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

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APPENDIX A

Second Amended Complaint

{Filed March 31, 1965]

(Original Complaint Filed September 27, 1960.

Amended Complaint Filed February 15, 1961.]

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. Locxriwer, Plaintiff,

AmALGAMATED ASSOCIATION OF STREET, Exectrric RarLway

ann Motor Coach EmpLoyres oF AMERICA, an Inter-

national Labor Union; and NorTHwest Division 1055

of the AMaLcamaTep Association or Srreet, ELectric

Rarpway AND Motor Coach EMPLOYEES OF AMERICA, a

Regional Division of the International Union,

Defendants.

SECOND AMENDED COMPLAINT

Comes Now plaintiff above named and for cause of action

against defendants and each of them, complains and alleges

as follows :

Count ONE:

That the defendant, Amalgamated Association of Street,

Electric Railway and Motor Coach Employees of America,

hereinafter referred to as the International Association, is

an organized assoc.ation having as members various work-

men skilled and trained in operating passenger motor

busses including those owned and operated by Greyhound

Corporation throughout the State of Idaho. That said

International Association has its own duly elected officers

acting for and on behalf of the International Association

and having ultimate control and supervision over all of

the members of the International Association and the

various regional divisions.

That the Northwest Division 1055 of the Amalgamated

Association of Street, Electric Railway and Motor Coach

Employees of America, hereinafter referred to as Division

1055, is a regional division of the International Association

and includes as members thereof all members of the Inter.

national Association who live and work within the regional

boundaries of Division 1055, That said Division 1055 has

its own duly elected officers but that all members of Division

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

national Association, are subject to ultimate authority and

control of the International Association and are all subject

to ultimate authority and control of the International

Association and are all subject to the constitution and

general laws of the International Association.

III

That the International Association, through its inter-

national officers and officers and agents of Division 10655,

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 members

of the International Association. That many members of

the International Association and Division 1055 thereof live

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

International Association and regional division are the

exclusive representatives of all members of the union for

the purpose of collective bargaining relative to conditions

of employment and for negotiation and execution of con-

tracts with employers pertaining to such matters, and

oficers 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

hehalf of its members. That by the constitution and general

laws of the International Association, said association and

the regional division in which the member resides are

irrevocably authorized to act as agents for all members

before any committee, board of arbitration, arbiter, court

or any tribunal in any matter affecting members’ status

as an employee and to represent and bind the members in

the presentation, prosecution, adjustment and settlement

of grievances, complaints and disputes arising out of the

members’ employment relationship.

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

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

the International Association within the area of Regional

Division 1055 thereof, and was employed as a bus driver

for Greyhound Corporation, a private corporation having

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

That all drivers of Greyhound busses, and other public bus

lines, are members of the International Association and no

person can be employed as a bus driver nor retain such

employment unless he is a member of said International

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

16 years seniority as a bus driver with Greyhound Corpo-

ration and under contracts between the International Union,

its regional divisions and Greyhound Corporation, seniority

in said employment has commensurate therewith benefits

in working conditions and compensation.

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

Treasurer and Financial Secretary of Division 1055, acting

for Division 1055 in his official capacity as such Treasurer

and Financial Secretary, and acting for and on behalf of

the International Union and the officers thereof, suspended

plaintiff from membership in the union on the basis that the

plaintiff was in arrears in his payment of dues contrary

to the requirements of the constitution and laws of the

union and thereafter notified Greyhound Corporation that

plaintiff was no longer a member in good standing of the

union and requested said Greyhound Corporation to remove

plaintiff from employment. That immediately following

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

said Greyhound Corporation discharged plaintiff from

employment. That plaintiff was not in arrears in his dues

to the extent that he was subject to suspension from union

membership under the constitution and laws of the Inter.

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

said, were wrongful and without any lawful basis. That

additionally, it has been customary over the years, on

numerous occasions, for members to be in arrears in their

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

has ever been suspended from membership therein within

Division 1055 by reason thereof.

That at the time of his discharge from employment as

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

employment an average of approximately $7,200.00 per year

and with his seniority status, barring unforeseen death or

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

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

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

years would have been able to retire with retirement pay

of approximately $3,600.00 per year.

vit

That in suspending plaintiff from membership in the

International Association which resulted in plaintiff’s loss

—

of employment, the defendant International Association

and Division 1055, acting by and through their duly

authorized officers and agents, acted wantonly, wilfully and

grongfully 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 1059 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 Asseciation under any circumstances.

Count Two:

Plaintiff repeats and realleges all of the allegations cop.

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

Count One.

That section 83 of the constitution and general laws of

the International Association provides that no member

shall be allowed to injure the interests of a fellow member

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

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 Corporation, 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.

Wuenerorg, 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.

Awnpverson, KaurMAN AND ANDERSON

/s/ Samus. KaurMan

A member of the Firm

501 Idaho Bldg., Boise, Idaho

Attorneys for Plaintiff

APPENDIX B

District Court Memorandum Decision

[Filed April 7, 196)1)

‘ . @ @ e e ~ . . .

This matter is before the Court pursuant to motions by,

the defendant under the provisions off Rule 12 (b) LR.C.P.

The defendant Greyhound Corporattion of America has

heen dismissed, and plaintiff has filled an amended com-

plaint against the remaining defendiants. Thus, only the

motions of Amalgamated Associatio’? and the Northwest

Division 1055 of the Amalgamated A\ssociation are before

the Court. It has been stipulated thatt the motion to dismiss

jirected to the first complaint, may be considered as

directed to the amended complaint of plaintiff.

Paragraphs I and II of the mottion are to quash the

return of service of summons and dismiss the action

against Northwest Division and Amalgamated Association

on the ground of improper service ort service which did not

give the Court jurisdiction of these’ parties. I am of the

opinion that these motions are not well taken, for the

reasons set forth by plaintiff in his original memorandum

in this case, pages 1 through 5.

Paragraph III is that the complairnt fails to state a claim

upon which relief can be granted, The serious objection

here raised, is that defendant has not alleged an exhaustion

of remedies within the internal or ization of defendant

unions. While this may represent ® condition precedent,

ceedings would have been useless,

a motion to dismiss. Thus, I am of the opinion that this

complaint does state a claim upon which relief could be

granted, and therefore paragraph III will be denied.

Paragraph IV of the motion contends that the counsel of

Western Greyhound Amalagamated Divisions is an indis.

pensable party to the action not within the jurisdiction of

the Court, because it is the party which made a collective

bargaining agreement with the Western Greyhound Lines,

As the case is now pled, if it is not pre-empted, it must

rest upon a ground which does not involve an unfair labor

practice. Thus the Council of Western Greyhound

Amalgamated Divisions is not an indispensable party,

Therefore Paragraph IV of the motion will be denied.

Paragraph V of the motion will be denied, for the reasons

stated in open court when the matter was argued. See

Rule 8 (e) 2 and Rule 18 (a) IL.R.C.P.

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

unfair labor practice within the exclusive jurisdiction of

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

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

matters involved in this case have been pre-empted by oper-

ation 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 US.

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

reconcile, as are the U.S. Supreme Court opinions. How-

ever, 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 arrowed 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

concern’? to labor-management relations. The only example

of this type of situation is Association of Machinists v.

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

Secondly, matters ‘‘deeply rooted in local feeling and

responsibility.’’ T.e., violence and breaches of the peace.

The Court cites as an example only International Union v.

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

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

‘arguably’? 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.RB.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

NLREB. If it is clearly outside, the courts can take juris-

diction. 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 federal, must await determination by the adminis-

trative board as to whether the matter is deemed by it to

10a

be within its jurisdiction. Justic: Harland [sic] in his

dissenting opinion to the Garmon cise states as much.

