Petition for Writ of Certiorari — Local 112, International Brotherhood of Electrical Workers v. Bray

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Text

()) Supreme Court, U.S,

89-614 - FILED

‘| AUG 26 1888

IN THE

JOSEPH F. SPANIOL, JR

CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1989

No.

LOCAL 112, INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS, -

AFL-CIO,

Petitioner,

VICTOR BRAY, ET AL,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF WASHINGTON

DAVID E. WILLIAMS

ALEX J. SKALBANIA 3

Attorneys for Petitioner

Office and Post Office Address:

1177 Jadwin Avenue

P. O. Box 1487

Richland, Washington 99352

tg>” SPAS sta tase NS Sink GR OT TN Eom, = Rea: net ate y mn nenmns . Aimaeeme cee neactman ee

QUESTIONS PRESENTED FOR REVIEW

1. Has the manner in which the

Washington State Supreme Court applied

Washington state contract law in the

THIS PAGE LEFT BLANK INTENTIONALLY.

instant matter impermissibly impinged

upon federal labor policy, thus requiring

that federal law must be applied in this

instance?

2. Should this matter have been

governed by principles of federal labor

law rather than state contract law

because the IBEW International Constitu-

tion that is at _ issue here falls within

the purview of 29 USC §185?

PARTIES TO THIS PROCEEDING

Petitioner herein is Local 112,

International Brotherhood of Electrical

Workers, AFL-CIO (Local 112).

| Respondents herein are Victor Bray,

Robert Bort, Joseph Purczynski and

Jimmie M. Scott (Bray, et al).

-3-

TABLE OF CONTENTS

Opinion Below

Jurisdiction

Pertinent Statutes

Statement of the Case

Argument

I. The Manner In Which

Washington State Contract

Law Has Been Applied In

This Matter Has Impinged

Upon Federal Labor Policy.

II. Actions Such As The

Instant One Fall Within

The Purview of 29 USC §185,

And Thus Are Governed By

Federal Substantive Labor

Law.

Appendices:

Appendix A - Order Denying

Motion for

Reconsideration

of Washington

State Supreme

Court A-1

Appendix B - Mandate of the

Washington State

Supreme Court A-2

Appendix

Opinion of the

Washington State

Supreme Court

(April 6, 1989)

Opinion of the

Washington State

Supreme Court

(112 Wn.2d. 253

(1989) )

Order Denying

Motion for

Reconsideration

of Court of

Appeals, Div. III

Opinion of the

Court of Appeals,

Div. III

(May 5, 1988)

Order for Partial:

Summary Judgment

of Yakima Superior

Court

Memorandum of

Points &

Authorities to

Yakima Superior

Court

Request for Trial

De Novo before

Yakima Superior

Court

Memorandum

Decision of

Arbitrator

A-4

A-27

A-28

A-40

2-70

Page

Appendix K - Arbitration Award A-80

Appendix L - 29 USC §185 A-83

Appendix M - 29 USCS §158(b) (1)

(A) A-86

TABLE OF AUTHORITIES

Table of Cases

Allis-Chalmers Corp. v. Lueck

471 U.S. 202, 85 L.Ed.2d. 206,

105 S.Ct. 1904 (1985) 14,18,24,25

Charles Dowd Box Co. v. Courtney

368 U.S. 502, 7 L.Ed.2d. 483,

82 S.Ct. 519 (1962) 23

Fristoe v. Reynolds Metals Co.

615 F.2d. 1209, 1212

(9th Cir., 1980) 27

Gable v. Local Union 387

695 F.Supp. 1174, 1176

(N.D. Georgia, 1988) 25

Ghedreselassie v. Coleman

Security Service

829 F.2d. 892

(9th Cir., 1987) 27

Hillard v. Dobelman

607 F.Supp. lll

{E.D. Missouri, 1985) 27

IBEW v. Hechler

95 L.Ed.zd. 791, 799,

107 S.Ct. 2161 (1987) 25

Machinists v. Wisconsin Employ-

ment Relations Commission

427 U.S. 134;

92 LRRM 2881 (1976) 19

NLRB v. Allis-Chalmers Mfg. Co.

388 U.S. 175, 18 L.Ed.2d.

1123, 87 S.Ct. 2001,

reh. den. 389 U.S. 892,

19 L.Ed.2d. 202, 88 S.Ct. 14,15,16

13 (1967) 17,19,21,22,25,28

NLRB v. The Boeing Co.

412 U.S. 67, 36 L.Ed.2d. 14,15,17

752, 93 8. Ces: 1982 (1973) 21,22,25

Plumbers and Pipefitters v.

Local 334

452 U.S. 615, 69 L.Ed.2d.

280, 101 S.Ct. 2546 (1981) 18,23,24

Safeway Stores v. Brotherhood

of Teamsters and Auto Truck

Drivers :

83 Cal.App.3d. 430,

147 Cal.Rptr. 835 (1978) 28

Scofield v. NLRB

394 U.S. 423, 22 L.Ed.2d. 14,15,18

385, 89 S.Ct. 1154 (1969) 21,22,25

Textile Workers v. Lincoln

Mills

~ Se B.S. 648, 2 2.88.30.

972, 77 S.Ct. 912 (1957) 23

Statutes

28 USC §1257 9

29 USC §158(b) (1) (A) 9,14,15

17,20,21 |

liana

Page

29 USC §185 9,12,22,23,24,26,27,28

~ Other Authorities

ANNOTATION, Right of Labor Union

To Enforce In The Courts Fine’

Validly Imposed Upon Member,

13 ALR 3d. 1004 (1967) ana

Supplement (1987) 21

=8-

OPINION BELOW

The following opinions, copies of

which are attached hereto in the

appendix to this petition, have

previously been entered in this matter:

1. An unpublished opinion of the

Washington State Supreme Court dated

June 1, 1989 denying the petitioner's

motion for reconsideration.

2. An opinion of the Washington

State Supreme Court dated April 6, 1989

and reported at 112 Wn.2d. 253 (1989).

3. An unpublished opinion of the

Washington State Court of Appeals,

Division III, noted at 51 Wn.App. 1029

(1988).

4. A November 21, 1986 opinion of

the Superior Court for Yakima County

granting partial summary judgment against

the petitioner.

5. A decision by Arbitrator

-9-

Robert Redman dated July 25, 1986.

JURISDICTION

The instant petition was filed

with this Court within ninety days of p

the date upon which the Washington State

Supreme Court denied the petitioner's

motion for reconsideration, as provided

for by the rules of this Court. This

Court's jurisdiction is invoked under

28 USC §1257.

PERTINENT STATUTES

29 USC §185 is pertinent to this

matter, and is set forth fully in the

appendix attached hereto. 29 USC §158(b)

(1) (A) is also pertinent and is set

forth fully in the appendix.

wT = ae See Te eee or

-10-

STATEMENT OF THE CASE

The petitioner is a labor organiza-

tion which is affiliated with the Interna-

tional Brotherhood of Electrical Workers

(IBEW) and which is headquartered in

Kennewick, Washington. The respondents

are IBEW members who were working within

the petitioner's jurisdiction at the

times that are material hereto.

The petitioner determined pursuant

to the IBEW International Constitution

that each one of the respondents herein

had violated the provisions of the

aforesaid constitution, primarily by

performing work for non-union contracto?s

within the petitioner's jurisdiction,

and specifically, within the State of

Washington. As a result, the petitioner

imposed fines upon each one of the .

respondents nerein, again pursuant to the

IBEW International Constitution. When

-ll-

the respondents failed to pay these fines,

the petitioner filed the instant lawsuit

against the respondents in Yakima Superior

Court on March 19, 1985 seeking judicial

enforcement of its fines. The petitioner's

complaint was based upon the IBEW

constitution and bylaws of the plaintiff

union. (See the Appendix attached hereto.)

Pursuant to local court rules, the

Yakima Superior Court initially referred

this matter to arbitration. The petiti-

oner argued in the memorandum that it

submitted to the arbitrator that,

because of the contractual nature of the

relationship between the petitioner and

the respondents, and because of the

principles of federal labor policy that

had been enunciated by Congress, federal

substantive law was controlling in this

instance and mandated judicial enforce-

ment of the fines which the petitioner

had imposed upon the respondents in this

Zh de

-12-

matter. (See Appendix).

Subsequently, as is reflected in

the opinions that were eventually issued

by the Yakima Superior Court, the

Washington State Court of Appeals,

Division III, and ultimately, the

Washington State Supreme Court, in this

matter (see Appendix), the petitioner

argued to each one of the above-named

courts that, as described above, 29 USC

§185 and other principles of federal

labor law required Washington State

courts to apply federal substantive law

to the instant matter. (See Appendix).

All of the above-named courts, and

Arbitrator Redman, rejected these argu-

ments by the petitioner, holding that

state contract law was controlling in

this matter, and that under state

contract law, the fines that are at issue

here were not judicially enforceable in

Washington State because the IBEW

-13-

International Constitution did not

specifically state that such fines would

be judicially enforced. (See Appendix).

ARGUMENT

I. THE MANNER IN WHICH WASHINGTON STATE

CONTRACT LAW HAS BEEN APPLIED IN THIS

MATTER HAS IMPINGED UPON FEDERAL LABOR

POLICY.

The petitioner respectfully submits

that the manner in which the Washington

State Supreme Court has applied state

contract law in this matter: unreasonably

interferes with the internal affairs of

the petitioner by unnecessarily restrict-

ing its access to the Washington State |

judicial system to enforce reasonable

disciplinary measures against its members;

is likely to erode the petitioner's

effectiveness as a collective bargaining

representative and to upset the balance

ij ii

olan

of power between labor and management for

-the same reason; and would also work

towards frustrating the federal scheme

that is embodied in the NLRA, and thus,

for the reasons set forth above, is

contrary to and impinges upon federal

labor policy. 29 USC §158(b) (1) (A);

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.

175, 18 L.Ed.2d. 1123, 87 S.Ct. 2001,

reh. den. 389 U.S. 892, 19 L.Ed.2d. 202,

88 S.Ct. 13 (1967); Scofield v. NLRB, 394

U.S. 423, 22 L.Ed.2d. 385, 89 S.Ct. 1154

(1969); NLRB v. The Boeing Co., 412 U.S.

67, 36 L.EBd.2d. 752, 93 S.Ct. 1952 (1973);

Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 85 L.Ed.2d. 206, 105 S.Ct. 1904

(1985).

As a result, the petitioner respect-

fully submits that federal substantive

law must be applied in this matter in

order to interpret and enforce the IBEW

* ! * *. .

