Petition for Writ of Certiorari — Sluder v. United Mine Workers

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NO. | APR 20 1998

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Supreme Court of the United States

OCTOBER TERM, 1989

TERRY RAY SLUDER and

TINA SLUDER,

Petitioners,

versus

UNITED MINE WORKERS OF AMERICA,

INTERNATIONAL UNION,

UNITED MINE WORKERS OF AMERICA,

DISTRICT 12,

JOHN DOE, and

TOM ROE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Rodney V. Taylor

David J. Theising

CHRISTOPHER & TAYLOR

1219 North Delaware Street

P.O. Box 2850

Indianapolis, Indiana 46206-2850

Telephone: (317) 635-8030

Counsel for Petitioners

Richard T. West

FOLLMER & WEST

1717 South Philo Road, #16

P.O. Box 3159

Urbana, Illinois 61801

Telephone: (217) 367-2424

Co-Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

The sole question presented for review on this peti-

tion for writ of certiorari is whether the District Court and

the Court of Appeals in affirming the District Court erred

in dismissing Counts I and II of the Sluders’ Complaint

against Sluder’s Union as preempted by Section 301 of the

Labor Management Relations Act of 1947, 29 U.S.C. §185,

where Counts I and II alleged a state law negligence claim

for personal injuries arising out of the Union’s breach of

common law duties of care assumed and undertaken by the

Union when the Union performed a safety inspection of the

coal mining facility where Sluder worked.

LIST OF ALL PARTIES TO THE PROCEEDING

1. Terry Ray Sluder (Plaintiff)

2. Tina Sluder (Plaintiff)

3. United Mine Workers of America, International

Union (Defendant)

4. United Mine Workers of America, District 12

(Defendant)

5. John Doe (Defendant)

6. Tom Roe (Defendant)

7. AMAX Coal Company (Third-Party Defendant)

ill

TABLE OF CONTENTS

Question Presented for Review .....................

List of All Parties to the Proceeding ...............

NEES SAREE

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EO a

Count III of the Complaint Alleged a Claim for

Breach of the Unions’ Duty of Fair Repres-

entation under Section 301 as an Alternative

Theory of Recovery to That Alleged in Counts

el occ oe edd sueebeavesee

Counts I and II of the Complaint Alleged a State

Law Negligence Claim for Breach of a State

Common Law Duty Assumed and Undertaken

by the Unions Which Did Not Arise under the

Collective Bargaining Agreement .............

Counts I and II of the Complaint were Not Pre-

empted by Section 301 .........................

The Courts Below Erred in Dismissing Counts I

and II of the Complaint .......................

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TABLE OF AUTHORITIES

CASES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

BR at BEERS Sate aaa enle Deiteng Fey Os ogee nie aN 16,21

Berry Refining Co. v. Salemi, 353 F.2d 721 (7th Cir.

rr ea ae cr ee ae Pe i la 9

Bryant v. United Mine Workers, 467 F.2d 1 (6th Cir.

1972), cert. denied, 410 U.S. 912 (1973) ....... 10,28,29

Caterpiller v. Williams, 482 U.S. 386

SS i A oe ee et ot 16,17,20,21,26

Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962) 6

Conley v. Gibson, 355 U.S. 41 (1957) .................. 27

Cruz v. Belo, 406 US. SID (1GTZ) .... cc cecccvccvccess 27

Hishon v. King & Spaulding, 467 U.S. 69 (1984) ..... 27

Humphrey v. Moore, 375 U.S. 335 (1964) .............. 11

IBEW uv. Hechler, 481 U.S. 851 (1987) .. 16,17,18,19,21,22

Lingle v. Norge Division of Magic Chef, 486 U.S. 399

EY a5 pou aikaews cesuerr ress s coe 17,24,25,27

McColgan v. United Mine Workers, 124 Il.App.3d 825

464 N.E.2d 1166 (1984), cert. denied, 470 U.S. 1051

Cec vce t tty ae ctae ac uee se ene man 10,21,22,23

Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199

Se CEI sos va cnsrsrawnearbeesnee ee 11,12,13

Pippin v. Chicago Housing Authority, 78 [ll.2d 204, 399

Pe PROG. Seuvucrsccuuscacapedveusntoeetes es 13

Rawson v. United Steelworkers, 115 Idaho 785, 770 P.2d

794 (1988), cert. granted, — U.S. —, 110 S. Ct. 714

GY eS ew durscaeeas ce cewne de hee 17,18,19,20,28

Reconstruction Finance Corp. v. Goldberg, 143 F.2d 752

(7th Cir.), cert. denied, 323 U.S. 770, reh’g denied, 323

i EE "ox iu eaten uaes sawn ewnednderiveccee: 9

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .... 6

Vaca v. Sipes, 386 U.S. 171 (1967) ............-.ceeee. 11

STATUTES

Bn peso or na pve e ea een casio 2

ES EES 50 ho. oc aeadiasaec eee ee 7

- Bt ale: ER ae ae ener ene ent NYS Ve ar 6

Se I coc oe pene ce cieaeee le ee 5

Bee i EE daa eben sssecevecss tone 2.5

FEDERAL RULES OF CIVIL PROCEDURE (28 U.S.C.

§2072)

eS so sos eee avoee iene 8,9

Se et vg ee 16

ee i Ue ee ee 6,26,28

WE UU, A nic caus cdceveceaves 6,10,26,27,28

Rule 54(b), F.R.C.P. .......... SPR ROE Pere Te ene 7

gg OR ef ot Sree rete ayr Se 6,26,28

See GOO NE, ok vice cecdusiidendeedeeee ee 8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

TERRY RAY SLUDER and

TINA SLUDER,

Petitioners,

versus

UNITED MINE WORKERS OF AMERICA,

INTERNATIONAL UNION,

UNITED MINE WORKERS OF AMERICA,

DISTRICT 12,

JOHN DOE, and

TOM ROE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Terry Ray Sluder and Tina Sluder, by

counsel, pray that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Seventh Circuit entered in these proceed-

ings on December 22, 1989.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Seventh Circuit, published at 892 F.2d 549, is

reproduced as Appendix “A” hereto.

The unpublished final Judgment Entry of the United

States District Court for the Central District of Illinois,

Springfield Division, entered in these proceedings on

August 30, 1988 is reproduced as Appendix “B” hereto.

The unpublished Order Adopting Magistrate’s Rec-

ommendations entered by the District Court on March 7,

1988 in these proceedings is reproduced as Appendix “C”

hereto.

The unpublished Recommendation of the Magistrate

submitted on February 18, 1988 in these proceedings and

adopted by the District Court is reproduced as Appendix

“D” hereto.

JURISDICTION

The judgment and opinion of the Court of Appeals in

these proceedings was entered on December 22, 1989.

Upon timely Application filed herein by counsel for

Petitioners, the Honorable John Paul Stevens, Associate

Justice of this Court and Circuit Justice for the Seventh

Circuit, issued an Order on March 13, 1990 extending the

time for filing this Petition for Writ of Certiorari to and

including April 21, 1990.

The jurisdiction of this Court to review the judgment

of the Court of Appeals by writ of certiorari is invoked

under 28 U.S.C. §1254(1).

STATUTE INVOLVED

The statute involved in this case is Section 301 of the

Labor Management Relations Act of 1947, 29 U.S.C. §185,

the full text of which is reproduced as Appendix “E” hereto.

For purposes of clarity in this Petition for Writ of Certio-

rari, the Labor Management Relations Act of 1947 is

referred to herein simply as the “LMRA,” and Section 301

thereof is referred to herein simply as “Section 301.”

STATEMENT OF THE CASE

For purposes of clarity in this Petition for Writ of

Certiorari, the Petitioners Terry Ray Sluder and Tina

Sluder are referred to simply as the “Sluders,” unless oth-

erwise indicated. When reference to Terry Sluder alone is

appropriate, he is referred to simply as “Sluder,” unless

otherwise indicated. Likewise, the Respondents United

Mine Workers of America, District 12, and United Mine

Workers of America, International Union, are referred to

simply as the “Unions,” unless otherwise indicated. When

reference to United Mine Workers of America, District 12,

alone is appropriate, it is referred to simply as the “Union,”

unless otherwise indicated. When distinction between the

United Mine Workers of America, District 12, and the

United Mine Workers of America, International Union, is

appropriate, the former is referred to simply as the “Local

Union” and the latter is referred to simply as the “Interna-

tional Union,” unless otherwise indicated.

Terry Sluder and his wife Tina Sluder are citizens of

the State of Indiana, residing in Sullivan County, Indiana.

At the time of the events complained of, Terry Sluder was a

coal miner employed by AMAX Coal Company at its coal

mining facility at the Wabash Mine in Keensburg, Illinois.

As a coal miner, he was a member of both the Local Union

and the International Union, both of whom have offices in

Springfield, Iilinois. At the time of the events complained

of, there was a collective bargaining agreement in effect

between Sluder’s employer and the Unions.

On July 31, 1986, and on occasions prior thereto, the

Union, through its agents, undertook to make safety

inspections at the mining facility where Sluder was work-

ing. Those inspections included, although were not limited

to, checking for proper placement of rib bolts in the mine.

(Rib bolts, as the name implies, are devices secured to the

walls of an underground coal mine to provide structural

support in order to prevent the mine walls from collaps-

ing.) On the morning of July 31, 1986, the Union, through

its agents, made such an inspection in the area of the mine

where Sluder was working. Moments after the inspection,

and while the inspectors were still in the general area, the

mine wall where Sluder was working collapsed onto him.

The cause of the collapse was the complete absence of any

rib bolts in that part of the mine wall which collapsed onto

Sluder. The inspection undertaken only moments before

failed to detect this absence of rib bolts.

As the result of the mine wall collapsing onto Sluder,

he sustained a broken back and was rendered paralyzed.

This is an action by the Sluders against the Unions

and their agents for damages resulting from the personal

injuries sustained by Sluder. On November 24, 1986, the

Sluders filed their Complaint against the Union and its

agents John Doe and Tom Roe in the Circuit Court of San-

gamon County, Illinois under Cause No. 86-L-464. Count I

alleged a state law negligence claim; that the Union, by

and through its agents John Doe and Tom Roe, undertook

to make safety inspections of the coal mine where Sluder

worked and, having so undertaken such inspections,

assumed and became subject to the state common law duty

to perform these inspections with due care; and that their

negligence in performing such inspections resulted in the

collapse of the mine wall, causing serious personal injuries

to Sluder. Count II alleged a loss of services, society, com-

panionship and consortium by Sluder’s wife Tina Sluder.

On January 26, 1987, the Sluders filed their Motion

for Leave to Amend and proposed Amended Complaint in

Cause No. 86-L-464. Their Amended Complaint restated

Counts I and II of their original Complaint verbatim, and

added a new Count III against both Unions. Count III

alleged a claim for breach of the Union’s duty of fair and

adequate representation to Sluder, as a union member,

under Section 301 by both Unions in failing to perform and

enforce certain provisions of the collective bargaining

agreement between them and Sluder’s employer AMAX

Coal Company.

—

Because of the approaching 180-day statutory dead-

line for filing such a Section 301 action as set forth in

Count III, and the failure of the Circuit Court of Sangamon

County, Illinois to rule on the Sluders’ Motion for Leave to

Amend their original Complaint to add Count III in Cause

No. 86-L-464, the Sluders filed another Complaint in the

Circuit Court of Sangamon County, Illinois under Cause

No. 87-L-32 on January 27, 1987. This second Complaint

filed under Cause No. 87-L-32 was identical to the

Amended Complaint filed under Cause No. 86-L-464. This

Complaint is reproduced as Appendix “F” hereto.

The District Court acquired jurisdiction in this pro-

ceeding on February 25, 1987, when the Unions filed their

Petition for Removal of both of said state court actions in

the United States District Court for the Central District of

Illinois, Springfield Division, along with a removal bond,

and filed its Notice of Removal in the Circuit Court of San-

gamon County, Illinois. The basis for removal alleged in

the Petition for Removal! of the Union was:

3. ... Count III of the Complaints specifi-

caily alleges that Petitioners have failed to

represent Plaintiff Terry Sluder in their capacity

as exclusive bargaining representatives. The first

two Counts of the Complaints naming only

United Mine Workers of America District 12 and

the unknown defendants allege certain injuries

resulted to both Plaintiffs as a result of Peti-

tioner’s alleged negligent performance of duties

pursuant to the collective bargaining agreement.

4. Said Complaints arise under Section 185

of Chapter 29 of the United States Code, a claim

thereby arising under the laws of the United

States which may be removed pursuant to Chap-

ter 28 United States Code 1441(b).

In his Recommendation, adopted by the District

Court, the Magistrate reviewed the removal jurisdiction of

the District Court and found that the Sluders’ Complaint

“artfully pled” a federal case couched in terms of state law

which sought to avoid the preemptive scope of Section 301,

concluding that the Complaints were properly removable

as arising under federal law, namely, Section 301.