‘Henceforth the states must vithhold access to their

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

protective conduct is not an unfair labor practice,

> © oop

It was clear that plaintiff in his oginal complaint alleged

an unfair labor practice against #reyhound 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 abor practice. In that

complaint, the plaintiff several tines alleged that all of

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

criminatory discharge by his empleyer. The gravamen, it

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

alleges that the defendant union vrongfully expelled him

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

pulsion he lost his employment wih 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 con-

stitutes an unfair labor practice. If plaintiff were seeking

reinstatement in the union, such as vas done in the Gonzales

ease, together with loss of wages curing the period of his

wrongful expulsion and other incicental damages, such as

his claimed punitive damages and mental pain and suffer-

ing, he would have been bringing an action to assert his

rights as a member of the union against the union. How-

ever, he goes far beyond this, although it would appear

that reinstatement would afford him a full remedy in that

it does not appear that he could aot get his job back if

he were reinstated. In this case paintiff 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.

lla

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

arguably 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 an employer who has entered into such an

agreement from discriminating against an employee

for nonmembership in a union if he has reasonable

grounds for believing that membership was not avail-

able to the employee in question on the same terms

and conditions generally applicable to other union

members, or if he has reasonable grounds for believing

that the membership of the employee in question was

denied or terminated for reasons other than the

failure of the employee to tender the periodic dues

and the initiation fees uniformly required as a condi-

tion of acquiring or retaining union membership. A

complementary 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 discriminate against an employee who has been

12a

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

defendants had entered into a lawful union security con.

tract with plaintiff’s employer Greyl.ound; that the plain.

tiff’s alleged failure to pay dues when due was the claimed

cause of his loss of union membership, but that the rea]

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

waived its right or is estopped to assert its right to deny

him membership 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 juris-

diction 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.

/3/ Merutn S. Youne

District Judge

13a

APPENDIX C

Idaho Supreme Court Decision

[Filed March 23, 1962]

IN THE SUPREME COURT OF THE STATE OF IDAHO

Boise, January Term, 1962

No. 9040

Wison P. Locxriwes, Plaintiff-A ppellant,

AMALGAMATED AssociaTION oF STREET ELectrric RarLway

anp Moror Coach Empioygezs or America, an Inter-

nations! Labor Union; and NortHwest Division 1055 or

THE AMALGAMATED AssociIATION OF STREET, ELECTRIC

Ramway aND 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.

TayLor, J.

This action was brought by plaintiff (appellant) to

recover judgment for compensatory and punitive damages

against defendant (respondent) labor union for wrongful

ee eT

14a

suspension of plaintiff’s membership. Plaintiff alleges that

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

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

Greyhound Corporation as a bus driver ; that his suspension

from membership was based upon the contention that plain.

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

the constitution and laws of the union; that the union

notified the Greyhound Corporation that plaintiff was no

longer a member and requested the corporation to discharge

him which the corporation did on or about November 2,

1959, pursuant to the request and its contract with the

union; and that suspension from membership was not in

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

wrongful and without lawful basis. The complaint con-

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

Upon motion of the defendant, the action was dismissed

by the district court upon the sole ground that the complaint

charged an unfair labor practice, within the exclusive

jurisdiction of the National Labor Relations Board, and

that the district court had no jurisdiction of the subject

matter.

Plaintiff prosecutes this appeal from the judgment of

dismissal.

Unincorporated associations, including labor unions, are

recognized as legal entities under the laws of this state.

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

The constitution and bylaws of the defendant union and

the granting and acceptance of membership, constituted a

contract between the plaintiff and defendant. 7 C.JS.,

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, § 158) defines

_—

15a

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—

(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

l6a

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

of the Act states 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 . .. .’ 61 Stat. 141, 29 USC

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

that gives legal efficacy under state law to the rules

prescribed by a labor organization for ‘retention of

membership therein.’ Thus, to preclude a state court

from exerting its traditional jurisdiction to determine

and enforce the rights of union membership would in

many cases leave an unjustly ousted member without

remedy for the restoration of his important union

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

sibility of some entangelment with the Board’s enforce.

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

17a

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.LW.

y, 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 2d 1018, at 1021 and 1022, 78 S.Ct. 923.

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

946 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 8.Ct.

933, 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

Garmor case. The majority opinion was written by Justice

Frankfurter, 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

18a

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 ang

enjoining the picketing on the ground that its purpose was

to force the employer to execute the requested contract,

contrary to California law. The California 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 §7 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. * * * *

se# * * Tn the absence of the Board’s clear deter-

mination that an activity is neither protected nor

19a

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

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

S.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

20a

unfair labor practice, a course which, because of yp.

avoidable Board delays, may render state redress

ineffective. And in instances in which the Board

declines to exercise its jurisdiction, the States are

entirely deprived of power to afford any relief. More.

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

observed in Russell, are narrowly circumscribed, those

injured by nonviolent conduct will often go remediless

even when the Board does accept jurisdiction.” San

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

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

Referring to the Gonzales case, Justice Frankfurter in

the second Garmon case said:

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

of our embracing federal system, including the

principle of diffusion of power not as a matter of

doctrinaire localism but as a promoter of democracy,

has required us not to find withdrawal from the States

of power to regulate where the activity regulated was

a merely peripheral concern of the Labor Management

Relations Act. See International Asso. of Machinists

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

San Diego Bldg. Trades Council v. Garmon, 359 US.

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. Local Union No. 1058 Carpenters, ete., 78 Idaho

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

2la

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

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.

Surrn, C.J., and Knupson, McQuape and McFappen, JJ.,

concur.

22a

APPENDIX D

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, I have con.

cluded that plaintiff’s motion should be granted as to

paragraphs I, IT 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 ané u-

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-

ants’ second affirmative answer and defense, I conclude

that it is also completely sham and irrelevant because it

is dealing solely with employee grievances with their em-

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

nothing to do with internal administrative procedures

within the Union insofar as it relates to disputes between

the Union and its members,

23a

Counsel for plaintiff is requested to prepare a formal

order in accordance with this memorandum opinion.

Dated this 21st day of December, 1962.

/s/ Mexrurn 8. Youne

District Judge.

APPENDIX E

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 ‘‘pre-empted.’’ In

making this ruling, this Court relied upon San Diego

Buildings Trade Council v. Garmon, 359 U.S. 236, 3 Law

Ed. 2d 775, 75 Sup. Ct. 772, and Waz 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 compiaint failed to

state a claim; that defendants were not properly served

24a

with process; that the Council of Western Greyhoung

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 unanimoys

decision in March of 1962 (Lockridge v. Amalgamated

Association, et al., 84 Idaho 201; 365 Pac. 2d 1006). Ip

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

under the rule of the Gonzales case the District Court had

jurisdiction of the controversy and that the Garmon case

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

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

78 Sup. Ct. 923. :

Following the Idaho Supreme Court decision and after

much delay as the result of numerous conferences and

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

this Court in October of 1965.

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

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

ponderance of evidence that the defendants through their

officers wilfuliy 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

———

25a

union procedures. The defendants contend the plaintiff

failed to exhaust his internal union remedies, and this

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

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

record of his attempts to seek reinstatement through union

procedures, { 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

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

26a

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 rule in

the case of Republic Steel Corporation v. Maddoz, 379 US.

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

an employee pursue grievance procedures before suing in

vourt 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 Paragraphs I, il, III,

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 proved in this case.

In view of the 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 v.

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.,

235 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-

—

struction 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.