International Constitution in a manner

-15-

that is consistent with federal labor

policy. (Id)

This Court has previously stated

that the interpretation and/or enforce-

ment of a contractual relationship

between a labor union and its members

aheittl tn governed by federal labor law

whenever principles of state contract law

impinge upon federal labor policy, and

should be governed by state contract law

in every other instance. NLRB v. Boeing

Co., supra, at 758-759; Scofield v. NLRB,

supra, at p. 391, n.3; NLRB v.

Allis-Chalmers Mfg. Co., supra, at

1129-1130.

This Court has not yet had occasion,

to the petitioner's knowledge, to apply

the principles that are enunciated_in the

above-cited cases to a specific contract-

ual relationship between a union and its

members in order to determine whether a

particular application of state contract

epee mae | |e

7 4 wee

law has impinged upon federal labor

policy. However, this Court has stated

previously that the ability of labor

unions to take reasonable disciplinary

measures against those of their members

who violate union rules and regulations

is an “integral" part of federal labor

policy. NLRB v. Allis-Chalmers Mfg. Co.,

supra, at 1128-1130. Congress has

specifically protected the ability of

labor unions to take such reasonable

disciplinary measures against their

members in the NLRA. (See 29 USC

§158(b) (1) (A)).

The petitioner respectfully submits

that previous decisions of this Court

have also established that the ability of

labor unions to judicially enforce

reasonable disciplinary measures which

they have imposed upon their members

pursuant to union constitutions is also

an "integral" aspect of federal labor

ans

-17-

policy. NLRB v. Allis-Chalmers Mfg. Co.,

supra, at 1128; Id, at 1134 ("...

Congress was operating within the context

of a ‘contract theory’ of the union-member

relationship . .. (when it adopted

29 USC §158(b)(1)(A)) . . . (and)...

the efficacy of a contract is precisely

its legal enforceability. A lawsuit is

and has been the ordinary way by which

performance of private money obligations

is compelled. .. ."); Id, at 1129;

(" . « « £@ S86 suggested that. . %

(court enforcement of fines) .. . loses

its cogency here because ... (the union

constitution) . . . did not explicitly

call for court enforcement. However, the

potentiality of resort to courts for

enforcement is implicit in any binding

obligation."); NLRB v. Boeing Co., supra,

at 755-756 (judicial enforcement of fines

approved even though union constitution

Gid not contain "court enforceability"

-18-

clause); Scofield v. NLRB, supra, at 391,

n.3; Plumbers and Pipefitters v. Local 334,

452 U.S. 615, 69 L.Ed.2d. 280, 101 S.Ct.

2546 (1981).

Additionally, state law in the area

of labor relations is preempted by federal

law whenever state law: (1) would :

conflict with federal law; (2) would

frustrate the federal scheme involved;

(7: 28 bie eetenne from the totality of

circumstances that Congress sought to

occupy this particular field to the

exclusion of the State. Allis-Chalmers v.

Lueck, supra, at 118 LRRM 3345, 3348.

This Court has also held that state

rules or laws which "upset the balance

of power between labor and management

expressed in our national labor policy"

are preempted by the NLRA. Allis-Chalmers

v. Lueck, supra, at 118 LRRM 3345, 3349,

n.6.

Under the Washington State Supreme

-19—

Court's April 6, 1989 decision in this

matter the petitioner would be powerless

to judicially enforce reasonable disci-

plinary measures which it had taken

against its members based upon the IBEW

constitution. (See Appendix). The

petitioner would thus be forced to choose

between expelling its members or allowing

its members to ignore its reasonable

disciplinary measures without fear

of punishment. NLRB v. Allis-Chalmers Mfg.

Co., supra, at 1129-1130. By being forced

to take either one of these two drastic

courses of action the petitioner's effect-

iveness as a collective bargaining repres-

entative would clearly be eroded, and

thus the balance of power between labor

and management would be upset. NLRB v.

Allis-Chalmers Mfg. Co., supra, at

1129-1130; Machinists v. Wisconsin Employ-

ment Relations Commission, 427 U.S. 132,

146, 92 LRRM 2881 (1976). This would be

-20-

contrary to and would impinge upon federal

labor policy. Id.

Additionally, by means of its

April 6, 1989 decision in this matter,

the Washington State Supreme Court has,

in effect, decreed that, in order for the

petitioner to regain its “integral"

right to effectively enforce reasonable

disciplinary measures against its. members,

the petitioner and/or the IBEW will have

to amend the IBEW International Constitu-

tion, which is applicable in all fifty

states and Canada, to include language

that has been specified by the Washington

State Supreme Court. (See Appendix).

Clearly, such a result conflicts

with and impinges upon federal labor

policy as it has been enunciated by

Congress in the NLRA, and more particular-

ly, in 29 USC §158(b) (1) (A), wherein

Congress' intent to allow labor unions to

have reasonable freedom to formulate

-2l-=

their own rules for effectively disciplin-

ing their members is clear. 29 USC

§158(b) (1) (A); NLRB v. Allis-Chalmers Mfg.

Co., supra; Scofield v. NLRB, supra;

NLRB v. Boeing Co., supra.

Given the fact that similar cases to

the instant one have arisen in the past

(See ANNOTATION, Right of Labor Union to

Enforce In The Courts Fine Validly

Imposed Upon Member, 13 ALR 3d. 1004 (1967),

and Supplement (1987), and cases cited

therein), and given the fact that some of

the decisions in the above-cited cases

conflict with one another (Id), the

issues that are outlined above are clearly

recurring in nature and, the petitioner

respectfully submits, need to be resolved

by the uniform application of federal

labor law in order to prevent further

confusion and impairment of federal labor

policy. NLRB v. Allis-Chalmers Mfg. Co.,

supra.

=-22@

The petitioner also respectfully

= submits that federal labor law, if it

was applied in this instance to interpret

and enforce the IBEW International Consti-

tution, would require the courts of the

State of Washington to judicially

enforce the fines that are at issue here,

provided that those fines were found to

be reasonable in amount. NLRB v.

Allis-Chalmers Mfg. Co., supra, at 1128,

1129, 1134; Scofield v. NLRB, supra, at

p. 391, n.3; NLRB v. Boeing Co., supra.

II. ACTIONS SUCH AS THE INSTANT ONE FALL

WITHIN THE PURVIEW OF 29 USC §185, AND

THUS ARE GOVERNED BY FEDERAL SUBSTANTIVE

LABOR LAW.

29 USC §185(a), which is set forth

in the Appendix hereto, has long been

interpreted by this Court as embodying

Congress' intent that principles of

federal substantive labor law, fashioned

-23-

from Congress’ national labor policies,

should govern the interpretation and

enforcement of collective bargaining

agreements between labor organizations

and employers. Charles Dowd Box Co. v.

Courtney, 368 U.S. 502, 7 L.Ed.2d. 483,

82 S.Ct. 519 (1962); Textile Workers v.

Lincoln Mills, 353 U.S. 448, 1 L.Ed.2d.

972, 77 S.Ct. 912 (1957). This has been

the case regardless of whether actions

based on 29 USC §185 have been brought

in federal or state court. Id.

In 1981, this Court held that

Congress also intended 29 USC §185 to

govern the interpretation and enforce-

ment of union constitutions, at least

where the parties who are seeking inter-

pretation and enforcement of those

constitutions are both labor organizations.

Plumbers and Pipefitters v. Local 334,

supra, at 290. In Local 334, and in

subsequent decisions, this Court has also

ae ea Te

-24-

made it clear that principles of federal

substantive labor law also govern the

interpretation and enforcement of union

constitutions that fall within the

purview of 29 USC §185. Id;

Allis-Chalmers Corp. v. Lueck, supra,

at 118 LRRM 3345, 3349.

This Court has, however, to date,

expressly refrained from determining

whether lawsuits between individual union

members and labor organizations that are

based upon union constitutions also fall

within the purview of 29 USC §185.

Plumbers and Pipefitters v. Local 334,

supra, at p. 290, n.16. As a result of

the fact that this Court has not yet

rendered a decision on this issue,

conflicts have arisen among the lower

courts as to whether 29 USC §185, and

thus as to whether federal substantive

labor law, should govern the interpreta-

tion and enforcement of union

~25—0

constitutions in such instances, contrary

to dicta in NLRB v. Boeing Co., supra, and

Scofield v. NLRB, supra. (See Gable v.

Local Union 387, 695 F.Supp. 1174, 1176

(N.D. Georgia, 1988) and cases cited there-

in.)

The petitioner respectfully submits

that it would be contrary to national

labor policy to require labor organiza-

tions, such as the petitioner and the

IBEW, to undertake the impossible task of

drafting union documents, such as

international constitutions, that will

have multi-state applicability, ina

manner that will attempt to conform to

the eccentricities of the contract law

of each state where the documents may be

enforced. NLRB v. Allis-Chalmers Mfg. Co.,

supra, at 1128-1129; Allis-Chalmers Corp.

v. Lueck, supra, at 118 LRRM 3349;

IBEW v. Hechler, 95 L.Ed.2d. 791, 799,

107 S.Ct. 2161 (1987). Yet that is

-26-

exactly the import of the Washington

State Supreme Court's April 6, 1989

decision in this matter.

As a result, the petitioner

respectfully submits that 29 USC §185

should be held to have been applicable to

the instant matter, and that principles

of federal substantive labor law should

have peen applied by the Washington State

Supreme Court, in order to interpret and

enforce the IBEW International Constitu-

tion in this instance. (Id)

In addition, it may also be possible

to read the Washington State Supreme

Court's April 6, 1989 decision in this

matter as uolding that 29 USC §185 is

inapplicable to the instant matter

because the petitioner did not specifi-

cally mention 29 USC §185 in its complaint.

(See Appendix). If that is the case,

the petitioner respectfully submits that

such a holding would also be contrary to

-27-

federal labor policy.

Numerous cases have established

that Congress did not intend to require

a party to specifically refer to

29 USC §185 in its complaint in order for

its complaint to allege a cause of

action under 29 USC §185. Ghedreselassie

v. Coleman Security Service, 829 F.2d.

892 (9th Cir., 1987); Fristoe v. Reynolds

Metals Co., 615 F.2d. 1209, 1212 (9th

Cir., 1980); Hillard v. Dobelman, 607

F.Supp. 111 (E.D. Missouri, 1985).

If the decision of the Washington

State Supreme Court in this matter is

interpreted as holding that state law

is to the contrary, the petitioner

respectfully submits that such a holding

would conflict with the principles under-

lying federal labor policy, and thus,

that the principles of state law that

were relied upon by the Washington State

Supreme Court to reach such a holding

-28-

would be preempted by federal law.

Safeway Stores v. Brotherhood of Teamsters

and Auto Truck Drivers, 83 Cal.App.3d.