While the Sluders concede that Count III of their

Complaints on its face presented a federal question over

which a federal district court would have concurrent origi-

nal jurisdiction under 28 U.S.C. §1331, Charles Dowd Box

Co. v. Courtney, 368 U.S. 502 (1962), the Sluders dispute

the District Court’s original jurisdiction over Counts I and

II of their Complaint standing alone, because said Counts

alleged state law causes of action. Conceding that Count III

of their Complaints presented a federal question, neverthe-

less, the Sluders acknowledge that the District Court could

have exercised jurisdiction over Counts I and II of their

Complaints upon removal under principles of pendent

jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715

(1966).

On March 3, 1987, the International Union filed its

Motion to Dismiss Count III of Sluder’s Complaint for fail-

ure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. On March 17, 1987, the Local

Union filed its Motion to Dismiss all three Counts of the

Sluders’ Complaint for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Procedure. Both Motions to

Dismiss were filed (and ruied upon) before any Answer was

filed by either of the Unions, and neither Motion to Dis-

miss placed before the Court any matters outside the

Sluders’ Complaint which would, under Rule 12(b) of the

Federal Rules of Civil Procedure, permit those Motions to

be treated as motions for summary judgment and disposed

of as provided in Rule 56 of the Federal Rules of Civil Pro-

cedure. After the filing of briefs and submissions of legal

authorities but before any discovery, the Honorable

Charles H. Evans, Magistrate, made his Recommendation

on February 17, 1988, submitting that Counts I and II of

the Sluders’ Complaint be dismissed as preempted by Sec-

tion 301, and that Count III not be dismissed. On February

26, 1988, the Sluders filed their Objection to Magistrate’s

Recommendation. On March 7, 1988, the Honorable Rich-

ard Mills, Judge, made his Order Adopting Magistrate’s

Recommendations, thereby dismissing Counts I and II of

the Sluders’ Complaint as preempted by Section 301.

On April 6, 1988, the Sluders filed their Motion in

the Alternative to make said Order final under Rule 54(b)

of the Federal Rules of Civil Procedure for purposes of

appeal, or to amend said Order to conform to 28 U.S.C.

§1292(b) to permit a discretionary interlocutory appeal. In

order to proceed with an immediate appeal of the dismissal

of Counts I and II of their Complaint as preempted by Sec-

tion 301, the Sluders filed their Motion to Dismiss Count

III and for Entry of Final Judgment on August 30, 1988.

On that date, the District Court made its final Judgment

Entry, dismissing Count III of the Sluders’ Complaint and

making final the District Court’s March 7, 1988 Order

Adopting Magistrate’s Recommendations which dismissed

Counts I and II as preempted by Section 301.

The United States Court of Appeals for the Seventh

Circuit acquired jurisdiction in this proceeding on Septem-

ber 27, 1988, when the Sluders filed their Notice of Appeal.

Following briefing and oral argument, the Court of

Appeals rendered its judgment and opinion on December

22, 1989.

ARGUMENT

COUNT III OF THE COMPLAINT ALLEGED A CLAIM

FOR BREACH OF THE UNIONS’ DUTY OF FAIR REP-

RESENTATION UNDER SECTION 301 AS AN ALTER-

NATIVE THEORY OF RECOVERY TO THAT

ALLEGED IN COUNTS I AND II

Rule 81(c) of the Federal Rules of Civil Procedure

provides, in pertinent part:

Removed Actions. These rules apply to civil

actions removed to the United States district

courts from the state courts and govern procedure

after removal.

Under this Rule, these proceedings became subject to

the Federal Rules of Civil Procedure upon removal to the

District Court from the state court on February 25, 1987.

Rule 8(e)(2) of the Federal Rules of Civil Procedure

provides, in pertinent part:

A party may set forth two or more state-

ments of a claim or defense alternately or hypo-

thetically, either in one count or defense or in

separate counts or defenses. ... A party may also

state as many separate claims or defenses as the

party has regardless of consistency and whether

based on legal, equitable, or maritime grounds.

Count III of Sluder’s Complaint alleged an a!terna-

tive theory of recovery to that alleged in Counts I and II.

Count III of the Complaint on its face alleged a claim for

breach of the Unions’ duty of fair and adequate repres-

entation under Section 301; Counts I and II, however,

plainly attempted to allege the common law negligence of

the Union in the performance of separate and independent

duties which arose under Illinois state law without any ref-

erence to duties arising under the collective bargaining

agreement or as a matter of federal labor law. This was

pointed out to the District Court in the Sluders’ Objection

to Magistrate’s Recommendation filed before the District

Court’s Order Adopting Magistrate’s Recommendations.

It is submitted that the District Court read Coun! III

of the Complaint into Counts I and II in characterizing

Counts I and II as “artfully pled Section 301 claims,” and

thus preempted by federal law. This is supported by the

recommended Order of the Magistrate, adopted by the Dis-

trict Court, which allowed the Sluders thirty days to

amend Counts I and IJ, presumably to state a cause of

action under Section 301.

Courts have recognized that, pursuant to Rule 8(e)(2)

of the Federal Rules of Civil Procedure, a plaintiff may

allege alternative and even inconsistent theories of recov-

ery in its complaint. Reconstruction Finance Corp. v.

Goldberg, 143 F.2d 752 (7th Cir.), cert. denied, 323 U.S.

770, reh’g denied, 323 U.S. 817 (1944). It has also been held

that it was error for a trial court to require a plaintiff to

make an election between two alternative theories of

recovery alleged in its complaint, and to amend its com-

plaint to allege only one theory. Berry Refining Co. uv.

Salemi, 353 F.2d 721 (7th Cir. 1965).

Both Unions filed Motions to Dismiss Count III that

were virtually identical. Neither Motion to Dismiss dis-

puted that Count III alleged a Section 301 action for breach

of duty of fair representation, although both Motions chal-

lenged the sufficiency of Court III arguing that the allega-

tions of Count III were merely conclusory and that Count

III did not allege any “intentional” act or failure to act. In

his Memorandum in Opposition to these Motions to Dis-

miss Count III, Sluder again reaffirmed that Count III

alleged a Section 301 action for breach of duty of fair and

adequate representation.

An additional ground for dismissal of Count III

advanced by the Unions was that the contractual provi-

sions of the collective bargaining agreement alleged in

Count III did not expressly or impliedly create the duties to

Sluder alleged to have been breached. It is noteworthy that

both Unions vehemently denied that the collective bar-

gaining agreement created any of the duties alleged in

Count III, and extensively briefed that issue, relying pri-

marily upon Bryant v. United Mine Workers, 467 F.2d 1

(6th Cir. 1972), cert. denied, 410 U.S. 910 (1973), and

McColgan v. United Mine Workers, 124 Ill.App.3d 825, 464

N.E.2d 1166 (1984), cert. denied, 470 U.S. 1051 (1985).

Even the Answers subsequently filed by both Unions

denied that the duties alleged in Count III arose under the

collective bargaining agreement. This is significant

because if, as so urgently advanced by the Unions, the

duties alleged in Count III of Sluder’s Complaint were not

the subject of the collective bargaining agreement and

therefore outside the preemptive scope of Section 301 and

federal labor law, then it is difficult to perceive how the

Unions can argue that the common law duties arising

under Illinois state law (as alleged in Counts I and II) are

“inextricably intertwined with consideration of the terms”

of that collective bargaining agreement and swept within

the preemptive scope of Section 301.

It is also important to note that the Magistrate’s Rec-

ommendation, adopted by the District Court, denying the

Unions’ Motion to Dismiss Count III did not address this

last issue of whether or not any of the duties alleged in

Count III even existed under the collective bargaining

agreement. The Magistrate’s Recommendation only went

so far as to say that “liJt certainly cannot be said that

under Rule 12(b)(6) it appears beyond doubt to a certainty

that plaintiffs can prove not set of facts in support of their

claims which would entitle them to relief.”

After due consideration, Sluder dismissed Count III

of his Complaint, leaving only the alternative state law

theory of recovery alleged in Counts I and II.'

‘Contrary to the inference drawn by the Court of Appeals in its opin-

ion, the Sluders did not dismiss Count III solely as a “strategic decision,”

892 F.2d at 551, n.3, or a “tactical maneuver,” Jd. at 556. Rather, after a

careful review cf the evidence available to the Sluders at the time, it

was concluded that Sluder would be unlikely to prevail on his Section

301 claim against the Unions. This Court has held that the duty of fair

representation under Section 301 is breached only when the conduct of a

union toward its member is arbitrary, discriminatory or in bad faith.

COUNTS I AND II OF THE COMPLAINT ALLEGED A

STATE LAW NEGLIGENCE CLAIM FOR BREACH OF

A STATE COMMON LAW DUTY ASSUMED AND

UNDERTAKEN BY THE UNION WHICH DID NOT

ARISE UNDER THE COLLECTIVE BARGAINING

AGREEMENT

As is plainly evident from even a cursory review of

Counts I and II of the Siuders’ Complaint, those Counts

very simply and directly attempted to allege the common

law negligence arising under Illinois state law of the

Union in the performance of duties which the Union under-

took and assumed. Counts I and II very clearly do not

allege that the Union’s duties arose under a collective bar-

gaining agreement. Quite to the contrary, Counts I and II

allege that the Union’s duties to Sluder arose as a matter

of law only after the Union undertook and assumed those

duties.

The basis in IIlinois state law for the theory of recov-

ery advanced under Counts I and II was the subject of the

opinion of the Illinois Supreme Court in Nelson v. Union

Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769 (1964).

There, the Illinois Supreme Court observed:

Originating with the decision of Coggs v. Ber-

nard, 2 Lord Raymond 909, it has come to be a

recognized principle that liability can arise from

the negligent performance of a voluntary under-

taking. In our times a clear and oft-cited state-

ment of the principle is the language of Justice

Vaca v. Sipes, 386 U.S. 171 (1967); Humphrey v. Moore, 375 U.S. 335

(1964). The weight of the evidence available to Sluder suggested that,

although the Union’s conduct was clearly negligent, there was simply

not sufficient evidence to prevail in proving that the Unions’ conduct

was arbitrary, discriminatory or in bad faith. “Due care” has not been

incorporated into a union’s duty of fair representation under Section

301, and mere negligence has never been recognized by this Court to

constitute a breach of union’s duty of fair representation under Section

301.

Cardozo in Glanzer v. Shepard, 233 N.Y. 236, 135

N.E. 275, 276, 23 A.L.R. 1425, when he said: “It is

ancient learning that one who assumes to act,

even though gratuitously, may thereby become

subject to the duty of acting carefully, if he acts at

all.” (See also: 38 Am.Jur., Neg. sec. 17; 5 Har-

vard Law Review 222.) Florida, like Illinois, has

recognized the doctrine. (Banfield v. Addington,

104 Fla. 661, 140 So. 893, 896; United States v.

Lawter (5th cir.), 219 F.2d 559; United States v.

DeVane (5th cir.), 306 F.2d 182; Triolo v. Frisella,

3 Ill.App.2d 200, 121 N.E.2d 49) In addition, Flor-

ida has frequently stated that it will adhere to

the views of the Restatement of Torts, (Propper v.

Kesner (Fla. 1958) 104 So.2d 1; Tampa Drug Co.

v. Wait (Fla. 1958), 103 So.2d 603, 75 A.L.R.2d

765; Matthews v. Lawnlite Co. (Fla. 1958), 88

So.2d 299,) where the doctrine is stated in this

manner: “(1) One who gratuitously renders ser-

vice to another, * * * is subject to liability for bod-

ily harm caused to the other by his failure, while

so doing, to exercise such competence and skill as

he possesses.” §323(1)

31 Ill.2d at 74, 199 N.E.2d at 773-74. The Court went on to

state:

[P)laintiffs, to support their actions, had only to

show (1) that defendant undertook to make safety

inspections and to render safety engineering ser-

vices under circumstances which created a duty

on defendant, owed to plaintiffs, to perform its

undertakings with due care, and (2) that the gra-

tuitous undertakings were negligently per-

formed, such negligence resulting proximately in

plaintiffs deaths and injuries. See also: McClure

v. Hoopeston Gas and Electric Co., 303 Ill. 89, 96,

135 N.E. 43, 25 A.L.R. 250; Devaney v. Otis Ele-

vator Co., 251 Ill. 28, 33, 95 N.E. 990.

Id. at 75, 199 N.E.2d at 774. The Court then held, in dis-

posing of a defense anticipated in the present case, that:

Defendant’s duty here did not arise by virtue of

its control, or right to control, the equipment, and

neither did it arise as a result of any relationship

with [plaintiffs employer] Auchter or its

employees. The duty arose, rather, by operation

of law from defendant’s own independent and

gratuitous course of conduct.