27a

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

addition 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, 1959, to September 15,

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

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

This amount was computed as follows:

Year Carter Plaintiff Lockridge

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 8,265.50 5,000.00

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

$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 uniou membership will

afford full relief and allow his reemployment at the same

28a

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

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

membership in the union is fully restored. Although plain.

tiff will theoretically lose seven years of seniority with

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

loss. Likewise the monetary value of any retirement and

insurance benefits lost during this period has not been

established.

I further conclude that plaintiff is not entitled to punitive

damages against defendants. I do not find their acts

wanton and willful or oppressive to the extent which has

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

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

to punish the plaintiff for refusing to go along with the

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

ground in requesting his termination. Likewise, it is my

opinion that the plaintiff is partially at fault for his

predicament because he did not pursue certain remedies

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

a restoration of his membership pendente lite through

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

for plaintiff obviously feels otherwise, I do not believe that

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

favorably to plaintiff had he made application to it and had

all the facts been fully presented to it. What Day pre-

sented has never appeared.

Counsel for plaintiff is requested to prepare findings of

fact, conclusions of law and judgment for my signature in

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.

/s/ Merutn S. Youne

District Judge.

29a

APPENDIX F

District Court Memorandum Decision and Orders on Motions

To Amend Findings of Fact, Conclusions of Law and

Judgment

[Filed September 1, 1966]

‘ . * + * * . * * *

This matter is before me upon motions to amend findings

of fact and conclusions of law filed by both plaintiff and

defendants.

By paragraphs I, II, and III plaintiff asks the Court to

award greater damages than found in my memorandum

decision. The actual damages suffered by plaintiff are

basically speculative in a case of this kind and at best

can only be an estimate. Plaintiff dropped his earlier

claims for punitive damages in his last amended complaint,

a fact which I overlooked in my memorandum decision, but

I presume it was done to avoid any inference that his

claim is based in tort for wrongful interference with his

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

embarrassment, discomfort, and mental distress could be

considered to have been within the contemplation of the

parties at the time plaintiff entered into his union member-

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

elements suggested by plaintiff and did arrive at the con-

clusion that under all of the circumstances the difference

between plaintiff’s actual income and his substitute offered

a fair and realistic measure 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 i. within the exclusive jurisdiction 0,

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. Ip

this I am attempting to ‘vllow ‘‘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

paymeats upon refusal to restore plaintiff to membership

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

expectancy and the differences in pay and retirement he

might have received from Greyhound as compared to his

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

have concluded that the future penalty provision was an

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

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

tiff’s requested amendment VI, but will strike Paragraph

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

law and judgment referring to such future damages.

Plaintiff’s Request VII is granted.

Considering defendants’ motion to amend, I conclude

that overall the record does support a finding that the

union had in the past been tolerant of late dues payment

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

regard; and the defendants’ international officers knew of

and condoned the actions of Bankhead. Therefore Para-

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

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

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

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

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

3la

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 attachec for counsels’ information.

Ir Is So Orprrep.

Dated this Ist day of September, 1966.

/s; Meru S. Youne.

District Judge.

APPENDIX G

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 of Anderson, Kaufman and Anderson,

his attorneys, and defendants appearing by counsel, Isaac

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

Whereupon, following submission of oral and documentary

evidence, counsel presented oral argument and written

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

ises, makes the following Findings of Fact and Conclu-

sions of Law, as follows:

FINDINGS OF FACT

That defendant Amalgamated Association of Street,

Electric Railway and Motor Coach Employees of America,

hereinafter referred to as the International Association, is

an organized labor association or union having as members

workmen connected in some manner with the operation of

trolleys, busses and coaches, in uding 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.

32a

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.

Il]

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-

sociation and Division 1055.

33a

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

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

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

Plaintiff did not complete high school and has no educa-

tional or experience background to qualify him to do much

else than drive a bus or other similar motorized vehicle

and has a physical disability of the back resulting from an

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

tails plaintiff’s activities in other fields involving physical

labor.

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

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

of the International Association within Division 1055

thereof and has continuously been employed as a bus driver

for Western Greyhound Lines, or its predecessors. That

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

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

employment contract, Exhibit 35, such seniority commen-

surate rights and benefits in working privileges and com-

pensation to be received therefrom. Exhibit 35 compro-

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

contract covering plaintiff’s employment and which is

—F

pertinent in this case is Contract B, being the approximate

first half or the white pages of Exhibit 35.

34a

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

terasurer 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 vw knowledge and approval of, if not direct advice

and orders from, the International Association President,

and International Vice-President, and a member of the

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

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

identical circumst; ». s.

vil

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

Ist 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 Ist 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,

35a

vul

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 Dj.

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

and November but the said C. A. Bankhead refused to ae.

cept the same and the check was returned (Exhibit 5),

36a

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.

ployment, 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 Execu-

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

stitution and reinstate plaintiff. This was not done and

subsequently there evolved correspondence between Plain-

tiff and the International President and others (Exhibits

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

between plaintiff and other union members on his behalf

and officers of both Division 1055 and International Vice-

President McCaffery.

».¢

That at the time of his suspension from union member-

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

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

—

37a

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

ToTaL $49,936.84 $17,258.28

That during the past several years the said Carter has, é

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

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

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

$10,000.00 per year.

That following his suspension from union membership

in November 1959, plaintiff was without steady employ-

ment until after mid 1963 when he obtained employment

with the State of Idaho Highway Department which necessi-

tated his moving from the 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.

38a

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,

XIII

That as a result of his suspension from union member-

ship plaintiff has suffered embarrassment, discomfort,

mental anguish and humiliation and additionally a financial

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

$32,678.56.

CONCLUSIONS OF LAW

That each of the defendants, International Association

and Division 1055 are the proper parties defendant in

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.

39a

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 mem-

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

yambiguous 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.

That even where employment contracts provide that the

union member remain in good financial standing, as op-

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

requirement of Exhibit 35, suspension from union member-

ship after 30 days delinquency is not mandatory but dis-

eretionary and any suspension of a union member for dues

delinquency after 30 days violates past practice of Division

1055. That in suspending plaintiff from union membership

officers of Division 1055 did not conform to the procedural

requirements of the Constitution nor to the customs and

practices of Division 1055 and at all times acted with

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

of the International Association.

That while plaintiff might have made a better legal

record of his attempts to seek reinstatement through union

procedures, particularly Section 94 of the Constitution, the

facts, taken as a whole, together with all reasonable in-

ference which may be legitimately drawn therefrom, indi-

“7

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

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, woul

have been useless and futile gestures.

40a

The grievance procedures set forth under Section 1,

paragraph 3 and following of Exhibit 35 are of no proper

application in this instance and are intended to cover

grievances existing between an employee and employer

and not internal problems existing between the union mem.

ber and the union such as in this case.

That the Constitution and By-laws of the International

Union constitute a contract between the union and the

members thereof and in suspending plaintiff from member.

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

arrears in his dues that he was properly subject to such

suspension, and contrary to all custom within Division

1055, defendants, whose officers and agents acted in con-

cert, violated said contract.

vil

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.

4la

VII

While plaintiff did not seek such remedy, he is entitled

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

eludes 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

WueEREvuPON, upon the foregoing Findings of Fact and

Conclusions of Law:

Ir Is Heresy OrpERED, ADJUDGED AND Decreep 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 FurtHer OrperED, ApJuDGED AND Decreep that de-

fendants restore plaintiff to membership in the Amalga-

mated Association of Street, Electric Railway and Motor

Coach Employees of America, an International Labor

Union and Northwest Division 1055 thereof upon his tender

of current dues.

Ir Is FurTHER ORDERED, ADJUDGED AND DecreEpD THat T'HE

plaintiff do have and recover his costs incurred herein in

the sum of $365.55.

