Appendix — Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees of America v. Lockridge

Supreme Court brief1971

Ask Donna

What actually matters in this document.

Text

TABLE OF CONTENTS

Page

rn LOGON y ocscnscdacneesdénesncthcanens 2

PORT eee 4

I ae SD oan vita canted ives dadexdabuanenen 12

i NS |. ona sss vAdN 4S OOa ben eee WARREN 14

District Court Memorandum Decision on Motion To

EER vccnncadccpaschubupe cekakuan ee beheeaee 22

Idaho Supreme Court Decision (1962) .............. 27

District Court Memorandum Decision on Striking

DES. bivncs 5460000046 04080R0RSaRe RRR RE 36

Affidavits Filed With Motion To Alter and Amend

EEE. OE: SIU nn incvnscdesssenckuensueees 37

SE. SEO sn dickhieuns k6d46h06 Gneueees ceekanee 42

Second Amended Complaint ....................008- 43

District Court Memorandum Decision After Trial .... 49

District Court Memorandum Decision and Orders on

Motions To Amend Findings of Fact, Conclu-

sions of Law and Judgment .................... 54

District Court Findings of Fact, Conclusions of Law

and Judgment (as Amended) .................. 56

OOO RUMMMONEE ovccscisscascasdccecccnabans 68

Wilson Philip Lockridge (Direct) ................ 68

Plaintiff’s Interrogatories and Defendants’ Answers 71

DL: skeen vunwasacksscnecewants chawnnenten 73

Deposition of Clarence A. Bankhead .............. 74

Wilson Philip Lockridge (Cross) ................. 75

Deposition of Clarence A. Bankhead .............. 78

Plaintiff's Exhibit 1 (Letter of August 20, 1959 to

SNEED. 5. Av ancees sce encadaskanseaccenbwees 79

ii Table of Contents Continued

Page

Plaintiff’s Exhibit 2 (Letter of October 22, 1959 to

RAED on kdacoavenssdedeeesescksaacersenes 80

Plaintiff’s Exhibit 3 (Receipt) .................585. 82

Plaintiff’s Exhibit 4 (Letter of November 2, 1959 to

ET hic ch nae kc hone nu pudensntenbewes 82

Plaintiff’s Exhibit 5 (Letter of November 13, 1959 to

Be SED nc caacdobvconcceederecscnwsues 83

Plaintiff’s Exhibit 8 (Letter of January 7, 1960 to

EE Sica cide enka aekeke cect Gbnacnseaes 85

Piaintiff’s Exhibit 9 (Letter of February 2, 1960 to

REE naGisdenennea sna edmecdess bennd duns 86

Plaintiff’s Exhibit 34 (Excerpts from International

ee SHINE baa cucnntcsueesecennases 87

Plaintiff’s Exhibit 35 (Excerpts from collective bar-

gaining agreement) .............. shincutesetion 88

Idaho Supreme Court Decision (1969) .............. 89

MEY ccc nckheGheuSeeins taaeescesdsataasees 89

DE eek en ee edb ed peas ke veckaehebanne 111

Supreme Court of the United States

OcToBER TERM, 1969

No. 1072

AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RaIL-

way AND Motor CoacH EMPLOYEES OF AMERICA,

an International Labor Union; and NorTHWEST

Division 1055 of the AMALGAMATED ASSOCIATION

oF STREET, ELECTRICT RAILWAY AND Motor CoacH

EMPLOYEES OF AMERICA, a Regional Division of

the International Union, Petitioners,

Wison P. Lockrince, Respondent.

ON A WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF IDAHO

PETITION FOR CERTIORARI FILED JANUARY 13, 1970

CERTIORARI GRANTED MARCH 30, 1970

9/27/60

11/ 1/60

2/15/61

4/ 7/61

4/26/61

3/23/62

6/ 6/62

8/22/62

10/ 4/62

12/21/62

12/26/62

1/ 4/63

1/24/63

1/28/63

7/ 1/63

9/11/63

10/ 1/63

3/31/65

4/ 7/65

5/18/65

Relevant Chronology

Complaint

Motion to Dismiss

Amended Complaint

District Court Memorandum Decision

District Court Order of Dismissal

Decision of Idaho Supreme Court

Answer

Motion to Strike

District Court Order Granting Motion to Strike

District Court Memorandum Decision on Motion

to Strike

Order on Motion to Strike

Motion to Alter and Amend Judgment or Order

Amended Answer of Amalgamated Association;

Amended Answer of Northwest Division 1055;

Affidavit of Allen A. Noel; Affidavit of H. T.

Oathes; Affidavit of M. C. Frailey

Pre-trial Order

Motion to Dismiss

Order Denying Motion to Dismiss

Petition for Mandamus [Idaho Supreme Court

No. 9393]

Supreme Court Denial of Mandamus [Idaho Sn-

preme Court No. 9393]

Second Amended Complaint

Pre-Trial Orcer

Pre-Trial Order

6/10/65

Reply by Defendants to Plaintiff’s Interroga-

tories

10/11-13/65 Trial

6/21/66

8/ 1/66

8/ 2/66

8/ 9/66

9/ 1/66

9/30/66

10/17/66

10/15/69

Memorandum Decision

Findings of Fact, Conclusions of Law and Judg-

ment

Defendants’ Motion to Amend Findings of Fact,

Conclusions of Law and Judgment

Plaintiff’s Motion to Amend Findings of Fact,

Conclusions of Law and Judgment

Decision and Orders on Motions to Amend Find-

ings of Fact, Conclusions of Law and Judg-

ment

Defendants’ Notice of Appeal

Plaintiff’s Notice of Cross-Appeal

Idaho Supreme Court Decision

Complaint

[Filed: Sep. 27, 1960]

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

Civil No. 30613

Wuson P. Locxrineg, Plaintiff,

Vv.

AMALGAMATED ASSOCIATION OF STREET, ELEcTRIC RAILWay anp

Motor CoacuH Emp.ioyess or America, an International

Labor Union; and NortHwest Drviston 1055 of the

AMALGAMATED AssociaATION oF Street, Evectric Rat-

way AND Motor Coacn EMpLoyEgs or AMERICA, a Re-

gional Division of the International Union, and Grey-

HOUND CoRPoRATION, a corporation, Defendants.

COMPLAINT

Comes Now plaintiff above named and for causes of ac-

tion against defendants and each of them, complains and

alleges as follows:

Count ONE:

That the defendant, Amalgamated Association of Street,

Electric Railway and Motor Coach Employees of America,

hereinafter referred to as the International Association, is

an organized association having as members various work-

men skilled and trained in operating passenger motor buses

including those owned and operated by Greyhound Corpo-

ration throughout the State of Idaho. That said Interna-

tional Association has its own duly elected officers acting

for and on behalf of the International Association and hav-

ing ultimate control and supervision over all of the mem-

bers of the International Association and the various re-

gional divisions.

ET a Car

eS re

— ,

That the Northwest Division 1055 of the Amalgamated

Association of Street, Electric Railway and Motor Coach

Employees of America, hereinafter referred to as Division

1055, is a regional division of the International Association

and includes as members thereof all members of the Inter-

national Association who live and work within the regional

boundaries of Division 1055. That said Division 1055 has

its own duly elected officers but that all members of Divi-

sion 1055, and the officers thereof, as members of the Inter-

national Association, are subject to ultimate authority and

control of the International Association and are all subject

to the constitution and general laws of the International

Association.

That the International Association through its interna-

tional officers and officers and agents of Division 1055 have

conducted and are conducting business in the State of ldaho

and at various times have such officers and agents within

the State of Idaho acting for and on behalf of the Inter-

national Association and the members thereof within this

area and Division 1055. That many members of the Inter-

national Association and Division 1055 live in and are em-

ployed within the State of Idaho and the International

Association is the exclusive representative of all members

of the union for the purpose of collective bargaining rela-

tive to conditions of employment and for negotiation and

execution of contracts with employers pertaining to such

matters and by the constitution and general laws of the

ternational Association, the International Association

and the regional division in which the member resides are

irrevocably authorized to act as agents for all members

before any committee, board of arbitration, arbiter, court

or any tribunal in any matter affecting member’s status as

an employee and to represent and bind the members in the

presentation, prosecution, adjustment and settlement of

—=

grievances, complaints and disputes arising out of the mem-

ber’s employment relationship.

That defendant Greyhound Corporation is a corporation

organized and existing under and by virtue of the laws of

the State of Delaware and is authorized to do business

within the State of Idaho. That said Greyhound Corpora-

tion does business within ‘ie State of Idaho under the name

Western Greyhound Lines which is a division of the defend-

ant Greyhound Corporation. That said Western Grey-

hound Lines operates passenger buses and employs as

drivers thereof members of the International Association

including the plaintiff.

That since on or about May 16, 1943, and to and includ-

ing on or about November 2, 1959, plaintiff was a member

of the International Association and of Division 1055 and

has been driving for Greyhound Corporation as a corpora-

tion under contracts between the International Association,

Division 1055, and Western Greyhound Lines, a division of

defendant Greyhound Corporation. That plaintiff on No-

vember 2, 1959, had over 16 years seniority as a bus driver

with Greyhound Corporation and under contracts between

the International Association, its regional divisions and

Greyhound Corporation, said seniority rights in said em-

ployment have commensurate therewith benefits in working

conditions and pay for plaintiff’s services.

That on or about November 2, 1959, Greyhound Corpora-

tion was notified by C. A. Bankhead, Financial Secretary

of Division 1055, acting for Division 1055 in his official ca-

pacity as such Financial Secretary and acting for and on

behalf of officers of the International Association, that

plaintiff was not in good standing in the International Asso-

—e7—_—

ciation and its regional Division 1055 and requested defend-

ant Greyhound Corporation to remove plaintiff from em-

ployment. That immediately following receipt of such no-

tice defendant Greyhound Corporation discharged plaintiff

from employment.

vil

That at the time of his discharge from employment as

aforesaid, plaintiff was 46 years of age earning in his em-

ployment an average of approximately $7200.00 per year

and with his seniority status, barring unforeseen death or

disablement, would be able to earn in the future, for the

next 20 years and until he became 65 years of age, earning

in excess of $7200.00 per year and at the age of 65 years

would be able to retire with retirement pay of approxi-

mately $3600.00 per year.

Vill

That in seeking and obtaining plaintiff’s discharge from

employment, the defendant International Association and

Division 1055, acting by and through their duly authorized

officers and agents, acted wantonly, willfully and wrongfully

and without just cause and have deprived plaintiff of his

livelihood and all the benefits from his employment with

Greyhound Corporation that accrued to him and would ac-

crue to him by reason of his employment, seniority and ex-

perience and plaintiff has been harassed and subject to

mental anguish, all to plaintiff’s damage in the sum of

$212,200.00.

That the acts of defendants, acting through authorized

officers, representatives and agents thereof were malicious,

wanton and in reckless disregard of the plaintiff’s rights as

a free citizen of the United States and as a member of the

International Association and Division 1055 thereof and

plaintiff demands punitive damages in the sum of $50,000.00.

Count Two:

Plaintiff repeats and re-alleges all the allegations con-

tained in paragraphs I, II, II, IV, V, VI and VII of Count

One.

That section 83 of the constitution and general laws of

the International Association provides that no member shall

be allowed to injure the interests of a fellow member by

undermining him in place, wages or in any other wilfull act

by which the reputation or employment of any member may

be injured. That in seeking and obtaining plaintiff’s dis-

charge by defendant Greyhound Corporation the defendant

International Association and Division 1055, acting through

its authorized officers and agents, acted wrongfully, wan-

tonly, wilfully and maliciously and without just cause and

violated the constitution and general laws of the Interna-

tional Association and the contract then in existence be-

tween the International Association, Division 1055 and

Western Greyhound Lines, a division of Greyhound Corpo-

ration, and as a result of said breach of contract on the part

of defendants International Association and Division 1055,

plaintiff has been deprived of his livelihood and all benefits

from his employment with “reyhound Corporation that

have accrued to him and would accrue to him by reason of

his employment, seniority and experience and the plaintiff

has been embarrassed and subjected to mental anguish all

to plaintiff’s damage in the sum of $212,200.00.

Ill

Plaintiff repeats and re-alleges all the allegations con-

tained in paragraph IX of Count One.

Count THREE

Plaintiff repeats and re-alleges all the allegations con-

tained in paragraphs I, II, III, IV, V, VI and VII of Count

One.

That as a result of differences arising through the inter-

nal management of the International Association and Divi-

sion 1055, officers of the International Association and offi-

cers and agents of Division 1055 desired to punish the plain-

tiff and make an example of him and deter other members

of the union from asserting their true and lawful rights

under the constitution and general laws of the International

Association and for the purpose of coercing and intimidat-

ing other members of the union conspired, determined and

agreed to make example of the plaintiff by seeking and

obtaining his discharge from employment. That in fur-

therance of said conspiracy, said officers, agents and repre-

sentatives of the International Association and Division

1055 wrongfully, wilfully and maliciously advised the em-

ployer, Western Greyhound Lines, a division of Greyhound

Corporation, that plaintiff was no longer a member in good

standing of the union and had suspended himself from

membership and requested that he be taken out of service

with the employer and said officers and agents of the Inter-

national Association and Division 1055 thereby discrimi-

nated against plaintiff as a member of the union.

That by reason of said conspiracy and wrongful and un-

lawful acts of the defendant International Association and

defendant Division 1055, and each of them, acting through

their duly elected officers, and authorized agents and repre-

sentatives plaintiff has been prevented from following his

employment and earning a living for himself and his family

and from continuing in the employment for which he has

been specially trained and experienced.

That plaintiff has been deprived of his livelihood and all

benefits from his employment that would have accrued to

him by reason of such employment, his seniority and ex-

perience and has been harassed and embarassed and sub-

ject to mental anguish all to his damage in the sum of

$212,200.00.

Plaintiff repeats and re-alleges all the allegations con-

tained in paragraph IX of Count One.

Count Four:

That on or about November 2, 1959, defendant Western

Greyhound Lines, a division of defendant Greyhound Cor-

poration, acting by and through its duly authorized agents,

suspended plaintiff from service and within 90 days there-

after terminated plaintiff’s employment upon request of

one C. A. Bankhead, Financial Secretary of Division 1055,

a regional division of the International Association. That

the act of defendant in suspending plaintiff from service

and thereafter terminating his employment was wrongful

and without just cause and that it was not in conformance

with the terms of the contract between defendant, acting

through Western Greyhound Lines and the International

Association and Division ‘955, and plaintiff was so sus-

pended and his employn. « ‘erminated by defendant with-

out any investigation on the part of defendant as to the

truth of the assertions made by said C. A. Bankhead or the

real status of plaintiff’s membership in the International

Association and in discharging the plaintiff without making

such investigation and determination defendant Greyhound

Corporation acted carelessly, negligently and recklessly and

in violation of the employment contract with plaintiff.

That as a result of the negligence of Western Greyhound

Lines, a division of defendant Greyhound Corporation, in

discharging the plaintiff from his employment therewith

without making an investigation or determination of plain-

tiff’s rights and status in said employment or with Inter-

national Association and as a result the acts of Western

Greyhound Lines, a division of defendant Greyhound Cor-

poration, in terminating plaintiff from his employment in

violation of the contract of employment then in existence,

plaintiff has been deprived of his employment and all bene-

fits therefrom which have accrued and would accrue to him

by reason of his employment, seniority, and experience and

has been embarrassed, harassed and subjected to mental

anguish all to plaintiff’s damage in the sum of $212,200.00.

Ill

Plaintiff repeats and re-alleges all the allegations con-

tained in paragraph IX of Count One.

Wuererorg, plaintiff prays judgment against the defend-

ants and each of them, for the sum of $212,200.00 and for

punitive damages in the sum of $50,000.00 against defend-

ants International Association and Division 1055 and for

costs and disbursements incurred herein and such other

and further relief as to the court may appear meet and

equitable in the premises.

ANDERSON, KauFMAN AND ANDERSON

By Samvuet Kaurman

A Member of the Firm

Attorneys for Plaintiff,

503 Idaho Bldg., Boise, Idaho.

cate ¢ een eM Batt

Motion To Dismiss

[Filed November 1, 1960]

Defendants, Amalgamated Association of Street, Electric

Railway and Motor Coach Employees of America, AF'L-

CIO, and Northwest Division 1065, move the Court to dis-

miss the action, and each and every count thereof, on the

ground that defendants are engaged in a business affecting

commerce, and the purperted acts complained of, if true,

would constitute a labor dispute affecting commerce and

would constitute an unfair labor practice within the pro-

visions of the Labor-Management Relations Act of 1947,

20 USC Chap. 7, sub-chapter 2, Par. 158, and that the acts

here complained of are within the exclusive jurisdiction of

the National Labor Relations Board under the provisions

of the Labor Management Relations Act of 1947, 29 USC

Chap. 7, subchapter 2, Par. 151-168, and that this Court is

without jurisdiction in the premises, all of which more

fully appears from the affidavit of F.L. Johnson, attached

hereto as Exhibit E.