Id. at 84, 199 N.E.2d at 779. Finally, in disposing of

another defense anticipated in the present case, the Court

held:

[DJefendant also injects a contention that it could

be liable to Plaintiffs only if it had assumed

entirely [the employer] Auchter’s duty of inspect-

ing the hoist and cable. We do not find, however,

that such a condition attaches to the liability of

one gratuitously making safety inspections.

Id. at 87-88, 199 N.E.2d at 780.

In the context of discussing this universal principle

that liability can arise from the negligent performance of a

duty undertaken and assumed, the Illinois Supreme Court

has also held that the scope of the duty so assumed is deter-

mined by the extent of the undertaking. Pippin v. Chicago

Housing Authority, 78 I1l.2d 204, 399 N.E.2d 596 (1979).

In its opinion in the present case, the Court of

Appeals acknowledged the vitality of these principles of

Illinois state law. 892 F.2d at 553-54. Under these princi-

ples, it is clear that Counts I and II of the Sluders’ Com-

plaint set forth a cause of action against the Union for

common law negligence arising under Illinois state law in

the performance of duties which the Union undertook and

assumed in performing the safety inspection. Nowhere in

Counts I and II was it alleged that the duties alleged to

have been breached by the Union arose under or by virtue

of the collective bargaining agreement. Those duties were

alleged to have arisen by operation of law after the Union

had already undertaken and assumed those duties. Put

another way, those duties would have arisen and existed

by operation of law whether or not any collective bargain-

ing agreement even existed at all. Thus, reference to the

collective bargaining agreement is both unnecessary and

improper in determining the scope of the duties alleged in

Counts I and II. Rather, the scope of the duties assumed by

the Union is determined by the extent of the actual under-

taking by the Union.

In his Recommendation to dismiss Counts I and II as

preempted by Section 301, the Magistrate in the present

case cited a brief passage from an earlier Memorandum

filed on behalf of the Sluders as establishing that the

duties alleged in Counts I and II arose from obligations

devolved by the collective bargaining agreement:

[T]he Complaint alleges that this Defendant

failed to report the unsafe condition, failed to

warn Plaintiff Terry Sluder and failed to close the

mining facility, all of which it was legally and

contractually obligated to do.... Even assuming,

arguendo, that the inspection that the union did

perform before the mine collapsed was “volun-

tary” as opposed to mandatory, once undertaken,

the collective bargaining agreement required it to

warn plaintiff Terry Sluder, to report the safety

violation and to close the mine. Thus, the scope of

the duty is clearly defined.

(emphasis supplied by Magistrate). Any misunderstanding

as to the basis of the duties alleged in Counts I and II

resulting from this misspoken passage from that early

Memorandum was rectified and cleared up by the subse-

quent Response filed on behalf of the Sluders before the

Magistrate made his Recommendation.

in addition, lest there be any doubt as to the position

of the Sluders in the District Court, the Siuders’ Objection

to Magistrate’s Recommendation made it crystal clear

that:

Counts I and II of Plaintiffs’ Complaint are not

premised upon duties or obligations arising out of

the collective bargaining agreement. ... Counts |

and II of Plaintiffs’ Complaint do not in any way

rely upon the collective bargaining agree-

ment. ... Counts I and II of Plaintiffs’ Complaint

allege very simply and directly the common law

negligence of Defendant in the performance of

duties which existed separately and indepen-

dently under the common law, without any refer-

ence to duties arising under the collective

bargaining agreement.

(emphasis original). The Sluders’ Objection to Magistrate’s

Recommendation was filed before the District Court made

its Order Adopting Magistrate’s Recommendations.

The foregoing was pointed out and underscored in

the Sluders’ briefs filed in the Court of Appeals in this pro-

ceeding. The Court of Appeals, however, appears to have

overlooked or ignored same in its quotation of the mis-

spoken passage in the Magistrate’s Recommendation. 892

F.2d at 552, n.5.

In its opinion in this case, the Court of Appeals also

singled out one allegation of the Sluders’ Complaint, that

the Union “[{clarelessly and negligently failed to close said

mining facility in light of its unreasonably dangerous con-

dition,” to support its holding that reference to the collec-

tive bargaining agreement was necessary to determine the

scope of the Union’s duties. 892 F.2d at 554. In focusing on

this single allegation, the Court of Appeals appears to have

overlooked or ignored several other allegations of the

Sluders’ Complaint, that the Union:

a.) Carelessly and negligently failed to

detect the lack of proper placement of

rib bolts in said coal mining facility;

b.) Carelessly and negligently failed to

report the absence of rib bolts to the

proper authorities;

c.) Carelessly and negligently failed to

warn Plaintiff Terry Ray Sluder of

the absence of said rib bolts and the

imminent danger to himself caused

thereby;

No reference to any collective bargaining agreement is

necessary or appropriate in evaluating these claims.

It is the fair and substantive import of the allega-

tions of Counts I and II themselves, and not their mis-

characterization, which must control. Rule 8(f) of the

Federal Rules of Civil Procedure provides:

Construction of Pleadings. All plead-

ings shall be so construed as to do substan-

tial justice.

COUNTS I AND II OF THE COMPLAINT WERE NOT

PREEMPTED BY SECTION 301

In its last four terms, this Court has rendered four

decisions addressed to the preemptive scope of Section 301:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985); IBEW

v. Hechler, 481 U.S. 851 (1987); Caterpiller v. Williams, 482

U.S. 386 (1987); and, Lingle v. Norge Division of Magic

Chef, 486 U.S. 399 (1988). In affirming the District Court,

the Court of Appeals in the present case erroneously held

that Counts I and II of the Sluders’ Complaint were pre-

empted by Section 301. In so holding, the Court of Appeals

decided an important question of federal law in a way that

conflicts with the foregoing decisions of this Court. In so

holding, the Court of Appeals also decided a federal ques-

tion in a way that conflicts with a decision of a state court

of last resort.

In Rawson v. United Steelworkers, 115 Idaho 785,

770 P.2d 794 (1988), cert. granted, USS. , 110

S.Ct. 714 (1990), the Idaho Supreme Court addressed the

same issue, on nearly identical facts, and reached the oppo-

site conclusion reached by the Court of Appeals in the pres-

ent case. The Court of Appeals in the present case

acknowledged the decision of the Idaho Supreme Court in

Rawson, but refused to follow it. 892 F.2d at 555, n.9.

In the present case, the Court of Appeals relied heav-

ily upon the decision of this Court in JBEW v. Hechler, 481

U.S. 851 (1987), noting, “[i]ndeed, our situation is not at all

dissimilar from that facing the Supreme Court” in Hechler.

892 F.2d at 555. Since the decision of the Idaho Supreme

Court in Rawson was issued on remand from this Court

“for further consideration in light of’ Hechler, 482 U.S.

901, Rawson is particularly instructive in that regard. In

Rawson, the Idaho Supreme Court carefully and logically

distinguished Hechler. Because of the obvious similarities

between Rawson and the present case, those distinctions

have equal application in the present case.

In Rawson, the Idaho Supreme Court observed:

In Hechler, supra, the court had before

it a substantially different issue than that

presented herein.

* * *

In the instant case we are not concerned with

imposing a duty on the Union to provide a safe

work place. Rather, the issue here is whether

the LMRA preempted prosecution of a tort

action where the activity was concededly

undertaken and i..: standard of care is imposed

by state law withoui reference to the collective

bargaining agreement.

115 Idaho at 786, 770 P.2d at 795.

The Idaho Supreme Court then further distinguished

Hechler:

In the instant case we are not faced

with looking at the Collective Bargaining

Agreement to determine whether it imposes

some new duty upon the union—rather it is

conceded the union undertook to inspect and,

thus, the issue is solely whether that inspec-

tion was negligently performed under tradi-

tional Idaho tort law.

* * *

In the instant case there is no need to look to

the agreement to discern whether it placed an

“implied duty” on the union or whether the

duty “extended to the particular responsibili-

ties alleged” because here the parties concede

the union did actively undertake the subject

inspection duties. The only question is whether

duties clearly undertaken were performed neg-

ligently.

Id. at 787, 770 P.2d at 796.

| Finally, Hechler is most easily distinguished on the

basis of its limited holding. In Hechler, this Court first

quoted the allegations of the Plaintiffs complaint, “that

‘pursuant to contracts and agreements entered into by and

between’ the Union and [plaintiffs employer] Florida

Power, and ‘pursuant to the relationship by and between’

the Union and respondent, the Union had a duty to ensure

that respondent ‘was provided safety in her work place and

a safe place to work,’ and to ensure that respondent ‘would

not be required or allowed to take undue risks in the per-

formance of her duties which were not commensurate with

her training and experience.’” 481 U.S. at 853. Clearly, as

observed by this Court, the plaintiffs complaint alleged

that the union had “assumed this duty under the collective

bargaining agreement.” Id. at 861 (emphasis added). In a

lengthy footnote, this Court further noted that, because the

plaintiff had alleged and characterized the union’s duty of

care as grounded in the collective bargaining agreement

throughout the proceeding below, she had waived and

abandoned the argument made for the first time on certio-

rari that the union was subject to an independent state law

duty of care unconnected to the collective bargaining

agreement. Jd. at 862-65, n.5.

It is in this regard that Hechler is most readily dis-

tinguishable from the present case before this Court. In

Hechler, the plaintiffs complaint plainly alleged that the

union’s duties arose from the collective bargaining agree-

ment itself. In the present case before this Court, Counts I

and II of the Sluders’ Complaint did not allege that any

duties of the Union to Sluder arose from the collective bar-

gaining agreement or any other contract or agreement.

Rather, the duties alleged in Counts I and II arose by oper-

ation of state law after the Union actually undertook and

assumed those duties.

In Rawson, the Idaho Supreme Court noted the same

obvious distinction:

Thus, the instant case is clearly distinguish-

able from Hechler in that here the state tort

basis of thé action was not abandoned, but has

been pursued consistently both at the trial and

appellate levels and the tort exists without ref-

erence to the collective bargaining agreement.

115 Idaho at 787-88, 770 P.2d at 796-97.

Both in the District Court and in the Court of

Appeals, the Union argued that only through a collective

bargaining agreement could it assume the duties alleged

in Counts I and II of the Sluders’ Complaint: “Under com-

mon law, it is the employer’s duty to provide a safe work-

place; it is only by contract that a third party such as

District 12 here assumes any responsibility with respect to

safety.” This argument misses the distinction between con-

tractual liability under a collective bargaining agreement

and independent tort liability under state law. While it

may be only by contract that a third party such as the

Union may assume any contractual liability with respect to

safety, independent state tort law provides that a third

party, union or otherwise, may assume tort liability with

respect to safety as a result of its own conduct.

This argument by the Union is analogous to the

unsuccessful argument made in Caterpiller v. Williams,

482 U.S. 386 (1987). There, this Court observed:

Caterpiller’s basic error is its failure to recog-

nize that a plaintiff covered by a collective-bar-

gaining agreement is permitted to assert legal

rights independent of that agreement, includ-

ing state-law contract rights, so long as the

contract relied upon is not a collective bargain-

ing agreement.

482 U.S. at 396 (emphasis original). This Court further

explained in a footnote:

Section 301 does not, as Caterpiller suggests

require that all “employment-related matters

involving unionized employees” be resolved

through collective bargaining and thus be gov-

erned by a federal common law created by

$301. Brief for Petitioners at 26. The Court has

stated that “not every dispute concerning

employment, or tangentially involving a provi-

sion of a collective-bargaining agreement, is

preempted by §301 or other provisions of the

federal labor law.” Allis-Chalmers, 471 U.S.

202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206

(1985). Claims bearing no relationship to a col-

lective-bargaining agreement beyond the fact

that they are asserted by an individual covered

by such an agreement are simply not pre-

empted by §301.

Id. at 396, n.10.

In support of its argument, the Union relied upon a

decision of the Illinois Court of Appeals, McColgan uv.

United Mine Workers, 124 Ill.App.3d 825, 464 N.E.2d 1166

(1984). In McColgan, as in Hechler, the only duties alleged

by the plaintiffs to have been undertaken by the union

were those alleged to have been undertaken by the union

contractually: “Plaintiffs point to the unions’ constitution

and by-laws as well as the collective bargaining agreement

to indicate that defendants voluntarily undertook responsi-

bility for safety conditions.” Jd. at 827, 464 N.E.2d at 1168.

The holding of the Illinois Court of Appeals in

McColgan is virtually identical to, and goes no further

than, the holding of this Court in Hechler. In both cases,

the respective Courts merely held that employee claims

against unions based upon duties arising contractually

under a collective bargaining agreement are preempted.

Neither case holds or even suggests that the only way a

union may undertake a duty to its employee members is

contractually through a collective bargaining agreement.