Dated this Ist day of August, 1966.

/s/ 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].

/s/ Meru §. Youns.

District Judge.

42a

APPENDIX H

Idaho Supreme Court Decision

[Filed October 15, 1969]

IN THE SUPREME COURT OF THE STATE OF IDAHO

No. 9959

Boise, November Term, 1968

Appeal from the District Court of the Fourth Judicial

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

orable Merlin 8. Young, District Judge.

Action by a former member of a labor union against the

union for reinstatement to membership and for damages

resulting from an improper discharge from membership,

Judgment affirmed, as modified, and remanded.

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

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

graves and Lansing, Portland, Oregon, for appellant.

Anderson, Kaufman, Anderson & Ringert, Boise, for

respondent.

Spear, J.

This is the second appearance of this cause before this

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

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

issue presented is the same: ‘‘Does the National Labor

Relations Act pre-empt state court jurisdiction over the

question of whether a union member has been improperly

expelled from membership in the union for alleged non-

payment of dues in violation of the contractual relation-

ship between the two?’’ Appellant union urges that seven

decisions subsequent to the previous Lockridge decision

require reversal of that decision. Appellant points par-

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

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

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

43a

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

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

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

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

identical to those presented in International Assn. of Ma-

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

(‘t. 923 (1958), and as such require an affirmance of the de-

cision below. However, since the decisions in Borden and

Perko have to some extent impaired the vitality of Gon-

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

relied upon must be made and the scope of Lockridge

limited as set forth herein.

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

a limited education, completing his formal education at

the conclusion of the 8th grade. Between the ages of ap-

proximately fourteen and twenty-two, he was employed

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

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

spondent Lockridge went to work forg/nion Pacific Stages,

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

the appellant union. In 1945 Lockridge began working

for Greyhound Corporation or a subsidiary thereof which

acquired Union Pacific Stages. Thereafter Lockridge was

continually a member of the union and employed by Grey-

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

1959, after returning from a hunting trip, Lockridge was

informed that his membership in the union had been termi-

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

sentatives of Greyhound that his employment be termi-

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

1959, is set forth as follows:

“Mr. W. H. Egger, Regional Manager

EKighth and Stewart Streets

Seattle, Washington

Dear Mr. Egger:

Mr. Elmer J. Day and Mr. W. P. Lockridge are not

in good standing in our Union. They have suspended

themselves from membership so in compliance with

Section 3 of Contract B, I am asking that you remove

them from employment.

44a

Sincerely,

/s/ C. A. Bankwegap

C. A. Bankhead

Financial Secretary’’

At that time a contract existed between appellant and Grey-

hound which contained the following pertinent provision

referred to in the Bankhead letter:

**3. Membership in and Recognition of the Associa-

tion, Grievances and Arbitration: (a) All present

employees covered by this contract shall become mem-

bers of the Association not later than thirty (30) days

following its effective date and shall remain members

as a condition precedent to continued employment.

This section shall apply to newly hired employees

thirty (30) days from the date ef their employment

with the Company.”’

The pertinent part of the Union’s Constitution and Gen-

eral Laws, provided as follows:

‘*Dugs, Suspensions aND REINSTATEMENTS

**Sec. 91. All dues, * * * of the members of this As-

sociation are due and payable on the first day of each

month for that month, * * * * They must be paid by

the fifteenth of the month in order to continue the

member in good standing. * * * A member in arrears

for his dues, * * * after the fifteenth day of the month

is not in good standing * * * and where a member al-

lows his arrearage in dues, fines and assessments to

run into the second month before paying the same, he

shall be debarred from benefits for one month after

payment. Where a member allows his arrearage for

45a

dues, fines and assessments to run over the last day

of the second month without payment, he does thereby

suspend himself from membership in this Association,

**** Where agreements with employing companies

provide that members must be in continuous good finan-

cial standing, the member in arrears one month may

be suspended from membership and removed from

employment, in compliance with terms of the agree-

ment.’’ (emphasis added)

It is obvious from a reading of the materials quoted

above, that Lockridge was not subject to suspension or dis-

missal from the union for non-payment of October dues

on November 2, 1959. It is equally obvious that Mr. Bank-

head confused Section 3 of Contract B, the only one ap-

plicable to Lockridge with Section 3 of the Contract C,

which provided for suspension of members not in good

standing."

At this point it is interesting to note the results of the

divergent remedies which were sought by the two suspended

members. Day immediately filed an unfair labor practice

charge with the N.L.R.B. Seattle Regional Office. Lock-

ridge began petitioning the union for redress of his griev-

———

1**3. Membership and Recognition of the Association, Grievances

and Arbitration :

(a) Any employee who now is a member in good standing or

who, after May 15, 1946 (after May 1, 1951, for General Acct.

Dept. employees), becomes or is reinstated as a member of the

Association, shall, as a condition of continued employment, main-

tain such membership in good standing. Any employee first

hired after May 15, 1946 (after May 1, 1951, for General Acct.

Dept. employees), shall, as a condition of continued employment,

become on or before thirty days from the date of hiring a member

of the Association and thereafter maintain such membership in

good standing.”’

46a

ances. Day’s petition was rejected by the regional dj-

rector of the N.L.R.B?

2‘*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 care-

fully investigated and considered.

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

is insufficient evidence of violations, further proceedings are not

warranted at this time. I am therefore refusing to issue Complaint

in these matters.

Pursuant to the National Labor Relations Board Rules and

Regulations (Section 102.19), you may obtain a review of this

action by filing a request for such review with the General © an-

sel of the National Labor Relations Board, Washington 25, D.C.,

and a copy with me. This request must contain a complete state-

ment setting forth the facts and reasons upon which it it is based.

The request must be received by the General Counsel in Wash-

ington, D.C. by the close of business on December 28, 1959. Upon

good cause shown, however, the General Counsel may grant special

permission for a longer period within which to file.

Very truly yours,

Tuomas P. GRAHAM, JR.

Regional Director’’

47a

Lockridge’s appeal was rejected by the union.*

The basis for the Regional Director’s decision is not too

clear, but it is obvious that the union had terminated Lock-

ridge’s membership. On the other hand, Greyhound, by

3‘‘Dear Mr. Lockridge :

This will acknowledge receipt of your letter of January 18,

1960, requesting that I, or the General Executive Board, waive the

provisions of Section 94 of the Constitution and General Laws of

this organization in order that you might be reinstated to member-

ship. Please be advised that, in my capacity as International

President, I have no power to waive the provisions of the Con-

stitution and General Laws.

Perhaps you have in mind Section 170A of the Constitution and

General Laws which now provides as follows:

‘The I.P., LS.-T., Vice-Presidents and G.E.B. shall constitute

a committee and shall have power, unless prohibited by the

Labor-Management Reporting and Disclosure Act of 1959, to

waive any clause of this Constitution by a three-fourths vote

of this Committee, such action being binding upon the A.A.

of S.E.R. and M.C.E. of A. only until the convening of the

next Convention of the Association.’

The General Executive Board has ruled that Section 170A is

intended to be used only in emergency situations and then only

at the instance of the officers of the International Union or the

General Executive Board when such situations threaten to impair

the administration of the affairs of the Association or its Local

Divisions. The Board has ruled that Section 170A was not in-

tended to be available to an individual member or former member

or to be a substitute for the appeal procedures of our Constitu-

tion and General Laws. Accordingly, the General Executive Board

declined to process your request for waiver.