430, 147 Cal.Rptr. 835 (1978) (holding

that state procedural rules are preempted

by federal law in actions involving

29 USC §185 where application of those

state procedural rules would impinge upon

federal labor policy); NLRB v.

Allis-Chalmers Mfg. Co., supra.

Therefore, for the foregoing

reasons, the petitioner respectfully

submits that the Washington State Supreme

Court erred in failing to apply federal

substantive labor law to the instant

lawsuit, and prays this Court to grant

the instant Petition in order to correct

that error, and in order to resolve

conflicts which have arisen on this

issue among the lower courts.

-29-

Respectfully submitted:

CRITCHLOW & WILLIAMS

Attorneys for Petitioner

ce Qe) Pension

Alex J. SKalbania

Lm 2. G) urn.

David E. Williams .

A-1

APPENDIX A

THE SUPREME COURT OF WASHINGTON

LOCAL 112, INTERNA- )

TIONAL BROTHERHOOD )

OF ELECTRICAL )

WORKERS, AFL-CIO, ) No. 55257-6

)

Petitioner, ) ORDER DENYING

) MOTION FOR

Vv. ) RECONSIDERATION

)

VICTOR BRAY, ET AL, )

)

Respondents. )

The Court having decided by major-

ity vote that the petitioner's motion

for reconsideration should be denied.

It is ordered that the motion be

and it hereby is denied.

Dated this lst day of June, 1989.

KEITH M. CALLOW

Chief Justice

112 Wn.2d. 253

A-2

APPENDIX B

THE SUPREME COURT OF WASHINGTON

LOCAL UNION 112,

INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL WORKERS,

MANDATE

No. 55257-6

AFL-CIO, Yakima County No.

85-2-00461-1

Petitioner,

Vv. C/A No. 8637-2-III

VICTOR BRAY, ROBERT

BORT, JOSEPH

PURCZYNSKI and

JIMMIE M. SCOTT,

Respondents.

ee eee ee ee ee ee ee ee ee”

THE STATE OF WASHINGTON TO: The Superior

aise of the State of Washington in and

for Yakima County.

This is to certify that the opinion

of the Supreme Court of the State of

Washington filed on April 6, 1989, became

the decision termination review of this

court in the above entitled cause on

June 1, 1989. This cause is mandated to

the superior court from which the appeal

i: : ee

A-3

was taken for further proceedings in

accordance with the attached true copy of

the opinion.

Pursuant to Rule of Appellate

Procedure 14.3, costs are taxed as

follows: $142.89 awarded to respondents

victor Bray and Robert Bort and against

Petitioner. Order Denying Motion for

Reconsideration was entered herein on

June 1, 1989. Copy attached.

IN TESTIMONY WHEREOF, I

have hereunto: set my

hand and affixed the seal

of said court at Olympia,

this 5th day of June, 1989.

C. J. MERRITT

Clerk of the Supreme

Court, State of Washington

cc: Mr. David Williams

Mr. Patrick Cockrill

Mr. John Biggs

Court of Appeals, Div. III

Reporter of Decisions

’

A-4

APPENDIX C

55257-6-1 April 6, 1989

No. 55257-6. En Banc.

LOCAL 112, INTERNATIONAL BROTHERHOOD .

OF ELECTRICAL WORKERS, AFL-CIO,

Petitioner, v. VICTOR BRAY, ET AL,

Respondents.

[1] Labor Relations -- Union Member-

ship -- Nature of Relationship. The

constitution of a labor union and the

rules adopted pursuant to the constitu-

tion establish a contractual relation-

' Ship between the union and its members.

[2] Labor Relations -- Union Member-

ship -- Fine -- Judicial Enforcement.

A labor union can obtain a judgment to

collect a fine levied against one of its

members providing the union constitu-

tion or the rules adopted pursuant there-

to specifically authorize such judicial

enforcement.

Dore, J., concurs in the result only;

A-5

Smith, J., did not participate in the dispo-

Sition of this case.

Nature of Action: A labor union

sought review of an arbitrator's decision

preventing it from enforcing in court

fines it had assessed against four union

members.

Superior Court: The Superior Court

for Yakima County, No. 85-2-00461-1,

Howard Hettinger, J., on November 21,

1986, granted a summary judgment uphold-

ing the arbitrator's decision.

Court of Appeals: The court

affirmed the judgment in an unpublished

opinion noted at 51 Wn.App. 1029.

Supreme Court: Holding that,

absent authorization in the union's

constitution or governing rules, the

fines were not subject to judicial

enforcement, the court affirms the

decision of the Court of Appeals and

the judgment.

A-6

Critchlow & Williams, by David E.

Williams and Robert D. Merriman, for

petitioner.

Pat Cockrill (of Hovis, Cockrill,

Weaver & Biur), for respondents Bray

and Bort.

John S. Biggs, for respondents

Purczynski and Scott.

on State Law Reports.

A-7

APPENDIX D

IN THE SUPREME COURT OF THE

STATE OF WASHINGTON

LOCAL UNION 112,

INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL WORKERS,

AFL-CIO, No. 55257-6

Petitioner, En Banc

Vv.

VICTOR BRAY, ROBERT

BORT, JOSEPH

PURCZYNSKI and

JIMMIE M. SCOTT,

ee eee eee ee eee ee

Respondents. Filed 4/6/89

ANDERSEN, J. --

This is a union discipline case.

Local Union 112, International

Brotherhood of Electrical Workers (IBEW),

AFL-CIO, (hereinafter the Local), fined

several of its members for violating its

rules, primarily its rule against work-

ing on nonunion jobs. The fines assess-

ed against the four union members who

are parties to this appeal are as

follows:

Victor Bray, $8,416, reduced to

$4,208 on certain conditions;

Robert Bort, $8,416, reduced to

$4,208 on certain conditions;

Joseph Purczynski, $12,624,

reduced to $6,312 on certain condi-

tions; and

Jimmie M. Scott, $4,000, with

$2,000 suspended on certain condi-

tions.

The IBEW constitution? includes a

list of 19 offenses for which a member

may be penalized, then concludes:

Any member convicted of any one

or more of the above-named offenses

may be assessed or suspended, or

both, or expelled.

The constitution contains no provision

for the enforcement of assessments or

fines in a court of law. Rather, all

assessments are charged "against the

member as regular dues and must be paid

1+ BEW Constitution and Rules for Local

Unions and Councils under its jurisdict-

ion, as amended September 1982.

* IBEW Conet. S&C. 27, $x

A-9

within the time required to protect the

member's continuous good standing and

benefits.">

The constitution also pro-

vides that any member having past due

indebtedness to the union for assess-

ments "shall stand suspended” and gener-

ally cannot be reinstated until they

have been paid. The bylaws of the

Local contain nothing pertinent to the

issue before us.

On March 19, 1985, the Local filed

a suit in the Superior Court for Yakima

County seeking to recover from its four

aforesaid members the sum of the reduced

assessments noted, plus 12 percent

interest from June 2, 1984, except in the

case of member Scott against whom

3tBEW Const. art. 20, §2.

47BEW Const. art. 237 $3-

A-10

interest was sought from November 5, 1983.

Answers and counterclaims were filed

by union members Purczynski and Scott,

and apparently also by members Bray and

Bort.”

The Superior Court referred the case

to an arbitrator who, after hearings,

held for the union members and dismissed

the complaint against them. The parties

agreed that the counterclaims would be

referred back to the Superior Court.

The Local then requested a trial de novo

in the Superior Court. Motions for

summary judgment were thereafter filed by

the four union members and were

>The responsive pleadings of members

Bray and Bort to the Local's complaint

are not a part of the appellate record.

The Local's response to counterclaims,

which is in the record, however, refers

to counterclaims by.Bray and Bort.

A-11

ultimately granted by the Superior Court.

The members’ counterclaims were not ruled

on by the trial court but were ordered

preserved for trial. The Superior Court

also ruled that "[f]or purposes of RAP

2.2(d) the Court finds that there is no

just reason for delay and this order

shall constitute a final judgment of

dismissal" of the Local's claims against

the four union member defendants.

Attorneys' fees and costs were awarded

to the members. °

The Local appealed and the Court

of Appeals affirmed by an unpublished

opinion. ’ That court granted attorneys'

® RCW 4.84.250; RCW 4.84.270; MAR 7.3.

Ty0cal 112, Int'l Bhd. of Elec. Workers

v. Bray, 51 Wn.App. 1029 (1988).

A-12

fees on appeal to union members Bray and

Bort®, but not to union members

Purczynski and Scott.”

We granted the Local's petition for

10 One issue is

discretionary review.

presented.

ISSUE

May fines assessed by a union local

against certain of its members be judici-

ally enforced by obtaining a civil judg-

ment against the union members in state

court?

DECISION

CONCLUSION. Yes, but only if

specific authorization therefor is

BRCW 4.84.290.

9 the provisions of RAP 18.1l(a) and (c)

requiring the timely service and filing

of an affidavit for attorneys' fees were

not complied with by Mr. Purcezynski and

Mr: Scott.

10,aP 2.3.

A-13

granted by the union's constitution or

governing rules adopted pursuant thereto.

There was no such authorization in this

case.

It is the law of this state that

"(t]he constitution of a labor organiza-

tion and the rules adopted pursuant

thereto form a contract between the

association, on the one hand, and its

members, on the other." This is also

ll invited Glass Workers' Local 188 v.

Seitz, 65 Wn.2d. 640, 641, 399 P.2d. 74,

13 A.L.R.3d 1000 (1965). See Cox v.

United Bhd. of Carpenters, 190 Wash. 511,

69 P.2d. 148 (1937); Joinette v. Local

20, Hotel & Motel Restaurant Employees

& Bartenders Union, 106 Wn.2d. 355,

362-63, 722 P.2d. 83 (1986).

A-14

the prevailing view in other courts,

both state and federal. In this

regard, "'[t]Jhe courts' role is but to

enforce the contract.'"13

After analyzing pertinent federal

labor statutes, and applying the fore-

going contract theory, the United States

Supreme Court concluded that "[a] union

rule, duly adopted and not the arbitrary

fiat of a union officer, forbidding the

crossing of a picket line during a strike

was therefore enforceable against

12.uRB v. Allis-Chalmers Mfg. Co., 388

U.5. L135, 20ae- 20 eed aaa 27 6. Ct.

2001, reh'g aenied, 389 U.S. 892 (1967);

International Ass'n of Machinists v.

Gonzales, 356 U.S. 617, 618, 2 L.Ed.2d.

1018, 78 S.ct. 923, reh'g. denied, 357

U.S. 944 (1958); NLRB v. Boeing Co.,

412 U.S. 67, 75, 36 L.bad.20. 152, 159,

93 &.Ct. 19352 (1973).