In relying upon McColgan, the Union here simply ignored

the distinction recognized in Caterpiller and Hechler

between claims alleged to arise from duties under a collec-

tive bargaining agreement and claims alleged to arise

independently under state law without reference to any

collective bargaining agreement. Thus, the decision of the

Illinois Court of Appeals in McColgan, when analyzed in

light of these decisions of this Court, is not contrary to the

position advanced by the Sluders in this case, but rather is

fully consistent with and supports the arguments of the

Sluders in this case.

The Union also failed or refused to acknowledge a

critical distinction between the allegations of the plaintiffs

complaint in McColgan, and the allegations of Counts I

and II of the Sluders’ Complaint in the present case. In

McColgan, the Court observed:

Plaintiffs allege neither failure to inspect nor

failure to exercise reasonable care during

inspection. Indeed, while plaintiffs characterize

defendants’ duty as a duty to “monitor” and

correct unsafe conditions, plaintiffs make no

attempt to connect monitoring or inspection to

this occurrence. Rather, it appears that an

inspection, negligent or otherwise, would have

revealed no more than was already known.

124 Ill.App.3d at 828, 464 N.E.2d at 1168 (emphasis

added).

In McColgan, the plaintiffs alleged that by the act of

entering into a collective bargaining agreement the union

generally undertook a contractual duty to monitor and cor-

rect unsafe conditions. However, the plaintiffs failed to

allege any specific undertaking of the union, other than

this vague contractual undertaking, or any direct and

proximate connection between the plaintiffs’ injuries and

any specific failure of the union in its undertaking. In the

present case before this Court, Counts I and II of the

Sluders’ Complaint alleged a specific undertaking by the

Union giving rise to state common law duties: the Union,

by its agents, specifically undertook a safety inspection on

July 31, 1986. (No duty, contractual or otherwise, to ini-

tially undertake the inspection was alleged.) Once having

undertaken that safety inspection, the failure of the Union

to exercise reasonable care during that inspection in

detecting the absence of rib bolts directly and proximately

resulted in Sluder’s injuries. Clearly, Sluder’s injuries are

directly “connected” to a specific “failure to exercise rea-

sonable care during inspections,” which inspections if prop-

erty performed “would have revealed ... more than was

already known.” Id.

In the present case, the Union did inspect the mine,

and the Sluders allege not that the Union failed to inspect

(whether such a duty arose under the collective bargaining

agreement or not), but rather that the Union actually per-

formed the inspection which it undertook in a negligent

manner and failed to warn Sluder of a life-threatening

safety hazard, the duty to warn necessarily flowing from

the act of inspection, not from any collective bargaining

agreement.

The scope of the duty assumed by the Union to

Sluder is determined by the extent of the undertaking. By

way of example, the Union’s duties to Sluder might be sig-

nificantly different if the safety inspection were limited

only to checking to make sure that all miners were wear-

ing hard hats than it would be if the safety inspection

encompassed checking for proper placement of rib bolts.

The determination of the extent of the Union’s undertak-

ing and the corresponding duty assumed towards Sluder is

a factual inquiry, depending upon what actually took place

during the inspection on July 31, 1986. No reference to any

collective bargaining agreement is necessary or appropri-

ate to this purely factual inquiry.

In Lingle v. Norge Division of Magic Chef, 486 U:S.

399 (1988), this Court observed that when resolution of a

state law tort claim turns on such purely factual inquiries

into the conduct of the parties, the state law claim is inde-

pendent of the collective bargaining agreement and is not

preempted by Section 301:

“(Tjo show retaliatory discharge, the plaintiff

must set forth sufficient facts from which it can

be inferred that (1) he was discharged or

threatened with discharge and (2) the

employer's motive in discharging or threaten-

ing to discharge him was to deter him from

exercising his rights under the Act or to inter-

fere with his exercise of those rights.” ... Each

of these purely factual questions pertains to

the conduct of the employee and the conduct

and motivation of the employer. Neither of the

elements requires a court to interpret any term

of a collective-bargaining agreement. ... Thus,

the state-law remedy in this case is “indepen-

dent” of the collective-bargaining agreement in

the sense of “independent” that matters for

§301 pre-emption purposes: resolution of the

state-law claim does not require construing the

collective-bargaining agreement.

486 U.S. at 407.

This Court’s decision in Lingle is further significant

to the present case in that this Court recognized that the

assertion of Sluder’s Section 301 claim in Court III does not

preclude or preempt his assertion of independent state law

claims in Counts I and II, even if the resolution of those

claims would involve an analysis of precisely the same set

of facts:

We agree with the Court’s explanation that the

state-law analysis might well involve attention

to the same factual considerations as the con-

tractual determination of whether Lingle was

fired for just cause. But we disagree with the

Court’s conclusion that such parallelism ren-

ders the state-law analysis dependent upon the

contractual analysis. For while there may be

instances in which the National Labor Rela-

tions Act pre-empts state law on the basis of

the subject matter of the law in question, §301

pre-emption merely insures that federal law

will be the basis for interpreting collective-bar-

gaining agreements, and says nothing about

the substantive rights a State may provide to

workers when adjudication of those rights does

not depend upon the interpretation of such

agreements. In other words, even if dispute res-

olution pursuant to a collective-bargaining

agreement, on the one hand, and state law, on

the other, would require addressing precisely

the same set of facts, as long as the state-law

claim can be resolved without interpreting the

agreement itself, the claim is “independent” of

the agreement for §301 pre-emption purposes.

Id. at 408-10.

This latter aspect of this Court’s decision in Lingle

appears to have been overlooked or ignored by the Court of

Appeals. Because the Court of Appeals did not acknowl-

edge the independence of Counts I and II of the Sluders’

Complaint, the Court affirmed the District Court’s charac-

terization of Counts I and II as “artfully pled” claims under

Section 301. However, under this Court’s analysis in Lin-

gle, even if some or all of the duties alleged in Counts I and

II were in fact owed to Sluder by the Union under the col-

lective bargaining agreement (which was not alleged in

Counts I and II), those Counts would still not be preempted

by Section 301 as long as those claims were alleged to and

did in fact arise from independent state law duties which

did not require reference to a collective bargaining agree-

ment for determination. As noted by this Court in Caterpil-

ler, even though an employee may have substantial rights

under a collective bargaining agreement and could bring

suit under Section 301, he is free as master of his com-

plaint not to do so, and instead to bring suit under state

law. 482 U.S. at 394-95. This is precisely what the Sluders

attempted to do in Counts I and II of their Complaint. The

duties and liabilities of the Union alleged in Counts I and

II arose as a matter of state law, and would have existed

even if there were no collective bargaining agreement.

THE COURTS BELOW ERRED IN DISMISSING

COUNTS I AND II OF THE COMPLAINT

The dismissal of Counts I and II of the Sluders’ Com-

plaint as preempted by Section 301 was ordered by the Dis-

trict Court pursuant to a Motion to Dismiss for failure to

state a claim under Rule 12(b)(6) of the Federal Rules of

Civil Procedure filed by the Union. This Motion was filed

(and granted) before any Answer to the Sluders’ Complaint

was filed. No matters outside the Sluders’ Complaint were

presented to the District Court on the Motion to Dismiss

which would, under Rule 12(b), permit the Motion to be

treated as a motion for summary judgment and disposed of

as provided in Rule 56 of the Federal Rules of Civil Proce-

dure. The only pleading before the District Court on this

Motion to Dismiss was the Sluders’ Complaint and, under

Rule 12(b)(6), the allegations of Counts I and II must be

taken as true for purposes of the Union’s Motion to Dis-

miss.

It is basic hornbook iaw that a complaint may not be

dismissed for failure to state a claim under Rule 12(b)(6)

unless it appears beyond doubt and to a certainty that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to any relief. Put another way,

Counts I and II of the Sluders’ Complaint may not be dis-

SEC

missed under Rule 12(b)(6) unless there is absolutely no

possibility that the Sluders’ can recover anything under

any conceivable set of facts provable under those Counts.

Hishon v. King & Spaulding, 467 U.S. 69 (1984); Cruz v.

Beto, 405 U.S. 319 (1972); Conley v. Gibson, 355 U.S. 41

(1957). Thus, the “facts” before this Court for purposes of

reviewing the dismissal of Counts I and II of the Sluders’

Complaint are those facts alleged in Counts I and II and

any conceivable set of facts provable thereunder.

Given the foregoing, it is incomprehensible how the

District Court could dismiss Counts I and II on a motion

under Rule 12(b)(6) without knowing any of the facts which

the Sluders intended to prove under those Counts. As this

Court observed in Lingle, the resolution of state law tort

claims typically hinges upon purely factual questions per-

taining to the actual conduct of the parties. 486 U.S. at

407. The Court of Appeals in the present case noted that,

under the state law theory advanced by the Sluders in

Counts I and II, the scope of the duty assumed by the

Union towards Siuder is determined by the extent of the

actual undertaking of the Union in its safety inspection of

the mine. As already noted herein, the determination of

the extent of that undertaking is a purely factual inquiry,

depending upon what actually took place during the

inspection on July 31, 1986. While the dismissal of Counts

I. and II might be conceivable when the court has some

facts before it on a motion for summary judgment under

Rule 56, the dismissal of those Counts when the court has

no facts before it on a motion to dismiss under Rule 12

(b)(6) is at least premature.

Even more glaring is the fact, as pointed out by the

Sluders in their briefs and at oral arguments in the Court

of Appeals, that the District Court did not even have a full

copy of the collective bargaining agreement before it when

it dismissed Counts I and II. It is beyond comprehension

how the District Court could hold, in granting the Union’s

Motion to Dismiss Counts I and II under Rule 12(b)(6), that

there was absolutely no set of facts provable under those

Counts by which the Sluders could establish that the union

undertook and assumed any duty to Sluder outside the pre-

emptive scope of the collective bargaining agreement,

without even having a copy of that collective bargaining

agreement before it.

It is in this respect that the present case is clearly

distinguishable even from the Rawson case pending before

this Court on certiorari. In Rawson, the Idaho Supreme

Court was reviewing the grant of summary judgment in

favor of the union. 111 Idaho 630, 726 P.2d 742. There the

court had before it some facts by which to determine the

actual extent of the undertaking of the union in delineat-

ing the scope of the duty assumed by the union in its safety

inspection. In the present case, the District Court and the

Court of Appeals had before them no such facts in dis-

missing Counts I and II of the Sluders’ Complaint on a

motion under Rule 12(b)(6).?

In its opinion in the present case, the Court of

Appeals held that Counts I and II of the Sluders’ Com-

plaint were preempted by Section 301 because reference to

the collective bargaining agreement was necessary to

determine the scope of the Union’s duty to Sluder. 892 F.2d

at 554. To the extent that this holding implies the exis-

tence of some duty owed by the Union to Sluder under the

collective bargaining agreement, it is in conflict with the

decision of another United States Court of Appeals. In Bry-

ant v. United Mine Workers, 467 F.2d 1 (6th Cir. 1972),

2In its opinion, the Court of Appeals appears to have glossed over

this egregious error by iiself purporting to review a copy of the collective

bargaining agreement in the record which was attached to the Answer

filed by the Union after the District Court had already dismissed Counts

I and II of the Sluders’ Complaint. 892 F.2d at 555, n.8. In effect, the

Court of Appeals sua sponte and for the first time on appeal considered

matters outside of the pleadings as if treating the Union’s Motion to

Dismiss under Rule 12(b) as a motion for summary judgment, without

allowing the Sluders their corresponding right under Rule 56 to submit

evidence which might show that the Union undertook and assumed

duties to Sluder outside the scope of the collective bargaining agree-

ment.

cert. denied, 410 U.S. 930 (1973), the Sixth Circuit held

that the National Bituminous Coal Wage Agreement of

1950, as amended, did not create any duties on the part of

the United Mine Worker of America respecting mine

safety. In their Motions to Dismiss Count III of Sluder’s

Complaint, the Unions vigorously argued that the “Mine

Safety Program” provisions of that collectively bargaining

agreement were virtually identical to those in the National

Bituminous Coal Wage Agreement of 1984 involved in the

present case. If, as held by the Sixth Circuit in Bryant and

so urgently argued by the Unions in this case, the collec-

tive bargaining agreement created no duties on the part of

the Union respecting mine safety, then it is plainly anoma-

lous for the Court of Appeals in this case to hold that

Counts I and II of the Sluders’ Complaint were preempted

by Section 301 because reference to the collective bargain-

ing agreement was necessary to define the scope of the

Union’s duty. The Union simply can’t have it both ways.

CONCLUSION

On the basis of the arguments and authorities cited herein,

the Petitioners Terry Ray Sluder and Tina Sluder submit

that a Writ of Certiorari should issue.