I wish to add, nowever, that even if I had the power to waive

Section 94, I would not, on the basis of the information before

me, be inclined to support your request. As I understand the

facts, you were validly discharged for non-payment of dues on

November 3, 1959, pursuant to the provisions of Section 3 of Con-

tract B between Western Greyhound Lines and the Council of

Western Greyhound Amalgamated Divisions and the various

Amalgamated Divisions, including Division 1055. Your discharge

had been requested by Division 1055, pursuant to the contract, for

48a

letter of February 2, 1960, obviously felt obligated to with-

hold employment from Lockridge until his membership

status in the union was restored. Thus Lockridge (and

Day for that matter) could not be employed by Greyhound

until restored to membership. At this point it must have

been clear to both men that they would not obtain relief

from either the union, the employer or the N.L.R.B. There.

fore, they each turned to their respective state courts,

After the jury had returned a verdict in Day’s favor, the

union appealed to the Oregon Supreme Court, which re-

versed the judgment in Day v. Northwest Division 1055,

et al, 389 P.2d 42 (Ore. 1964), stating that the subject-

matter had been pre-empted and that Borden and Perko

were controlling. The United States Supreme Court de-

nied review.

Appellant’s position may be summarized by three con-

tentions: (1) Congress has pre-empted all state court

jurisdiction over union-member relationships since it has

comprehensively regulated the field. (2) There was no

unfair labor practice because Lockridge’s dismissal from

the union and consequently from employment was in ae-

cord with union rules and the contract and therefore was

protected by the proviso to sec. 8(b)(1)(A) and see. 8

non-payment of dues within the time required under the Constitu-

tion and General Laws. You have offered no reasons and fur-

nished no evidence as to why the Constitution and General Laws

should be waived. Indeed, my investigation discloses that you

were put on notice by the Division's letter of October 22, 1959

of the importance of paying your dues within the period required

under the Constitution and General Laws. Nevertheless you there-

after failed to pay your dues as required by our laws.

I might add that in my opinion, the privilege of reinstatement

under Section 94 is not available to a member discharged under

Section 91 under a union security contractual provision. It is,

however, unnecessary to rule on this point here.

Very truly yours,

/s/ JoHN M. Etuiorr

John M. Elliott

International President’’

49a

(b)(2) of the National Labor Relations Act * and at the

very least there would be no cause of action. (3) If this

was not a proper dismissal in accordance with union rules

and the contract, then the dismissal was in violation of

¢(b) (1) (A) generally and 8(b)(2) in particular and there-

fore an unfair labor practice. In other words, a union

cannot, first of all and in general, impair the right of an

employee to either join or refrain from joining a union,

in violation of 8(b)(1)(A) and, second of all, in particular,

a wmion cannot cause the employer to discriminate against

an employee by having the former terminate the latter’s

employment for some reason other than non-payment of

regular dues, in violation of 8(b)(2). The union then

argues that since the trial court found Lockridge had paid

his dues on time the union necessarily committed an unfair

labor practice. Therefore, since San Diego Building Trades

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

773 (1959) held that conduct which was arguably an un-

fair labor practice was pre-empted, the union’s conduct in

this case being certainly an unfair labor practice must be

pre-empted. We shall deal with each of these contentions

in order.

(1) There is total pre-emption of the field.

*“(b) It shall be an unfair labor practice for a labor organi-

zation or its agents—

(1) to restrain or coerce (A) employees in the exercise of the

rights guaranteed in section [7]: 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 member-

ship therein; or (B) an employer in the selection of his represen-

tatives for the purposes of collective bargaining or the adjustment

of grievances ;

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

against an employ > in violation of subsection (a)(3) of this sec-

tion or to discriminate against an employee with respect to whom

membership in such organization lias 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 acquir-

ing or retaining membership ;’’ (29 U.S.C. § 158(b) (1); 29 U.S.C.

158(b) (2) ).

- : —y

This proposition is not true. Appellant’s argument oy

this point sweeps with too wide a broom. We find under

part (3) hereinafter that this court has jurisdiction over

the particular subject matter of this particular suit, ang

it necessarily follows that the broad proposition of tota]

pre-emption, which appellant argues here, is not valid,

(2) This was a proper dismissal and therefore pro.

tected activity.

This argument, too, can be summarily dismissed be

cause appellant has conceded on this appeal that it did

not dismiss respondent in accordance with either union

rules or the contract with Greyhound. Furthermore, ap.

pellant did not seriously contend otherwise in the court

below since its arguments were almost exclusively di-

rected toward the court’s jurisdiction with respect to serv.

ice of process and subject-matter jurisdiction. Finally, it

is readily apparent, on the basis of those portions of the

labor contract and the union constitution hereinbefore cited,

that this is a position which is untenable. The trial court

so found *® and no appeal was taken therefrom.

5 (Finding of Fact VII). ‘‘That the contract agreement (Ex.

hibit 35), * * * requires that all employees covered by the contract

become members of the association not later than 30 days following

its effective date and thereafter remain members as a condition

precedent to continued employment. Section 91 of the Constitn-

tion of the International Association (Exhibit 34) provides that

all dues, fines and assessments are due on the Ist day of each

month and must be paid by the 15th of the month in order to

continue the member in good standing. 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 him-

self from membership in the association, meaning the International

Association. * * * That at the time of their suspension from mem-

bership 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 Ist day of October, 1959. * * *”’

———

(3) This was an unfair labor practice and therefore

pre-empted.

5la

This brings us, then, to appellant’s most serious argu-

ment. At the outset, we concede much of what appellant

argues. Appellant, in the opinion of this court, did most

certainly violate 8(b)(1)(A), did most certainly violate

8(b)(2) (i.e. see Krambo Food Stores, Inc., 114 N.L.R.B.

241 (1955)) and probably caused the employer to violate

8(a)(3),° all of which constitute unfair labor practices, all

of which are subject to the exclusive cognizance of the Na-

tional Labor Relations Board and are not subject to ad-

justment by, or interference with, Idaho courts. However,

in addition to at least three unfair labor practices appellant

did commit a breach of the contract between itself and

W. P. Lockridge, a member. That contract provided that

Lockridge would have continued membership in his union

so long as he paid his dues no later than the end of the

“See. 8(a) It shall be an unfair labor practice for an em-

ployer—

(3) by discrimination in regard to hire or tenure of employ-

ment or any term or condition of employment to encourage or

discourage membership in any labor organization: Provided, That

nothing in this Act, or in any other statute of the United States,

shall preclude an employer from making an agreement with a

labor organization * * * to require as a condition of employment

membership therein on or after the thirtieth day following the

beginning of such employment or the effective date of such agree-

ment, whichever is the later, (i) if such labor organization is the

representative of the employees as provided in section [9(a) ]}

** *: Provided further, That no employer shall justify any dis-

crimination against an employee for nonmembership in a labor

organization (A) if he has reasonable grounds for believing that

such membership was not available to the employee on the same

terms and conditions generally applicable to other members, or

(B) if he has reasonable grounds for believing that membership

was denied 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 mem-

bership ;’’ (29 U.S.C. § 158(a) (3) )

52a

second month after they became due. None of the cases

cited by appellant stands for as broad a proposition as

that for which appellant contends. Preemption is not

established simply by showing that the same facts wij]

sustain two different legal wrongs. This would be ap.

alogous to precluding a contract action by proving the facts

also establish a tort. The conflict to be avoided is two

different bodies, analyzing the same facts, reaching the

same or different interpretations of those facts and apply

[sic] conflicting remedies. In this case, as will be pointed

out later, the conflict between this court and the N.L.RB,

if extant, is not significant and the result we reach is cop.

sistent with the underlying policy of the national labor

legislation.