Exhibit E to Motion To Dismiss

I, F. L. Jounson, being first duly sworn, depose and say:

That I am the Senior Business Representative and Exe-

cutive Officer of Northwest Division 1055 of Amalgamated

Association of Street, Electric Railway and Motor Coach

Employees of America;

That two former members of Northwest Division 1055,

to-wit, Elmer J. Day and Wilson Lockridge, were removed

from service with Western Greyhound Corporation for

failing to maintain membership in good standing with

Northwest Division 1055 as required by contract between

Western Greyhound Lines and the Council of Western

Greyhound Amalgamated Divisions ;

That Elmer J. Day filed an unfair labor practice charge

against Greyhound, Amalgamated Association and Divi-

sion 1055, and the number assigned the charge against

Division 1055 was 36-CB-238 filed on November 12, 1959;

That by decision dated December 15, 1959, copy of which

is attached, the National Labor Relations Board, although

it assumed jurisdiction for the purposes of the Act, refused

to issue complaint thereon on the grounds that there was

insufficient evidence of violation.

That I make this affidavit in support of a Motion to Dis-

miss this action as against Amalgamated Association of

Street, Electric Railway and Motor Coach Employes of

America and Northwest Division 1055 of Amalgamated

Association of Street, Electric Railway and Motor Coach

Employes of America on the grounds the Court lacks juris- .

diction, this field of law having been pre-empted by the ¢

federal Congress. . Bi

NationaL Lasor Retations Boarp

Nineteenth Region

407 U.S. Courthouse, 5th Avenue and Spring

Seattle 4, Washington December 15, 1959

Mr. Elmer J. Day

Route 3, Box 90

Sherwood, Oregon

Re: Western Greyhound Lines

36-CA-986

Street, Elec. Railway, and

Motor Coach Employees, Div. 1055

36-CB-238

Dear Mr. Day:

The above-captioned cases charging violations under

Section 8 of the National Labor Relations Act, as amended,

have been carefully investigated and considered.

As a result of the investigation, it appears that, because

there is insufficient evidence of violations, further proceed-

ings are not warranted at this time. I am therefore re-

fusing to issue Complaint in these matters.

Pursuant to the National Labor Relations Board Rules

and Regulations (Section 102.19), you may obtain a review

of this action by filing a request for such review with the

General Counsel of the National Labor Relations Board,

Washington 25, D.C., and a copy with me. This request

must contain a complete statement setting forth the facts

and reasons upon which it is based. The request must be

received by the General Counsel in Washington, D.C. by

the close of business on December 28, 1959. Upon good

cause shown, however, the General Counsel may grant

special permission for a longer period within which to

file.

Very truly yours,

Tomas P. GraHam, JR.,

Regional Director

Amended Complaint

[Filed Feb. 15, 1961]

IN THE DISTRICT COURT OF THE JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

Civil No. 30613

Wnuson P. Locxrince, Plaintiff,

Vv.

AMALGAMATED ASSOCIATION OF STREET, Eectric Rarway

anp Motor Coach Emp.oyees or America, an Inter-

national Labor Union; and NortHwest Drvision 1055

of the AMALGAMATED AssocIATION OF STREET, ELECTRIC

Raritway aNnD Motor Coach Emp.Loyees oF AMERICA, a

Regional Division of the International Union,

Defendants.

AMENDED COMPLAINT

Comes Now plaintiff above named and for cause of action

against defendants and each of them, complains and alleges

as follows:

Count ONE:

That the defendant, Amalgamated Association of Street,

Electric Railway and Motor Coach Employees of America,

hereinafter referred to as the International Association, is

an organized association having as members various work-

men skilled and trained in operating passenger motor busses

including those owned and operated by Greyhound Corpo-

ration throughout the State of Idaho. That said Interna-

tional Association has its own duly elected officers acting

for and on behalf of the International Association and hav-

ing ultimate control and supervision over all of the mem-

bers of the International Association and the various re-

gional divisions.

That the Northwest Division 1055 of the Amalgamated

Association of Street, Electric Railway and Motor Coach

Employees of America, hereinafter referred to as Divi-

sion 1055, is a regional division of the International Asso-

ciation and includes as members thereof all members of

the International Association who live and work within the

regional boundaries of Division 1055. That said Division

1055 has its own duly elected officers but that all members

of Division 1055, and the officers thereof, as members of

the International Association, are subject to ultimate au-

thority and control of the International Association and

are all subject to the constitution and general laws of the

International Association.

III

That the International Association, through its inter.

national officers and officers and agents of Division 1055,

have conducted and are conducting business within the

State of Idaho and at various times officers and agents

of both the International Association and Division 1055

are within the State of Idaho acting for and on behalf of

said International Association, Division 1055 and the mem-

bers of the International Association. That many members

of the International Association and Division 1055 thereof

live in and are employed within the State of Idaho. That

the International Association and regional division are the

exclusive representatives of all members of the union for

the purpose of collective bargaining relative to conditions of

employment and for negotiation and execution of contracts

with employers pertaining to such matters, and officers

and agents of the International Association and Regional

Division 1055 come into the State of Idaho to bargain with

employers on behalf of members and to negotiate contracts

between employers and the union on behalf of its members,

That by the constitution and general laws of the Inter-

national Association, said association and the regional di-

vision in which the member resides are irrevocably au-

thorized to act as agents for all members before any com-

mittee, board of arbitration, arbiter, court or any tribunal

in any matter affecting members’ status as an employee

and to represent and bind the members in the presentation,

prosecution, adjustment and settlement of grievances, com-

plaints and disputes arising out of the members’ employ-

ment relationship.

That since on or about May 16, 1943 and to and including

on or about November 2, 1959, plaintiff was a member of

the International Association within the area of Regional

Division 1055 thereof, and was employed as a bus driver

for Greyhound Corporation, a private corporation having

as its main business purpose the operation of public

busses. That all drivers of Greyhound busses, and other

public bus lines, are members of the International Asso-

ciation and no person can be employed as a bus driver nor

retain such employment unless he is a member of said

International Association. That on November 2, 1959,

plaintiff had over 16 years seniority as a bus driver with

Greyhound Corporation and under contracts between the

International Union, its regional divisions and Greyhound

Corporation, seniority in said employment has commensu-

rate therewith benefits in working conditions and compen-

sation.

That prior to November 2, 1959, C.A. Bankhead, Finan-

cial Secretary of Division 1055, acting for Division 1055 in

his official capacity as such Financial Secretary, and acting

for and on behalf of the International Union and the officers

thereof, suspended plaintiff from membership in the union

on the basis that the plaintiff was in arrears in his payment

of dues contrary to the requirements of the constitution

and laws of the union and thereafter notified Greyhound

Corporation that plaintiff was no longer a member in good

standing of the union and requested said Greyhound Cor-

poration to remove plaintiff from employment. That im-

mediately following the receipt of such notice, on or about

November 2, 1959, said Greyhound Corporation discharged

plaintiff from employment. That plaintiff was not in ar-

rears in his dues to the extent that he was subject to sus-

pension from union membership under the constitution

and laws of the International Association, and the acts

of said Bankhead, aforesaid, were wrongful and without

any lawful basis. That additionally, it has been customary

over the years, on numerous occasions, for members to be

in arrears in their dues and to plaintiff’s knowledge no

member of the union has ever been suspended from mem-

bership therein within Division 1055 by reason thereof.

That at the time of his discharge from employment as

aforesaid, plaintiff was 46 years of age, earning in his

employment an average of approximately $7,200.00 per

year and with his seniority status, bariing unforeseen

death or disablement, would be able to earn in the future

for the next 20 years and until he became 65 years of age,

in excess of $7,200.00 per year, and, additionally, at the age

of 65 years would have been able to retire with retirement

pay of approximately $3,600.00 per year.

vil

That in suspending plaintiff from membership in the In.

ternational Association which resulted in plaintiff’s loss

of employment, the defendant Internatonal Association and

Division 1055, acting by and through their duly authorized

officers and agents, acted wantonly, willfully and wrong.

fully and without just cause, and to plaintiff’s knowledge,

in a manner never before indulged in, and have deprived

plaintiff of his livelihood and all benefits of his employment

with Greyhound Corporation that accrued to him and would

accrue to him by reason of his employment, seniority and

experience, and plaintiff has been harassed and subject to

mental anguish, all to plaintiff’s damage in the sum of

$212,200.00.

Vill

That in suspending plaintiff from membership in the

International Association as aforesaid, said International

Association and Regional Division 1055 thereof, acting

through its officers and agents, acted contrary to all cus-

tom within said union since, to plaintiff’s knowledge, no

member of said union, within Region 1055, had heretofore

been so suspended for arrears in dues and said International

Association and Division 1055 thereof, acting by and

through its duly authorized officers and agents, proceeded

contrary to the constitution and laws of the International

Association and precluded plaintiff from any remedy he

may have under said constitution and laws. That never-

theless plaintiff did all things and performed all acts which

would have been required of him under the constitution

and laws had the International Association and Division

1055 acted in conformance with the requirements of the

constitution and laws of the union, but to no avail. That

further, any acts on the part of the plaintiff for reinstate-

ment to membership were and would have been useless

procedures on his part, it being the attitude of the officers

of the International Association and Division 1055 that

plaintiff would not be reinstated to membership in the

International Association under any circumstances.

That the acts of defendants, acting through their au-

thorized officers, representatives and agents, were malicious,

wanton and in reckless disregard of plaintiff’s rights as

a free citizen of the United States and as a member of the

International Association within Regional Division 1055

thereof, and plaintiff demands punitive damages against

said defendants and each of them in the sum of $50,000.00.

Count Two:

Plaintiff repeats and realleges all of the allegations con-

tained in paragraphs I, II, ITI, IV, V, VI, and VII of Count

One.

That Section 83 of the constitution and general laws of

the International Association provides that no member

shall be allowed to injure the interests of a fellow member

by undermining him in place, wages or in any other willful

act by which the reputation or employment of any member

may be injured. That in wrongfully suspending plaintiff

from membership in the International Association, which

resuited in plaintiff’s discharge from employment with

the Greyhound Corporation, the defendant International

Association and Regional Division 1055 thereof, acting by

and through its authorized officers and agents, acted wrong.

fully, wantonly, willfully and maliciously and without just

cause and violated the constitution and general laws of the

International Association which constituted a contract be-

tween the plaintiff as a member thereof and the Interna.

tional Association, and as a result of said breach of con-

tract plaintiff has been deprived of his livelihood and all

benefits from his employment with said Greyhound Cor-

poration that have accrued and would accrue to him by

reason of such employment, his seniority and experience

and plaintiff has been embarrassed and subjected to mental

anguish, all to plaintiff’s damage in the sum of $212,200.00.

lil

Plaintiff repeats and realleges all of ihe allegations con-

tained in paragraph IX of Count One above.

Count THREE:

Plaintiff repeats and realieges all of the allegations con-

tained in paragraph I, I], III, IV, V, VI and VIII of Count

One.

That as a result of differences arising through the in-

ternal management of the International Association and

Regional Division 1055 thereof, the officers of the Inter-

national Association and officers of Division 1055 desired

to punish the plaintiff and make an example of him and

thereby deter other members of the rion from asserting

their true and lawful rights under ine constitution and

general laws thereof, and for the purpose of coercing and

intimidating other members of the union, conspired, deter-

mined and agreed to make an example of the plaintiff by

suspending him from union membership, which suspension

would and did result in the loss of plaintiff’s employment.

That in furtherance of said conspiracy, said officers, agents

and representatives of the International Association and

Regional Division 1055 thereof, wrongfully, willfully and

maliciously suspended plaintiff from membership in the

International Association as a result of which plaintiff, no

longer being a member of said union, was discharged from

his emplo;ment by Greyhound Cirporation, and in so doing,

the officers and agents of the International Union and

Regional Division 1055 thereof conspired to and did dis-

criminate against the plaintiff as a member of the union.

Ill

That by reason of said conspiracy and wrongful and

unlawful acts of the defendant International Association

and defendant Regional Division 1055, and each of them,

acting through their duly elected officers and authorized

agents and representatives, plaintiff was deprived of his

membership in the union, which resulted in his being pre-

vented from following his employment and earning a living

for himself and his family and from continuing in the em-

ployment for which he has been specially trained and ex-

perienced, and plaintiff has been deprived of his livelihood

and all benefits from his employment that would have ac-

crued to him by reason of such employment, his seniority

and experience, and has been harassed and embarassed

and subject to mental anguish, all to his damage in the

sum of $212,200.00.

Plaintiff repeats and realleges all of the allegations

contained in paragraph IX of Count One.

Wuenreror:e, plaintiff prays judgment against the defend-

ants and each of them, for the sum of $212,200.00, (and

for punitive damages in the sum of $50,000.00, together

with costs and disbursements incurred herein and such other

and further relief as to the court may appear meet and

equitable in the premises.

Anperson, KaurMAN AND ANDERSON

Samuel Kaufman

A Member of the Firm

503 Idaho Bldg., Boise, Idaho

Attorneys for Plaintiff

District Court Memorandum Decision

[Filed April 7, 1961]

* 7 * * 7 . ” * * *

This matter is before the Court pursuant to motions by

the defendant under the provisions of Rule 12(b) I.R.C.P.

The defendant Greyhound Corporation of America has been

dismissed, and plaintiff has filed an amended complaint

against the remaining defendants. Thus, only the motions

of Amalgamated Association and the Northwest Diviy

1055 of the Amalgamated Association are before the Court.

It has been stipulated that the motion to dismiss directed

to the first complaint, may be considered as directed to the

amended complaint of plaintiff.

Paragraph VI of the motion to dismiss raises by far the

most difficult problem. This is a contention by the defend-

ants that the matters alleged by plaintiff constitute an un-

fair labor practice within the exclusive jurisdiction of the

National Labor Relations Board (Title 29 U.S.C.A. Par.

s>s_—"" a

157 and 158). If this contention is correct, then the mat-

ters involved in this case have been pre-empted by opera-

tion of Federal law. Plaintiff, on the other hand, contends

that the matters alleged involve private right of the plain-

tiff, and in essence it actually is an action for breach of a

contract between plaintiff and defendants, the contract in

question being the constitution of the union.

The state courts, the lower Federal courts, and the U.S.

Supreme Court have had great difficulty in defining the

areas which have been pre-empted by the N.L.R.A. In my

opinion the state Court opinions are impossible to recon-

cile, as are the U.S. Supreme Court opinions. However,

the U.S. Supreme Court in San Diego Buildings Trade

Council v. Garmon, 359 U.S. 236, 3 Law Ed. 2d 775, 75 Sup.

Ct. 772, has made an attempt to finally define this question

and has in effect narrowed or overruled some of its earlier

decisions in this matter. In this so-called second Garmon

decision, the Supreme Court of the United States, after

stating that the policy of Congress has been to centralize

labor-management relations in the N.L.R.B. as a matter of

national policy, and that ‘‘when the exercise of state power

over a particular area of activity threatened interference

with the clearly indicated policy of industrial relations, it

has been judicially necessary to preclude the states from

acting’’, designates only two areas in which the power of

the states to regulate industrial relations have not been

pre-empted.

These are matters which are of ‘‘merely peripheral con-

cern’’ to labor-management relations. The only example of

this type of situation is Association of Machinists v. Gon-

zales, 356 U.S. 617, 2 Law Ed. 2d 1018, 78 Sup. Ct. 923.

Secondly, matters ‘‘deeply rooted in local feeling and re-

sponsibility.’’ I.e., violence and breaches of the peace.

The Court cites as an example only International Union v.

Russell, 356 U.S. 634, 2 Law Ed. 2d 1030.

The Court then goes on to say that if a matter is ‘‘argu-

ably’’ within paragraph 7 or paragraph 8 of the N.L.R.A.

then the state courts, as well as the federal courts, must

defer to the N.L.R.B. and that the N.L.R.B. itself is the

agency which must determine in the first instance whether

a matter is an unfair labor practice or not.

Thus it seems to me that the present rule is, that the state

or federal court must first determine whether a case falls

clearly in or out of the exclusive jurisdiction of the N.L.R.B.

If it is clearly outside, the courts can take jurisdiction. If

it is clearly within the N.L.R.B.’s exclusive jurisdiction or

is in the twilight zone, then the courts, both state and fed-

eral, must await determination by the administrative board

as to whether the matter is deemed by it to be within its

jurisdiction. Justice Harland [sic] in his dissenting opin-

ion to the Garmon case states as much.