Respectfully submitted,

Rodney V. Taylor

David J. Theising

CHRISTOPHER & TAYLOR

1219 North Delaware Street

P.O. Box 2850

Indianapolis, Indiana 46206-2850

Telephone: (317) 635-8030

Counsel for Petitioners

Richard T. West

FOLLMER & WEST

1717 South Philo Road, #16

P.O. Box 3159

Urbana, Illinois 61801

Telephone: (217) 367-2424

Co-counsel for Petitioners

A-1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

TERRY RAY SLUDER and

TINA SLUDER,

Plaintiffs-Appellants,

vs.

UNITED MINE WORKERS OF

AMERICA, INTERNATIONAL

) CASE NO.

)

UNION; ]

)

88-2910

UNITED MINE WORKERS OF

AMERICA, DISTRICT 12;

JOHN DOE; and

TOM ROE;

Defendants-Appellees.

Appeal from the United States District Court for the

Central District of Illinois, Springfield Division.

No. 87-3086—Richard Mills, Judge.

ARGUED APRIL 4, 1989—

DECIDED DECEMBER 22, 1989

Before COFFEY, FLAUM, and RIPPLE, Circuit

Judges.

RIPPLE, Circuit Judge. Terry Ray Sluder and Tina

Sluder filed a three-count complaint against District 12 of

the United Mine Workers of America, among others, for

the personal injuries Mr. Sluder sustained when a wall col-

lapsed in the coal mine where he was working. The district

court concluded that resolution of two of the Sluders’

counts required interpretation of the collective bargaining

agreement that governed the terms of Mr. Sluder’s employ-

ment. For this reason, the district court found that the

claims were preempted by section 301 of the Labor Man-

A-2

agement Relations Act of 1947 (LMRA), 29 U.S.C. §185:

and subject to dismissal pursuant to Fed. R. Civ. P.

12(b\(6). The remaining count was dismissed with preju-

dice voluntarily by the Sluders. For the following reasons,

we affirm the judgment of the district court.

BACKGROUND

A. Facts

Terry Ray Sluder was a coal miner employed by

AMAX Coal Company (AMAX) at its Wabash Mine in

Keensburg, Illinois. Mr. Sluder was a member of the

United Mine Workers of America, District 12 (District 12).

The terms of his employment with AMAX were governed

by a collective bargaining agreement known as the

National Bituminous Coal Wage Agreement of 1984. Mr.

Sluder alleges that on July 31, 1986, and on prior occa-

sions, “District 12, by and through its agents John Doe

and/or Tom Roe, undertook to make inspections as to safety

practices at the Wabash Mine in Keensburg, Illinois,

which inspections included, but were not limited to, check-

ing for proper placement of rib bolts at said coal mining

facility.” R.25 at 1-2.2 Moments after the inspectors com-

pleted their inspection, the mine wall in the area where

Mr. Sluder was working collapsed. Mr. Sluder was para-

lyzed as a result of the accident.

B. Procedural History

' Section 301 of the LMRA provides in relevant part:

(a) Suits for violation of contracts between an employer and a labor

organization representing employees in an industry affecting commerce

as defined in this chapter, or between any such labor organizations, may

be brought in any district court of the United States having jurisdiction

of the parties....

29 U.S.C. §185(a).

? Rib bolts are devices secured to the walls of an underground coal

mine to provide structural support in order to prevent the mine walls

from collapsing. Appellants’ Br. at 8.

A-3

On November 24, 1986, Mr. Sluder and his wife filed

a two-count complaint in the Circuit Court of the Seventh

Judicial Circuit of Sangamon County, Illinois (cause No.

86-L-464) against District 12 and two unknown defen-

dants, John Doe and Tom Roe, agents of District 12. On

January 26, 1987, the plaintiffs filed an amended com-

plaint that added both a third count and the International

Union as a new defendant. Count I alleged that District 12,

by and through its agents, undertook to make safety

inspections of the coal mine where Mr. Sluder worked. It

further alleged that District 12, by undertaking these

inspections became subject to the state common-law duty

to perform these inspections with due care. Negligence in

performing such inspéctions, the allegation continued,

resulted in the collapse of the mine wall and caused serious

personal injury to Mr. Sluder. Count II alleged that Mrs.

Sluder had suffered the loss of her husband’s services and

that she had been deprived of his affection, society, com-

panionship, and consortium. Count III alleged that both

the International Union and District 12 breached a duty of

fair and adequate representation under section 301 of the

LMRA by failing to perform and enforce certain provisions

of the collective bargaining agreement on Mr. Sluder’s

behalf.

On January 27, 1987, the Sluders filed a second com-

plaint (cause No. 87-L-32) in the same court. The com-

plaint in cause No. 87-L-32 was identical to the amended

complaint in cause No. 86-L-464. On February 25, 1987,

the union filed a petition for removal of both state court

actions to the United States District Court for the Central

District of Illinois. The two state complaints were consoli-

dated in the district court into one case, cause No. 87-3086.

The Sluders neither objected to removal nor moved to

remand the case to state court. On March 4, 1987, the

International Union filed its motion to dismiss Count III of

the Sluders’ complaint. Two weeks later, District 12 moved

to dismiss all three counts.

A-4

The case was referred to a magistrate. On February

18, 1988, the magistrate recommended that the district

court dismiss Counts I and II of the Sluders’ complaint as

preempted by section 301 of the LMRA, but that Count III

not be dismissed. Sluder v. United Mine Workers of

America, No. 87-3086, Magistrate’s Recommendation at 7

(C.D. fll. Feb. 18, 1988); R.27 [hereinafter Recommenda-

tion]. On March 7, 1988, the district court adopted the Rec-

ommendation without change. Sluder v. United Mine

Workers of America, No. 87-3086, Order at 1 (C.D. Ill.

March 7, 1988); R.31. The Sluders then moved for a final

dismissal order under Fed. R. Civ. P. 54(b) or, in the alter-

native, for an order permitting an interlocutory appeal

under 28 U.S.C. §1292(b). The district court denied this

motion on June 10, 1988. In order to proceed with an

immediate appeal of the dismissals of Counts I and II, the

Siuders moved for dismissal of Count III with prejudice and

for entry of final judgment. On August 30, 1988, the dis-

trict court dismissed Count [II and entered an order of final

judgment. On September 27, 1988, the Sluders filed a

timely notice of appeal.*

C. District Court Opinion

The district court adopted the magistrate’s reasoning

as its own.‘ The magistrate had noted that, although the

Sluders had not moved to remand the case to state court, it

was the district court’s responsibility to determine whether

it had jurisdiction. The magistrate concluded that “[a] de

novo review of plaintiffs’ claims establishes that their com-

plaints arise under federal law (29 U.S.C. §185) and

removal is proper.” Recommendation at 3.

3 Because the Sluders made a strategic decision to dismiss Count III

with prejudice as a means to finalize the order dismissing Counts I and

II, the dismissal of Count III is not being appealed. The only defendants

named in Counts I and II were District 12, John Doe, and Tom Roe.

Consequently, although the notice of appeal also indicates an appeal

against the International Union, this union was not a named defendant

in Counts I or II and thus is not a party to this appeal.

‘The court also granted the Sluders thirty days to file an amended

complaint. The record reveals that no amended complaint was filed.

A-5

The magistrate examined both parties’ arguments.

Citing McColgan v. United Mine Workers of America, 464

N.E.2d 1166 (Ill. App. Ct. 1984), cert. denied, 470 U.S. 1051

(1985), District 12 alleges that “as a matter of Illinois law,

it owed no duty arising under common law tort [the

Sluders] for alleged wrongs” in the inspection of the mine.

Recommendation at 3-4. District 12 further argued that

the Sluders’ “so-called tort action was merely a novel

attempt to avoid the exclusive remedy provisions of the

Illinois Workers Compensation Act.” Jd. at 4. Finally, Dis-

trict 12 argued that “such so-called tort causes were in

actuality the ‘artful pleading’ of a federal case couched in

terms of state law which sought to avoid the preemptive

scope of Section 301.” Jd. By contrast, the Sluders argued

that the “complained-of activity—which they characterize

as the negligent performance of a voluntarily assumed

duty[,] citing Nelson v. Union Wire Rope Corp., 199 N.E.2d

769 (Ill. 1964)—states a valid tort cause of action arising

wholly independently of obligations imposed by the collec-

tive bargaining agreement.” Jd.

The magistrate concluded that a review of the com-

plaint “conclusively establish[{es] that plaintiffs’ basis for

duties alleged in Counts I and II arise[s] from obligations

devolved by the collective bargaining agreement.” Jd.* The

magistrate concluded that “[p]laintiffs|’] ‘artfully pled’

claims are ‘inextricably intertwined’ with a construction of

the collective bargaining agreement and thus preempted

‘The magistrate cited the plaintiffs’ memorandum in opposition to

District 12’s motion to dismiss which stated that:

“(T]he Complaint alleges that this Defendant failed to report the

unsafe condition, failed to warn Plaintiff Terry Sluder and failed to close

the mining facility, all of which it was legally and contractually obli-

gated to do.... Even assuming, arguendo, that the inspection that the

union did perform before the mine collapse was ‘voluntary’ as opposed to

mandatory, once undertaken, the collective bargaining agreement

required it to warn plaintiff Terry Sluder, to report the safety violation

and to close the mine. Thus, the scope of the duty is clearly defined.”

Recommendation at 4-5 (quoting Plaintiffs’ Mem. at 2-3 [R.16 at 2-3])

(emphasis supplied by the magistrate).

A-6

by Section 301 of the Labor Management Relations Act.”

Id. at 5.

DISCUSSION

On appeal, we must decide whether the Sluders'’

claims set forth in Counts I and II of the complaint are pre-

empted by section 301 of the LMRA.

A. Submissions of the Parties

The Sluders alleged that District 12, through its

agents, conducted a negligent inspection of the mine. In

the Sluders’ view, these counts allege a “state law negli-

gence claim for breach of a state common law duty

assumed and undertaken by [District 12] when it per-

formed the safety inspection” of the mine. Appellants’ Br.

at 10. They further submit that the assumed duty did not

arise out of the collective bargaining agreement, but,

instead, arose by operation of law aft »r District 12 assumed

and undertook the duty to inspect the mine.

District 12 acknowledges the legal principle, well

established in Illinois law, that liability may arise from the

negligent performance of a voluntary undertaking. See

Nelson v. Union Wire Rope Corp., 199 N.E.2d 769, 773 (Ill.

1964). However, it notes that the scope of the duty owed by

the tortfeasor is limited to the extent of the undertaking.

Pippin v. Chicago Hous. Auth., 399 N.E.2d 596, 599 (Il.

1979). In order to determine the scope of that undertaking,

District 12 maintains that it is necessary to interpret the

collective bargaining agreement. This necessity for refer-

ence to the agreement, concludes District 12, triggers the

preemptive effect of section 301.

A-7

B. The Mandate of Lingle

Our disposition of this matter must be governed by

the Supreme Court’s holding in Lingle v. Norge Div. of

Magic Chef, Inc., 108 S. Ct. 1877 (1988). The mandate of

Lingle is straightforward: “an application of state law is

preempted by §301 of the Labor Management Relations

Act of 1947 only if such application requires the interpreta-

tion of a collective-bargaining agreement.” Jd. at 1885. As-

we noted in Douglas v. American Information Technologies

Corp., 877 F.2d 565, 569 (7th Cir. 1989):

This approach is straightforward because the

policy concern requiring preemption in the sec-

tion 301 context is also straightforward. Fed-

eral labor policy mandates that uniform

federal law be the basis for interpreting collec-

tive bargaining agreements. This policy

reduces the possibility “that individual con-

tract terms might have different meanings

under state and federal law.” Local 174, Team-

sters v. Lucas Flour Co., 369 U.S. 95, 103, 82

S.Ct. 571, 577, 7 L.Ed.2d 593 (1962). Conflict-

ing interpretations of contract terms “would

inevitably exert a disruptive influence” on the

collective bargaining process. Id.

However, as we also noted in Douglas:

[FJederal labor policy does not prevent states

from providing workers with substantive

rights independent of the collective bargaining

relationship. See Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 212, 105 S.Ct. 1904, 1912,

85 L.Ed.2d 206 (1985). Indeed, in Lingle, the

Court made it clear that, so long as a state-law

A-8

claim can be resolved without interpreting the

agreement itself, the claim is “independent” of

the agreement for the purposes of section 301.

108 S.Ct. at 1883. Thus, “$301 pre-empts state

law only insofar as resolution of the state-law

claim requires the interpretation of a collec-

tive-bargaining agreement.” Jd. at 1883 n. 8.