Of course, it is not enough to simply state that this is

an internal union matter. The ‘‘internal union matter”

must be of a particular nature. The suit must be limited

so that it focuses ‘‘on purely internal union matters, i.e,

on relations between the individual plaintiff and the union

not having to do directly with matters of employment, and

that the principal relief sought [must be] restoration of

union membership rights.’’ Plumbers Union v. Borden,

373 U.S. 690 at page 697 ; International Assn. of Machinists

v. Gonzales, 356 U.S. 617. From the outset respondent at-

tempted to regain his membership. This is the import of

all his correspondence with the union. The only record

of contact with the employer are the two letters from

Greyhound informing him of his termination. The only

relationship his employment has to this case is a means

by which damages can be computed. The complaint upon

which this cause was finally submitted was that Lockridge

was wrongfully deprived of membership. By his complaint

he sought damages and equitable relief. His prayer for

equitable relief was framed in general terms and this

court concludes that in this case or any other within the

narrow area where we can assert jurisdiction to relieve

—

wrongfully denied membership, the primary relief which

can and shall be granted is restoration of union member-

ship. Damages, if any, are a secondary consideration, and

shall be limited to compensation for damage suffered until

such time as membership is restored.

53a

Restoration of union membership is not a remedy which

the N.L.R.B. can afford. International Assn. Machinists

y. Gonzales, supra. Under the law of Idaho, membership

ina labor union constitutes a contract between the member

and the union. Lockridge v. Amalgamated Ass’n of St.

El. Ry. & M.C. Emp., 84 Idaho 201, 370 P.2d 798 (1962).

Our decision in this case is designed solely to give ‘‘legal

efficacy under state law to the rules prescribed by a labor

organization for ‘retention of membership therein’’’. In-

ternational Assn. Machinists v. Gonzales, 356 U.S. at page

620. The purpose for which we exercise jurisdiction is to

avoid leaving ‘‘an unjustly ousted member without remedy

for the restoration of his important union rights.’’ ‘‘Such

a drastic result, on the remote possibility of some entangle-

ment with the Board’s enforcement of national policy,

would require a more compelling indication of congres-

sional will than can be found in the interstices of the Taft-

Hartley Act.’’ Gonzales, 356 U.S. at page 620.

As previously pointed out, there may have been viola-

tions of the Act, but the Board in such a case would focus

on the union-employment relationship and order restora-

tion of employment. The Board’s power to make such an

order and determination precludes any such determination

by this court or any interference by the court with the

employee-employer relationship. However, the Board can-

not restore membership in the union; this court can. Gon-

eales, supra. Also, the National Labor Relations Board

could not give respondent the relief that Idaho law can

give him according to our local law of ccntracts and dam-

ages. Additionally, the possibility of partial relief from

the Board does not, in such a case as is here presented,

54a

deprive a party of available state remedies for all damages

suffered.

‘Tf, as we held in the Laburnum case, certain state

causes of action sounding in tort are not displaced

simply because there may be an argumentative coinci-

dence in the facts adducible in the tort action and a

plausible proceeding before the National Labor Rela.

tions Board, a state remedy for breach of contract also

ought not be displaced by such evidentiary coincidence

when the possibility of conflict with federal policy is

similarly remote. The possibility of conflict from the

court’s award of damages in the present case is no

greater than from its order that respondent be restored

to membership. In either case the potential conflict is

too contingent, too remotely related to the public in-

terest expressed in the Taft-Hartley Act, to justify

depriving state courts of jurisdiction to vindicate the

personal rights of an ousted union member. This is

emphasized by the fact that the subject matter of the

litigation in the present case, as the parties and the

court conceived it, was the breach of a contract govern-

ing the relations between respondent and his unions.

The suit did not purport to remedy or regulate union

conduct on the ground that it was designed to bring

about employer discrimination against an employee,

the evil the Board is concerned to strike at as an unfair

labor practice under §8(b)(2). This important dis-

tinction between the purposes of federal and state

regulation has been aptly described: ‘Although even

these state court decisions may lead to possible con-

flict between the federal labor board and state courts

they do not present potentialities of conflicts in kind

or degree which require a hands-off directive to the

states. A state court decision requiring restoration of

membership requires consideration of and judgment

upon matters wholly outside the scope of the National

Labor Relations Board’s determination with reference

55a

to employer discrimination after union ouster from

membership. The state court proceedings deal with

arbitrariness and misconduct vis-a-vis the individual

union members and the union; the Board proceeding,

looking principally to the nexus between union action

and employer discrimination, examines the ouster from

membership in entirely different terms.’ Isaacson,

Labor Relations Law: Federal versus State Jurisdic-

tion, 42 A.B.A.J. 415, 483.’’ (International Assn. Ma-

chinists v. Gonzales, 356 U.S. pages 621 through 623.)

This, then was the state of the law and its application to

this case at the time of the Gonzales decision. However,

appellant insists that this decision is altered by subsequent

cases.

The landmark case, cited as the genesis of the trend

limiting Gonzales, is San Diego Building Trades Council v.

Garmon, 359 U.S. 236, 3 L.Ed.2d 775, 79 S.Ct. 773 (1959).

Garmon was written by Justice Frankfurter, author of the

Gonzales decision. The case itself arose out of a recogni-

tional dispute between two unions and an employer. It

involved conduct which represented one of the vital tools

of organized labor and a protected right for all employees—

picketing. The parties disputed over whether the picketing

was unprotected coercion or protected publicity. The

N.L.R.B. declined jurisdiction. California courts asserted

jurisdiction because the Board had declined to do so and

then the state courts enjoined the picketing. Justice Frank-

furter, in reversing the state court decision, began by

quoting from Weber v. Anhauser Busch, Inc., 348 U.S. 468,

75 S.Ct. 480, 99 L.Ed. 546 (1955) :

‘**By the Taft-Hartley Act, Congress did not ex-

haust the full sweep of legislative power over indus-

trial relations given by the Commerce Clause. Con-

gress formulated a code whereby it outlawed some

aspects of labor activities and left others free for the

56a

operation of economic forces. As to both categories,

the areas that have been pre-empted by federal ay.

thority and thereby withdrawn from state power are

not susceptible of delimitation by fixed metes anq

bounds. Obvious conflict, actual or potential, leads

to easy judicial exclusion of state action. Such was

the situation in Garner v. Teamsters Union, supra

[346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228]. But as

the opinion in that case recalled, the Labor Manage.

ment Relations Act ‘‘leaves much to the states, though

Congress has refrained from telling us how much,”

346 U.S. at page 488, 74 S.Ct. at page 164. This

penumbral area can be rendered progressively clear

only by the course of litigation.’’’ 359 U.S. at page

240.

Justice Frankfurter then expanded on these basic con-

siderations:

‘We have been concerned with conflict in its broad-

est sense; conflict with a complex and interrelated

federal scheme of law, remedy, and administration.

Thus, judicial concern has necessarily focused on the

nature of the activities which the States have sought

to regulate, rather than on the method of regulation

adopted. 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. However due regard for the presupposi-

tions 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 Ass’n of Machinists

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

—

Or where the regulated conduct touched interests so

deeply rooted in local feeling and responsibility that,

in the absence of compelling congressional direction

we could not infer that Congress had deprived the

States of the power to act.’’ 359 U.S. at pages 243-44.

57a

The central rule of the case was then reached, in the

following language:

‘‘When it is clear or may fairly be assumed that the

activities which a State purported to regulate are pro-

tected by §7 of the National Labor Relations Act, or

constitute an unfair labor practice under §8 due re-

gard for the federal enactment requires that state

jurisdiction must yield. To leave the States free to

regulate conduct so plainly within the central aim of

federal regulation involves too great a danger of

conflict between power asserted by Congress and re-

quirements imposed by state law.’’ 359 U.S. at page

244.

