# Appendix — Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees of America v. Lockridge > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0305%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 403 U.S. 274 ## 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 a 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, v. 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 9/11/63 10/ 1/63 3/31/65 4/ 7/65 5/18/65 2 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 3 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 4 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: I 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 — , 5 II 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. Il 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 —= 6 grievances, complaints and disputes arising out of the mem- ber’s employment relationship. IV 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. V 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. VI 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—_— 7 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. Ix 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. 8 Count Two: I Plaintiff repeats and re-alleges all the allegations con- tained in paragraphs I, II, II, IV, V, VI and VII of Count One. II 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. 9 Count THREE I Plaintiff repeats and re-alleges all the allegations con- tained in paragraphs I, II, III, IV, V, VI and VII of Count One. II 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. Il 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. a a, 10 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. IV Plaintiff repeats and re-alleges all the allegations con- tained in paragraph IX of Count One. Count Four: I 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. II That as a result of the negligence of Western Greyhound Lines, a division of defendant Greyhound Corporation, in ll 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 12 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 ; eo 13 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. 14 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. 15 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: I 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. II 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. 16 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. IV 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 17 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. V 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. 18 VI 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 a 4 | 19 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. Ix 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: I Plaintiff repeats and realleges all of the allegations con- tained in paragraphs I, II, ITI, IV, V, VI, and VII of Count One. II 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 20 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: I Plaintiff repeats and realieges all of the allegations con- tained in paragraph I, I], III, IV, V, VI and VIII of Count One. II 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 21 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. IV Plaintiff repeats and realleges all of the allegations contained in paragraph IX of Count One. 8 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 23 157 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. 24 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, ee 25 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 26 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 a 27 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, v. 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 28 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" 29 ‘*(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 30 § 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. 31 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 33 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 34 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 a ———Ea 35 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. 36 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 37 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 38 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. i a 3 . F 39 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 40 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. 41 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 42 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: I 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. Il 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. 2 = ee | 2 ; 2 3 43 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, v. 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: I That the defendant, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 44 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. II 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. Il 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 ge 45 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. IV 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. V 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 ae 46 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. VI 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 47 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: I Plaintiff repeats and realleges all of the allegations con- tained in paragraphs I, II, III, IV, V, VI and VIII of Count One. 48 II 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 49 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 50 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 — 51 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. 52 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, 2k ——_ 53 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 54 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 | © OES OE Ps ee 55 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 56 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 57 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 I 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. II 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 58 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. IV 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. 59 V 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. VI 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 60 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. 61 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). Ix 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. x 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. 63 XI 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, 64 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 I 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. Il 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 EE 65 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. IV 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. Vv 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, VI 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. — 67 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. [; [3 Paul Bailey, of the firm of Bailey, Swink, Hess & ts Lansing, of Portland, Oregon. * 7 - . >: > * * . +. Wilson Philip Lockridge Direct Examination ” Oe [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. ee EAA OP a OS 69 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. 70 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 — 71 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 lette [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0305%3A01. Public record. Not legal advice.