The mere fact that the state-law analysis

might require the state court to focus on the

same facts that would control resolution of an

employee’s contractual remedy is not enough to

require preemption of the state-law claim. /d.

at 1883. If adjudication of the state-law claim

does not require a court to interpret any term

of a collective bargaining agreement, then that

state-law claim is not preempted by section

301. See id. at 1881-82 (analysis of the ele-

ments of Illinois tort of retaliatory discharge

does not require court to interpret collective

bargaining agreement).

Id. at 569-70 (footnote omitted).

°.

According to the methodology established in our

post-Lingle cases,* our next step must be to analyze the

state-based cause of action for negligence so that we may

later determine whether adjudication of such a claim

would require an interpretation of the collective bargain-

ing agreement. On several recent occasions, this court has

examined the Illinois law governing the imposition of lia-

bility for a voluntary undertaking. We have noted that

“Culnder controlling Illinois law, liability may arise from

the negligent performance of a voluntary undertaking.”

® See Marzuki v. AT&T Technologies, Inc., 878 F.2d 203 (7th Cir.

1989); Nelson v. Central Illinois Light Co., 878 F.2d 198 (7th Cir. 1989);

Bettis v. Oscar Mayer Foods Corp., 878 F.2d 192 (7th Cir. 1989); Douglas

v. American Information Technologies Corp., 877 F.2d 565 (7th Cir.

1989).

A-9

Homer v. Pabst Brewing Co., 806 F.2d 119, 121 (7th Cir.

1986) (citing Pippin v. Chicago Hous. Auth., 399 N.E.2d

596 (Ill. 1979), and Nelson v. Union Wire Rope Corp., 199

N.E.2d 769 (Ill. 1964)). However, we have stressed that

“the scope of the duty is limited by the extent of the under-

taking.” Jd. (citing McColgan v. United Mine Workers, 464

N.E.2d 1166 (Ill. App. Ct. 1984)). “Illinois courts have care-

fully examined the nature of a defendant’s undertaking,

imposing a duty only to the extent actually assumed by the

defendant.” Jd. Indeed, Illinois courts “require that any

duty assumed be limited strictly to the scope of the under-

_ taking.” Figueroa v. Evangelical Covenant Church, 879

F.2d 1427, 1435 (7th Cir. 1989) (emphasis supplied).

“Under the common law ... it is the employer, not a

labor union, that owes employees a duty to exercise reason-

able care in providing a safe workplace.” IBEW, AFL-CIO

v. Hechler, 481 U.S. 851, 859 (1987) (emphasis in original);

see W. Prosser & W.P. Keeton, Torts §80 at 569 (5th ed.

1984).7 It is, of course, possible that a third party, such as

District 12, might assume this duty. However, before lia-_

bility could be established, it would be necessary to estab-

lish that the union breached a specific duty it had assumed

toward the employees. In order to define the scope of the

duty assumed by the union, it would be necessary to estab-

lish the precise responsibility assumed by the union.

In our view, it would not be possible to define, with

the precision demanded by Illinois law, the scope of the

union’s duty without reference to the collective bargaining

agreement that governs the relationship between the com-

pany and the union. Indeed, the necessity for such a refer-

ence is evident from the complaint itself. One of the specific

acts of negligence attributed to District 12 by the Sluders

7 Prosser and Keeton cite a Supreme Court of Illinois case in which

Illinois employed this common law approach. See W. Prosser & W.P.

Keeton, Torts §80 at 569 n.3 (5th ed. 1984) (citing Armour v. Golkowska,

66 N.E. 1037, 1038 (Ill. 1903)).

A-10

was that the union “[clarelessly and negligently failed to

close said mining facility in light of its unreasonably dan-

gerous condition.” R.25 at 2. The union’s authority to close

the employer’s facility is, of course, not a right granted by

law but, if at all, by the collective bargaining agreement.

The collective bargaining agreement and the dispute reso-

lution process established under that agreement set forth

the circumstances under which such action by the union

would be permitted. Indeed, Count III, which was dis-

missed voluntarily by the Sluders, contains extensive

abstracts of the collective bargaining agreement that make

it quite evident that District 12’s right to inspect the mine

and to deal with the employer with respect to safety defi-

ciencies is a major concern of that agreement. There, the

rights and responsibilities of both employer and employee

with respect to mine safety are set forth in detail. The col-

lective bargaining agreement outlines not only the uaion’s

responsibility with respect to the two mine safety commit-

tees but also limits District 12’s right to interfere in the

operation of the mine.

As we noted extensively in Nelson v. Centrai Illinois

Light Co., 878 F.2d 198 (7th Cir. 1989), the Supreme Court

in Lingle “pointedly acknowledged that ‘state-law analysis

might well involve attention to the same factual considera-

tions as the contractual determination.’ ” Jd. at 202 (quot-

ing Lingle, 108 S. Ct. at 1883). However, the Supreme

Court also noted in Lingle that it does not follow “that such

parallelism renders the state-law analysis dependent upon

the contractual analysis.” 108 S. Ct. at 1883. Preemption

under section 301 “merely ensures that federal law will be

the basis for interpreting collective-bargaining agree-

ments, and says nothing about the substantive rights a

State may provide to workers when adjudication of those

rights does not depend upon the interpretation of such

agreements.” Jd. at 1883. Here, delineation of District 12’s

duty would require more than the resolution of factual dis-

putes. Unlike the “purely factual” claims in Lingle, the

question of duty in this case is one of law and is open to

varying interpretations under the collective bargaining

A-11

agreement.* Indeed, our situation is not at all dissimilar

from that facing the Supreme Court in JBEW, AFL-CIO v.

Hechler, 481 U.S. 851 (1987). There, a worker had brought

suit against her union in state court, alleging that the

union had breached its duty to ensure that she received

essential training. In determining that her claim was pre-

empted by section 301, the Supreme Court noted that:

In order to determine the Union’s tort liability,

however, a court would have to ascertain, first,

whether the collective-bargaining agreement

in fact placed an implied duty of care on the

Union to ensure that Hechler was provided a

safe workplace, and, second, the nature and

scope of that duty, that is, whether, and to

what extent, the Union’s duty extended to the

particular responsibilities alleged by respon-

dent in her complaint. ... The need for federal

uniformity in the interpretation of contract

terms therefore mandates that here, as in

Allis-Chalmers [Corp. v. Lueck, 471 U.S. 202

(1985)], respondent is precluded from evading

the pre-emptive force of §301 by casting her

claim as a state-law tort action.

* The complaint indicates that the International Union and District

12 are both bound by the National Bituminous Coal Wage Agreement of

1984. At oral argument, appellants’ counsel asserted that the district

court decided that Counts I and II were preempted by section 301 with-

out the benefit of having the entire collective bargaining agreement

before it. However, before the district court rendered a final judgment

after dismissing Count III, the union filed a third-party complaint

against AMAX, Mr. Sluder’s employer, seeking contribution should

International be found liable to the Sluders. The union attached a copy

of the collective bargaining agreement to support its claim that AMAX

was equally liable under the agreement for any breach of duty owed to

Mr. Sluder. It is appropriate for us to refer to the agreement as a matter

of common sense and judicial economy. See Marzuki v. AT&T Technolo-

gies, 878 F.2d 203, 207 (7th Cir. 1989).

A-12

Id. at 862.* In short, if not preempted by section 301,

these claims could increase the possibility that “individual

contract terms might have different meanings under state

and federal law.” Local 174, Teamsters v. Lucas Flour Co.,

369 U.S. 95, 103 (1962). Such conflicting interpretations of

contract terms “would inevitably exert a disruptive influ-

ence” on the collective bargaining process. Jd.

As we have noted, the allegations set forth in Counts

I and II of the complaint can be resolved only by defining

the precise nature of the duty assumed by District 12, and

that duty can be defined only by reference to the collective

®In Hechler, the worker suggested on appeal that, under state law,

the Union had an independent responsibility to the worker “by virtue of

its relationship with its members, rather than as a result of the collec-

tive bargaining agreement.” 481 U.S. at 863 n.5. While declining to rule

on “the impact of hypothetical state law,” id. at 864 n.5, the Court

appeared to express skepticism that such a claim could survive a pre-

emption challenge. It seems clear that, in Illinois, the union’s duty is

defined by the collective bars aining agreement. McColgan v. United

Mine Workers, 464 N.E.2d 1166 (Ill. App. Ct. 1984), cert. denied, 470

U.S. 1051 (1985).

We are aware that the Supreme Court of Idaho addressed the same

issue in Rawson v. United Steel Workers of America, 770 P.2d 794

(Idaho), petition for cert. filed, No. 89-322, 58 U.S.L.W. 3154 (Aug. 24,

1989). While the particulars of the collective bargaining arrangement

and of the content of Idaho state law are not entirely clear, it appears

that, by a divided vote, the Idaho court resolved this issue contrary to

the approach taken by us. Assuming that neither the facts nor the appli-

cable state law permits a principled distinction between the cases, we

respectfully disagree. In our view, the dissenting opinion of Justice

Bakes reflects a more accurate reading of Hechler and Lingle. It recog-

nizes that, because the union’s duty must be defined by reference to the

collective bargaining agreement, preemption of the state cause of action

is required. Rawson, 770 P.2d at 798 (Bakes, J., dissenting). Indeed, in

an earlier opinion, before remand from the Supreme Court of the United

States for reconsideration in light of Hechler, the Idaho majority explic-

itly had noted that the provisions of the collective bargaining agreement

defined the nature and scope of the union’s duty. Rawson v. United Steel

Workers of America, 726 P.2d 742, 752 (Idaho 1986), vacated on other

grounds, 482 U.S. 901 (1987). As we note in the text, this determination

requires, in our view, a conclusion that the claim is preempted.

A-13

bargaining agreement. “The presence or absence of federal-

question jurisdiction is governed by the ‘well-pleaded com-

plaint rule,’ which provides that federal jurisdiction exists

only when a federal question is presented on the face of the

plaintiffs properly pleaded complaint.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987): see also Gully v. First

Nat'l Bank, 299 U.S. 109, 112-13 (1936). As the Supreme

Court has explained, “(t]he rule makes the plaintiff the

master of the claim; he or she may avoid federal jurisdic-

tion by exclusive reliance on state law.” Caterpillar, 482

U.S. at 392. In cases raising claims under section 301 of the

LMRA, the Supreme Court employs an independent corol-

lary to the well-pleaded complaint rule known as the “com-

plete pre-emption” doctrine. Jd. at 393. As this court

recently noted in Douglas v. American Information Tech-

nologies Corporation, 877 F.2d 565, 568-69 (7th Cir. 1989)

(footnote and citation omitted),

(T]he preemptive force of section 301 “ ‘con-

verts an ordinary state common-law complaint

into one stating a federal claim for purposes of

the well-pleaded complaint rule.’ ” (Caterpillar,

482 US. at 393] (quoting Metropolitan Life Ins.

Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542,

1546, 95 L.Ed.2d 55 (1987)). As the Supreme

Court explained in Caterpillar, “[o)nce an area

of state law has been completely pre-empted,

any claim purportedly based on that pre-

empted state law is considered, from its incep-

tion, a federal claim, and therefore arises

under federal law.” Jd.... Thus, state-law

claims preempted by section 301 are properly

removable to federal court despite a plaintiff's

failure to plead explicitly a federal cause of

action. See Lingle, 108 S.Ct. at 1881 n. 5.

The plaintiffs cannot escape the application of these

principles and “ ‘deny a defendant his right to a federal

forum by artfully disguising an essentially federal law

A-14

claim in terms of state law.’” Oglesby v. RCA Corp., 752

F.2d 272, 275 (7th Cir. 1985) (quoting Nuclear Engineering

Co., Inc. v. Scott, 660 F.2d 241, 249 (7th Cir. 1981), cert.

denied, 455 U.S. 993 (1982)).

Under the usual application of these principles, a

determination that the plaintiff had stated a federal cause

of action under section 301 of the LMRA would result in

the denial of a motion to remand, and the case would

remain in federal court, although subject to dismissal for

failure to exhaust administrative remedies. See Dougics v.

American Information Technologies Corp., 877 F.2d 565,

573-74 (7th Cir. 1989). Here, however, the plaintiffs,

apparently as a tactical maneuver in order to obtain a final

judgment, voluntarily dismissed with prejudice their sec-

tion 301 claim. Under these circumstances, Counts I and II

of the Sluders’ complaint, which also states a claim under

section 301, ought to be dismissed with prejudice as well.

Accordingly, the judgment of the district court is affirmed. ,

AFFIRMED

A true Copy:

Teste:

Clerk of the United

States Court of

Appeals for the

Seventh Circuit

A-15

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

TERRY RAY SLUDER, and

TINA SLUDER,

Plaintiffs,

CASE NO.

87-3086

)

Vv. )

UNITED MINE WORKERS OF )

AMERICA, INTERNATIONAL _)

UNION, and )

UNITED MINE WORKERS OF )

AMERICA, DISTRICT 12, )

JOHN DOE, and . )

TOM ROE, )

Defendants. )

)

UNITED MINE WORKERS OF

AMERICA, INTERNATIONAL

UNION,

Third-Party Plaintiff,

AMAX COAL COMPANY,

Third-Party Defendant.