In applying this rule to the facts it was pointed out

that the particular conduct sought to be regulated was

assumed to be, and was treated as, an unfair labor practice.

‘‘The adjudication in California has throughout been

based on the assumption that the behavior of the peti-

tioning unions constituted an unfair labor practice.

This conclusion was derived by the California courts

from the facts as well as from their view of the Act.’’

359 U.S. at page 245.

The court concluded that it did not matter whether this

was protected or prohibited activity, or even whether the

Board asserted jurisdiction. The issue, then was, was this

a class or type of conduct which was arguably subject to

the Board’s cognizance, which by their administration and

promotion of the policies of the act could best be handled?

58a

Was there ‘‘uncertainty’’ as to whether an act or practice

would be protected or not?

The distinction between the type of conduct in Garmon

and the type of conduct here is clear. The former involved

the most fundamental aspects of concerted action, the very

heart of the national labor policy, over which the regula-

tory power of the Board has never been questioned. Here

the conduct centers on membership rights in the union,

critical from an individual member’s viewpoint, but con-

duct, excluded from the operation of the act. The remedy

sought here does not impair the assertion of collective

rights but rather, guarantees the availability of those col-

lective rights to individual members. As can be no more

clearly presented than by the facts in this case themselves,

if this court did not assert jurisdiction, respondent would

never regain his union membership.

Appellant, however, insists that the ‘‘arguably subject”’

test is the one which now applies to this class of cases,

citing Plumber’s Union v. Borden, 373 U.S. 690, 10 L.Ed.2d

638, 83 S.Ct. 1423 (1963), and Iron Workers v. Perko, 373

U.S. 701, 10 L.Ed.2d 646, 83 S.Ct. 1429 (1963). However,

Justice Harlan, in those cases specifically distinguished

the situations presented there from Gonzales and he pointed

to many important policy questions involved in those cases

which were more properly to be decided by the Board.

Borden and Perko never sought reinstatement in the

union. They had never been denied their membership.

In both cases the individuals complained that they had

been denied the benefits of a particular job. Borden

wanted to work for a particular employer and was, for

apparent disciplinary reasons, refused a necessary referral

by the union. Perko complained that he was not able to

work as a foreman or superintendent. The court said of

Perko:

‘*As in Borden, the crux of the action here concerned

alleged interference with the plaintiff’s existing or

—

prospective employment relations and was not directed

to internal union matters.’’ 373 U.S. at page 705

(emphasis added)

59a

Furtbermore, Borden involved ‘‘ difficult and complex prob-

jes inherent in the operation of union hiring halls’’ while

Perko presented ‘‘difficult problems of definition of status

and coercion * * * of a kind most wisely entrusted ini-

tially to the agency charged with the day-to-day admin-

istration of the Act as a whole.’’

The result we reach is contrary to that reached in Day

y. Northwest Division 1055, et al, 389 P.2d 42 (1964). How-

ever, in Day there is a specific finding of discrimination

on the part of the union. In light of such a finding an

unfair labor practice would be established. There was

no such finding in this case and the conclusion of the court

below is one amply supported by the evidence and one in

which we concur. This was a misinterpretation of a con-

tract. Whatever the underlying motive for expulsion

might have been, this case has been submitted and tried

on the interpretation of the contract, not on a theory of

discrimination. The fact that the Board might go deeper

into the union motivation and discover an unfair labor

practice simply serves to point up the distinction between

the facts we focus upon and those which the Board would

focus upon. That the Board might find an unfair labor

practice in both an underlying ‘‘discriminatory’’ motiva-

tion and an honest misunderstanding of the contract, is

simply a determination which is necessary to establish the

Board’s jurisdiction and its power to enforce the remedies

within its cognizance.

However, aside from this distinguishing point in Day,

we also believe that the majority there took too shallow

a view of the case law and pertinent legislation. Rather,

we believe the opinion of Justice Perry, dissenting, to

be the better reasoned.

a er

60a

After the trial on the merits, the trial court made cer.

tain findings of fact to which appellant has made no as.

signments of error on appeal and therefore such findings

are necessarily binding on this court. Among such find.

ings are the following:

‘‘That on November 2, 1959, plaintiff [respondent

herein] had over 16 years seniority as a bus driver

under the laws of the union and the employment con.

tract, and such seniority commensurate rights and

benefits and working privileges and compensation to

be received therefrom.

‘*That on or about November 2, 1959, C. A. Bank.

head, treasurer and financial secretary of Division

1055, acting in his official capacity and within the scope

of his activities as a treasurer and financial secretary

and, under the facts and reasonable inferences to be

drawn therefrom, acting for the International As-

sociation and pursuant to the knowledge and approval

of it, if not direct advice or ordered from, the Inter-

national Association president, and International vice-

president, and a member of the 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, and by letter dated November 2,

1959 notified the employer Western Greyhound Lines

that plaintiff was no longer a member in good standing

in the union and requested said employer to remove

him from employment. That immediately following

receipt of such notice from C. A. Bankhead, the em-

ployer discharged plaintiff from employment. One

Elmer Day was likewise suspended under identical

circumstances. (emphasis added)

‘That at the time plaintiff’s wife was notified of

plaintiff’s suspension from union membership in early

November, 1959 (plaintiff was elk hunting during a

vacation period) plaintiff’s wife, by letter dated No-

vember 10, 1959, submitted to C. A. Bankhead, finan-

cial secretary of the Division 1055 a check to cover

plaintiff’s dues for both October and November but

the said C. A. Bankhead refused to accept the same

and the check was returned (Exhibit 5).

‘Following his return to Boise in mid November,

1959, and immediately upon learning of his suspension

from union membership with resulting termination of

his employment, 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. (emphasis ad-

ded) ee @»

6la

The trial court additionally found that section 93 of the

union constitution provided;

‘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 membership

except where members are suspended in compliance

with the terms of agreements, the members may be

so reported 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

first day of October 1959.’’

As previously mentioned in this opinion, no appeal has

been perfected from any of the findings of fact. Addi-

tionally, on the basis of what respondent’s replacement,

a man named Carter, actually earned in the years 1959

62a

through September 15, 1965, in the same employment which

respondent had prior to his unlawful suspension by the

union, the court found that during that period respondent

had suffered a loss in earnings of approximately $32,678.56,

i.e., the difference between what he would have earned at

his regular employment as a bus driver and what he did

earn as an employee of the Highway Department of the

State of Idaho, and on that basis the trial court awarded

respondent damages for loss of wages in the sum of

$32,678.56. In the judgment the trial court further de.

creed that the respondent be restored to membership in

the union upon tendering payment of his current dues,

As it was first rendered and filed, the judgment also

provided that respondent should be restored to his se-

niority rights. However, upon motion to amend the find-

ings of fact, conclusions of law and judgment, the trial

court, after hearing thereon, struck from the decree and

from the findings and the conclusions such restoration of

seniority rights and also a provision allowing the re-

spondent the sum of $3,500 per year in damages from

the union from and after September 15, 1965 until he

had been restored to membership and full seniority rights.

This is the state of the judgment from which the appeal

was taken on the three contentions by appellant, dis-

position of which has already been made.

Respondent by way of cross-appeal raised several is-

sues, the most important of which is that of restoration

of seniority rights. In order to grant respondent the full

equity to which he is entitled, in addition to the money

damages awarded him by the trial court, he must neces-

sarily be restored by the appellant union to full seniority

rights. The trial court, therefore, was in error, in strik-

ing from the findings of fact and conclusions of law and

the judgment the restoration of such rights, upon motion

of appellant. Upon remanding of this cause the trial

court is hereby ordered to restore these rights of seniority

to respondent.