13,11is-Chalmers, at 182, quoting

Summers, The Law of Union Discipline:

What the Courts Do in Fact, 70 Yale L.J.

175, 180 (1960).

Zw is i.

A-15

voluntary union members by expulsion or a

reasonable fine."+4

The Supreme Court

also concluded that "[fuJnmless the rule or

its enforcement impinges on some policy

of the federal labor law, the regulation

of the relationship between union and

employee is a contractual matter governed

by local law." (Italics ours.)?

The law is now "well-settled that

a labor union may impose monetary fines

upon its members to enforce compliance

with its valid rules or to penalize non-

compliance, where such penalties are pro-

vided for by the constitution or govern-

ing rules of the organization, and the

offending member is accorded 'due process'

14, 0field v. NLRB, 394 U.S. 423, 428,

22° L.Ed. 2d. 385, 89 S.Ct. 1154 (1969)

lsscofield, 394 U.S. at 426 n.3. See

Boeing, 412 U.S. at 75-76.

A-16

nl6

in the union proceedings. Most of the

cases dealing with this subject are state

cases.?’ Our review of the many cases

cited in an extensive annotation on the

18 which includes cases from

subject,

this state,?° demonstrates that the

foregoing principle is almost uniformly

applied with the results in each case

varying only as required by the contract

law of the state in whose courts the case

was filed, or by the language of the

16, nnot., Right of Labor Union To Enforce

in the Courts Fine Validly Imposed Upon

Memper, 13 A.L.R.3d 1004, 1004-05 (1967).

li see footnote 16.

18 66 footnote 16.

19 united Glass Workers' Local 188 v.

Seitz, supra; Retail Clerks' Local 629 v.

Christiansen, 67 Wn.2d. 29, 406 P.2d. 327

(1965).

A-17

union constitution which is before the

court and the facts of the particular

case.

The leading case in our state is

United Glass Workers' .ocal 188 v. Seitz,

65 Wn.2d. 640, 399 P.2d. 74, 13 A.L.R.3d

1000 (1965). Seitz fully accords with

the foregoing principles, while making it

clear that "the mode of discipline pre-

scribed by the union's organic law must

be followed." (Italics ours.) Seitz,

at 641. This is a recognition of the

labor law principle that "[a] union's

constitution and bylaws are the measure

of the authority conferred upon the

organization to discipline, suspend, or

expel its members." In affirming a

2048 Am. Jur. 2d Labor and Labor

Relations §378, at 291 (1979).

A-18

summary judgment dismissing a union's suit

on a fine assessed by it against one of

its own members, the late Justice Hugh

Rosellini, writing for the court in Seitz,

declared the — as follows:

The constitution of the plain-

tiff union provides for the sus-

pension or expulsion of a member

who fails to pay a fine assessed

against him. The plaintiff has

pointed to no provision in the -

constitution and no facts outside

it which would tend to rebut the

presumption that the remedy

provided in the constitution was

meant to be exclusive. This is

the mode of discipline available

to the plaintiff, under its consti-

tution, and it was evidently

considered adequate when that

constitution was adopted. In any

event, it is the only mode to

which the defendant member agreed

to submit when he joined the union.

Seitz, at 642.

Seitz is directly in point. Here,

as in Seitz, the union's constitution

provides for the suspension or expulsion

of a member who fails to pay a fine

assessed by the Local against that

member. Here, also as in Seitz, the

A-19

Local did not seek suspension or expulsion

of its members but instead brought suit

in state court to convert the Local's

fines into civil money judgments against

its members. Here, again as in Seitz,

the union constitution and bylaws contain

"no provision for recovery of a fine in

a court of law. "71

It follows that since

the Local's complaint against its members

in this case sought to do precisely what

Seitz held a union had no authority to

do without specific authorization in the

constitution or bylaws, a summary judg-

ment dismissing the Local's complaint was

properly granted to the union members. 77

We decline to overrule the holding

of Seitz that a union cannot convert a

-leeitz, 65 Wn.2d. at 642.

220R 56.

A-20

fine imposed on one of its members in a

union disciplinary proceeding into a civil

judgment against the member in a state

court unless the union constitution, or

governing rules adopted pursuant thereto,

specifically authorizes it to do so. It

is only fair to union members that if a

union-assessed fine can be converted into

a civil money judgment against them,

which, of course, would be enforceable

by garnishment of the members' wages or

attachment of the members' property, that

the members be made aware of it by the

union constitution or bylaws. Our hold-

ing is also fair to unions, because they

can enforce union-imposed fines against

their members in state court if they

simply amend their constitutions and/or

bylaws to so authorize. Some unions

have done this though others have

A-21

not; 7? that is entirely up to the member -

ship of the particular union. When

Justice Rosellini wrote Seitz for this

court over 20 years ago, he made it clear

to one and all what had to be done in

this regard and why.

The Local also argues that Seitz

has been superseded by our recent

Opinion in Joinette v. Local 20, Hotel &

Motel Restaurant Employees & Bartenders

Union, 106 Wn.2d. 355, 722 P.2d. 83

(1986). We disagree.

As Joinette pointed out, that case

concerned a suit brought in the superior

court in accordance with the concurrent

jurisdiction provisions*4 of section 301

23566 Wellington, Union Fines and Workers'

Rights, 85 Yale L.J. 1022, 1054 n.168

(1976).

24cnarles Dowd Box Co. v. Courtney, 368

U.S. 502, 7 L.Ed.2d. 483, 82 S.Ct. 519

(1962).

A-22

of the Labor Management Relations Act,

1947 (LMRA), 29 U.S.C. §185 (1982). In

Joinette, we simply acknowledged the

obvious, that much labor law is governed

by federal statute, and that when

deciding an issue covered by federal

statute (where we have the jurisdiction

to do so) "substantive principles of

federal labor law must be paramount in

the area covered by the statute."*>

The case before us is simply a suit on

an indebtedness~° and does not purport

to be a section 301 case.*’

*? Local 174, Teamsters vs Lucas Flour Co.,

369 U.S. 95, 103, 7 L.Ed.2d. 593, 82 S.Ct.

571 (1962).

The Local's "Complaint” filed against

some of its members alleges that "each

Gefendant is indebted to the plaintiff”.

(Italics ours.) Clerk's Papers, at 167.

2" See Local Lodge 1297, Int'l Ass'n. of

Machinists v. Allen, 22 Ohio St. 3d 228,

490 N.E.2d. 865 (1986).

A-23

Furthermore, in this case, unlike

Joinette, we are not confronted with a

situation where "incompatible doctrines

of local law must give way to principles

of federal labor law. "7°

As set forth

above, in cases such as this where a

union sues in state court to collect

union-imposed assessments or fines,

according to the United States Supreme

Court, this is a "'federally unentered

enclave’ open to state law" and governed

by local contract law.*?

Accordingly, we hold that the

dismissal of the Local's suit against

its members by the arbitrator, which was

affirmed by the Superior Court and the

Court of Appeals, was proper.

28) cas Flour, 369 U.S. at 102.

29scofield, 394 U.S. at 426 n.3.

A-24

Finally, with respect to attorneys’

fees in this court, the only attorneys’

fee affidavit filed in this court was

filed on behalf of union members Bray and

Bort, and it was not filed until after

Oral arguments herein. It was thus too

30RaP 18.1 provides that if applicable

law grants a party the right to recover

reasonable attorneys’ fees or expenses on

review, the party should request same as

provided in the rule. RAP 18.1l(a). The

rule proceeds to specifically require that

"[sleven days prior to oral argument, the

party should serve and file an affidavit

in the appellate court detailing the

expenses incurred and the services per-

formed by counsel." (Italics ours.) RAP

18.1(c). The affidavit of mailing, and

the accompanying attorneys' fee affidavit

by counsel for Mr. Bray and Mr. Bort,

were mailed to the Clerk of the Supreme

Court on November 14, 1988, just 2 days

before oral argument. The affidavit of

mailing recites that a copy was also

mailed to opposing counsel on that same

date. The affidavit was not received

and filed by our Clerk until November 16,

1988, at 3:34 p.m. This was after the

1:30 p.m. oral arguments on the case in

this court had been concluded. Since

opposing counsel had to journey from

Yakima to Olympia for the oral arguments,

A-25

late to be effectively replied to or

answered by counsel for the Local. >+ The

requirements of RAP 18.1 not having been

complied with or waived, >“ the union

it is questionable whether he would have

even received the affidavit, let alone

had any real chance to respond with an

opposing affidavit.

31 onovick v. Seattle-First Nat'l Bank,

lll Wn.2d. 413, 418, 757 P.2d. 1378

(1988); Lindsay Credit Corp. v.

Skarperud, 33 Wn.App. 766, 657 P.2d.

30d 11563).

See Donovick, at 418.

A-26

members are not entitled to attorneys' fees

and expenses in this court. >?

Affirmed.

ANDERSEN, J.

WE CONCUR:

S/ S/

UTTER, J. PEARSON, J.

S/ S/

“‘BRACHTENBACH, J. ~ CALLOW, J.

S/ S/

DOLLIVER, J. DURHAM, J.

DORE, J. result only

33 G1asgow v. Georgia-Pac. Corp., 103

Wn.2d. 401, 408, 693 P.2d. 708 (1985);

Tommy P. v. Board of Cy. Comm'rs, 97

Wn.2d. 385, 401, 645 P.2d. 697 (1982).

A-27

APPENDIX E

THE COURT OF APPEALS

OF THE

STATE OF WASHINGTON

DIVISION III

LOCAL UNION 112,

INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL WORKERS,

AFL-CIO,

No. 8637-2-III

Vv. ORDER DENYING

MOTION FOR

VICTOR BRAY, ROBERT RECONSIDERATION

BORT, DOUG METZ,

HENRY SCHUMAKE,

JOSEPH PURCZYNSKI,

and JIMMIE M. SCOTT,

)

Appellant, )

)

‘ )

Respondents.)

)

THE COURT has considered the appell-

ant's motion for reconsideration; that

motion is denied.

DATED: May 25, 1988.

FOR THE COURT:

J. BEN McINTURFF

CHIEF JUDGE

A-28

“ APPENDIX F

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

LOCAL UNION 112,

INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL WORKERS,

AFL-CIO,

No. 8637-2-III

Appellant,

)

) |

Tv, ) Division Three

) Panel Three

VICTOR BRAY, ROBERT )

BORT, DOUG METZ, )

HENRY SCHUMAKE, )

JOSEPH PURCZYNSKI )

and JIMMIE M. SCOTT,)

)

Respondents. FILED 5/5/88

MUNSON, J. -- The International

Brotherhood of Electrical Workers, Local

Union 112 (Union) appeals from a summary

judgment dismissing its action to recover

disciplinary fines against several union—

members. We affirm.