‘*Henceforth the states must withhold access to their

courts until the N.L.R.B. has determined what unpro-

tective conduct is not an unfair labor practice. * * * ”

It was clear that plaintiff in his original complaint alleged

an unfair labor practice against Greyhound Corporation

under Section 158, 29 U.S.C.A., and his terminology in his

first complaint as it related to the actions of defendant

union clearly indicated an unfair labor practice. In that

complaint, the plaintiff several times alleged that all of

defendants’ acts were for the purpose of seeking a dis-

criminatory discharge by his employer. The gravamen, it

seems to me, of his present pleading is the same, in that he

alleges that the defendant union wrongfully expelled him

for alleged failure to pay dues; that as a result of his ex-

pulsion he lost his employment with Greyhound Corpora-

tion and to his damage. There is a clear inference that the

union did this to make an example of him and to cause him

to lose his employment, rather than to collect dues. If this

is the claim, it is at least arguable that this constitutes an

unfair labor practice. If plaintiff were seeking reinstate-

ment in the union, such as was done in the Gonzales case,

together with loss of wages during the period of his wrong-

ful expulsion and other incidental damages, such as his

claimed punitive damages and mental pain and suffering,

he would have been bringing an action to assert his rights

as a member of the union against the union. However, he

goes far beyond this, although it would appear that rein-

statement would afford him a full remedy in that it does

not appear that he could not get his job back if he were

reinstated. In this case plaintiff seeks to recover damages

for future loss of gainful employment and the allegations

would fit a tort claim for total future disability for gainful

employment. It seems obvious that he is not interested in

getting back his job or asserting his union rights.

Under the rule announced by Judge Cohen in Waz v.

International Mailers Union, 161 A2d 603 (Pa.), (whose

analysis of the Garmon decision agrees with mine) plain-

tiff is asserting an unlawful labor practice, because he is

seeking damages based upon injuries to his employment, as

distinguished from damages based upon injury to his rights

as a union member.

Further it appears to me that plaintiff in paragraphs I,

Il, II, IV, V, VI and VIII of all these counts of his

amended complaint, has alleged an unlawful labor practice

upon the part of the union, which is at the very least argu-

ably within the provisions of Sections 7 and 8 of the

N.L.R.A. It falls under the statement made by an annota-

tion in 4 L. Ed. page 2022:

‘‘Under the terms of Par. 8(a)(3) of the amended

National Labor Relations Act, unions and employers

are permitted to agree that union membership shall be

a condition of employment; but a proviso to par. 8(a)

(3) bars a» employer who has entered into such an

agreement from discriminating against an employee

for nonmembership in a union if he has reasonable

grounds for believing that membership was not avail-

able to the employee in question on the same terms and

conditions generally applicable to other union mem-

bers, or if he has reasonable grounds for believing that

the membershiy of the employee in question was de-

nied or terminated for reasons other than the failure

of the employee to tender the periodic dues and the

initiation fees uniformly required as a condition of

acquiring or retaining union membership. A comple-

mentary provision appears in par. 8(b)(2) of the act,

which specifies that it is an unfair labor practice for a

union to cause or attempt to cause an employer to dis-

criminate against an employee who has been denied,

or ousted from, union membership on grounds other

than his failure to tender uniformly required dues and

initiation fees.’’

Thus it seems clear to me that plaintiff alleges that de-

fendants had entered into a lawful union security contract

with plaintiff’s employed Greyhound; that the plaintiff’s

alleged failure to pay dues when due was the claimed cause

of his loss of union membership, but that the real cause

was something else, and that in fact the union had waived

its right or is estopped to assert its right to deny him mem-

bership on this ground; that it in effect caused plaintiff’s

employer to discriminate against him on grounds other

than failure to tender uniformly required dues; that this

constitutes an unfair labor practice and that jurisdiction

of this type of situation has been taken by the N.L.R.B. in

this type of situation is illustrated by the cases appearing

in the above cited annotation. In particular see cases listed

under 9th Circuit.

I therefore conclude that defendants’ motion to dismiss

on the ground that the courts of Idaho lack jurisdiction,

should be granted.

Dated this 7th day of April, 1961.

Mearurn S. Youne

District Judge

Idaho Supreme Court Decision

{Filed March 23, 1962]

IN THE SUPREME COURT OF THE STATE OF IDAHO

Boise, January Term, 1962

No. 9040

Wuson P. Lockrincr, Plaintiff-Appellant,

AMALGAMATED AssociaTION OF STREET Exectric Rattway

anD Motor Coach EMmpLoyers oF America, an Inter-

national Labor Union; and Norruwest Division 1055 or

THE AMALGAMATED AssociaTION OF STREET, ELectaic

RarLway anpD Motor Coach EMPLOYEES OF AMERICA, @

Regional Division of the International Union,

Defendants-Respondents.

Appeal from the District Court of the Third Judicial

District, Ada County. Honorable Merlin S. Young, District

Judge.

Action for damages for wrongful suspension from mem-

bership in the defendant union. Plaintiff appeals from

judgment of dismissal. Reversed and cause remanded.

Anderson, Kaufman and Anderson, Boise, for appellant.

Bailey, Lezak, Swink & Gates, Portland, Oregon;

Bernard Cushman, Washington, D. C.; and

McClenahan & Greenfield, Boise; for respondents.

Taytor, J.

This action was brought by plaintiff (appellant) to

recover judgment for compensatory and punitive damages

against defendant (respondent) labor union for wrongful

suspension of plaintiff’s membership. Plaintiff alleges that

he was a member of the union from May, 1943, to about

November 2, 1959, during which time he was employed by

Greyhound Corporation as a bus driver; that his suspension

from membership was based upon the contention that plain-

tiff was in arrears in the payment of his dues, contrary to

the constitution and laws of the union; that the union

notified the Greyhound Corporation that plaintiff was no

longer a member and requested the corporation to discharge

him which the corporation did on or about November 2,

1959, pursuant to the request and its contract with the

union; and that suspension from membership was not in

accord with the constitution and laws of the union, and was

wrongful and without lawful basis. The complaint con-

tains two counts in tort and one for breach of contract.

Upon motion of the defendant, the action was dismissed

by the district court upon the sole ground that the complaint

charged an unfair labor practice, within the exclusive

jurisdiction of the National Labor Relations Board, and

that the district court had no jurisdiction of the subject

matter.

Plaintiff prosecutes this appeal from the judgment of

dismissal.

Unincorporated associations, including labor unions, are

recognized as legal entities under the laws of this state.

I. C. §§ 44-701, 18-5201, 72-1010, 63-3002, 30-101(14).

The constitution and bylaws of the defendant union and

the granting and acceptance of membership, constituted a

contract between the plaintiff and defendant. 7 C.J.S.,

Associations, § 11b.

The question presented is whether the cause is one pre-

empted by the Labor Management Relations Act of 1947.

Section 7 of the act (U.S.C.A., Title 29, § 157) declares the

right of employees to organize and engage in collective

bargaining. Section 8 (U.S.C.A., Title 29, 9 158) defines

unfair labor practices on the part of both. employer and

employee. This section in part provides:

‘(b) It shall be an unfair labor practice for a labor

organization or its agents—

ERS OR ees See. e"

‘*(1) to restrain or coerce (A) employees in the

exercise of the rights guaranteed in section 157 of this

title: Provided, That this paragraph shall not impair

the right of a labor organization to prescribe its own

rules with respect to the acquisition or retention of

membership therein; or (B) an employer in the selec-

tion of his representatives for the purposes of collec-

tive bargaining or the adjustment of grievances;

**(2) to cause or attempt to cause an employer to

discriminate against an employee in violation of sub-

section (a)(3) of this section or to discriminate

against an employee with respect to whom membership

in such organization has been denied or terminated on

some ground other than his failure to tender the

periodic dues and the initiation fees uniformly required

as a condition of acquiring or retaining membership ;’’

The opinion in International Association of Machinists

v. Gonzales, 356 U.S. 617, 2 L.ed 2d 1018, 78 S. Ct. 923, was

rendered in an action brought in the Superior Court of

California by an expelled union member, for reinstatement

and damages. The California court gave judgment for the

relief sought. The U.S. Supreme Court noted that to

cause an employer to discriminate against an employee on

some ground other than denial or termination of member-

ship for failure to pay dues, might constitute an unfair

labor practice, under § 8(b)(2). With respect to the rela-

tionship between the union and the member, the court said:

«* * * But the protection of union members in

their rights as members from arbitrary conduct by

unions and union officers has not been undertaken by

federal law, and indeed the assertion of any such power

has been expressly denied. The proviso to § 8(b)(1)

of the Act states that ‘this paragrapk shall not impair

the right of a labor organization to prescribe its own

rules with respect to the acquisition or retention of

membership therein... .’ 61 Stat. 141, 29 USC

§ 158(b)(1). The present controversy is precisely one

that gives legal efficacy under state law to the rules

prescribed by a labor organization for ‘retention of

membership therein.’ Thus, to preclude a state court

from exerting its traditional jurisdiction to determine

and enforce the rights of union membership would in

many cases leave an unjustly ousted member without

remedy for the restoration of his important union

rights. Such a drastic result, on the remote posi-

sibility of some entanglement with the Board’s enforee-

ment of the national policy, would require a more

compelling indication of congressional will than can be

found in the interstices of the Taft-Hartley Act. See

United Constr. Workers v. Laburnum Constr. Corp.,

347 US 656, 98 L ed 1025, 74 S Ct 833.

‘*Although petitioners do not claim that the state

court lacked jurisdiction to order respondent’s

reinstatement, they do contend that it was without

power to fill out this remedy by an award of damages

for loss of wages and suffering resulting from the

breach of contract. No radiation of the Taft-Hartley

Act requires us thus to mutilate the comprehensive

relief of equity and reach such an incongruous adjust-

ment of federal-state relations touching the regulation

of labor. The National Labor Relations Board could

not have given respondent the relief that California

gave him according to its local law of contracts and

damages. Although if the unions’ conduct constituted

an unfair labor practice the Board might possibly have

been empowered to award back pay, in no event could

it mulct in damages for mental or physical suffering.

And the possibility of partial relief from the Board

does not, in such a case as is here presented, deprive

a party of available state remedies for all damages

suffered. See International Union, United A.A.A.I.W.

v. Russell, 356 US 634, 2 L ed 2d 1030, 78 S Ct 932.”

International Asso. Machinists v. Gonzales, 356 U.S.

617, 2 L.ed 24 1018, at 1021 and 1022, 78 S.Ct. 923.

Defendant cites Garner v. Teamsters C. & H. Union,

346 U.S. 485, 98 L.ed 228, 74 S.Ct. 161. Distinguishing

that case, the court, in United Constr. W. v. Laburnum

Constr. Corp., 347 U.S. 656, 98 L.ed 1025, at 1031, 74 S.Ct.

833, said:

‘««* * * Tn the Garner Case, Congress had provided

a federal administrative remedy, supplemented by

judicial procedure for its enforcement, with which the

state injunctive procedure conflicted. Here Congress

has neither provided nor suggested any substitute for

the traditional state court procedure for collecting

damages for injuries caused by tortious conduct. For

us to cut off the injured respondent from this right

of recovery will deprive it of its property without

recourse or compensation. To do so will, in effect,

grant petitioners immunity from liability for their

tortious conduct.’’

Defendant also relies upon San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 3 L.ed 2d 775, 79 S.Ct.

773. It is contended that the Garmon case reaffirms the

Garner case and modifies and supersedes the Gonzales

decision as to preemption. The Court split 5-4 as to the

applicable ground for the preemption affirmed in the

Garmon case. The majority opinion was written by Justice

Frankfurther, also the author of the opinion in the Gonzales

case.

In the Garmon case the unions sought an agreement by

the employer that the latter would retain in his employ

only union members and those who applied for membership

within thirty days. Upon refusal, the unions began peace-

ful picketing, claiming their purpose was to educate and

persuade the workers. The employer obtained a judgment

in the Superior Court of California for damages and

enjoining the picketing on the ground that its purpose was

to foree the employer to execute the requested contract,

contrary to California law. The Californie Supreme Court

—

affirmed, noting that, since the National Labor Relations —

Board had refused to take jurisdiction of the controversy, |

the state courts had power over the dispute.

On the first appeal, the United States Supreme Court

ruled that the refusal of the National Labor Relations

Board to assert jurisdiction did not leave the state free to

act, and remanded the cause for determination by the

California court as to whether California law would support

the judgment for damages. The California court vacated

the injunction and affirmed the damage judgment.

On the second appeal (supra) the court said:

‘*When an activity is arguably subject to 47 or §8

of the Act, the States as well as the federal courts

must defer to the exclusive competence of the National

Labor Relations Board if the danger of state inter.

ference with national policy is to be averted. Ibid.

‘*To require the States to yield to the primary juris-

diction of the National Board does not ensure Board

adjudication of the status of a disputed activity. If

the Board decides, subject to appropriate federal

judicial review, that conduct is protected by §7, or

prohibited by § 8, then the matter is at an end, and the

States are ousted of all jurisdiction. Or, the Board

may decide that an activity is neither protected nor

prohibited, and thereby raise the question whether

such activity may be regulated by the States. * * * *

‘«* * * In the absence of the Board’s clear deter-

mination that an activity is neither protected nor

prohibited or of compelling precedent applied to

essentially undisputed facts, it is not for this Court

to decide whether such activities are subject to state

jurisdiction. * * * *

‘In the light of these principles the case before us

is clear. Since the National Labor Relations Board

has not adjudicated the status of the conduct for which

0 EE!

SS ee ae

the State of California seeks to give a remedy in

damages, and since such activity is arguably within the

compass of § 7 or § 8 of the Act, the State’s jurisdiction

is displaced.’’ San Diego Bldg. Trades Council v.

Garmon, 359 U.S. 236, 3 L.ed 775, at 783 and 784, 79

8.Ct. 773.

Thus, the Supreme Court reaches the conclusion that the

Congress has delegated to the National Labor Relations

Board the legislative function of determining national

policy, even though the act itself purports to spell out such

policy (U.S.C.A., Title 29, §§141, 151). And the court

abdicates, in favor of the board, the judicial function of

determining legislative intent. Being an agency also of

the executive branch of the government, the board is thus

clothed with complete power—to make, to interpret, and

to enforce the law. The citizens of the states must be

content with what relief the board chooses to afford. Or, if

the board refuses to act in any arguable area, citizens of

the states must suffer torts and violations of contract rights

without relief. Anent the effect of this decision on state

jurisdiction, the four justices concurring in the result said:

‘‘The Court’s opinion in this case cuts deeply into

the ability of States to furnish an effective remedy

under their own laws for the redress of past nonviolent

tortious conduct which is not federally protected, but

which may be deemed to be, or is, federally prohibited.

Henceforth the States must withhold access to their

courts until the National Labor Relations Board has

determined that such unprotected conduct is not an

unfair labor practice, a course which, because of un-

avoidable Board delays, may render state redress

ineffective. And in instances in which the Board

declines to exercise its jurisdiction, the States are

entirely deprived of power to afford any relief. More-

over, since the reparation powers of the Board, as we

observed in Russell, are narrowly circumscribed, those

injured by nonviolent conduct will often go remediless

even when the Board does accept jurisdiction.’’ San

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236,

3 L.ed 775, at 787 and 788, 79 S.Ct. 773.

Referring to the Gonzales case, Justice Frankfurter in

the second Garmon case said:

‘«* * * However, due regard for the presuppositions

of our embracing federal system, including the

principle of diffusion of power not as a matter of

doctrinaire localism but as a promoter of democracy,

has required us not to find withdrawal from the States

of power to regulate where the activity regulated was

a merely peripheral concern of the Labor Management

Relations Act. See International Asso. of Machinists

v. Gonzales, 356 US 617, 2 L ed 2d 1018, 78 S Ct 923.”

San Diego Bldg. Trades Council v. Garmon, 359 U.S.

236, 3 L. ed 2d 775, at 782, 79 S. Ct. 773.

Thus, even though the ‘‘penumbral area’’ may be broadened

by the Garmon decision, the rule of the Gonzales case,

applicable here, has not been supplanted.

In view of the unsettled state of the federal law, our

course is clear. We must assert jurisdiction in every

doubtful case, to the end that our citizens be not denied

relief for wrongs ‘‘neither protected nor prohibited’’ nor

‘*preempted’’ by federal law, or, more appropriately, by

the National Labor Relations Board.

Morse v. Locai Union No. 1058 Carpenters, ete., 78 Idaho

405, 304 P.2d 1097, is not applicable here. In that cas¢

Morse, a member, brought action against the union for

damages arising out of loss of employment due to refusal

of the union to permit him to transfer from one local to

another. The resulting discrimination did not result from

a failure to pay dues. Moreover, the opinion in the Morse

case was handed down more than a year before the decision

———Ea

of the Gonzales case, hence we did not have the benefit of

that, and other later opinions of the federal courts in

arriving at the conclusion reached in the Morse case.

We hold that under the rule of the Gonzales case the

district court had jurisdiction of this controversy, and that

the Garmon case is not in point. Gainey v. Local 71 Inter-

national Bro. of Teamsters (N.C.), 113 S.E.2d 594; Barlow

v. Roche (D.C.), 161 A.2d 58; Dempsey v. Great Atlantic

and Pacific Tea Co., 197 N.Y.S.2d 744; Perko v. Local

No. 207 of Int. Ass’n of Bridge, ete., Wkrs., (Ohio), 167

N.E.2d 903; United Association of Journeymen, ete. v.

Borden (Tex.), 328 S.W.2d 739; Green v. Folks, 208 N.Y.S.