JUDGMENT ENTRY

This matter came before the Court on Plaintiffs’

Motion to Dismiss Count III and for Entry of Final Judg-

ment.

And the Court, having considered said Motion and

being duly advised in the premises, now finds that said

Motion should be granted.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that Count III of Plaintiffs’ Complaint in this

action be, and hereby is, dismissed with prejudice.,

A-16

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that this Court’s March 7, 1988 Order Adopt-

ing Magistrate’s Recommendations in this action dis-

missing Counts I and II of Plaintiffs’ Complaint be, and

hereby is, made final.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Third-party Complaint of Defendant

United Mine Workers of America, International Union,

against Third-Party Defendant Amax Coal Company be,

and hereby is, dismissed without prejudice.

8-30-88 /s/ Richard Mills

DATE JUDGE, United States District Court

A-17

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

TERRY RAY SLUDER and

TINA SLUDER,

Plaintiffs,

UNITED MINE WORKERS OF

AMERICA, et al.,

Defendants.

CASE NO.

87-3086

)

ORDER ADOPTING MAGISTRATE’S RECOMMEN-

DATIONS

MILLS, District Judge:

The recommendations, and able reasons therefor, of

United States Magistrate Charles H. Evans, filed herein

on February 18, 1988, are adopted by the Court and will be

followed.

Pursuant to 28 U.S.C. §636(b)(1), the Court has made

a de novo review of the objections to the Magistrate’s rec-

ommendation filed herein and after careful consideration

finds them to be both a re-argument of matters already

presented to the Magistrate, and without merit. Under the

reasoning of IBEW v. Heckler, 107 S.Ct. 2161 (1987), and

Lingle v. Norge Magic Chef, 823 F.2d 1031 (7th Cir. 1987),

Counts I and II of the Complaint are preempted by 29

U.S.C. §301.

Ergo, District 12’s motion to dismiss is ALLOWED

as to Counts I and II of the Complaint. Plaintiffs are given

thirty (30) days to file an amended complaint. Interna-

tional Union’s motion to dismiss Count III is DENIED.

SO ORDERED.

A-18

ENTER: March 7 , 1988.

FOR THE COURT:

/s/ Richard Mills

United States District Judge

A-19

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

TERRY RAY SLUDER and

TINA SLUDER,

Plaintiffs,

CASE NO.

87-3086

)

Vv. )

UNITED MINE WORKERS OF )

AMERICA, )

UNITED MINE WORKERS OF )

AMERICA, DISTRICT 12, )

JOHN DOE and )

TOM ROE,

Defendants. )

RECOMMENDATION

This recommendation is being submitted pursuant to

Rule 3, (A)(7) of the Rules of the United States District

Court for the Central District of Illinois.

Procedural Posture of Litigation

On January 26, 1987, plaintiffs filed a document cap-

tioned Amended Complaint in cause no. 86-L-464 in the Cir-

cuit Court of the Seventh Judicial Circuit, Sangamon

County, Illinois. On January 27, 1987, plaintiffs filed an

identical complaint denominated as Complaint in cause no.

87-L-32. Counts I and II of these complaints sought to state

a cause of action arising under Illinois common law tort for

alleged negligent failures in making safety inspections by

defendant United Mine Workers of America, District 12 at

Amax Coal Company Mine, Keensburg, Illinois, seeking

relief in Count I for injuries to Terry Ray Sluder and in

Count II for loss of consortium to his wife Tina Sluder.

A-20

Count III of these complaints attempted to state a cause of

action for breach of the duty of fair representation against

defendants District 12, United Mine Workers of America

and International Union, United Mine Workers of America

allegedly arising from the arbitrary, capricious, and dis-

criminatory failures of the defendants to enforce certain

provisions of the collective bargaining agreement existing

between these defendants and Amax Coal Company which

operated the coal mine where plaintiff Terry Ray Sluder

was employed by Amax Coal Company. On February 25,

1987, defendants District 12, United Mine Workers of

America and International Union, United Mine Workers of

America filed their Petition for Removal of these causes in

the United States District Court for the Central District of

Illinois—Springfield Division, alleging that the complaints

arose under Section 301 of the Labor Management Rela-

tions Act, 29 U.S.C. §185, and stated a claim arising under

laws of the United States subject to removal pursuant to 28

U.S.C. §1441(b). Plaintiffs have not filed objections to the

removal or a motion to remand to State court.

Defendant International Union filed a Fed. R. Civ. P.

12(b)(6) Motion to Dismiss Count III of Complaint directed

at it and defendant District 12 filed its Fed. R. Civ. P.

12(b)(6) Motion to dismiss Counts I, II, and III of Complaint

directed at it. Plaintiffs filed their Memorandum in Opposi-

tion to Motion of defendant International Union and to the

motion of defendant District 12. Thereafter, both District 12

and plaintiffs filed additional submissions of authority with

the court discussing the recent holding of the United States

Supreme Court in International Brotherhood of Electrical

Workers v. Hechler, 107 S. Ct. 2161, (May 26, 1987). Argu-

ments upon these motions were heard by the Court.

Il.

Removal Jurisdiction

As noted earlier, plaintiffs have never moved to

remand. However, as our Court of Appeals has recently

held in Lingle v. Norge Magic Chef, (7th Cir. 6/23/87):

A-21

A federal court must first determine whether it

has jurisdiction. In a case originally brought in

a state court, this requires the federal court to

determine whether the suit was properly

removed. Then, and only then, may a court

determine whether or not federal law preempts

the state cause of action.

The Lingle Court held that a complaint alleging a

retaliatory discharge tort cause of action was properly

removed utilizing the “artful pleading doctrine” that a

plaintiff may not purposely frame his or her action under

state law and omit the federal questions that are essential

to recovery. And so it is here, plaintiffs may not avoid

invoking a Section 301 breach of contract jurisdiction by

characterizing their claims as common law negligence tort

actions. A de novo review of plaintiffs’ claims establishes

that their complaints arise under federal law (29 U.S.C.

$185) and removal is proper. .

Iil.

Motion to Dismiss Counts I and II

District 12 attacked Counts I and II on the grounds

that as a matter of Illinois law, it owed no duty arising

under common law tort to plaintiff for alleged wrongs citing

McColgan v. United Mine Workers of America, 120

Ill.App.3d 825, 80 Ill. Dec. 183, 464 N.E.2d 1166 (1st Dist.

1984). The District further argued that plaintiffs’ so-called

tort action was merely a novel attempt to avoid the exclu-

sive remedy provisions of the Illinois Workers Compensa-

tion Act which if permitted would require unions in all

cases to bring third party actions for contribution against

the employer who is legally responsible for workplace

safety. Finally, the District argued that such so-called tort

causes were in actuality the “artful pleading” of a federal

case couched in terms of state law which sought to avoid the

preemptive scope of Section 301 of the Labor Management

Relations Act.

Ti sieinititenasianceamneiin

A-22

Plaintiffs argue that the complained-of activity—

which they characterize as the negligent performance of a

voluntarily assumed duty citing Nelson v. Union Wire

Rope Corp., 31 I1l.2d 69, 199 N.E.2d 769 (1964)—states a

valid tort cause of action arising wholly independently of

obligations imposed by the collective bargaining agree-

ment. However, a review of the allegations made in Counts

I and II with those of Count III conclusively establish that

plaintiffs’ basis for duties alleged in Counts I and II arise

from obligations devolved by the collective bargaining

agreement. See plaintiffs Memorandum in Opposition to

District 12 Motion to Dismiss:

[T]he Complaint alleges that this Defendant

failed to report the unsafe condition, failed to

warn Plaintiff Terry Sluder and failed to close

the mining facility, all of which it was legally

and contractually obligated to do .... Even

assuming, arguendo, that the inspection that

the union did perform before the mine collapse

was “voluntary” as opposed to mandatory, once

undertaken, the collective bargaining agreement

required it to warn plaintiff Terry Sluder, to

report the safety violation and to close the mine.

Thus, the scope of the duty is clearly defined.

(Plaintiffs Memorandum at pp. 2-3, emphasis added).

Plaintiffs “artfully pled” claims are “inextricably inter-

twined” with a construction of the collective bargaining

agreement and thus preempted by Section 301 of the Labor

Management Relations Act. See Allis-Chalmers v. Lueck,

471 U.S. 202, 105 S. Ct. 1904, (1986); IBEW v. Hechler, 107 S.

Ct. 2161, (1987); Lingle v. Norge Magic Chef, (7th Cir. 1987).

A-23

IV.

Motions to Dismiss Count III

Defendants District 12 and International Union,

United Mine Workers of America have both moved to dis-

miss Count III of plaintiffs’ Complaint that alleges they

breached their duty of fair representation to plaintiff by

arbitrarily, discriminatorily, and/or in bad faith failed to

adequately compose and train a mine safety committee and

failed to report and inspect alleged safety conditions at the

mine resulting in injury to plaintiff.

Both defendants urge that plaintiffs have pled only

conclusory allegations without any specific facts that are

insufficient as a matter of law to establish a cause of action,

citing Williams v. General Food Corp., 492 F.2d 399 (7th

Cir. 1974). Defendants further argue that plaintiffs do not

plead intentional misconduct on their behalf which is a nec-

essary element for a complaint alleging breach of duty to

fairly represent, citing United Independent Flight Officers v.

United Airlines, 756 F.2d 1274 (7th Cir. 1985); Graff v.

Elgin, Joliet and Eastern Railway Co., 697 F.2d 771 (7th

Cir. 1983). Finally, defendants claim as a matter of law that

the Union »s not have a duty to plaintiff arising from the

collective bargaining agreement requiring an inspection of

the mine which would give rise to a cause of action for inju-

ries here pled, citing Bryant v. United Mine Workers, 467

F.2d 1 (6th Cir. 1972) cert. denied 410 U.S. 910 (1973).

Plaintiffs respond that defendants’ attack on the

complaint is unwarranted given the Seventh Circuit’s

standard for pleading duty of fair representation claims in

ruling on motions to dismiss. Plaintiffs cite Orphan v.

Furnco Construction Corp., 466 F.2d 795 (7th Cir. 1972),

Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir.

1969), cert. denied, 400 U.S. 911 (1970); Archie v. Chicago

Truck Drivers Helpers and Warehouse Workers Union, 585

F.2d 210 (7th Cir. 1978) and Schultz v. Owens Illinois, Inc.,

560 F.2d 849 (7th Cir. 1977) in support of their contention

that under the Federal Rules, as long as the complaint

i el

A-24

gives defendant fair notice of the ground of plaintiffs’ claim

it is legally sufficient. Plaintiffs are correct in this regard.

Count III of plaintiffs’ complaints at paragraph 8 spec-

ifies in adequate detail nine separate grounds upon which

the claim of arbitrary, discriminatory or bad faith

represenation is based. It certainly cannot be said that

under Rule 12(b)(6) it appears beyond doubt to a certainty

that plaintiffs can prove no set of facts in support of their

claims which would entitle them to relief. As it is settled

law that a complaint may not be dismissed unless there is

no possibility that the plaintiff can recover anything under

any conceivable set of facts provable under his complaint

(Hishon v. King and Spaulding, 467 U.S. 69 (1984); Cruz v.

Beto, 405 U.S. 319 (1972); Conley v. Gibson, 355 U.S. 41

(1957)) Count III of plaintiffs’ complaints should not be dis-

missed upon grounds here urged.

ORDER

It is recommended that:

1.) District 12’s Motion to Dismiss be granted as to

Counts I and II and that plaintiffs be given thirty (30) days

to file an Amended Complaint; and that the Motion To Dis-

miss as to Count III be denied.

2.) International Union’s Motion to Dismiss be

denied as to Count III.

Dated this 17th day of February, 1988.

/s/ Charles H. Evans

United States Magistrate

A-25

APPENDIX E

SECTION 301 OF THE LABOR MANAGEMENT

RELATIONS ACT OF 1947, 29 U.S.C. §185

(a) Suits for violation of contracts between an

employer and a labor organization representing employees

in an industry affecting commerce as defined in this chap-

ter, or between any such labor organizations, may be

brought in any district court of the United States having

jurisdiction of the parties, without respect to the amount in

controversy or without regard to the citizenship of the par-

ties.

(b) Any labor organization which represents

employees in an industry affecting commerce as defined in

this chapter and any employer whose activities affect com-

merce as defined in this chapter 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 against a labor organization in a 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 of his

assets.

against labor organizations in the district courts of the

United States, district courts shall be deemed to have juris-

diction of a labor organization (1) in the district in which

such organization maintains its principal office, or (2) in

any district in which its duly authorized officers or agents

are engaged in representing or acting for employee mem-

bers.