The Union fined several of its

members for allegedly working for non-

union employers in violation of the Union

Ss ae

A-29

constitution and bylaws. When the members

failed to pay the fines, the Union

commenced an action in Yakima Superior

Court to enforce their payment. Under

the local rules of the court, the case

was referred to arbitration. The arbi-

trator determined that under United Glass

Workers' Local 188 v. Seitz, 65 Wn.2d.

640, 399 P.2d. 74, 13 A.L.R.3d 1000

(1965) the fines were not enforceable in

a court of law. The Union requested a

trial de novo in superior court. The

court granted the members' motion for

summary judgment and awarded attorney

fees. The Union's direct appeal to the

Supreme Court was transferred to this

court.

In Seitz, the union fined a member

for violating an agreement not to work

behind an authorized picket line. The

union constitution provided that in the

event a member failed to comply with a

A-30

union decision, the member could be

suspended or expelled. The union brought

an action in superior court to recover

the fine. The court determined it had

jurisdiction, but dismissed the action

because the union's constitution

provided the exclusive remedy for collect-

ing fines, i.e., suspension or expulsion.

On review, the Supreme Court agreed and

explained that it

is committed to the view that, when

parties to a contract foresee a

condition which may develop and

provide in their contract a remedy

for the happening of that condi-

tion, the presumption is that the

parties intended the prescribed

remedy as the sole remedy for the

condition, and this presumption

is controlling where there is

nothing in the contract itself

or in the conditions surrounding

its execution that necessitates a

different conclusion.

The constitution of the

plaintiff union provides for the

suspension or expulsion of a

member who fails to pay a fine

assessed against him. The plaintiff

has pointed to no provision in the

constitution and no facts outside

A-31

it which would tend to rebut the

presumption that the remedy

provided in the constitution was

meant to be exclusive. This is the

mode of discipline available to the

plaintiff, under its constitution,

and it was evidently considered

adequate when that constitution

was adopted. In any event, it is

the only mode to which the defendant

member agreed to submit when he

joined the union.

(Citations omitted.) Seitz, at 642.

Accord Retail Clerks Local 629 v.

Christiansen, 67 Wn.2d. 29, 406 P.2d. 327

(1965).

The Union does not attempt to

distinguish Seitz. Rather, it contends

that subsequent decisions by our Supreme

Court and the United States Supreme Court

have effectively overruled it, i.e.,

that federal law applies. The inksin

relies primarily on NLRB v. Allis-Chalmers

Mfg. Co., 388 U.S. 175, 18 L.Ed.2d. 1123,

87 S.Ct. 2001 (1967). There, a union

sought to enforce disciplinary fines in

state court. The members complained to

A-32

the National Labor Relations Board that

this constituted an unfair labor practice

under section 8(b) (1) (A) of the Labor

Management Relations Act of 1947, 29

U.S.C. §158(b) (1) (A) (1973). The Court

reviewed the legislative history and

concluded that Congress did not intend

that act to regulate the internal affairs

of unions. Allis-Chalmers, 388 U.S. at

185-86. The Court did not hold a union

has a right to enforce such fines in

court, although it stated in a footnote

that

the potentiality of resort to

courts for enforcement is implicit

in any binding obligation. Surely

it cannot be said that the

absence of a "court enforce-

ability" clause in a contract of

sale implies that the parties do

not foresee resort to the courts

as a possible means of enforcement.

Allis-Chalmers, 388 U.S. at 182 n.9.

Two years later, the Supreme Court

clarified the role of state law in

Scofield v. NLRB, 394 U.S. 423,

A-33

22 L.Ed. 385, 89 S.Ct. 1154 (1969). There,

the union sought to spline fines in state

court. In a footnote, the court stated:

Unless the rule or its

enforcement impinges on some

policy of the federal labor law,

the regulation of the relation-

ship between union and employee

is a contractual matter governed

by local law. As the trial

examiner put it in this case, the

[NLRB] "never intended... to

suggest that the disciplinary

action[s] in enforcement of

[union] rules .. . were affirma-

tively protected under the Act,

as opposed to merely being not

violations thereof." It is thus

a "federally unentered enclave"

open to state law.

Scofield, 394 U.S. at 426 n.3.

In NLRB v. Boeing Co., 412 U.S. 67,

36 L.Ed.2d.. 752, 93 S.Ct. 1952 (1973), the

union imposed fines on some of its members

who worked during a lawful strike and

commenced an action in state court to

collect the fines. The Boeing Company

complained to the National Labor Rela-

tions Board that the fines were excessive

and violated section 8(b)(1)(A) of the

A-34

Labor Management Relations Act of 1947.

The Supreme Court held that when union

discipline does not interfere with the

employer-employee relationship and does

not violate any policy of any act, the

Board does not have the authority to

evaluate its fairness. Boeing, 412 U.S.

at 78. Rather, state courts, applying

local contract law, govern the enforce-

ment of the relationship between a union

and its members and may determine

reasonableness of union fines. Boeing, —

412 U.S. at 74-76. See also Local 3l,

Nat'l Ass'n of Broadcast Employees v.

Timberlake, 409 A.2d. 629, 632 (D.C.

1979) (states have jurisdiction to decide

union disputes according to state law);

Local Lodge 1297, Int'l Ass'n of Machin-

ists v. Allen, 22 Ohio St. 3d 228, 490

N.E.2d. 865, 869 (1986) ("State law

governs union lawsuits to collect disci-

plinary fines.").

A-35

Thus, Seitz has not been superseded

by federal law as the Union contends.

Seitz simply prohibits the Union from

seeking court enforcement of disciplinary

fines when a union did not provide for

such a remedy in its constitution.

Apparently only one other juris-

diction which has addressed this issue

has followed Seitz. See Communications

Workers, Local 10517 v. Gann, 510 So.2d.

781 (Miss. 1987). Other jurisdictions

have enforced disciplinary fines in state

court. See, e.g., Local 248 UAW v. Natzke,

36 Wis. 2d 237, 153 N.W.2d. 602 (1967)

(court recognized contrary rule there in

Seitz); Annot., 13 A.L.R.3d 1004 (1967 &

Supp. 1987). Nonetheless, these courts

did apply the law of their state.

Washington is to the contrary.

The Union also contends Joinette v.

Local 20, Hotel & Motel Restaurant

Employees, 106 Wn.2d. 355, 722 P.2d. 83

A-36

(1986) effectively overruled Seitz. In

Joinette, retired union members brought an

action against their international union

and its local affiliate when they increas-

ed their dues in violation of the local

union bylaws. The members argued that

state common law prohibited the interna-

tional union from increasing the dues of

retired members after the local union

promised the retired members they would

no longer be subject to dues increases.

The court explained:

Initially, we note that the

Members’ reliance upon state

common law is misplaced. Although

a state court has concurrent juris-

diction over a breach of contract

action under 29 U.S.C. §185, federal

substantive law is controlling.

Under federal law, a union

constitution constitutes a

"contract" within the meaning of

§185, and a union member may

bring suit on the union constitu-

tion against the union itself.

It is this court's duty to

ascertain the terms of the Members'

"contract" with the International

Union and determine whether the

latter is liable for its breach.

A-37

(Citations omitted.) Joinette, at

362-63.

Although federal substantive law

controls an action under a union constitu-

tion, the source of federal law may be

state law. United Ass'n of Journeymen

of Plumbing Indus. v. Local 334, United

Ass'n of Journeymen of Plumbing Indus.,

452 U.S. 615, 627, 69 L.Ed.2d. 280,

101 S.Ct. 2546, (1981); see also Textile

Workers Union v. Lincoln Mills, 353 U.S.

448, 457, 1 L.Ed.2d. 972, 77 S.Ct. 912

(1957); Concrete Technology Corp. v.

159 U.S.C. §185 (1978) applies to suits

by and against labor organizations and

generally provides that suits between an

employer and a labor organization, or

between labor organizations, may be

brought in United States District Court

regardless of the amount in controversy.

Thus, the statute does not apply to the

present case. See Trust Fund Servs. v.

Heyman, 88 Wn.2d. 698, 703, 565 P.2d. 805

(1977).

A-38

Laborers' Int'l Union, Local 252, 3 Wn.

App. 869, 875, 479 P.2d. 125 (1970)

("To the extent that state law is not

inconsistent with federal labor law, it

may be applied by the process of being

absorbed into the corpus of federal labor

law."). Joinette is not inconsistent

with Seitz.

The trial court awarded attorney

fees pursuant to RCW 4.84.250 and

RCW 4.84.270 to the members as prevail-

ing parties in an action for damages in

an amount less than $10,000. The court

also found the meabers were entitled to

attorney fees under MAR 7.3 because the

Union sought a trial de novo from an

arbitration in a mandatory proceeding

and failed to improve its position.

Victor Bray and Robert Bort are entitled

to attorney fees on this appeal of

$2,300. RCW 4.84.290. Joseph

Purczynski and Jimmie M. Scott, having

i i ye — ee eee ee

A-39

not asked for attorney fees in their

brief nor filed an affidavit, are not

entitled to attorney fees. RAP 18.1/(a)

and (c).

The judgment is affirmed.

A majority of the panel has deter-.

mined this opinion will not be printed

in the Washington Appellate Reports but

will be filed for public record pursuant

to RCW 2.06.040.

MUNSON, J.

WE CONCUR:

THOMPSON, J.

McINTURFF, C.J.

A-40

APPENDIX G

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

IN AND FOR THE

COUNTY OF YAKIMA

LOCAL UNION 112,

INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL WORKERS,

AFL-CIO,

Plaintiff, No. 85-2-00461-1

ORDER FOR

PARTIAL SUMMARY

JUDGMENT FOR

SPECIFIED

DEFENDANTS AND

JUDGMENT OF

DISMISSAL OF

PLAINTIFF'S

CLAIMS

vs.

VICTOR BRAY, ROBERT

BORT, et al,

Defendants.

mee ee ee ee ee ee eee ee ee ee

I. HEARING

“1.1 Date. October 16, 1986.

1.2 Appearances. Moving parties,

defendants Victor Bray and Robert Bort

appeared through their attorney Pat

Cockrill of Hovis, Cockrill, Weaver &

Bjur; moving parties, defendants Joseph

Purczynski anc Jimmie M. Scott appeared

A-41

through their attorney John S. Biggs;

plaintiff appeared through its attorney

David E. Williams of Critchlow & Williams;

defendants Doug Metz and Henry Schumake

did not appear and did not participate in

the summary judgment proceedings.

1.3 Purpose. To consider the

motion of the defendants for partial

summary judgment.