2d 559. See also: Selles v. Local 174, ete. (Wash.), 314

P.2d 456, Cert. denied, 356 U.S. 975, 2 L.ed 2d 1149, 78

§.Ct. 1134, rehearing denied, 358 U.S. 860, 3 L.ed 2d 95, 79

S.Ct. 14; Kuzma v. Millinery Workers Union Local No. 24

(N.J.), 99 A.2d 833; McDermott v. Jamula (Mass.), 154

N.E.2d 595 ; Cooperative Refinery Asso. v. Williams (Kan.),

345 P.2d 709.

The judgment of dismissal is reversed and the cause is

remanded for further proceedings.

Costs to appellant.

Sairn, C.J., and Knupsox, McQuape and McFappen, JJ.,

concur.

District Court Memorandum Decision

[Filed December 21, 1962]

This matter is before the Court for its ruling upon para-

graphs I, II and IV of plaintiff’s motion to strike directed

to the answer of defendants filed herein.

The Court’s ruling on these paragraphs was reserved

after oral arguments, subject to the filing of briefs of the

parties. All briefs have now been filed with the Court.

After an examination of the record, including exhibits

attached to the pleadings and exhibits and documents

produced by interrogatories and discovery, | have con-

cluded that plaintiff’s motion should be granted as to

paragraphs I, UI and IV.

My reasons for so deciding, briefly stated, are these:

With regard to the conclusions of defendants in para-

graph VI of defendants’ first affirmative defense, I have

concluded that the provisions of the general constitution

and the agreement with Greyhound are so clear and un-

ambiguous that they require no interpretation, and that

their correct interpretation is as plaintiff contends. The

Union’s security clause in the contract (Exh. B) merely

requires that employees covered by the contract shall

remain members of the Union as a condition precedent to

continued employment. It is clear that under the terms of

the constitution, Section 91, plaintiff was still a member of

the Union at the time of the occurrences in question,

although not in good financial standing. The agreement

(Exh. B) does not authorize defendants to cause plaintiff’s

discharge for such a condition. I thus conclude this pur-

ported defense is sham and should be eliminated at this

time so it will not confuse the issues at time of trial.

With regard to paragraph IV, seeking to strike defend-

arts’ second affirmative answer and defense, I conclude

that it is also completely sham and irrelevant because it

is dealing solely with employee grievances with their em-

ploying company, and by its terms it is obvious that it has

nothing to do with internal administrative procedures

within the Union insofar as it relates to disputes between

the Union and its members.

Counsel for plaintiff is requested to prepare a formal

order in accordance with this memorandum opinion.

Dated this 21st day of December, 1962.

Mearuin S. Younc

District Judge.

Affidavits Filed With Motion To Alter and Amend Judgment

or Order

[Filed Jan. 24, 1963]

Allen A. Noel

I, Auuen A. Nokgt, being first duly sworn, depose and say:

That I am a Vice President of the Amalgamated Asso-

ciation of Street, Electric Railway and Motor Coach Em-

ployes of America;

That on the Ist day of May, 1958 I was the duly qualified

and acting Trustee for Division 1055 and as such Trustee

for Division 1055 I acted for and negotiated the Working

Agreements the said Division had with employers in its

jurisdiction, and that among the contracts negotiated for

and on behalf of Division 1055 were Contracts ‘‘A’’ and

“B’’, executed as of the Ist day of May, 1958, covering

Divisions 7 and 8A respectively of Western Greyhound

Lines ;

That the language adopted under Section 1, Subsection

3 of Contract ‘‘B’’ did inadvertently omit the words ‘‘in

good standing,’’ however said clause was interpreted by

myself as Trustee for Division 1055, as well as Western

Greyhound Lines, to require membership in good standing

in Division 1055 in order for employees to have continued

employment with Western Greyhound Lines;

That there was never any intention to set up different

rules and regulations for employees of Western Greyhound

Lines for Division 8A from rules and regulations covering

employees of Western Greyhound Lines in Division 7, in-

asmuch as employees of Western Greyhound Lines in Divi-

sion 7 and Division 8A were all members of Amalgamated

Association of Street, Electric Railway and Motor Coach

Employes of America, Division 1055;

That it was the understanding and belief of myself as

Trustee for Division 1055 and the members of Division |

1055 that it was a violation of the Labor-Management Rela-

tions Act of 1947, as amended, to establish different rules

and regulations for members of our Union who were en-

ployed by the same company, and that such differentiation

of treatment would be an unfair labor practice under the

aforesaid National Act as discriminatory treatment was

given the members.

H. T. Oathes

I, H. T. Oarues, being first duly sworn, depose and say

that:

1. I am the Senior Business Representative of the Amal-

gamated Association of Street, Electric Railway and Motor

Coach Employees of America, Division 1055, and was

Senior Business Representative of said Division 1055 from

June, 1941 to March, 1958. As Senior Business Repre-

sentative, it was my duty, and I did act on behalf of said

Division 1055 in negotiating agreements with employers

and that during said period of time I actively participated,

and know the agreement, understanding and intention of

the parties in each of the contracts referred to below in

this Affidavit.

2. Throughout the period I was Senior Business Repre-

sentative, the employees driving generally South from Port-

land to Eureka and Redding, now known as Division 7,

were covered by collective bargaining contracts, negotiated

in general either every year or every two years with Pacific

Greyhound. Each of these contracts contained a clause

which included the provision that employees, union mem-

bers at the effective date of the Agreement, and new em-

ployees within 30 days of their employment, shall ‘‘remain

members in good standing as a condition precedent to con-

tinued employment with the Company’’.

3. The employees driving from Seattle east to Spokane

and Buttte, now in Division 8A, were originally employees

of Washington Motor Coach, Inc., and in and after 1947,

employees of Northwest Greyhound. These employees

were covered by collective bargaining contracts, negotiated

in general either every year or every two vears. Each of

these contracts contained a clause which included the provi-

sion that all employees ‘‘shall become and remain members

of the Assoctatron during the life of this Agreement.”’

I always understood this language as creating the same

obligation as in the Division 7 contracts, that the member-

ship must be in good standing. I never made any distinc-

tion between employees or members based on the lack of

the words ‘‘in good standing’’.

The parties to these contracts never agreed, understood

or intended that the word ‘‘members’’ should mean any-

thing different from ‘‘members in good standing’’.

4. The employees driving from Portland east to Salt

Lake City, now also in Division 8A, also were covered by

collective bargaining contracts negotiated generally every

year or every two years, originally with Union Pacific

Stages, Inc., and then with Overland Greyhound Lines.

Each of these contracts contained a clause which required

that members, effective as of the effective date of the agree-

ment, and new employees, originally within 90 days and

since 1950 within 30 days of their employment, shall ‘‘be-

come members and remain members in good standing as a

condition precedent to continued employment with the Com-

pany.”’

5. Northwest Greyhound Lines took over the operation

of the routes and employees referred to in paragraphs 3

and 4 above, so that effective March 2, 1956, an agreement

was executed between Northwest Greyhound Lines and

Division 1055. In negotiating and reaching this contract,

I and both parties worked from the preceding Northwest

Greyhound contract, for reasons having nothing whatever

to do with the Union security clause and dues requirement,

and without any issue being raised by either side as to the

continuation of the parties’ agreement, understanding and

intention that the membership required was membership

in good standing.

6. In the agreement of March 2, 1956, there is a provision

including the following language:

‘*All present employees covered by this contract

shall become members of the Assoctation not later

than thirty (30) days following its effective date and

shall remain members as a condition precedent to con-

tinued employment.”’

The omission of the words ‘‘in good standing”’ after the

word ‘‘members’’ was not agreed, understood or intended

to have any significance. Both Division 1055 and North-

west Greyhound Lines agreed, understood and intended that

this provision should apply to employees identically as the

previous provision. Neither Division 1055 nor Northwest

Greyhound Lines intended, understood or agreed that there

was any significance or any purpose in the omission of the

words ‘‘in good standing’’. The intention, understanding

and agreement of both contracting parties, and the only

meaning of the words in the contract, is that they mean

and must be interpreted as requiring employees to become

and to remain members in good standing.

7. In each of the contracts referred to above effective

subsequent to the enactment of the Taft-Hartley Act in

1947, the parties agreed, understood and intended the

Union security clauses referred to herein as providing Divi-

sion 1055 with the maximum degree of union security per-

mitted by the Federal Law. Wilson P. Lockridge, the plain-

tiff in this case, was employed on or about May 16, 1943.

He was governed by the contract between Division 1055 and

Union Pacific Stages, Inc., and was required to become a

member in good standing. He has been governed by the

successive agreements in which there was never any inten-

tion, understanding or agreement to modify the meaning

of the Union security clause or the language contained

therein. The language in the 1956 contract with Northwest

Greyhound Lines was understood both by Division 1055

and Western Greyhound Lines to mean membership in good

standing in the Union for continued employment with the

Company.

M. C. Frailey

I, M. C. Frattey, being first duly sworn, depose and say:

That on or about the 1st day of May, 1958, I was the

Executive Vice President of Western Greyhound Lines, a

division of The Greyhound Corporation and as such Execu-

tive Vice President I was in charge of contract negotiations

representing Western Greyhound Lines;

That I, acting on behalf of Western Greyhound Lines,

did negotiate and execute contracts for Western Greyhound

Lines including contracts designated ‘‘B’’ and ‘‘C’’ cover-

ing Western Greyhound Division 8A and 8B, executed as

of the Ist day of May, 1958, as well as Contract ‘‘A’’ cov-

ering Western Greyhound Division 7. That the language

adopted in respect to the requirement of maintaining mem-

bership in the Union in Section 1, Subsection 3 of Contract

‘“‘B’’ was understood by all parties not to modify or change

the requirements of membership previously required of

Division 8A of Western Greyhound Lines and the contract

interpretation of the Union Security Clause covering these

employees under predecessor employers;

That by the adoption of the language of Subsection 3 of

Section 1 of Contract ‘‘B’’, Western Greyhound Lines

understood that membership in the Union, Division 1055,

must be maintained in good financial standing in order to

meet the requirements of continued employment with West-

ern Greyhound Lines.

Datep this 21st day of January, 1963.

Pre-Trial Order

[Filed January 28, 1963]

The parties to this action, having appeared before the

Court at a pre-trial conference on the 25th day of January,

1963, the plaintiff being represented by Samuel Kaufman,

Jr. of the firm of Anderson, Kaufman & Anderson, and the

defendants being represented by George Greenfield, of the

firm of McClenahan & Greenfield, Boise, Idaho, Paul Bailey,

of the firm of Bailey, Swink & Gates, Portland, Oregon,

and Isaac N. Groner of the firm of Bernard Cushman &

Isaac N. Groner, Washington, D. C., the following action

was taken, pursuant to Rule X of the Local Rules:

Defendants’ motion entitled ‘‘ Motion to alter and amend

judgment or order,’’ treated by the Court as a motion by

defendants to file amended answers, was argued by respec-

tive counsel, and after argument denied by the Court.

The Court ordered that the proposed amended answers

of defendants, together with affidavits in support thereof,

heretofore erroneously filed by the Clerk of the Court, re-

main a part of the record of the case.

;

lil

Counsel stipulated that further pre-trial in this matter

would be postponed until such time as the Court and coun-

sel mutually agree upon.

Dated this 28th day of January, 1963.

Merun S. Youne

District Judge

Second Amended Complaint

[Filed March 31, 1965]

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

Civil No. 30613

Wison P. Locxrives, Plaintiff,

AMALGAMATED AssociATION oF STREET, Exectric Rarway

AND Motor Coach EMp.LoyEEs oF America, an Inter-

national Labor Union; and Nortuwest Division 1055

of the AMaLGamMatep AssocraTION oF STREET, ELEcTRIC

Rartway AND Moror Coach EMpLoygEs oF AMERICA, &

Regional Division of the International Union,

Defendants.

SECOND AMENDED COMPLAINT

Comes Now plaintiff above named and for cause of action

against defendants and each of them, complains and alleges

as follows:

Count ONE:

That the defendant, Amalgamated Association of Street,

Electric Railway and Motor Coach Employees of America,

hereinafter referred to as the International Association, is

an organized association having as members various work.

men skilled and trained in operating passenger motor

busses including those owned and operated by Greyhound

Corporation throughout the State of Idaho. That said

International Association has its own duly elected officers

acting for and on behalf of the International Association

and having ultimate control and supervision over all of

the members of the International Association and the

various regional divisions.

That the Northwest Division 1055 of the Amalgamated

Association of Street, Electric Railway and Motor Coach

Employees of America, hereinafter referred to as Division

1055, is a regional division of the International Association

and includes as members thereof all members of the Inter-

national Association who live and work within the regional

boundaries of Division 1055. That said Division 1055 has

its own duly elected officers but that all members of Division

1055, and the officers thereof, as members of the Inter-

national Association, are subject to ultimate authority and

control of the International Association and are all subject

to ultimate authority and control of the International

Association and are all subject to the constitution and

general laws of the International Association.

That the International Association, through its inter-

national officers and officers and agents of Division 1055,

have conducted and are conducting businesses within the

State of Idaho and at various times officers and agents of

both the International Association and Division 1055 are

within the State of Idaho acting for and on behalf of said

International Association, Division 1055 and the members

of the International Association. That many members of

the International Association and Division 1055 thereof live

in and are employed within the State of Idaho. That the

International Association and regional division are the

exclusive representatives of all members of the union for

the purpose of collective bargaining relative to conditions

of employment and for negotiation and execution of con-

tracts with employers pertaining to such matters, and

officers and agents of the International Association and

Regional Division 1055 come into the State of Idaho to

bargain with employers on behalf of members and to

negotiate contracts between employers and the union on

behalf of its members. That by the constitution and general

laws of the International. Association, said association and

the regional division in which the member resides are

irrevocably authorized to act as agents for all members

before any committee, board of arbitration, arbiter, court

or any tribunal in any matter affecting members’ status

as an employee and to represent and bind the members in

the presentation, prosecution, adjustment and settlement

of grievances, complaints and disputes arising out of the

members’ employment relationship.

That since on or about May 16, 19438 and to and including

on or about November 2, 1959, plaintiff was a member of

the International Association within the area of Regional

Division 1055 thereof, and was employed as a bus driver

for Greyhound Corporation, a private corporation having

as its main business purpose, the operation of public busses.

That all drivers of Greyhound busses, and other public bus

lines, are members of the International Association and no

person can be employed as a bus driver nor retain such

employment unless he is a member of said International

Association. That on November 2, 1959, plaintiff had over

16 years seniority as a bus driver with Greyhound Corpo-

ration and under contracts between the International Union,

its regional divisions and Greyhound Corporation, seniority

in said employment has commensurate therewith benefits

in working conditions and compensation.

That prior to November 2, 1959, C. A. Bankhead,

Treasurer and Fniancial Secretary of Division 1055, acting

for Division 1055 in his official capacity as such Treasurer

and Financial Secretary, and acting for and on behalf of

the International Union and the officers thereof, suspended

plaintiff from membership in the union on the basis that the

plaintiff was in arrears in his payment of dues contrary

to the requirements of the constitution and laws of the

union and thereafter notified Greyhound Corporation that

plaintiff was no longer a member in good standing of the

union and requested said Greyhound Corporation to remove

plaintiff from employment. That immediately following

the receipt of such notice, on or about November 2, 1959,

said Greyhound Corporation discharged plaintiff from

employment. That plaintiff was not in arrears in his dua

to the extent that he was subject to suspension from union

membership under the constitution and laws of the Inter-

national Association, and the acts of said Bankhead, afore-

said, were wrongful and without any lawful basis. That

additionally, it has been customary over the years, on

numerous occasions, for members to be in arrears in their

dues and to plaintiff’s knowledge no member of the union

has ever been suspended from membership therein within

Division 1055 by reason thereof.

That at the time of his discharge from employment as

aforesaid, plaintiff was 46 years of age, earning in his

employment an average of approximately $7,200.00 per year |

and with his seniority status, barring unforeseen death or |

disablement, would be able to earn in the future for the

next 20 years and until he became 65 years of age, in excess

of $7,200.00 per year, and additionally, at the age of 65

years would have been able to retire with retirement pay

of approximately $3,600.00 per year.

Vil

That in suspending plaintiff from membership in the

International Association which resulted in plaintiff’s loss

of empluyment, the defendant International Association

and Division 1055, acting by and through their duly

authorized officers and agents, acted wantonly, wilfully and

wrongfully and without just cause, and, to plaintiff’s knowl-

edge, in a manner never before indulged in, and have

deprived plaintiff of his livelihood and all benefits of his

employment with Greyhound Corporation that accrued to

him and would accrue to him by reason of his employment,

seniority and experience, and plaintiff has been harassed

and subject to mental anguish, all to plaintiff’s damage in

the sum of $212,200.00.

Vill

That in suspending plaintiff from membership in the

International Association as aforesaid, said International

Association and Regional Division 1055 thereof, acting

through its officers and agents, acted contrary to all custom

within said union since, to plaintiff’s knowledge, no member

of said union, within Region 1055, had heretofore been so

suspended for arrears in dues and said International

Association and Division 1055 thereof, acting by and

through its duly authorized officers and agents, proceeded

contrary to the constitution and laws of the International

Association and precluded plaintiff from any remedy he

may have under said constitution and laws. That never-

theless plaintiff did all things and performed all acts which

would have been required of him under the constitution

and laws had the International Association and Division

1055 acted in conformance with the requirements of the

constitution and laws of the union, but to no avail. That

further, any acts on the part of the plaintiff for reinstate-

ment to membership were and would have been useless

procedures on his part, it being the attitude of the officers

of the International Association and Division 1055 that

plaintiff would not be reinstated to membership in the

International Association under any circumstances.

