be achieved from the closing of the stereotype department and dovetailing the stereotypers, lessening the need for lay-offs.