1.4 Evidence. The court considered

the records and files herein, the affi-

davits on file in support of and in oppo-

sition to the motion and the memoranda of

authorities filed on behalf of the moving

parties and the plaintiff. w

II. FINDINGS

The court, having consider2d the

evidence and argument of counsel, finds:

2.1No Issue. There is no genuine

issue as to any material fact in this

action.

2.2 Judgment. Defendants are

A-42

entitled to judgment as a matter of law.

2.3 Dismissal. Plaintiff's claim

against the moving parties, defendants,

should be dismissed.

2.4 Counter claims. Counter claims

of certain of the defendants against the

plaintiff are not affected by this order

and are preserved for trial.

2.5 Finality. For purposes of

RAP 2.2(d) the Court, finds that there is

no just reason for delay and this order

shall constitute a final judgment of

dismissal of plaintiff's claim against

each of the following defendants:

Victor Bray, Robert Bort, Joseph

Purczynski and Jimmie M. Scott.

mo |

2.6 Attorney fees. Pursuant to

RCW 4.84.250, and RCW 4.84.270 defendants

are the prevailing parties in an action

for damages in an amount less than

$10,000.00 and are entitled to reasonable

attorneys fees.

A-43

2.7 Pursuant to CR 7.3 the plaintiff

is obligated to pay reasonable attorney

fees to defendant in that plaintiff has

sought trial de novo from an arbitration

ruling in a mandatory proceeding and has

v- failed to improve its position.

2.8 Reasonable attorney fees for

“Pat Cockrill on behalf of defendants

Bray and Bort are set at $3,105.00.

Reasonable attorney fees for John S.

Biggs as attorney for defendants

Purczynski and Scott are set at $1,200.00.

III. ORDER

On the basis of the foregoing

findings, it is

ORDERED that judgment be entered

herein in favor of the defendants, Victor

pene Robert Bort, Joseph Purczynski and

Jimmie Scott, and against the plaintiff,

Local Union 112, International Brother-

hood of Electrical Workers, AFL-CIO,

dismissing plaintiff's claim against

A-44

the named defendants and awarding

defendants their costs and fees as

follows: Pat Cockrill of Hovis, Cockrill,

Weaver & Bjur, $3,105.00; John S. Biggs,

Attorney at Law, $1,200.00.

IT IS FURTHER ORDERED that the

counter claim of defendants Joseph.

Purczynski and Jimmie Scott against the

plaintiff are not affected by this order

and are preserved for trial.

DATED November 21, 1986.

JUDGE HETTINGER

Presented by:

Pat Cockrill of

Hovis, Cockrill, Weaver & Bijur

Attorneys for Defendants

Victor Bray and Robert Bort

Approved for entry, notice of

presentation waived:

John S. Biggs, Attorney

for Defendants Joseph

Purczynski and Jimmie M. Scott

A-45

Approved for entry, notice of

presentation waived:

David E. Williams of

Critchlow & Williams

Attorneys for Plaintiff

DEFENDANTS AGAINST THE PLAINTIFF ARE NOT

AFFECTED BY THIS ORDER AND ARE PRESERVED

FOR TRIAL.

A-46

APPENDIX H

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

IN AND FOR THE

COUNTY OF YAKIMA

LOCAL UNION 112,

INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL WORKERS,

AFL-CIO,

Plaintiff, No. 85-2-00461-1

vs. PLAINTIFF'S

MEMORANDUM OF

VICTOR BRAY, ROBERT POINTS AND

BORT, DOUG METZ, AUTHORITIES

HENRY SCHUMAKE,

JOSEPH PURCZYNSKI

and JIMMIE M. SCOTT,

Defendants.

COMES NOW the plaintiff and submits

the following memorandum of points and

authorities in opposition to judgment

on the pleadings and summary judgment

and in support of its own claim for

relief herein.

I. FACTS

A-47

Fines were levied by the plaintiff

against each of the defendants in accor-

dance with provisions of the IBEW Constitu-

tion and Bylaws of the International

Brotherhood of Electrical Workers,

AFL-CIO for the performance of non-union

work while defendants were still members

in IBEW Local Union 112. Court action was

initiated to collect the fines after a

proper demand for payment was made and

no payment was forthcoming.

II. ARGUMENT

While the regulation of the relation-

ship between a union and its members is

a contractual matter governed by local

law unless the rule or its enforcement

impinges on some policy of federal labor

law, see Scofield v. NLRB, 394 U.S. 423,

426 n.3 (1969), generally, in the labor

setting federal law controls and state

A-48

law may be utilized by the courts so long

as it is of assistance in the development

of the correct principles of labor law

or their application in a particular case.

Wiley & Son v. Livingston, 376 U.S. 543

at 548 (1964). Furthermore, federal labor

rulings as expressed by the United States

Supreme Court for the private sector

prevail over conflicting state court

rulings so that a uniform and coherent

labor policy can be formulated. NLRB v.

Allis-Chalmers Mfg. Co., 388 U.S. 175

at 183 (1967). It is only through the

development of a uniform and coherent

national labor policy that catastrophic

economic disruption on a coast-to-coast

scale is prevented.

Congress in enacting 29 USC §158

(b) (1) (A) (hereinafter §8(b)(1)(A))? -

159 U.S.C. §158(b) (1) (A) provides that:

"It shall be an unfair labor practice

re neeenineeene enna eee - ! i" '

A-49

of the National Labor Relations Act

(hereinafter "NLRA") mandated a signifi-

cant policy of non-interference in the

internal affairs of unions. This policy

was officially recognized by the United

States Supreme Court in-its landmark

decision of NLRB v. Allis-Chalmers Mfg.

Co., 388 U.S. 175 (1967) (hereinafter

cited as Allis-Chalmers) where it declared

that: "Congress expressly disclaimed

- « « any intention to interfere with

union self-government or to regulate a

union's internal affairs." Allis-Chalmers

at 184. The rationale for this

n.1 (contd. ) e+ a labor organization or

its agents - (1) to restrain or coerce

(A) employees in the exercise of the

rights guaranteed in section 7 [29 USC

§157]: Provided, That this paragraph

shall not impair the right of a labor

Organization to prescribe its own rules

with respect to the acquisition or

retention of membership therein; ..."

A-50

"hands-off" policy as proclaimed by the

Court was that:

National labor policy has been

built on the premise that by

pooling their economic strength

and acting through a labor

organization freely chosen by

the majority, the employees of

an appropriate unit have the

most effective means of bargain-

ing for improvement in wages,

hours, and working conditions.

The policy therefore extin-

guishes the individual employ-

ee's power to order his own

relations with his employer

and creates a power vested in

the chosen representative to

act in the interests of all

employees. ‘Congress has seen

fit to clothe the bargaining

representative with powers

comparable to those ssessed

by a legislative body both to

Create and restrict tr rights

of those whom it represents

o «=e Thus only the union

may contract the employee’s

terms and conditions of employ-

ment, and provisions for

processing his grievances; the

union may even bargain away

his right to strike during the

contract term, and his right

to refuse to cross a lawful

‘picket line. The employee may

disagree with many of the union

decisions but is bound by them.

"The majority-rule concept is

today unquestionably at the

center of our federal labor

A-51

policy.’ ‘The complete satis-

faction of all who are represent-

ed is hardly to be expected. A

wide range of reasonableness must

be allowed a statutory bargaining

representative in serving the

unit it represents, subject

always to complete good faith

and honesty of purpose in the

exercise of its discretion.’

Allis-Chalmers at 180 (citations omitted)

(emphasis added). Moreover, Congress

zealously pursued this policy of diminish-

ing outsider regulation of internal union

affairs when it enacted the Landrum-Griffin

Act, 29 USC §401 et seq. See United

Steelworkers v. Sadlowski, 457 US 102

(1982) (Congress was guided by the general

principle that unions should be left free

to operate their own affairs as far as

possible); NLRB v. Allis-Chalmers Mfg.

Co., 388 U.S. 175 at 194 (1967); Pinancial

Inst. tmployees of America v. NLRB, 752

F.2d. 356 at 363-364 (9th Cir., 1984).

In effect, great care should be taken not

to undermine union self-government or

A-52

weakén unions in their roles as collec-

tive bargaining agents since to do so

Clearly violates the federal policy, as

promulgated by Congress, of protecting

and maintaining union independence in the

regulation of its own internal affairs

including the disciplining of its own

members. Allis-Chalmers at 183 and 184.

The Washington Supreme Court's

declaration in United Glass Workers'

Local No. 188 v. Seitz, 65 Wn.2d. 640,

399 P.2d. 74 (1965) (hereinafter cited

as Seitz) that where a union's constitu-

tion expressly provides for the suspen-

sion or expulsion of a member who fails

to pay a-fine assessed against him but

omits a provision for the recovery of an

unpaid fine in a court of law the fine

cannot be judicially enforced, unquestion-

ably violates both federal statutory

and case law as to the prohibition

against outsider interference with

A-53

internal union affairs. By compelling

the "neglectful" union which failed to

include the "magic words” in its constitu-

tion to make the Hobson's choice of

depleting its membership or condoning

. @iscord and factionalism from defiant

members is certainly the type of outsider

interference in union internal affairs

which both Congress and the United States

Supreme Court here condemned. Such

pervasive judicial regulation of internal

affairs indubitably undermines union

self-government and weakens unions in

their roles as collective bargaining

agents. Seitz, in effect, substitutes

the judiciary for the union hierarchy

and allows it to directly dictate how

unions should best be internally run or

regulated in the court's eyes. This is

contrary to the court's holding in

Allis-Chalmers and therefore the Seitz

decision has expired. Consequently,

A-54

unions can seek enforcement of unpaid

disciplinary fines against rebellious

members in Washington courts even though

a judicial enforcement provision is miss-

ing from the union's constitution.

NLRB v. Hershey Foods Corporation, 513

F.2d. 1083, 1085 (9th Cir., 1975) ("A full

union member is subject to union-imposed

disciplinary measures enforceable in

state courts."); National Cash Register

Company v. NLRB, 466 F.2d. 945, 958

(6th Cir., 1972) (union can seek external

enforcement of its internal rules at

least to the extent of utilizing the

courts to collect fines).

Furthermore, it was never the intent

of Congress to ban the judicial enforce-

ment of union disciplinary fines, as the

court in Seitz did, for two reasons.