Count Two:

Plaintiff repeats and realleges all of the allegations con-

tained in paragraphs I, II, III, IV, V, VI and VIII of

Count One.

That section 83 of the constitution and general laws of

the International Association provides that no member

shall be allowed to injure the interests of a fellow member

by undermining him in place, wages or in any other wilfy

act by which the reputation or employment of any member

may be injured. That in wrongfully suspending plaintiff

from membership in the International Association, which

resulted in plaintiff’s discharge from employment with the

Greyhound Corporaticn, the defendant International As.

sociation and Regional Division 1055 thereof, acting by

and through its authorized officers and agents, acted wrong.

fully, wantonly, wilfully and maliciously and without just

cause and violated the constitution and general laws of the

International Association which constituted a contract

between the plaintiff as a member thereof and the Inter.

national Association, and as a result of said breach of

contract plaintiff has been deprived of his livelihood and all

benefits from his employment with said Greyhound Corpo.

ration that have accrued and would accrue to him by reason

of such employment, his seniority and experience and

plaintiff has been embarrassed and subjected to mental _

anguish, all to plaintiff’s damage in the sum of $212,200.00.

Wuenrerorg, plaintiff prays judgment against the defend-

ants and each of them, for the sum of $212,200.00, together |

with costs and disbursements incurred herein and such

other and further relief as to the court may appear meet

and equitable in the premises.

Anperson, KaurMAN AND ANDERSON

Samvurt Kaurman

A member of the Firm

501 Idaho Bldg., Boise, Idaho

Attorneys for Plaintiff

Ris wn. ott bg

ninieal

—_—

fe it a CAG de

District Court Memorandum Decision

[Filed June 21, 1966]

This matter has been in court since September of 1960.

In his original complaint plaintiff sued the defendant unions

and Greyhound Corporation. Thereafter plaintiff volun-

tarily dismissed Greyhound Corporation. This Court

thereafter granted the unions’ motion to dismiss plaintiff's

complaint on the ground that the courts of the State of

Idaho lacked jurisdiction because the matter in controversy

‘arguably’? involved unfair labor practices under Sections

7 and 8 of the N.L.R.A., and thus was ‘‘preempted.’’ In

making this ruling, this Court relied upon San Diego

Building Trades Council v. Garmon, 359 U.S. 236, 3 Law

Ed. 2d 775, 75 Sup. Ct. 772, and Wazx v. International

Mailers Union, 161 A 2d 603 (Pa.). At this same time I

denied defendants’ motions to dismiss plaintiff’s complaint

upon the following grounds: That the complaint failed to

state a claim; that defendants were not properly served

with process; that the Council of Western Greyhound

Amalgamated Divisions is an indispensable party to the

action; that there has been a misjoinder of causes of action.

These rulings stand.

The above order of dismissal of this Court was appealed

to the Supreme Court of Idaho and reversed by unanimous

decision in March of 1962 (Lockridge v. Amalgamated

Association, et al., 84 Idaho 201; 365 Pac. 24 1006). In

doing so, the Idaho Supreme Court said: ‘‘We hold that

under the rule of the Gonzales case the District Court had

jurisdiction of the controversy and that the Garmon case

is not in point.’’ The Court was referring to Association

of Machinists v. Gonzales, 356 U.S. 617, 2 Law Ed. 2d 1018,

78 Sup. Ct. 923.

Following the Idaho Supreme Court decision and after

much delay as the result of numerous conferences and

motions, the matter became at issue, and was tried before

this Court in October of 1965.

There is very little dispute over the facts. In summary,

my opinion is that the plaintiff has established by a pre.

ponderance of evidence that the defendants through their

officers wilfully and intentionally caused a termination of

plaintiff’s employment with Greyhound Corporation pur.

suant to the provisions of a collective bargaining agreement

with Western Greyhound Lines, which agreement provided

that all employees ‘‘shall remain members (of Division

1055) as a condition precedent to continued employment,”

on the ground that plaintiff was not a member of Division

1055 in good financial standing. However, in fact, at the

time of termination of his employment, plaintiff was a

member of Division 1055 under the terms of the Union

Constitution, although he was not in good financial stand-

ing because he was one month delinquent in payment of his

dues.

Following termination of plaintiff’s employment, he made

some efforts to seek reinstatement in the union through

union procedures. The defendants contend the plaintiff

failed to exhaust his internal union remedies, and this

alone should be sufficient to bar this action. (87 ALR 2d

1099-1103) While plaintiff could have made a better legal

record of his attempts to seek reinstatement through union

procedures, I conclude that the facts taken as a whole and

the inferences which I believe may legitimately be drawn

therefrom indicate that further attempts to follow pro-

cedures provided by Section 81 of the Union Constitution

would have been futile. The International President

Elliott, Charles C. McCaffery, an International Vice

President, and E. W. Oliver, a member of the General

Executive Board, were aware of and approved of the

decision of the Financial Secretary of Division 1055 to

ask plaintiff’s termination with Greyhound. I am con-

vinced that the true facts are that the defendants’ officers

were irritated by plaintiff’s refusal to go along with a

Se ES

— ee ae

—

voluntary dues check-off by Greyhound and, mistakenly

believing that they were technically correct, asked plain-

tiff’s termination under the collective bargaining agree-

ment because he was not in good standing. In doing so,

they decided to make an example of plaintiff. They have

held to such technical position since, although the collective

bargaining agreement by its unambiguous terms only

requires that plaintiff remain a member of defendant union

as a condition of employment, as contrasted to a require-

ment that the employee be a member in good standing.

Defendants would bind plaintiff to a claimed mutual under-

standing between the employer and the defendants,

apparently arrived at by ESP that the agreement did not

mean what it plainly says. Likewise they ignore the

custom and tradition of tolerance by the union of such

short term delinquency.

Likewise, I conclude that to pursue grievance pro-

cedures against Greyhound Corporation, as provided in the

collective bargaining agreement, would be an application

of the grievance procedure to a situation which was never

intended to be covered by it. The dispute herein, under the

pleadings and theories of the case accepted by the Idaho

Supreme Court, lies between defendants and plaintiff, or

between the union and its member, and not between an

employer and its employee. Defendants urge the ru'e in

the case of Republic Steel Corporation v. Maddox, 379 U.S.

650, 13 L. Ed. 2d 580, 85 Sup. Ct. 614, which requires that

an employee pursue grievance procedures before suing in

court for contract benefits provided under a collective bar-

gaining agreement. The factual situation here is very

different from Maddox.

Thus, although I have not spelled out my findings in

detail, I find that the allegations of Patagraphs I, II, II,

IV, V and VIII of plaintiff’s second amended complaint are

sustained by a preponderance of the evidence and well state

the ultimate facts which have been preved in this case.

In view of foregoing holding, except for the question —

of damages, which will be discussed hereafter, the only

remaining issue is the legal one of whether under the above _

stated findings this court or any state court has jurisdiction —

of the issues involved in this case. Although the pleadings —

have been amended rather substantially, the pre-emption —

issue is the same as it was when this matter first went to

the Idaho Supreme Court. I think defendants’ position on

this issue is greatly reinforced by Plumbers’ Union y,

Borden, 373 U.S. 690, 10 L. Ed. 2d 638, 83 Sup. Ct. 1423;

Iron Workers v. Perko, 373 U.S. 701, 10 L. Ed. 2d 646, 83

Sup. Ct. 1429; and Day v. Northwest Division 1055, et al,,

238 Ore. 624, 389 Pac. 2d 42. Plaintiff continues to claim

that he is entitled to damages for injury to his employment

as distinguished from remedies for loss of union rights;

nevertheless, I feel that I have been virtually directed by

the Idaho Supreme Court to decide this case on the theories

of ‘‘Gonzales,’’ and I must consider that decision the law

of this case. In Gonzales, the plaintiff primarily sought

reinstatement in the union so he could work on union con-

structior jobs. Damages were incidental to this relief. The

same relief would under the theories of plaintiff in this

action afford him the major part of his remedy.

I thus conclude that although plaintiff has never sought

such remedy, he is entitled to restoration of his membership

in defendant unions upon payment of current dues, and in

addtion he is entitled to actual damages suffered as a

result of loss of membership from the time of its wrongful

termination to its restoration.

The record does show that his loss of membership did

deprive him of employment with Greyhound and other bus

driving jobs. He was not equipped by education or

experience to find other employment with a comparable

income. Using the earnings of Greyhound driver Francis

Carter who took plaintiff’s place on the seniority list as

compared to plaintiff’s earnings as shown by his income

tax returns between November 3rd, 1954, to September 15,

——_

1965, I find the plaintiff’s actual damages resulting from

loss of his driving job with Greyhound have been $32,678.56.

This amount was computed as follows:

YEAR CaRTER PLAINTIFF

1959 $ 6,017.57 $ 5,014.38

1960 6,750.27 "489. 40

1961 7,410.50 258.00

1962 7,213.63 350.00

1963 8,093.61 2,185.00

1964 8,265.59 5,000.00

1965 (Through Sept. 15) 6,185.74 3,961.50

Tora. $49,936.84 $17,258.28

However, I conclude the plaintiff is not entitled to future

damages arising from continued loss of employment with

Greyhound because ‘‘Gonzales’’ and the theories thereof

contemplate that restoration of union membership will

afford full relief and allow his reemployment at the same

job. However, I further find that plaintiff is entitled to

accruing damages at the rate of $3,500.00 per year until

membership in the union is fully restored. Although plain-

tiff will theoretically lose seven years of seniority with

Greyhound, I have no way of computing the value of said

loss. Likewise the monetary value of any retirement and

insurance benefits lost during this period has not been

established.

I further conclude that plaintiff is not entitled to punitive

damages against defendants. I do not find their acts

wanton and willful or oppressive to the extent which has

been required in the past by Idaho decisions; and, as

indicated above, I believe that the union, although it wished

to punish the plaintiff for refusing to go along with the

check-off, did believe it was technically on sound legal

ground in requesting his termination. Likewise, it is my

opinion that the plaintiff is partially at fault for his

predicament because he did not pursue certain remedies

which I think were available to him. He might have sought

a restoration of his membership pendente lite through

court order, or through N.L.R.B. action. Although counsel

for plaintiff obviously feels otherwise, I do not believe that

it can be assumed that the N.L.R.B. would have acted up.

favorably to plaintiff had he made application to it and had

all the facts been fully presented to it. What Day pr.

sented has never appeared.

Counsel for plaintiff is requested to prepare findings of

fact, conclusions of law and judgment for my signature jp

accord with this decision. If counsel for defendants wish

to object to any findings or conclusions of law, I ask that

they follow Rule 52(b) I.R.C.P.

Dated this 21st day of June, 1966.

Meru S. Youne

District Judge.

District Court Memorandum Decision and Orders on Motions

To Amend Findings of Fact, Conclusions of Law and

Judgment

[Filed September 1, 1966]

* * * * * e * -_ * Si

This matter is before me upon motions to amend findings

of fact and concluisons of law filed by both plaintiff and

defendants.

By paragraphs I, LJ, and III plaintiff asks the Court to |

award greater damages than found in my memorandum

decision. The actual damages suffered by plaintiff are

basically speculative in a case of this kind and at best

can only be an estimate. Plaintiff dropped his earlier

claims for punitive damages in his last amended complaint,

a fact which I overlooked in my memorandum decision, but

I presume it was done to avoid any inference that his

claim is based in tort for wrongful interference with his

employment. It is difficult for me to see how claims for

embarrassment, discomfort, and mental distress could be

considered to have been within the contemplation of the

parties at the time plaintiff entered into his union member-

ship contract. In any event, I did consider most of the

elements suggested by plaintiff and did arrive at the con-

clusion that under all of the circumstances the difference

between plaintiff’s actual income and his substitute offered

a fair and realistic measures of damages. Therefore, plain-

tiff’s requested amendments I, II, III and IV are denied.

By request V plaintiff asks this Court to direct defend-

ants to restore plaintiff to membership with full restora-

tion of seniority in union membership from 1943. In his

motion plaintiff says, ‘‘Even the N.L.R.B. awards full res-

toration of seniority where restoration of employment is

ordered.’? From this, I gather that plaintiff believes that

by this decision I am ordering plaintiff restored to his

employment with his former employer Greyhound. If it

be so interpreted, I believe this Court would then clearly

be in excess of its jurisdiction because it would be invading

a field which clearly is within the exclusive jurisdiction of

the N.L.R.B. and plaintiff runs head on into the ‘‘ Borden’’

and ‘‘Perko’’ decisions. I do not have any jurisdiction

over his employer-employee relationship in this action. It

is my opinion that at most I can restore to him his union

membership as of the date of its wrongful termination. In

this I am attempting to follow ‘‘Gonzales’’ as I understand

it. I therefore will deny request No. V.

By paragraph VI of his motion to amend, plaintiff seeks

to strike the whole provision providing for future annual

payments upon refusal to restore plaintiff to membership

and to substitute a fixed sum based upon plaintiff’s life

expectancy and the differences in pay and retirement he

might have received from Greyhound as compared to his

present employer. As I indicated at the oral argument, I

have concluded that the future penalty provision was an

error and not authorized under the theory of ‘‘Gonzales’’

or any other theory of law. I will therefore deny plain-

tiff’s requested amendment VI, but will strike Paragraph

XIII from the findings of fact, the parts of conclusions of

law and judgment referring to such future damages.

Plaintiff’s Request VII is granted.

Considering defendants’ motion to amend, I conclude

that overall the record does support a finding that the

union had in the past been tolerant of late dues payment

and that the findings are not too far out of line in that

regard; and the defendants’ international officers knew of

and condoned the actions of Bankhead. Therefore Para-

graphs I and II are denied. I will grant Paragraph III

to the extent that everything after the word ‘‘Court’’ in

Line 5 of Conclusion I will be stricken. All other requests

of defendants will be denied except that ‘‘all customs and”

in Line 7 of Paragraph III of the conclusions of law will

be changed to ‘‘past.’’ Paragraphs IV, V, and VI of de-

fendants’ motion are denied.

I have made the above amendments by interlineation on

the original document. Copies of the portions which have

been altered are attached for counsels’ information.

Ir Is So Orperep.

Dated this 1st day of September, 1966.

Meriin §S. Youns.

District Judge.

District Court Findings of Fact, Conclusions of Law and

Judgment (as Amended)

[Filed September 1, 1966]

* > . . * * * * * *

The above entitled cause came on regularly to be heard

before the court sitting without a jury on the 11th day of

October, 1965, plaintiff appearing in person and by Samuel

Kaufman of the firm Anderson, Kaufman and Anderson,

his attorneys, and defendants appearing by counsel, Isaac

N. Groner, Paul T. Bailey and George A. Greenfield.

| Sim he EON pitas ohadiids r

ema

Wh thet hE Mee

Whereupon, following submission of ora] and documentary

evidence, counsel presented oral argument and written

briefs and the court being now fully advised in the prem-

ises, makes the following Findings of Fact and Conclu-

sions of Law, as follows:

FINDINGS OF FACT

That defendant Amalgamated Association of Street,

Electric Railway and Motor Coach Employees of America,

hereinafter referred to as the International Association, is

an organized labor association or union having as members

workmen connected in some manner with the operation of

trolleys, busses and coaches, including those skilled and

trained in driving the same and particularly, as concerns

this case, busses owned and operated within the State of

Idaho by Western Greyhound Lines, a division of Grey-

hound Corporation. That said International Association

has its own duly elected officers acting for and on behalf

of the International Association and having ultimate con-

trol and supervision over all of the members of the Inter-

national Association who in turn are grouped within var-

ious regional divisions.

That Northwest Division 1055 of the International As-

sociation, hereinafter referred to as Division 1055, is one

of the regional‘divisions of the International Association

and includes as members thereof members of the Interna-

tional Association who live and work within the regional

boundaries of Division 1055 which includes portions of the

State of Idaho. That said Division 1055, and the officers

thereof, are members of the International Association, sub-

ject to ultimate authority and control of the International

Association within the framework of the constitution and

general laws of the Association (Exhibit 34) to which they

are all subject.

i iiiasiennnnsinseneente

lil

That the International Association, through its Inter-

national officers and through officers and agents of Division

1055, and Division 1055 itself, through its officers and

agents, have each conducted and are conducting business

within the State of Idaho. That at various times officers

and agents of both the International Association and Di-

vision 1055 are within the State of Idaho acting for and

on behalf of the International Association, Division 1055

and the members thereof. That a number of members of

the International Association and Division 1055 thereof

live in and are basically employed within the State of Idaho

and the International Association and Division 1055 are

the exclusive representatives of said members for the pur.

poses of collective bargaining relative to conditions of em-

ployment and for negotiation and execution of contracts

with employers pertaining to such matters, some of which

employers are within the State of Idaho, and officers and

agents of both the International Association and Division

1055 come into the State of Idaho to conduct internal union

affairs and to bargain with employers on behalf of members

and to negotiate contracts between employers and _ the

union on behalf of the members of said International As-

soication and Division 1055.