(d) The service of summons, subpoena, 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.

————E— <<< CC

A-26

(e) For the purposes of this section, in determining

whether any person is acting as an “agent” of another per-

son 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.

A-27

APPENDIX F

IN THE CIRCUIT COURT

OF THE SEVENTH JUDICIAL CIRCUIT

SANGAMON COUNTY, ILLINOIS

TERRY RAY SLUDER and CASE NO.

TINA SLUDER, 87-L 32

Plaintiffs,

AMERICA,

)

UNITED MINE WORKERS OF )

)

UNITED MINE WORKERS OF )

AMERICA, DISTRICT 12, )

JOHN DOE, and )

TOM ROE, )

Defendants. )

COMPLAINT

COUNT I

COMES NOW the Plaintiff Terry Ray Sluder, by

counsel, and for Count I of his Complaint against the

Defendants United Mine Workers of America, District 12,

John Doe and Tom Roe, alleges and says that:

1. At all times relevant hereto, Plaintiff Terry Ray

Sluder was a citizen of the State of Indiana, residing in

Sullivan County, Indiana.

2. At all times relevant hereto, Defendant United

Mine Workers of America, District 12 was a voluntary,

unincorporated association with an office in Springfield,

Illinois.

3. At all times relevant hereto, Defendants John Doe

and Tom Roe were individual persons whose identities are

unknown to Plaintiffs at the present time.

——7E

A-28

4. On July 31, 1986 and prior thereto, Defendant

United Mine Workers of America, District 12, by and

through its agents John Doe and/or Tom Roe, undertook to

make inspections as to safety practices at the Wabash

Mine in Keensburg, Illinois, which inspections included,

but were not limited to, checking for proper placement of

rib bolts at said coal mining facility.

5. On July 31, 1986, Plaintiff Terry Ray Sluder was a

coal miner and was lawfully and properly at the coal min-

ing facility at said Wabash Mine in Keensburg, Illinois.

6. Notwithstanding its undertaking and assumption

of the duty to inspect for safety practices at the aforesaid

facility, Defendant United Mine Workers of America, Dis-

trict 12 and its agents John Doe and/or Tom Roe were, on

July 31, 1986, guilty of negligence in the performance of

the said assumed duty in one or more of the following mat-

ters:

a.) Carelessly and negligently failed to detect the

lack of proper placement of rib bolts in said coal

mining facility;

b.) Carelessly and negligently failed to report the

absence of rib bolts to the proper authorities;

c.) Carelessly and negligently failed to warn Plain-

tiff Terry Ray Sluder of the absence of said rib

bolts and the imminent danger to himself caused

thereby;

d.) Carelessly and negligently failed to close said

mining facility in light of its unreasonably dan-

gerous condition;

e.) Carelessly and negligently made or failed to

make the said inspections so that as a direct and

A-29

proximate result thereof Plaintiff Terry Ray

Sluder was injured.

7. As a direct and proximate result of one or more of

the foregoing acts of negligence and in consequence

thereof, a part of the mine wall collapsed onto Plaintiff

Terry Ray Sluder, causing him to suffer a broken back and

to become permanently disabled and to suffer continuous

pain and inconvenience.

8. By reason of the foregoing acts, Plaintiff Terry Ray

Sluder has been and will be prevented from attending to

his vocation and has lost and will lose large amounts of

wages and earnings; said Plaintiff has incurred and will in

the future incur large medical and hospital expenses; said

Plaintiff has in the past and will in the future endure great

pain and suffering as a result of the aforesaid.

WHEREFORE, the Plaintiff Terry Ray Sluder prays

judgment against the Defendants United Mine Workers of

America, District 12, John Doe and Tom Roe in a sum in

excess of $15,000.00 to compensate him for actual and com-

pensatory damages and for his costs of suit, and

DEMANDS TRIAL BY JURY.

COUNT II

COMES NOW the Plaintiff Tina Sluder, by counsel,

and for her Complaint against the Defendants United

Mine Workers of America, District 12, John Doe and Tom

Roe, alleges and says that:

1-8. Plaintiff Tina Sluder adopts and incorporates

herein by reference as though fully set forth herein rhetori-

cal paragraphs 1 through 8, inclusive, of Count I of this

Complaint.

9. Prior to and at the time of the occurrence com-

plained of, Plaintiff Tina Sluder (wife) was the lawfully

A-30

wedded wife of the Plaintiff Terry Ray Sluder (husband),

and as such was consorting and cohabiting with her said

husband. As a direct and proximate result of the said negli-

gent conduct of said Defendants toward Plaintiff's hus-

band, he then and there sustained severe and permanent

injuries as hereinbefore described, and Plaintiff Tina

Sluder has lost the service of her said husband which, prior

to his said injuries, had been of great value to her, and she

has been deprived of his affection, society, companionship

and consortium, as well as the services which her husband

could and would have performed for her.

WHEREFORE, the Plaintiff Tina Sluder prays judg-

ment against the Defendants United Mine Workers of

America, District 12, John Doe and Tom Roe in a sum in

excess of $15,000.00 to compensate her for actual and com-

pensatory damages and for her costs of suit, and

DEMANDS TRIAL BY JURY.

COUNT III

COMES NOW the Plaintiff Terry Ray Sluder, by

counsel, and for Count III of his Complaint against the

Defendants United Mine Workers of America and United

Mine Workers of America, District 12, alleges and says

that:

1. At all times relevant hereto, Plaintiff Terry Ray

Sluder was a citizen of the State of Indiana, residing in

Sullivan County, Indiana.

2. At all times relevant hereto, Defendant United

Mine Workers of America was a voluntary, unincorporated

association with an office in Springfield, Illinois, who was

bound by a certain collective bargaining agreement known

as the National Bituminous Coal Wage Agreement of

1984.

A-31

3. At all times relevant hereto, Defendant United

Mine Workers of America, District 12, was a voluntary,

unincorporated association with an office in Springfield,

[llinois, who was bound by the terms of said collective bar-

gaining agreement to the same extent as Defendant

United Mine Workers of America.

4. At all times relevant hereto, Plaintiff Terry Ray

Sluder was an employee of an employer who was bound by

said collective bargaining agreement, and by reason

thereof Plaintiff Terry Ray Sluder was a member of Defen-

dants United Mine Workers of America and United Mine

Workers of America, District 12 and entitled to the rights

and benefits thereof under said collective bargaining

agreement.

5. On July 31, 1986, Plaintiff Terry Ray Sluder was

employed as a coal miner at the Wabash Mine in Keen-

sburg, Illinois, which coal mining facility was covered by

said collective bargaining agreement.

6. Said collective bargaining agreement provided,

inter alia:

Article III — HEALTH AND SAFETY

Section (a) Right to a Safe Working Place

Every Employee covered by this Agreement

is entitled to a safe and healthful place to work,

and the parties jointly pledge their individual

and joint efforts to attain and maintain this objec-

tive. Recognizing that the health and safety of

the Employees covered by this Agreement are the

highest priorities of the parties, the parties agree

to comply fully with all lawful notices and orders

issued pursuant to the Federal Mine Safety and

Health Act of 1977, as amended, and pursuant to

the various state mining laws.

A-32

Section (c) Joint Industry Health and

Safety Committee

There shall be a joint Industry Health and

Safety Committee composed of six members,

three to be appointed by the Union, one of whom

shall have special knowledge and expertise in

coal mine health matters, and three to be

appointed by the Employers, one of whom shall

have special knowledge and expertise in coal

mine health matters. ...

Section (d) Mine Health and Safety Com-

mittee

(1) At each mine there shall be a Mine

Health and Safety Committee made up of miners

employed at the mine who are qualified by min-

ing experience or training and selected by the

local union....

(2) The Union and Employer shall jointly

establish and fund a course of health and safety

training for members of the Mine Health and

Safety Committee, which is designed to improve

health and safety knowledge and skills. The Mine

Health and Safety Committee shall participate in

and shall be paid at their regular rates of pay by

the Employer for attendance at training sessions.

The training program will be established by the

Joint Industry Training Committee.

(3) The Mine Health and Safety Committee

may inspect any portion of a mine and surface

installations, dams or waste impoundments and

gob piles connected therewith. If the Committee

A-33

believes conditions found endanger the lives and

bodies of the Employees, it shall report its find-

ings and recommendations to the Employer. In

those special instances where the Committee

believes that an imminent danger exists and the

Committee recommends that the Employer

remove all Employees from the involved area, the

Employer is required to follow the Committee’s

recommendation and remove the Employees from

the involved area immediately.

7. Under said collective bargaining agreement,

Defendants United Mine Workers of America and United

Mine Workers of America, District 12 were the exclusive

bargaining agents representing Plaintiff Terry Ray Sluder

at said coal mining facility, and by reason thereof Defen-

dants United Mine Workers of America and United Mine

Workers of America, District 12 owed to Plaintiff Terry

Ray Sluder a duty of fair and adequate representation.

8. Defendants United Mine Workers of America and

United Mine Workers of America, District 12 breached

their duty of fair and adequate representation to Plaintiff

Terry Ray Sluder in one or more of the following particu-

lars:

a.) Arbitrarily, discriminatorily and/or in bad faith

failed to compose the Mine Health and Safety

Committee at said coal mining facility with min-

ers who were properly and adequately qualified

by mining experience or training in accordance

with the meaning and intent of said collective

bargaining agreement;

b.) Arbitrarily, discriminatorily and/or in bad faith

failed, through the Joint Industry Health and

Safety Committee, to establish a proper and ade-

quate course of health and safety training for

members of the Mine Health and Safety Commit-

Cc.)

d.)

e.)

g.)

A-34

tee at said coal mining facility in accordance with

the meaning and intent of said collective bargain-

ing agreement;

Arbitrarily, discriminatorily and/or in bad faith

failed to properly and adequately train members

of the Mine Health and Safety Committee at said

coal mining facility in accordance with the mean-

ing and intent of said collective bargaining agree-

ment;

Arbitrarily, discriminatorily and/or in bad faith

failed, through the Mine Health and Safety Com-

mittee at said coal mining facility, to detect the

lack of proper placement of rib bolts in said coal

mining facility on July 31, 1986;

Arbitrarily, discriminatorily and/or in bad faith

failed, through the Mine Health and Safety Com-

mittee at said coal mining facility, to report the

absence of rib bolts in said coal mining facility on

July 31, 1986 to the proper authorities;

Arbitrarily. discriminatorily and/or in bad faith

failed, through the Mine Health and Safety Com-

mittee at said coal mining facility, to warn Plain-

tiff Terry Ray Sluder of the absence of said rib

bolts and the imminent danger to himself thereby

on July 31, 1986;

Arbitrarily, discriminatorily and/or in bad faith

failed, through the Mine Health and Safety Com-

mittee at said coal mining facility, to close said

mining facility in light of its unreasonably dan-

gerous condition on July 31, 1986;

Arbitrarily, discriminatorily and/or in bad faith

failed, through the Mine Health and Safety Com-

A-35

mittee at said coal mining facility, to inspect said

coal mining facility on July 31, 1986:

1.) Arbitrarily, discriminatorily and/or in bad faith

permitted a method of mining known L-slabbing

at said coal mining facility, which said Defen-

dants knew or should have known was unreason-

ably dangerous.

9. As a direct and proximate result of one of more of

the foregoing acts and in consequence thereof, a part of the

mine wall at said coal mining facility collapsed onto Plain-

tiff Terry Ray Sluder on July 31, 1986, causing him to suf-

fer a broken back and to become permanently disabled and

to suffer continuous pain and inconvenience.

10. By reason of the foregoing acts, Plaintiff Terry

Ray Sluder has been and will be prevented from attending

to his vocation and has lost and will lose large amounts of

wages and earnings; said Plaintiff has incurred and will in

the future incur large medical and hospital expenses; said

Plaintiff has in the past and will in the future endure great

pain and suffering as a result of the aforesaid.

WHEREFORE, the Plaintiff Terry Ray Sluder prays

judgment against the Defendants United Mine Workers of

America and United Mine Workers of America, District 12

in a sum in excess of $15,000.00 to compensate him for

actual and compensatory damages and for his costs of suit,

and DEMANDS TRIAL BY JURY.

A-36

TERRY RAY SLUDER and TINA SLUDER by their

attorneys:

LOWE GRAY STEELE & HOFFMAN

by: /s/ Rodney V. Taylor

Rodney V. Taylor

FOLLMER & WEST

by: /s/ Richard T. West

Richard T. West

LOWE GRAY STEELE & HOFFMAN

One Indiana Square, Suite 3130

Indianapolis, Indiana 46204

(317) 635-8020

FOLLMER & WEST

P.O. Box 3159

Urbana, Illinois 61801

(217) 367-2424

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