First, the union-member relationship is

viewed as being a contractual obligation

with the union capable of seeking judicial

A-55

enforcement of the contract since "a

lawsuit is and has been the ordinary way

by which performance of private money

obligations is compelled". Allis-Chalmers

at 192. In other words, when confronted

with a union-member contract, "the courts'

role is but to enforce the [union-member]

contract". Allis-Chalmers at 182. More-

over, in dealing with contracts in the

labor setting that are attempts at

self-government, courts "should not be

preoccupied with principles which might

apply to an ordinary contract". Hendricks

v. Airline Pilots Ass'n. Intern., 696

F.2d. 673, 676 (9th Cir., 1983) quoting

from Lodge 1327, Int'l. Assn. of

Machinists v. Fraser & Johnston Co.,

454 F.2d. 88, 92 (9th Cir., 1971). In

Seitz, the supreme court did not promote

the enforcement of union-member contracts

but rather discouraged it by the creation

of a verbiage barrier hindering union

A-56

enforcement of fines against delinquent

members through the judicial process. In

addition, the court founded its creation

of this hurdle on the application of

ordinary contract principles to

union-member contracts. Seitz at 642.

Such rationale is in direct conflict

with the legal principles expressed by the

United States Supreme Court in

Allis-Chalmers and the Ninth Circuit in

Lodge 1327, Int'l. Ass'n. of Machinists v.

Fraser & Johnston Co., supra, and there-

fore must yield to them since to do other-

wise would not contribute to the develop-

ment of a uniform and coherent national

labor policy. See also NLRB v. Retail

Clerks U., Local 1179, 526 F.2d. 142, 145

(9th Cir., 1975) ("Union membership is

viewed in the nature of a contractual

obligation, and thus the union may seek

court enforcement of fines levied pursuant

to its constitution and bylaws.").

A-57 —

Second, the use of suspension or

expulsion by unions as a means for disci-

plining their members rather than seeking

enforcement of unpaid fines in state

courts is a detrimental remedy for unions.

Seitz proclaims that unions must accept

the consequences of their failure to

include a provision in their constitutions

for the recovery of fines in court and

therefore are compelled to seek enforce-

ment of delinquent fines through

nonjudicial means such as expulsion.

Seitz at 642. However, the Court in

Allis-Chalmers concluded that such a

policy was in violation of federal labor

law because it would inflict upon "the

member of a strong union a potentially

more severe punishment than court enforce-

ment of fines, while impairing the

bargaining facility of a weak union by

requiring it either to condone misconduct

A-58

or deplete its ranks." Allis-Chalmers at

183-184, 192. Donovan v. Peter Zimmer

America, Inc., 557 F.Supp. 642 at 651

(D. S.C., 1982) (discharge is the equival-

ent of industrial capital punishment).

Since the Seitz decision simultaneously

advocates labor inequity and the under-

mining or weakening of unions, it is

manifestly contrary to the NLRA and

Allis-Chalmers and again must surrender

to these paramount authorities. See also

Local 1255, Int. Ass'n. of Mach. & Aero.

Wkrs. v. NLRB, 456 F.2d. 1214 at 1216

(Sth Cir., 1972) ("Union members may be

disciplined by various means, including

court-enforceable fines.").

In sum, both the NLRA and the United

States Supreme Court have expressed

policies of non-interference from outside

sources in the internal affairs of private

sector unions. Employers, federal and

state governments, and federal and state

—

A-59

courts are to leave the regulation of

internal union affairs solely to the unions

themselves since this bolsters the

self-government aspect of unions and

assists in the maintenance of their

strength as bargaining representatives

for their members. Allis-Chalmers at

191, 192 n.29. Such independent regula-

tion includes the disciplining of

members by unions through the imposition

and enforcement of fines by internal

or external means. Nowhere in the NLRA

is there evidenced a congressional intent

to ban or restrict the court enforcement

of fines because Congress in formulating

—

the NLRA was cognizant of the debilitat- i:

ing effect judicial entecciuai: barriers

could inflict upon unions in their

attempts to preserve precious solidarity.

Allis-Chalmers at 192. However, the

Washington Supreme Court in Seitz held

to the contrary by declaring a court

A-60

enforcement of union fines policy which

encourages judicial interference in, and

the regulation of, internal affairs while

discouraging and undermining union

solidarity by forcing unions to either

unfairly discipline their members or

condone members' misconduct, either of

which fosters membership dissension. _

The court in drafting Allis-Chalmers

envisioned the existence of such

anti-union state court enforcement

restraints as generated by Seitz when it

proclaimed that: "It has been noted that

the state courts, in reviewing the

imposition of union discipline find ways

to strike down 'discipline ...‘'"

Allis-Chalmers at 193 n.32. Allis-Chalmers,

decided two years after the Seitz case,

is clearly fatal to Seitz. Moreover,

the limitation of enforcement remedy

expressed by Seitz is unquestionably

contrary to the spirit of the overriding

A-61

NLRA and federal policy of developing a

uniform and coherent labor policy; there-

fore, the Seitz legacy has come to an end.

Allis-Chalmers, at 192-193. Consequently,

Seitz has been overruled by the United

States Supreme Court and Washington trial

courts currently have authority to enforce

unpaid union fines regardless of whether

a provision for court recovery of a fine

is present in a union's constitution and/or

bylaws so long as they observe the guide-

lines promulgated by the Court in

Scofield v. NLRB, 394 U.S. 423 (1969).

Union fines are neither inherently

punitive nor coercive in nature and thus

may be enforced in state court. NLRB v.

Granite State Joint Board, 409 U.S. 213,

214-215 (1972); NLRB v. Allis-Chalmers

Mfg. Co., 388 U.S. 175 at 179 (1967);

NLRB v. Retail Clerks U., Local 1179,

526 F.2€. 142 at i145 (Sth Cir., 1975)

("The consensual basis of union

A-62

membership makes its disciplining of

members not coercive within the meaning

of section 8(b) (1) (A)."). Nevertheless,

a fine may not be enforced in state court

if it violates an overriding policy of

the national labor laws. Scofield v.

NLRB, 394 U.S. 423 at 429 (1969) (herein-

after cited as Scofield). Thus, "when

application of a union [disciplinary] rule

is found to run contrary to national

labor policy, ‘the disciplinary action is

regarded as coercive within the meaning

of section 8(b)(1)(A).'" NLRB v. Glaziers

Glassworkers Local U., 632 F.2d. 89 at 91

(9th Cir., 1980) citing and quoting from

NLRB v. Retail Clerks Union, Local 1179,

supra. Consequently, when encountering

a union fine enforcement scenario, a

state court must follow the three-part

enforcement test articulated by the

Supreme Court in Scofield. See

A-63

Machinists Local 1327 v. NLRB, 725 F.2d.

1212 (9th Cir., 1984). The Scofield

three-part test declares that a union fine

is enforceable so long as it (1) reflects

a legitimate union interest, (2) impairs

no policy that Congress has embedded in

the labor laws, and (3) is reasonably

enforced against union members. Scofield,

at 430; Machinists Local 1327 v. NLRB,

supra at 1216, NLRB v. Glaziers & Glass-

aes “workers Local U., supra at 9l.

First, in the instant case, plain-

tiff's fines against defendants reflect

a legitimate union interest of ensuring

solidarity and preventing depletion of its

ranks by deterring members from engaging

in competing non-union employment.

"Eventually, a-substantial number of

defections could break the union and once

again give the employer greater power to

set the terms and conditions of employ-

ment." Machinists Local 1327 v. NLRB,

A-64

supra, at 1217. Second, plaintiff's

fines do not impair a policy which Cokateus

has embedded in the labor laws since it

has a recognized interest in making rules

regarding the acquisition and retention

of its membership, and its constitution

and bylaws freely permit a member to

escape disciplinary fines by voluntarily

and permanently resigning from plaintiff

and subsequently obtaining non-union work.

Id. However, the acquisition of non-union

work by the defendants in the present ~

case prior to their resignation is

indubitably a violation of plaintiff's

rules contained in its constitution and

bylaws and therefore defendants "may not

betray their colleagues and expect to get

away without paying a price for weakening

[plaintiff]". Id. at 1218. Third,

plaintiff's fines were reasonably enforced

against the defendants since plaintiff

fully complied with the procedural

A-65

requirement expressed in the

Labor-Management Reporting and Disclosure

Act of 1959 (i.e., the Landrum-Griffin

Act), 29 USC §§401-531 (1982)). Prior to

the levying of fines by plaintiff,

defendants were afforded a full and fair

Opportunity to present their cases, to

cross-examine witnesses, and to appeal an

adverse ruling. Furthermore, the imposi-

tion of the fines was not carried out by

violence or employer discrimination.

Scofield, at 430-431; National Cash

at 958-959 (6th Cir., 1972). Thus, in

the instant case, collecting fines from

defendant-members who broke plaintiff's

rules is a reasonable means of enforce-

“

ment.“ The enforcement of plaintiff's

_—

2 Reasonableness of the amount of the fine

is for the NLRB to determine. See Morton

Salt Company v. NLRB, 472 F.2d. 416 at

$23 (PGR Cakes ayia)

A-66

fines shovld be granted by the court.

III. CONCLUSION

Allis-Chalmers tolls the death knell

for Seitz. The Seitz decision violates

national labor policy as proclaimed by the

NLRA and the United States Supreme Court.

Since Seitz has been overruled by

Allis-Chalmers and plaintiff's fines

satisfy the Scofield three-part enforcement

test, the fines in the present case should

be judicially sntevost. To deny enforce-

ment would constitute grave legal error

because plaintiff's self-government would

be undermined and its role as a collective

bargaining agent would be weakened.

Allis-Chalmers at 194.

For the reasons of fact and law

presented, it is plaintiff's position

that relief can be granted on plaintiff's

A-67

Stated claim, and this court is respect-

fully requested to deny judgment on the

pleadings, or in the alternative, summary

judgment for the defendants.

DATED: This 12th day of November, 1986.

Respectfully submitted,

CRITCHLOW & WILLIAMS

Attorneys for Plaintiff

By: S/ =

David E. Williams

A-68 be

APPENDIX I

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

IN AND FOR THE

COUNTY OF YAKIMA

Defendants.

LOCAL UNION 112, )

INTERNATIONAL )

BROTHERHOOD OF )

ELECTRICAL WORKERS, )

AFL-CIO, )

)

Plaintiff, ) No. 85-2-00461-1

)

vs. ) REQUEST FOR TRIAL

) DE NOVO \ |

VICTOR BRAY, ROBERT ) BY AND BEFORE |

BORT, DOUG METZ, ) THE COURT

HENRY SCHUMAKE, )

JOSEPH PURCZYNSKI )

and JIMMIE M. SCOTT,)

)

COMES NOW the plaintiff above-named,

under and in accordance with all appli-

cable rules of court and herewith requests

trial de novo in and by the above-entitled

Court subsequent to arbitration under

such rules of the issues and allegations

raised by the plaintiff's complaint in

this cause.

yi LS Pf ae as

A-69

DATED: This 5th day of August, 1986.