That plaintiff is a man of the approximate age (at time

of trial) of 51 years, married and with two children, both

of whom, at time of trial had reached the age of majority.

Plaintiff did not complete high school and has no educa-

tional or experience background to qualify him to do much

else than drive a bus or other similar motorized vehicle

and has a physical disability of the back resulting from an

accident driving a bus prior to 1959, which disability cur-

tails plaintiff’s activities in other fields involving physical

labor.

That since on or about May 16, 1943, and to and includ-

ing on or about November 2, 1959, plaintiff was a member

of the International Association within Division 1055

thereof and has continuously been employed as a bus driver

for Western Greyhound Lines, or its predecessors. That

on November 2, 1959, plaintiff had over 16 years seniority

as a bus driver and under the laws of the union and the

employment contract, Exhibit 35, such seniority commen-

surate rights and benefits in working privileges and com-

pensation to be received therefrom. Exhibit 35 com-

prises actually two contracts, Contracts B and C, but the

contract covering plaintiff’s employment and which is

pertinent in this case is Contract B, being the appropriate

first half or the white pages of Exhibit 35.

a That on or about November 2, 1959, C. A. Bankhead,

e treasurer and financial secretary of Division 1055, acting

in his official capacity and within the scope of his activities

_ as treasurer and financial secretary and, under the facts

, presented and all reasonable inferences to be drawn there-

from, acting for the International Association and pur-

suant to knowledge and approval of, if not direct advice

- and orders from, the International Association President,

| and International Vice-President, and a member of the

i General Executive Board of the International Association,

' suspended plaintiff from membership in the union on the

- sole grounds that plaintiff was in arrears in payment of

dues contrary to the requirements of the constitution and

_ general laws of the union (Exhibit 34) and by letter dated

- November 2, 1959 (Exhibit 4) notified the employer, West-

ern Greyhound Lines, that plaintiff was no longer a mem-

ber in good standing in the union and requested said em-

ployer to remove him from employment. That immediately

following receipt of such notice from C. A. Bankhead, the

employer discharged plaintiff from employment (Exhibits

foe rn RGAE AAA Ch saree

8 and 9). One Elmer Day was likewise suspended under

identical circumstances.

VII

That the contract agreement (Exhibit 35), and particu.

larly paragraph No. 3a of Section I, on page 5, requires

that all employees covered by the contract become members

of the association not later than 30 days following its effee-

tive date and thereafter remain members as a condition

precedent to continue employment. Section 91 of the Con-

stitution of the International Association (Exhibit 34) pro-

vides that all dues, fines and assessments are due on the

1st day of each month and must be paid by the 15th of

the month in order to continue the member in good stand-

ing. It further provides that a member in arrears after

the 15th day of the month is not in good standing and not

entitled to certain benefits and further, where a member

allows his arrearages to run over the last day of the second

month without payment, he does thereby suspend himself

from membership in the association, meaning the Interna-

tional Association. Said Section 91 further provides that

where agreement with employing companies provides that

members must be in continuous good financial standing,

the members in arrears one month may be suspended from

membership and removed from employment. Section 93

of Exhibit 34 provides that where members are in arrears

past the last day of the second month they shall, at the

last meeting of each month, be reported by the financial

secretary as having suspended themselves from member-

ship except where members are suspended in compliance

with the terms of agreements, the members may be so re-

ported and suspended after the period of one month. That

at the time of their suspension from membership in the

International Association on or about November 2, 1959,

plaintiff and said Day were in arrears in payment of their

dues only since the 1st day of October, 1959. Additionally,

it has over the years been customary within Division 1055

for members to be in arrears in their dues without being

| suspended, even though said arrearages exceeded 60 days,

it being the custom of Division 1055 in the past, and almost

without exception, to remove the delinquent member only

from service rather than suspend him from union member-

ship and immediately upon payment of his delinquent dues,

put him back in service without loss of seniority. Addi-

tionally, the financial secretary of Division 1055 did not

report at the last meeting prior to suspension, that plain-

tiff or Day were in arrears in dues.

Vill

That at the time plaintiff’s wife was notified of plain-

tiff’s suspension from union membership in early November

1959 (plaintiff was elk hunting during a vacation period),

plaintiff’s wife, by letter dated November 10, 1959, sub-

mitted to C. A. Bankhead, financial secretary of the Di-

vision 1055, a check to cover plaintiff’s dues for both

October and November, but the said C. A. Bankhead refused

to accept the same and the check was returned (Exhibit 5).

Following his return to Boise in mid-November 1959,

and immediately upon learning of his suspension from

union membership with resulting termination of his em-

vloyment, plaintiff contacted C. A. Bankhead requesting

advice as to what he could do to obtain reinstatement of

his union membership and on several occasions submitted

checks for his arrearages and penalties all of which were

refused. On one occasion during November 1959, another

driver and fellow member tendered dues for plaintiff to

Bankhead who was told not to accept the same by Inter-

national Vice-President Charles McCaffery. While the

said Bankhead suggested to plaintiff that he write to the

International President, which plaintiff delayed in doing

until January 8, 1960 (Exhibit 11) said Bankhead himself

wrote to the International President (Exhibit 6) requesting

that the International President and/or the General Execn-

tive Board waive the provisions of Section 94 of the Con-

stitution and reinstate plaintiff. This was not done and

subsequently there evolved correspondence between Plain-

tiff and the International President and others (Exhibits

10, 11, 12, 13, 14, 15, 16, 17) as well as oral conversations

between plaintiff and other union members on his behalf

and officers of both Division 1055 and International Vice.

President McCaffery.

That at the time of his suspension from union member.

ship, plaintiff was 46 years of age. In 1959 he earned

$5,014.38 from his employment although he did not work

the full year. Upon plaintiff’s suspension from union

membership, the next driver in seniority, one Francis

Carter, moved up in the seniority list and in effect, took

plaintiff’s place on that list. The comparable earnings of

said Carter and plaintiff for the period 1959 through Sep.

tember 15, 1965, are as follows:

YEAR CARTER PLAINTIFF

1959 $ 6,017.57 $ 5,014.38

1960 6,750.27 489.40

1961 7,410.50 258.00

1962 | 7,213.63 350.00

1963 8,093.61 2,185.00

1964 8,265.59 5,000.00

1965 (Through Sept. 15) 6,185.74 3,961.50

Tora $49,936.84 $17,258.28

That during the past several years the said Carter has,

by reason of his seniority, been able to bid and hold a

regular run. That in addition thereto, had he chosen to

do so, he could have worked what is known as the extra

board, which is the customary practice of other drivers, but

which Carter chose not to do for personal reasons. The

evidence discloses that for the years 1963 and 1964, the

said Carter, working the extra board, could have earned at

—_—

least $1200.00 a year more than he chose to and commenc-

ing 1965, any driver with such seniority could earn at least

$10,000.00 per year.

That following his suspension from union membership

in November 1959, plaintiff was without steady employ-

ment until after mid-1963 when he obtained employment

with the State of Idaho Highway Department which necessi-

tated his moving from Boise Valley to Lowman, Idaho,

where he has resided since. Until his employment with

the State of Idaho Highway Department in 1963, plaintiff

- made many efforts to seek employment within the limits

. of his educational, experience and physical abilities and his

lack of earnings during that period are not due to failure

_ of effort on his part.

XII

Plaintiff’s present wages with the State of Idaho High-

way Department are approximately $5,300.00 per year.

That in addition to a difference in earnings of approxi-

mately $4,700.00 per year, various insurance and burial

_ benefits from employment as a bus driver considerably

exceed that which are available to plaintiff as an employee

of the State of Idaho Highway Department although these

cannot be translated into dollars and cents. In addition,

under retirement plans with Western Greyhound Lines,

plaintiff would be able to retire between ages 60 and 65

with a retirement income of at least $300.00 per month

and his present retirement benefits under the State of

Idaho Public Employee Retirement law entitles him to ap-

proximately $50.00 per month retirement. Plaintiff’s life

expectancy at time of trial is approximately 23 years.

xii

That as a result of his suspension from union member-

ship plaintiff has suffered embarrassment, discomfort,

mental anguish and humiliation and additionally a financia)

loss in earnings to September 15, 1965 in the sum of -

$32,678.56.

CONCLUSIONS OF LAW

That each of the defendants, International Association

and Division 1055 are the proper parties defendant jp |

this action, have done and are doing business within the

State of Idaho, were duly and properly served with sum.

mons and complaint herein and are properly within the

jurisdiction of this court.

That the Constitution and general laws of the Interna.

tional Association (Exhibit 34) as well as the contract

agreement (Exhibit 35) are, with respect to plaintiff’s re

quirement for paying dues and his suspension from men.

bership in the union for failure to pay dues, clear and

unambiguous in their terms. That the contract, Exhibit

35, requires only that plaintiff remain a member of the

Association and Section 91 of the Constitution therefore

does not provide for suspension from union membership

until plaintiff be arrears in his dues past the last day of the

second month. That on November 2, 1959, plaintiff was

in arrears in his dues only two days past the first month

and his suspension from union membership was wrongful.

Ill

That even where employment contracts provide that the

union member remain in good financial standing, as op-

posed to merely being a member of the union as is the

requirement of Exhibit 35, suspension from union member-

ship after 30 days delinquency is not mandatory but dis-

eretionary and any suspension of a union member for dues

delinquency after 30 days violates past practice of Division

1055. That in suspending plaintiff fron” "0" membership

officers of Division 1055 did not confor’ Mages ——

requirements of the Constitution nor - ae pak a.

practices of Division 1055 and at al es acted wi

knowledge and consent of, if not direct orders from, officers

of the International Association.

That while plaintiff might have mde a better legal

record of his attempts to seek reinstate’Ment through union

procedures, particularly Section 94 of the Constitution, the

facts, taken as a whole, together wit? all reasonable in-

ference which may be legitimately draW? therefrom, indi-

cate that any further attempts on plaintiff’s part to seek

reinstatement or to follow other procedures such as pro-

vided in Sections 79-81 of the Constitution, the proper

application of which in this instance is doubtful, would

have been useless and futile gestures.

The grievance procedures set forth under Section 1,

paragraph 3 and following of Exhibit 35 are of no proper

application in this instance and are intended to cover

grievances existing between an employee and employer

and not internal problems existing between the union mem-

ber and the union such as in this case,

That the Constitution and Bylaws of the International

Union constitute a contract between the union and the

members thereof and in suspending plejntiff from member-

ship in the union at a time when plaintiff was not so in

arrears in his dues that he was propsrly subject to such

suspension, and contrary to all custym within Division

1055, defendants, whose officers and ‘gents acted in con-

cert, violated said contract.

VII

That while the acts of defendants’ officers and agents

in suspending plaintiff from union membership and there.

after refusing to reinstate him were predicated solely upon |

the ground that plaintiff had failed to tender periodic dues

in conformance with the requirements of the union Consti-

tution and employment contract as they interpreted the

same, such acts were nevertheless wrongful and resulted

in a wrongful interference with plaintiff's employment,

occupation and livelihood and subjected plaintiff to em.

barrassment, discomfort, humiliation and mental anguish.

vVilt

While plaintiff did not seek such remedy, he is entitled

to all relief warranted by the evidence and the court con.

cludes that plaintiff should be granted judgment for dam. —

ages of $32,678.56 for loss of earnings to September 15, |

1965, and for full restoration of union membership upon

payment of current dues.

JUDGMENT

WHEREUPON, upon the foregoing Findings of Fact and

Conclusions of Law:

Ir Is Heresy Onperep, ADsupcED anv Decneep that plain-

tiff do have and recover judgment against defendants, and

each of them, for the sum of $32,678.56, together with in- |

terest thereon at the rate of 6% per annum until paid.

Ir Is FurrtHer Orperep, ADJupDGED aND Decreep that de-

fendants restore plaintiff to membership in the Amalga.

mated Association of Street, Electric Railway and Motor

Coach Employees of America, an International Labor

Union, and Northwest Division 1055 thereof upon his tender

of current dues.

—

Ir Is FurtnHer Onperep, Apsupcep anp Decreep THaT

Tue plaintiff do have and recover his costs incurred

herein in the sum of $365.55.

Dated this Ist day of August, 1966.

Meru S. Youne.

District Judge.

Judgment amended by the Court on Sept. 1, 1966, as shown

by additions and deletions shown thereon [deleted from

this printing].

Meru 8S. Younes.

District Judge.

Reporter's Transcript

October 11, 1965

(1) Avreamaxces: For the Plaintiff—Samuel Kaufmm,

Jr., of the firm of Anderson, Kaufman & Anderson, ~

Boise, Idaho.

For the Defendants—George Greenfield, of the firm of

McClenahan & Greenfield, Boise, Idaho |

Isaac N. Groner, Washington, D.C. [;

Paul Bailey, of the firm of Bailey, Swink, Hess & ts

Lansing, of Portland, Oregon.

* 7 - . >: > * * . +.

Wilson Philip Lockridge

Direct Examination

”

[36] Q. On or about August 20th [1959], or shortly there.

after, did you receive a communication from Mr. Bank.

head in the nature of a form letter, which is marked here

as Exhibit 1? A. Yes, I received one.

[37] Q. Mr. Lockridge, I'll ask you if shortly following

October 22nd, 1959, you also received from Mr. Bankhead

the letter dated October 22nd, 1959 addressed to you at

Kuna, Idaho re your September, 1959 dues, marked Plain-

tiff’s Exhibit 2? A. Yes, I received it.

Q. Mr. Lockridge, at the time you received that letter

had you paid your September, 1959 union dues? A. Yes, }

I had.

Q. When you got the October letter? A. Correction; no,

I hadn’t paid by that time.

Q. Were the dues for the month of August, 1959, and all

prior months up to that, paid? —A. Yes.

EAA OP a OS

Q. But you had not paid your September dues; is that

correct? A. That is correct.

Q. And as shown by this exhibit, Mr. Bankhead was

writing you concerning your September dues, was he not?

A. Yes, he was.

e 2 7 * ’ . * * . .

(38] Q. Mr. Bankhead advised you to have those dues

paid by October 28th, and did you get your September,

1959 dues paid on or before October 28th, 1959? A. Yes,

I did.

Q. Do you recall how they were paid? A. I gave the

money to Harold Oathes, and he took it in to the office in

Portland.

Q. Did Mr. Bankhead issue you a receipt for those dues?

A. Yes, he did.

Q. I show you Plaintiff’s Exhibit 3, being a receipt dated

October 26, 1959 for $6.50, union dues for September, 1959

signed by C. A. Bankhead; is that right? A. Yes.

Q. Had you yet paid your October dues, Mr. Lockridge?

A. The October dues were paid by my wife.

Q. Well, I am talking now, when you got the receipt

from Mr. Bankhead for your September dues, had you yet

paid your October dues? A. No.

Q. Did you take a vacation that year? A. Yes, I did.

Q. When did that start, do you recall? A. About the

first of November.

Q. About how long was your vacation? A. About twelve

days.

[39] Q. Where did you go? A. Eik hunting.

Q. Where? A. In Northern Idaho.

Q. When did you leave to go elk hunting? A. It was

about the 1st of November.

Q. Do you recall about when you returned? A. It was

either the 11th or 12th of November.

Q. On your return was there, at your home at Kuna, a

copy of a letter dated November 2nd, 1959 from Mr. C. A.

Bankhead to Mr. Egger, Regional Manager of Westen

Greyhound Company, stating that you and a Mr. Elmer

Day were not in good standing in the union, and asking

that you be removed from employment? Did you receive e

a copy of that which I hand you marked Exhibit 4? A

Yes, I did.

Q. Prior to that time, had you ever received any com. |

munications from Mr. Bankhead concerning your October

dues, similar to Exhibit 2 which he wrote to you concerning

your September dues? A. No, I didn’t.

[40] Do you know whether, Mr. Lockridge, prior to your

return, your wife did in fact send a check in to Mr. Bank.

head to cover union dues for the months of October and

November, 1959?

A. Yes, she did.

Q. Subsequently on November—or shortly after Novem.

ber 13th, 1959, did a letter come to your house directed

to Mrs. Lockridge from Mr. Bankhead returning the check

she had sent to him and indicating that it could not be

accepted, as shown by Exhibit 5? A. Yes, that is correct.

[41] Q. Mr. Lockridge, following your return from the

hunting trip and being advised that Mr. Bankhead had

sent Mr. Egger the letter Exhibit 4, what did you do? A

I talked to Mr. Bankhead on the phone.

Q. And do you recall the essence of what the conversa-

tion was? A. Well, he told me to write a letter to Mr.

Elliott.

Q. Did he advise as to the procedure you should follow!

A. Yes, he did.

Q. What procedure did he indicate that you should un-

dertake then, with regard to any particular section of the

—

Constitution, if any? A. I don’t recall the exact words

that he used. .

Q. Well, I realize this has been a long time ago, but in

essence, can you recall what it was that he advised you

to do, or what constitutional procedures you should follow,

if any? A. I’m sorry, I don’t recall.