CRITCHLOW & WILLIAMS

Attorneys for Plaintiff

By: S/

David E. Williams

A-70

APPENDIX J

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

IN AND FOR THE

COUNTY OF YAKIMA

LOCAL UNION il2,

Plaintiff, No. 85-2-00461-1

vs. MEMORANDUM

DECISION

VICTOR BRAY, et al,

Defendants.

For whatever assistance it might be

to the parties, the Arbitrator wishes to

indicate the basis for his decision

granting the defendants' Motions for

Summary Judgment.

The Arbitrator acting as an arm of

the Superior Court is, like the Superior

Court, bound by the decisions of the

Supreme Court of Washington. It appears

to the Arbitrator that the case of

United Glass Workers' Local No. 188 v.

Seitz, 65 Wn.2d. 640 is dispositive of

A-71

the issues in this case. The Arbitrator

notes in passing that the decision in

Seitz was followed in the subsequent case

of Retail Clerks' Local 629 v. Christensen,

67 Wn.2d. 29. Both of these cases involv-

ed an effort by a local union to collect

a fine or penalty imposed upon a member of

the union for violations of the union's

constitution or bylaws. In each case the

court examined the written relationship

between the union and its member (whether

it be constitution or bylaw) and deter-

mined that, viewing the document as a

contract, since the remedy of judicial

enforcement was not specified therein,

therefore refused relief by way of judici-

al enforcement.

In passing, the Arbitrator is assum-

ing without deciding that he has juris-

diction to hear this matter. This point

has never been squarely decided in this

State however, the Arbitrator is of the

A-72

belief that state courts probably have

jurisdiction to hear some matters involv-

ing labor relations not withstanding a

federal preemption of the field of labor

relations generally.

The precise issue for the Arbitrator

is the interpretation of the language of

Article XXVII, Sec. 19 of the Constitu-

tion of the IBEW.

Section 19 provides in part:

"Any member convicted of any

one or more of the above

named defenses may be assessed

or suspended, or both, or

expelled."

The plaintiff has not cited to the

Arbitrator's attention any other provi-

sion of the constitution or by-laws of

the IBEW which permitted the union to

utilize the court system for enforcement

of fines, assessments, or penalties

levied by the union against the member

when the various defendants entered into

union membership.

eer eye eeey | | Otay

A-73

Interpretation of written documents

is a matter of law to be decided by the

Arbitrator. Plaintiff suggests that the

afore-cited Section 19 permits alterna-

tive remedies to the union and does not

preclude enforcement action in the courts.

Plaintiff argues that Seitz is distinguish-

able because in the Seitz case expulsion

was the only remedy available and under

the IBEW Constitution expulsion is not

the exclusive remedy. While the Arbitra-

tor does not have benefit of the precise

language of the United Glass Workers'

constitution or by-laws before him, the

following statement by the Supreme Court

of Washington gives some indication of

the content of the United Glass Workers' zs

constitution. The Court observed:

"The Constitution of the plain-

tiff Union provides for suspen-

sion or expulsion of a member

who fails to pay a fine assess-

ed against him.*"

The only fair reading that can be

| /

A-74

given to that comment by the court is

that the Glass Workers' constitution or

by-laws or both provided for fines or

assessments, for suspension, and/or

expulsion of a member who failed to pay

a fine levied against him. That is very

similar if not identical to the constitu-

tional provision of IBEW cited above.

As the court goes on to observe in

"Plaintiff has pointed to no

provision in the Constitution

and no facts now cited which

would tend to rebut the pre-

sumption that the remedy pro-

vided in the Constitution was

meant to be exclusive. This is

the mode of discipline avail-

able to the plaintiff, under

its Constitution, and it was

evidently considered adequate

when that Constitution was

adopted. In any event, it is ‘

the only mode to which the

defendant member agreed to

submit when he joined the

Union."

Nothing has been brought to the

Arbitrator's attention that would tend

to rebut the presumption of the

A-75

exclusiveness of the remedies provided in

the constitution of the IBEW. The cases

cited by the plaintiff in its Memorandum

are instructive but not dispositive of

the issue before the Arbitrator. United

Association v. Local 334 Pipefitters,

69 L.Ed.2d. 280 (1981) was a suit by a

local union against the international

for actions taken by the international to

which the local objected. The basic

teaching o* the case is that suit by a

local union against the parent interna-

tional union was within the jurisdiction

of the Federal District Courts under 29

USCS Sec. 185(a) and was not a matter for

State Court jurisdiction. The case of

NLRB v. Allis-Chalmers Manufacturing

Company, 18 L.Ed.2d. 1123 (1967) involved

determination of whether or not a union's

attempt to enforce its fines or assess-

ments or penalties in a State Court system

constituted an unfair labor practice.

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The Supreme Court of the United States

held that it did not. The ruling of the

court there did not reach the issue that

is before the Arbitrator which is

whether the Arbitrator must look beyond

the precedents of the State in determin-=-

ing whether the relief sought by the

Union, that is enforcement of fines

levied against members, could be enter-

tained.

The Arbitrator being of the view

that there is no authority requiring him

to look beyond the precedents established

by decisions of the Supreme Court of the

State of Washington and there being no

showing to the Arbitrator that other

provisions of the constitution or by-laws

of IBEW expand its remedies against the

defendants beyond those provided in Section

19, the Arbitrator is required to conclude

that United Glass Workers' Local No. 188

v. Seitz, supra is controlling.

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Accordingly, the defendants' Motions for

Summary Judgment as to the claims of plain-

tiff Local 112 IBEW be and the same are

hereby granted.

This being the decision of the

Arbitrator, I specifically do not reach

the other defenses raised by the

defendants in their Answers.

The Arbitrator having indicated to

counsel his decision as to the defendants’

Motions for Summary Judgment, and being

advised by counsel for plaintiff that

the decision of the Arbitrator would be

appealed, the Arbitrator should note that

counsel for all parties after considering

the fact that a trial de novo would be

required on all issues raised by the

Complaint, the Answers and Counterclaims,

concurred with the Arbitrator's proposal

that he order the hearing on the counter-

Claims of defendants Purczynski and Scott

be deferred to the trial de novo. The

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Arbitrator further requested and obtain-

ed the commitment of counsel for plaintiff

that he would file his Notice of Appeal

from the decision of the Arbitrator

within 15 rather than the 20 days required

by the rule.

The Arbitrator further notes that it

appears the counterclaims of the defendants

Scott and Purczynski may well exceed the

$25,000.00 jurisdictional limit of the

LMAR and therefore the Arbitrator might

have been required, had not counsel

agreed to suspend the introduction of

evidence upon the counterclaims, to

remand the hearing on the Counterclaims

to Superior Court for lack of juris-

diction.

As I announced at the beginning of

the Memorandum, the Arbitrator hopes

that these thoughts as expressed will be

of assistance to the parties in under-

standing the Arbitrator's decision and

A hi ti

A-79

of assistance in presenting the further

matters to the Superior Court.

DATED: This 25th day of July, 1986.

Respectfully,

ROBERT R. REDMAN

ARBITRATOR

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APPENDIX K

SUPERIOR COURT OF WASHINGTON

FOR YAKIMA COUNTY

LOCAL UNION 112,

IBEW,

Plaintiff, No. 85-2-00461-1

vs. ARBITRATION AWARD

VICTOR BRAY, ET AL,

Defendants.

The issues in arbitration having been

heard in part on July 22, 1986, I make

the following decision.

(1) The defendants’ Motions for

Summary Judgment as to the Complaint of

the plaintiff are granted. \

(2) The hearing of defendants Scott

and Purczynski counterclaims in deferred

on the understanding by the Arbitrator

that counsel for plaintiff Local 112

intends to appeal the decision of the

Arbitrator in this matter. (See attached

sheet. )

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Twenty days after the award has been

filed with the clerk, if no party has

sought a trial de novo under MAR 7.1, any

party on notice to all parties may present

to the Presiding Judge a judgment on the

arbitration award for entry as final

judgment in this case.

Was any part of this award based on

the failure of a party to participate?

Yes No x

If yes, please identify the party

7 \

and explain:

Dated: July 25, 1986 S/

Robert R. Redman

Arbitrator

Original to be filed with the Clerk of

the Superior Court, Yakima County Court-

house, together with proof of service on

the parties. A copy must also be sent to:

Court Administrator

Room 314, Yakima County Courthouse

Yakima, WA 98901

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(3) That counsel for plaintiff will

initiate the appeal within 15 days of the

filing of the Arbitrator's decision.

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APPENDIX L

29 USCS § 185

LIABILITIES OF AND RESTRICTIONS ON

LABOR AND MANAGEMENT

§185. Suits by and against labor

organizations.

(a) Venue, amount, and citizen-

ship. Suits for violation of contracts

between an employer and a labor organiza-

tion representing employees in an indus--

try affecting commerce as defined in this

Act, or between any such labor organiza-

tions, may be brought in any district

court of the United States having juris-

diction of the parties, without respect

to the amount in controversy or without

regard to the citizenship of the parties.

(b) Responsibility for acts of

agent - Entity for purposes of suit -

Enforcement of money judgments. Any labor

Organization which represents employees

in an industry affecting commerce as

defined in this Act and any employer

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whose activities affect commerce as

defined in this Act shall be bound by the

acts of its agents. Any such labor

organization may sue or be sued as an

entity and in behalf of the employees

whom it represents in the courts of’ the.

United States. Any money judgment es

against a labor organization ina *

district court of the United States

shall be enforceable only against the

organization as an entity and against its

assets, and shall not be enforceable

against any individual member or his

assets.

purposes of actions and proceedings by

or against labor organizations in the

district courts of the United States,

district courts shall be deemed to have

jurisdiction of a labor organization

(1) in the district in which such

organization maintains its principal

i poe eee dist.

wt Oe Lee ee,

A-85

office, or (2) in any district in which

its duly authorized officers or agents are

engaged in representing or acting for

employee members.

(d) Service of process. The

service of summons, subpena, or other

legal process of any court of the United

States upon an officer or agent of a

labor organization, in his Capacity as

such, shall constitute service upon the

labor organization.

-(@) Determination of question of

agency. For the purposes of this

section, in determining whether any

person is acting as an "agent" of

another person so as to make such other

person responsible for his acts, the

question of whether the specific acts

performed were actually authorized or

subsequently ratified shall not be

controlling.

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APPENDIX M

29 USCS §158(b) (1) (A):

(b) Unfair labor practices by labor ;

Organizations. It shall be an unfair

labor practice for a labor organization

or its agents -

(1) to restrain or coerce (A)

employees in the exercise of the rights

guaranteed in section 7 [29 USCS §157]:

Provided, That this paragraph shall not

impair the right of a labor organization

to prescribe its own rules with respect

to the acquisition or retention of

membership therein; or...

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.