Q. You don’t recall the exact advice he gave you, but

did you in effect follow whatever advice he gave you?

A. Yes, I did.

[42] Q. Did you get a copy of a letter from Mr. Bank-

head, of a letter he wrote to Mr. Elliott on November 24th,

1959, which is Exhibit 6? A. Yes, I did.

[43] Q. Now, over the period of the next several months,

did you make any further attempt to send money in as

payment of your dues, of any kind or substance in con-

nection therewith? A. Yes, I did.

Q. By check? A. Yes.

Q. Were those checks sent to Mr. Bankhead by you or

through some other person? A. Yes, they were.

Plaintiff's Interrogatories and Defendants’ Answers

[110] Mr. Kaufman: Interrogatory No. 1. Are not all

members of Northwest Division 1055 of the Amalgamated

Association of Street, Electric Railway and Motor Coach

Employees of America members of the International Union?

The answer as submitted: Defendants and each of them

object to interrogatory No. 1 on the grounds and for the

reason that said interrogatory calls for a legal conclusion

by way of answer.

Subsequently, following a hearing on a motion to compel

answer to Interrogatory No. 1, the answer was as follows:

No, in tht members of Northwest Division 1055 are mem-

bers of that Division only and that Division 1055 is a local

union chartered by The Amalgamated Association of Street,

Electric, Railway and Motor Coach Employees of America

and that said Amalgamated does not have individual mem.

bers as such.

Interrogatory No. 2. Is not Northwest Division 1055

merely a regional division of the International Union!

The original answer was an objection, and following rul-

ing by the Court, it was answered as follows:

No, in that Northwest Division 1055 is not, in a legal

sense, a regional division but is a chartered local union

of the International.

Interrogatory No. 3. Are not the Constitution and

Bylaws of the International Union, [111] being Exhibit

B attached to defendants’ answer in this case, binding

upon all members regardless of which division they are

members off Objection was made that this calls for a

conclusion, and this was sustained.

Interrogatory No. 4: Do not some members of the In-

ternational Union within Northwest Division 1055 live

and work in idaho? Following objection and ruling

thereon, that was answered as follows:

No, in that the International Union does not have mem-

bers as such and only charters divisions as local unions

of the International.

Interrogatory No. 5: It is alleged in paragraph VI on

page 3 of defendants’ answer that notice was given to

plaintiff by defendant Division 1055 that plaintiff would

be in arrears in his dues if they were not paid prior to

November 1, 1960. Attached hereto marked Exhibit 1 is

a letter from C. A. Bankhead, Financial Secretary of

Northwest Division 1055, dated October 22, 1959, and di-

rected to plaintiff. Is this the notice referred to in para-

graph VI of the answer? The answer to that interrogatory

is No.

Interrogatory No. 6: If the attached Exhibit 1 is not

the notice referred to, was the notice so referred to in

eS Seo

writing or oral? What date was the notice given? By

whom was it given? The reply to the interrogatory:

In reply to interrogatory No. 6 [112] defendants’ an-

swer is that notice was given both in writing and orally, by

letter dated August 20, 1959 and by oral statement to the

individual acting as agent for plaintiff on October 26, 1959,

both of these notices given by C. A. Bankhead.

Interrogatory No. 7: At the time notice was given to

plaintiff for what month or months was he purportedly

delinquent in his dues? In reply to interrogatory No. 7

notice was given on October 26th plaintiff was delinquent

for the month of October.

Interrogatory No. 8: If the notice was not Exhibit 1,

what delinquent month or months were referred to in the

notice given?

Answer: Defendants and each of them object to response

to interrogatory No. 8 on the grounds that said interroga-

tory requires the same answer as given in interrogatory

No. 7, which is heretofore answered.

Interrogatory No. 9: Were not the dues of Wilson P.

Lockridge for the month of September 1959 paid by him or

on his behalf on October 26, 1959? The answer is Yes.

No. 10: Did not Mr. Bankhead issue receipt No. 5701

dated October 26, 1959, to W. P. Lockridge acknowledging

receipt of $6.50 covering union dues for September 1959?

The answer is Yes.

No. 11: On November 2, 1959, was not Mr. Lockridge

delinquent in his dues for only [113] one month, being

October 1959? Answer No.

Stipulation

[117] Mr. Kaurman: Now, several things for the record.

It is stipulated and agreed that Exhibit 35 is actually two

agreements, and that the agreement pertinent to Mr. Lock-

ridge is the Contract B, which is the white portion of the

exhibit—the white paper.

Mr. Groner: Your Honor, pertinent is a legal conclusion,

so we couldn’t stipulate as to that.

Mr. Kaurman: Well, it’s the Agreement under which Mr.

Lockridge was employed; the white portion of this exhibit,

[118] Mr. Groner: Yes, we will stipulate as to that.

Txe Court: All right.

Deposition of Clarence A. Bankhead

* a = o * + * . * -

[122] Q. And you sent that letter certified mail to Mr,

Lockridge? A. Yes.

Q. You sent a similar letter certified mail to Mr. Elmer

Day, did you not? A. Yes.

Q. Right. You had other union members besides Mr,

Anderson even who did not pay dues for more than 30

days who were never suspended from the Union, didn’t

you?

[123] A. Yes.

Q. Mr. Day and Mr. Lockridge were the only two sus-

pended from the Union for non-payment of dues, were they

not? A. Yes.

J * . * ‘ . * * - ST

October 12, 1965

[128] Q. Weren’t they? Nobody ever suspended Mr.

Rainesberger because he was delinquent on five different

occasions or more; nobody ever suspended Mr. Sharon be-

cause he was delinquent; nobody ever suspended Mr. House

because he was delinquent; yet Day and Lockridge were

suspended and they are two of the five people who had ob-

jected to the checkoff; and so they were not singled out!

A. Well, I didn’t feel they were singled out.

[138] Q. Other people had been delinquent and not been

suspended; that is fact, isn’t it? A. That is a fact.

2 ent he soo

WILSON PHILIP LOCKRIDGE

Cross EXAMINATION

[182] Q. During any of this period of time—and I am

speaking of the time you were suspended up until date—

have you ever applied at Greyhound for employment?

A. No, I didn’t.

Q. Now, Mr. Lockridge, in the period of 1959 when you

were working for Greyhound, do you recall whether or not

you signed a petition in respect to the dues checkoff?

Mr. Kaurman: I will object to that as irrelevant

and immaterial.

Mr. Bartey: You have already brought that letter

Tue Court: Overruled. I think it touches on his

deposition.

A. There were petitions circulating around Pendleton

about that time.

Q. Did you sign one? A. I might have signed one. I

don’t recall.

Q. Do you know whether or not Mr. Casey Tanner, acting

upon such an assumption or request for refund of your dues

from [183] Greyhound.

Mr. Kavurman: To which I will object as irrelevant

and immaterial, your Honor.

Tue Court: Overruled.

A. I don’t recall having Mr. Tanner to do that.

Q. Do you recall whether or not Mr. Tanner forwarded

to you the sum of $6.50 which was indicated as your dues

for the month of September, 19597 A. Yes.

Q. You received that? A. Yes.

Q. Do you recall approximately when you received it?

A. I don’t remember the exact date on that, no.

Q. Now, when you received that check, did that money—

and it was for the month of September—did you not know

then that your September dues were not paid? A. Yes.

Q. Did you also know that your dues would be from that

time forward not checked off by the employer? A. Yes.

Q. Did you know then that it was your responsibility

personally to make these payments of these dues, sub-

sequent to that time? A. Well, I figured I had until the

last of-——

Q. Answer the question; then you can talk about your

answer, but I asked you if you knew it was your responsi-

bility? A. Yes.

[193] Q. Did you make any other attempt to any other

source to rectify this situation and get yourself back on the

job? A. Yes, I did. I talked to Mr. Robinson with the

Department of Labor.

Q. Department of Labor where? A. Here in Boise.

[194] Q. Is that a Federal department, or State? A. I

really don’t know.

Q. Did you check with the National Labor Relations

Board at any time in this respect? A. I heard earlier that it

wasn’t under the jurisdiction of the Labor Relations Board.

Q. Who told you that? A. I can’t recall who told me.

Q. When did you hear that information? A. That was

shortly after I was suspended.

Q. How long after? A week, a month? A. Oh, I believe

it was near a week.

Q. You don’t know who told you that? A. I don’t remem-

ber, no.

[203] Q. Mr. Lockridge, you testified that some other

persons, drivers had become delinquent in their dues, did

you? A. Yes.

Q. And were they discharged, or suspended from mem-

bership and discharged? A. Only one, that I can remember.

a a a ella

Q. Who was that? A. That was Elmer Day and I.

Q. Just two of you? A. Yes.

| Q. Do you feel they have treated you differently than

they have others, then? [204] A. Probably they sort of

singled us out.

Q. Do you understand what the word discriminate

means? A. I probably don’t understand it.

Q. Mr. Lockridge, in your deposition, taken on Decem-

ber 30th, 1962, on page 131, questions proposed to you by

Mr. Kaufman, he was asking the question, commencing at

the top of the page:

Question. To your knowledge were you and Mr. Day

treated differently in being suspended for an alleged

delinquency in dues than other people who you have

heard of were also delinquent in dues?

Answer. Yes, I believe we were singled out.

Ms Question. And while the reason for your suspension

‘ was as you have testified, a delinquency in the pay-

| ment of dues, to your knowledge were you and Mr. Day

singled out for any reason?

Mr. Kaurman: I will object to that, going into the

: record, or at least any proposed answer to that last

question, going into the record, on the grounds it goes

: beyond the issue in this case, the sole issue in this case

N is whether his dues were paid and whether he was

rightfully suspended for non-payment of dues.

Tue Covrt: Overruled. I think there is a broader

F issue than that, Mr. Kaufman.

Mr. Kaurman: Their answer, your Honor, doesn’t

: set forth that he was suspended for any reason other

than non-payment of dues.

Tue Court: I’m going to overrule the objection.

[205] Q. Continuing: Answer. Well, I believe we were

sort of branded as trouble makers.

Q. New, I ask you, Mr. Lockridge, were those statements

that you made in response to questions by Mr. Kaufman at

that time accurate? A. Well, I can’t recall that I was ever

in any trouble as a trouble maker.

Q. At the time you made this statement in your deposi. _

tion, was this a correct answer in respect to the response |

to that question? A. I suppose I felt that way at that time.

a o * * * * - > . .

Deposition of Clarence A. Bankhead.

7 — > . > > . . . .

[261] Question. Now, look at that again, “Where

agreement with employing companies provide that

members must be in continuous good financial stand. |

ing.” The 30-day provision applies. Again I ask you

with regard to Contract B, where in contract B it states .

anything about good continuous financial standing! |

Answer. The words aren’t in there. ,

. . * - . - . . e . .

Question. I am asking about the suspensions. Mr.

Lockridge and Mr. Day were suspended because they

were part of that group; had they not been there

wouldn’t be any suspension, would there? Answer.

They were suspended because they were delinquent in

their dues.

Plaintiff's Exhibit

AMALGAMATED ASSOCIAT

Srreet, Evectrric Ramway antN OF

Empvoyes or AmeMotor Coacn

AFL-CIO. A

Division 1055

1111 S.W. Fifth Avenue

August 20, 195¢ Portland 4, Oregon

Kuna

Idaho

Dear Sir and Brother:

Recently, the Western Greyhound

attention the fact that you do not haines brought to our

Company a written authorization for on deposit with the

dues and assessments. he deduction of your

We have checked the records on fi

find no such written authorization sijn our office, and we

convenience, we are again enclosing ‘ed by you. For your

Card for check-off of dues and Special Authorization

please sign this card and return it tessments. Will you

than August 28, 1959. division 1055 no later

Without such written authorizati

hound Lines will not withhold dues, the Western Grey-

your wages. This will require payMpd assessments from

and assessments directly to Division py you of your dues

Our labor contract with Greyhou55. :

tion precedent to your continued « uires .

hound, that you maintain membershiovment we _ :

Division 1055. Section 91 of our G) in good standing in

laws provides, in part, as follows: ,+) Constitution oe

“Where agreements with emplc

that members must be in co; : .

standing, the member in arre.= ces Sasa Mile a

suspended from membership . 51, month nae We

ployment, in compliance with 4 wieder a To

ns of the agreement.”

Mr. Wilson P. Lockridge

In the event you do not maintain your membership jn

Division 1055 as specified above, we will be required to have

you dismissed from service with Greyhound. To make

easier your payment of dues, we therefore urge you to sign

the enclosed Authorization Card and return it to Division

1055 immediately.

Fraternally,

C. A. Bankhead

CAB/dh Financial Secretary

Plaintiff's Exhibit 2

October 22, 1959

Certified No. 409304

Re: Your September, 1959 Dues

Mr. Wilson P. Lockridge

Kuna

Idaho

Dear Mr. Lockridge:

By letter dated August 11, 1959, Mr. K. C. Tanner gave

notice to Mr. James C. Dezendorf, attorney for Western

Greyhound Lines, that you, together with a few other in.

dividuals, have authorized and empowered Mr. Tanner to

proceed to termivate dues deductions from your paycheck

because you hav: failed and refused to sign & dues dedue-

tion authorization card. Subsequent thereto, Mr. Tanner

again wrote Mr. Dezendorf stating that you demanded a

refund of all <iues deducted from your paycheck subsequent

to August 1/, 1959. We have received notice that Western

Greyhound (ines, in conformance with the demand by Mr.

Tanner on your behalf, has returned to you the sum of

$6.50, which covered your September dues, and, in return,

Western Greyhound Lines demanded of Division 1055 the

refund of this said $6.50.

In conformance with the demand made upon Division

1055 by Western Greyhound Lines, we have refunded to the

company the sum of $6.50 which covered your dues for the

month of September, 1959.

Section 91 of the Constitution and General Laws of our

International provides, in part, as follows: “Where agree-

ments with employing companies provide that members

must be in continuous good financial standing, a member

jn arrears one month may be suspended from membership

and removed from employment, in compliance with the

terms of the agreement.”

Rule 3 of the agreement between Western Greyhound

Lines and Division 1055 covering Western Greyhound Lines

employees on Division 8 A requires that you maintain

membership in good standing in Division 1055.

Upon the refund of the above mentioned dues, as re-

quested by your attorney, Mr. K. C. Tanner. you are new

delinquent in Division 1055 as of this date.

You are herewith notified that unless the said sum of

$6.50 as dues payment for the month of September, is re-

ceived in the office of Division 1055 at 1111 S. W. Fifth

Avenue, Portland, Oregon, on or before the close of busi-

ness at 5:00 p.m. on October 28, 1959, we shall be required

to notify Western Greyhound Lines to suspend you from

employment in accordance with the foregoing quoted pro-

visions of our International Constitution and the Contract

between our Division and Western Greyhound Lines.

Fraternally,

C. A. Bankhead

Financial Secretary

ce: John Elliott

Bernard Cushman

E. W. Oliver

E. W. Cannon

C. C. McCaffrey

M. C. Frailey

W. H. Egger

Paul Bailey

Plaintiff's Exhibit 3

Receipt No. 5701

October 26, 1959

Received from Wilson P. Lockridge

Six Dollars and Fifty Cents ($6.50)

For September Dues

Clarence A. Bankhead

Plaintiff's Exhibit 4

November 2, 1959

Mr. W. H. Egger, Regional Manager

[Western Greyhound Lines]

Eighth and Stewart Streets

Seattle, Washington

Dear Mr. Egger:

Mr. Elmer J. Day and W. P. Lockridge are not in good |

standing in our Union. They have suspended themselve

from membership so in compliance with Section 3 of Con. |

tract B, I am asking that you remove them from employ.

ment.

| Sincerely,

| C. A. Bankhead

Financial Secretary

CAB/dh

ee: J. M. Elliott |

M. C. Frailey |

F. J. Day |

W. P. Lockridge

Plaintiff's Exhibit 5

November 13, 1959

Mrs. W. P. Lockridge

Kuna

Idaho

Dear Mrs. Lockridge :

The task of answering your letter and returning the en-

closed check is not one that gives me any pleasure. How-

ever, it is both my responsibility and duty to perform the

duties imposed upon me by the Constitution and General

Laws of the Amalgamated Association of Street, Electric

Railway, and Motor Coach Employes of America as well

as the contractual provisions entered into between Division

1055 and Western Greyhound Lines.

Mr. Lockridge’s dues were paid to this organization; but

for reasons known to Mr. Lockridge, he entered into an

authorization, with others, for Attorney F. C. Tanner to

demand his dues returned to him from the Company.

Following this the Company then entered a demand for

the Union to refund the money previously sent to the Union

for these members.

A letter by certified mail was then directed to each of the

members involved, five in number, pointing out the mem-

ber’s responsibility to remain in good standing and penalty

for failure to so maintain.

Subsequently, Mr. Oathes appeared at the Union office

and paid three months for himself (August, September,

and October) and one month for Mr. Lockridge, which

would pay for September dues only. I specifically asked,

“What does Lockridge intend to be about October dues?”

which were also past due. Without attempting to quote

Mr. Oathes in essence he said, “Let Lockridge take care of

that, just give me a receipt for this.” When I heard noth-

ing further from Mr. Lockridge, the Company was notified

that he was no longer a member in good standing. In g&.

cordance with the contractual provisions of the contract, th {

Company notified the Union it was complying with the pro. 4

visions of Section 3 of the contract. (All present employe |

covered by this contract shall become members of the Aggo. |

ciation no later than thirty days following its effeetiy

date and shall remain members as a condition precedeni

to continued employment.)

Mr. Lockridge by his willful refusal to pay the dues faila i

to maintain membership. This is a circumstance over whic |

I have no control and is the sole responsibility of Mr

Lockridge.

I am indeed sorry that action on the part of a few dis.

gruntled members over a check-off that has been in the

contract for many, many years had to occur. It has bee |

not only a headache to me but also a considerable waste of |

the membership’s money in time and expense. :

Very truly yours,

C. A. Bankhead

Financial Secretary

——

Plaintiff's Exhibit 8

Seattle 1, Washington

January 7, 1960

Mr. Wilson P. Lockridge

Route 2

Kuna, Idaho

On November 12, 1959, at approximately 6:15 p.m., you

were advised by the Dispatcher at Boise, Idaho that you

were suspended from services at the request of Amalga-

mated Association, Local 1055, for failure to remain in

good standing as a condition of employment as provided

for under Contract B, Section 3.

You are now advised that this suspension will remain in

foree until such time as you place yourself in good stand-

ing with Amalgamated Local 1055; however, if you do not

return to our employment within a period of 90 days from

the date of suspension, we will then consider you as ter-

minated from employment with Western Greyhound Lines.

/e/ W.H. Egger

Regional Manager

ce: Mr. M. C. Fraiiey

ATTN: Mr. J. D. Maatie

Local 1055

CERTIFIED MAIL

- No. 344769

Plaintiff's Exhibit 9

WESTERN GREYHOUND LINES

Greyhound Building

Market & Fremont Sts.

San Francisco 5, California

February 2, 1960

Mr. W. P. Lockridge

Route 2

Kuna, Idaho |

Dear Sir: '

On January 7, 1960, Mr. Egger addressed a letter to you

in connection with your employment status with Western

Greyhound Lines. A copy of Mr. Egger’s letter has just

been brought to my attention, and I wish to inform you

that Mr. Egger was in error in outlining this matter. On

November 3, 1959, your services were terminated in ae.

cordance with our agreement with the Amalgamated Asso.

Sy 2 vin Nigel eed Gs IOe ST a arn ee ee

ciation.

Very truly yours,

/s/ M.C. FRAILEY }

Executive Vice President

ce-Amalgamated Association

Division 1055

Mr. John Elliott, Int’] President |

| Amalgamated Association Fe

Washington, D. C.

Plaintiff's Exhibit 34

International Union Constitution:

“See. 82. Hach member will be entitled to all benefits,

rights and privileges of this Association by strictly

adhering to his obligation and by him and his L. D.

obeying the Constitution and Laws. He must have been

obligated into membership, properly enrolled in the

General Office and be in possession of a certificate of

membership.

Sec. 83. No member shall be allowed to injure the

interests of a fellow member, by undermining him in

place, wages, or in any other wiiful act by which the

reputation or employment of any member may be in-

jured.

Sec. 84. The International Association and the L. D.

in which a member hold membership shall be his ex-

clusive representative for the purpose of collective

bargaining as to wages, hours, working conditions,

pensions, union security and check-off, and other con-

ditions of employment, and for the negotiation and

execution of contracts with employers pertaining to

such matters. Both the International Association and

the L. D. in which a member holds membership are by

him irrevocably authorized to act for him before any

committee, board of arbitration, or arbitrator, court

or other tribunal in any matter affecting his status as

employe and to represent and bind him in the presenta-

tion, prosecution, adjustment and settlement of all

grievances, complaints, or disputes arising out of his

employment relationship.”

Plaintiff's Exhibit 35

Sections 3(a) and (b) of the collective bargaining agree.

ment:

“3. MEMBERSHIP IN AND RECOGNITION OF

THE ASSOCIATION, GRIEVANCES AND ARBI.

TRATION: (a) All present employees covered by this

contract shall become members of the ASSOCIATION

not later than thirty (30) days following its effective

date and shall remain members as a condition prece.

dent to continued employment. This section shall apply

to newly hired employees thirty (30) days from the

date of their employment with the COMPANY.

(b) The Company recognizes the Association as the

duly designated representative for all employees in.

cluded in the scope of this Agreement.”

* ° 7 * ee yy # ” . *

4(b) The Company agrees to notify the employee

in writing of the placing of anything for or agninst

him or her on his or her record. An employee will not

be disciplined or dismissed from service nor will entries

be made against his record without sufficient cause,

and he shall be furnished with a full, complete and

clear written statement of the charges against him and

copy will be furnished the Association. No discipline

by suspension shall be administered any employee

which shall permanently impair seniority rights.”

ee San re ee

Se RSARARS ws

biter) Sa ewes,

ARR ANE ents ski

Idaho Supreme Court Decision

[Filed October 15, 1969]

IN THE SUPREME COURT OF THE STATE OF IDAHO

No. 9959

Boise, November Term, 1968

Appeal from the District Court of the Fourth Judicial

District of the State of Idaho, Ada County. The Hon-

orable Merlin S. Young, District Judge.

Action by a former member of a labor union against the

union for reinstatement to membership and for damages

resulting from an improper discharge from membership.

Judgment affirmed, as modified, and remanded.

McClenahan & Greenfield, Boise, Earle W. Putnam, Cole

and Groner, Washington, D. C., Bailey, Swink, Haas, Sea-

graves and Lansing, Portland, Oregon, for appellant.

Anderson, Kauffman, Anderson & Ringert, Boise, for

respondent.

Spear, J.

This is the second appearance of this cause before this

court. See Lockridge v. Amalgamated Ass’n of St. El. Ry.

& M.C. Emp., 84 Idaho 201, 369 P. 2d 1006 (1962). The

issue presented is the same: “Does the National Labor

Relations Act pre-empt state court jurisdiction over the

question of whether a union member has been improperly

expelled from membership in the union for alleged non-

payment of dues in violation of the contractual relation-

ship between the two?” Appellant union urges that seven

decisions subsequent to the previous Lockridge decision

require reversal of that decision. Appellant points par-

ticularly to Plumbers’ Union v. Borden, 373 U.S. 690, 10

L.Ed. 2d 638, 83 S.Ct. 1423 (1963) ; Iron Workers v. Perko,

—

373 U.S. 701, 10 L.Ed. 2d 646, 83 S.Ct. 1429 (1963); Cox's

Food Center, Inc. v. Retail Clerks U.Loc. No. 1653, 91

Idaho 274, 420 P.2d 645 (1966); and Day v. Northwest

Division 1055, et al, 238 Ore. 624, 389 P.2d 42 (1964). It

is the opinion of this court that the issues in this case are

identical to those presented in International Assn. of Ma.

chinists v. Gonzales, 356 U.S. 617, 2 L.Ed. 2d 1018, 78 §..

Ct. 923 (1958), and as such require an affirmance of the de.

cision below. However, since the decisions in Borden and

Perko have to some extent impaired the vitality of Gon.

zales, we feel that further elaboration of the facts and law

relied upon must be made and the scope of Lockridge

limited as set ferth herein.

Wilson P. Lockridge was bern October 15, 1915. He had

a limited education, completing his formal education at

the conclusion of the Sth grade. Between the ages of ap-

proximately fourteen and twenty-two, he was employed

on his father’s farm. Thereafter, from 1937 until May

1943 he drove truck for a creamery. In May of 1948 re.

spondent Lockridge went to work for Union Pacific Stages,

driving a bus. At that time he also became a member of

the appellant union. In 1945 Lockridge began working

for Greyhound Corporation or a subsidiary thereof which

acquired Union Pacific Stages. Thereafter Lockridge was

continually a member of the union and employed by Grey-

hound until November 2, 1959. On November 11 or 12,

1959, after returning from a hunting trip, Lockridge was

informed that his membership in the union had been termi-

nated and a request had been made by the union to repre-

sentatives of Greyhound that his employment be termi-

nated. The contents of this letter, dated November 2,

1959, is set forth as follows:

“Mr. W. H. Egger, Regional Manager

Fighth and Stewart Streets

Seattle, Washington

Dear Mr. Egger:

Mr. Elmer J. Day and Mr. W. P. Lockridge are not

in good standing in our Union. They have suspended

themselves from membership so in compliance with

Section 3 of Contract B, I am asking that you remove

them from employment.

ae et ad

Sincerely,

/s/_ C. A. BANKHEAD

C. A. Bankhead

Financial Secretary”

At that time a contract existed between appellant and Grey-

hound which contained the following pertinent provision

referred to in the Bankhead letter :

“3. Membership in and Recognition of the Associa-

tion, Grievances and Arbitration: (a) All present

employees covered by this contract shal! become mem-

bers of the Association not later than thirty (30) days

following its effective date and shall remain members

as a condition precedent to continued employment.

This section shall apply to newly hired employees

thirty (30) days from the date of their employment

with the Company.”

The pertinent part of the Union’s Constitution and Gen-

eral Laws, provided as follows:

“Dvurs, SuSPENSIONS AND REINSTATEMENTS

“See. 91. All dues, * * * of the members of this As-

sociation are due and payable on the first day of each

month for that month, * * * * They must be paid by

the fifteenth of the month in order to continue the

member in good standing. * * * A member in arrears

for his dues, * * * after the fifteenth day of the month

is not in good standing * * * and where a member al.

lows his arrearage in dues, fines and assessments to

run into the second month before paying the same, he

shall be debarred from benefits for one month after

payment. Where a member allows his arrearage for

dues, fines and assessments to run over the last day

of the second month without payment, he does thereby

suspend himself from membership in this Association,

** * * Where agreements with employing companies

provide that members must be in continuous good finan-

cial standing, the member in arrears one month may

be suspended from membership and removed from

employment, in compliance with terms of the agree-

ment.” (emphasis added)

It is obvious from a reading of the materials quoted

above, that Lockridge was not subject to suspension or dis-

missal from the union for non-payment of October dues

on November 2, 1959. It is equally obvious that Mr. Bank.

head confused Section 3 of Contract B, the only one ap.

plicable to Lockridge with Section 3 of the Contract (,

which provided for suspension of members not in good

standing.'

At this point it is interesting to note the results of the

divergent remedies which were sought by the two suspended

***3. Membership and Recogiaition of the Association, Grievances

and Arbitration :

(a) Any employee who now is a member in good standing or

who, after May 15, 1946 (after May 1, 1951, for General Acct.

Dept. employees), becomes or is reinstated as a member of the

Association, shall, as a condition of continued employment, main-

tain such membership in good standing. Any employee first

hired after May 15, 1946 (after May 1, 1951, for General Acct.

Dept. employees), shall, as a condition of continued employment,

become on or before thirty days from the date of hiring a member

of the Association and thereafter maintain such membership in

good standing.”’

members. Day immediately filed an unfair labor practice

charge with the N.L.R.B. Seattle Regional Office. Lock-

ridge began petitioning the union for redress of his griev-

ances. Day’s petition was rejected by the regional di-

rector of the N.L.R.B.’

2‘*Mr. Elmer J. Day

Route 3, Box 90

Sherwood, Oregon

Re: Western Greyhound Lines

36-C A-986

Street, Elec. Railway, and Motor

Coach Employees, Div. 1055

36-CB-238

Dear Mr. Day:

The above-captioned cases charging violations under Section 8

of the National Labor Relations Act, as amended, have been care-

fully investigated and considered.

As a result of the investigation, it appears that, because there

is insufficient evidence of violations, further proceedings are not

warranted at this time. I am therefore refusing to issue Complaint

in these matters.

Pursuant to the National Labor Relations Board Rules and

Regulations (Section 102.19), you may obtain a review of this

action by filing a request for such review with the General Coun-

sel of the National Labor Relations Board, Washington 25, D.C.,

and a copy with me. This request must contain a complete state-

ment setting forth the facts and reasons upon which it is based.

The request must be received by the General Counsel in Wash-

ington, D.C. by the close of business on December 28, 1959. Upon

good cause shown, however, the General Counsel may grant special

permission for a longer period within which to file.

Very truly yours,

Tuomas P. GranaM, JR.

Regional Director’”’

Lockridge’s appeal was rejected by the union.*

The basis for the Regional Director’s decision is not too

clear, but it is obvious that the union had terminated Lock.

ridge’s membership. On the other hand, Greyhound, by

8 **Dear Mr. Lockridge :

This will acknowledge receipt of your letter of January 18,

1960, requesting that I, or the General Executive Board, waive the

provisions of Section 94 of the Constitution and General Laws of

this organization in order that you might be reinstated to member.

ship. Please be advised that, in my capacity as International

President, I have no power to waive the provisions of the Con.

stitution and General Laws.

Perhaps you have in mind Section 170A of the Constitution and

General Laws which now provides as follows:

‘The I.P., LS.T., Vice-Presidents and G.E.B. shall constitute

a committee and shall have power, unless prohibited by the

Labor-Management Reporting and Disclosure Act of 1959, to

waive any clause of this Constitution by a three-fourths vote

of this Committee, such action being binding upon the A.A.

of S.E.R. and M.C.E. of A. only until the convening of the

next Convention of the Association.’

The General Executive Board has ruled that Section 170A is

intended to be used only in emergency situations and then only

at the instance of the officers of the International Union or the

General Executive Board when such situations threaten to impair

the administration of the affairs of the Association or its Local

Divisions. The Board has ruled that Section 170A was not in-

tended to be available to an individual member or former member

or to be a substitute for the appeal procedures of our Constitu-

tion and General Laws. Accordingly, the General Executive Board

declined to process your request for waiver.

I wish to add, however, that even if I had the power to waive

Section 94, I would not, on the basis of the information before

me, be inclined to support your request. As I understand the

facts, you were validly discharged for non-payment of dues on

November 3, 1959, pursuant to the provisions of Section 3 of Con-

tract B between Western Greyhound Lines and the Council of

Western Greyhound Amalgamated Divisions and the various

Amalgamated Divisions, including Division 1055. Your discharge

had been requested by Division 1055, pursuant to the contract, for

non-payment of dues within the time required under the Constitu-

letter of February 2, 1960, obviously felt obligated to with-

hold employment from Lockridge until his membership

status in the union was restored. Thus Lockridge (and

Day for that matter) could not be employed by Greyhound

until restored to membership. At this point it must have

been clear to both men that they would not obtain relief

from either the union, the employer or the N.L.R.B. There-

fore, they each turned to their respective state courts.

After the jury had returned a verdict in Day’s favor, the

union ed to the Oregon Supreme Court, which re-

versed the judgment in Day v. Northwest Division 1055,

et al, 389 P.2d 42 (Ore. 1964), stating that the subject-

matter had been pre-empted and that Borden and Perko

were controlling. The United States Supreme Court de-

nied "eview.

Appellant’s position may be summarized by three con-

tentions: (1) Congress has pre-empted all state court

jurisdiction over union-member relationships since it has

comprehensively regulated the field. (2) There was no

unfair labor practice because Lockridge’s dismissal from

the union and consequently from employment was in ac-

cord with union rules and the contract and therefore was

protected by the proviso to sec. 8(b)(1)(A) and see. 8

tion and General Laws. You have offered no reasons and fur-

nished no evidence as to why the Constitution and General Laws

should be waived. Indeed, my investigation discloses that you

were put on notice by the Division’s letter of October 22, 1959

of the importance of paying your dues within the period required

under the Constitution and General Laws. Nevertheless you there-

after failed to pay your dues as required by our laws.

I might add that in my opinion, the privilege of reinstatement

under Section 94 is not available to a member discharged under

Section 91 under a union security contractual provision. It is,

however, unnecessary to rule on this point here.

Very truly yours,

/s/ Joun M. Exuiorr

John M. Elliott

International President”’

(b)(2) of the National Labor Relations Act‘ and at the

very least there would be no cause of action. (3) If this

was not a proper dismissal in accordance with union rules

and the contract, then the dismissal was in violation of

8(b)(1)(A) generally and 8(b)(2) in particular and there.

fore an unfair labor practice. In other words, a union

cannot, first of all and in general, impair the right of an

employee to either join or refrain from joining a union,

in violation of 8(b)(1)(A) and, second of all, in particular,

a union cannot cause the employer to discriminate against

an employee by having the former terminate the latter's

employment for some reason other than non-payment of

regular dues, in violation of 8(b)(2). The union then

argues that since the trial court found Lockridge had paid

his dues on time the union necessarily committed an unfair

labor practice. Therefore, since San Diego Building Trades

Council v. Garmon, 359 U.S. 236, 3 L.Ed.2d 775, 79 S.Ct.

775 (1959) held that conduct which was arguably an un.

fair labor practice was pre-empted, the union’s conduct in

this case being certainly an unfair labor practice must be

per-empted. We shal

This text is long and has been trimmed here. Open the source document for the complete record.

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