_—

63a

Respondent additionally contends that the trial court

erred in not awarding damages in the amount of overtime

compensation which Lockridge could have worked. The

trial court was the finder of facts and since the court was

not convinced that Lockridge could or would have worked

the overtime in question, this portion of the judgment is

afirmed.

Finally, respondent prayed for damages of $50,000.00

for discomfort, embarrassment, humiliation and mental

anguish and the trial court specifically found that such ele-

ments did exist from the facts adduced at the trial but

omitted to ward any sum for such damages. Respondent

assigns this as error. Such damages must necessarily

be based upon mental suffering and the attempt to re-

cover them from a breach of contract has generally been

met with disfavor by the courts. Denial of damages is

based upon several grounds, e.g., remoteness of the

injury from the breaching act; lack of an adequate stand-

ard or measure of such damages; the danger of speculative

and easily simulated injuries which would be difficult to

disprove; and the inevitable fear of increased litigation.

There is a growing tendency to consider mental damages

as a proper element in these actions just as in actions

sounding in tort; but this is definitely a minority viewpoint,

and we choose to adhere to the majority holdings which

deny such recovery. See 32 Notre Dame Lawyer 482. Thus

the trial court committed no error in not awarding such

damages to respondent.

In thus disposing of the various contentions of the par-

ties we reach a decision which, rather than conflicting with

federal labor policy, seeks to strengthen an underlying

philosophy of that policy, i.e., one is entitled to gainful

employment and the fruits of collective bargaining; and

this is so, regardless of the employee’s attitude toward

the union or his failure to cooperate with a certain union

policy—such as the automatic checkoff—with which he

64a

personally disagrees. The policy considerations behind

this decision do not militate against the discipline which

is necessary to preserve the goals of concerted action, but

rather militate in favor of the basic purpose for which

national labor law was created: to provide the working.

man with a fair share of the fruits of his labor.

Judgment affirmed, as modified, and remanded for res-

toration of respondent’s seniority rights in the union,

such judgment further reserving to respondent the right to

petition the district court for final determination of dam-

ages for loss of earnings accruing since September 15,

1965. Costs to be shared by the parties as agreed in

the instrument dated October 17, 1966.

McFappen and Donaupson, JJ., and Scocery, D.J., con-

cur.

McQuvape, J., dissenting.

The majority today reaches a position which is, perhaps,

tenable as a matter of pure logic.’ I cannot, however,

agree with them that it is the law. They attempt to fit

this case within the too-narrow ‘‘internal union matter”

exception to the doctrine of federal pre-emption in labor

law. That niche is entirely too small to accommodate this

particular action. Although this ground has been plowed

here before,? a recapitulation of the United States Su-

1 See Michelman, State Power to Govern Concerted Employee

Activities, 74 Harv.L.Rev. 641 (1961). Professor Michelman, in

that thoughtful if not wholely realistic article, observed: ‘‘The

more state courts are hemmed in by sweeping pre-emption rules

which prevent them from reaching a sensible decision on the facts

of a particular case, the more they are likely to struggle to evade

or to avoid the rules. The disposition of difficult cases may not

be greatly facilitated, and there will be some compulsion to a kind

of lawlessness in the federal system which cannot be effectively

policed.’’ Jd., at 683. That observation applies acutely to this

case.

2 Cox’s Food Center, Inc. v. Retail Clerks Union, Local No. 1653,

91 Idaho 274, 420 P.2d 645 (1966).

65a

preme Court cases, and the principles which may be de-

rived therefrom, may serve to indicate more precisely

the errors upon which the majority opinion is founded.

For over a decade prior to 1959, the Supreme Court

sought delicately to adjust the relationship of state and

federal powers in the area of labor adjudication in order

optimally to serve the competing purposes of the national

labor legislation and the values of our federal system.

Although that process contributed greatly to the confusion

with which we are involved in this case, a recapitulation

of a few of the leading cases of that period will serve to

explicate the full scope of the pre-emption doctrine an-

nounced in San Diego Building Trades Council v. Garmon.*

The first of the important cases was Garner v. Teamsters

Union,‘ which involved an attempt to induce the State of

Pennsylvania to enjoin picketing which was fairly clearly

a matter for the N.L.R.B. In the course of an opinion

holding the dispute not to be a proper object of state

jurisdiction, a number of elements, thought to be important

in pre-emption cases were discussed. That case was dis-

tinguished from those involving injurious conduct which

the National Labor Relations Board had no express power

to prevent and which was, therefore, either ‘‘governable

by state law or it is entirely ungoverned.’’ And the case

was found to be one not involving mass picketing or

threats to the public peace and safety and, therefore, a

“local matter.’’

In Garner there were three principles upon which the

afirmative holding of pre-emption was founded. The first

was the oft-repeated theory that the very core of the pre-

emption doctrine was a conflict of remedies. Justice

Jackson seemed to mean that if a state court would pro-

$359 U.S. 236 (1959).

*346 U.S. 485 (1953). The labor law pre-emption theory dates

at least back to Hill v. Florida, 325 U.S. 538 (1945).

66a

vide a sanction for conduct which was subject to N.LRB.

cognizance when the federal tribunal would not allow such

a sanction, then there was a ‘‘conflict between state and

federal remedies.’’ This actually seems to mean that the

conflict to be avoided is between differing substantive

standards of primary and not remedial law, but Justice

Jackson phrased it in terms of remedies and that phrasing

was very important until Garmon, six years later. The

second principal leg for Garner was that the federal labor

law plan not only comprehended a set of new rules, but

also a new tribunal, with its own procedure and system

of remedies; this was 2 comprehensive system of regula-

tion, interference with any part of which was likely to

damage the entire fabric. ‘‘A multiplicity of tribunals

and a diversity of procedures are quite as likely to pro-

duce incompatible or conflicting adjudications as are dif-

ferent rules of substantive law.’’ And the final leg for

the Garner decision was a corollary to the other two. It

was that, when a matter was subject to the invocation of

the federal labor law, the congressionally devised Labor

Board had primary jurisdiction to interpret the substan-

tive law expertly and uniformly.

The next key case was United Construction Workers v.

Laburnum Constr. Co.5 This case involved a series of

riotous attempts by a subsidiary union of the United Mine

Workers to organize some A.F.L. employees of a building

contractor who happened to have a job in coal-mining

country. The state court tort judgment was upheld by

the United States Supreme Court as not preempted. In

so holding that Court assumed that the conduct involved

constituted an unfair labor practice. The Garner case was

distinguished therein, because in that case Congress had

provided a preventive remedy exactly parallel to that which

the state court was asked to impose. Laburnum, it was

said, involved no such conflict of remedies because ‘‘Con-

* 347 U.S. 656 (1954).

has neither provided nor suggested any substitute

for the traditional state court procedure for collecting

damages for injuries caused by tortious conduct.’’ Pre-

emption was, thus said to turn on whether or not the

N.L.R.B. could give the same relief which the state sought

to provide. Justice Douglas filed a dissent in Laburnum.®

It was his position that the federal law was a compre-

hensive system of rules, procedures and remedies which

was designed to avoid disruptions of commerce by bring-

ing labor disputes to orderly and rapid conclusions. The

provision of an alternative, lucrative state court remedy

would upset this delicate balance and cause controversies

to live long in the courts, depriving the federal scheme

of its healing effects and keeping old wounds open.

67a

Following Laburnum, the next case which attempted

further to elucidate the theoretical underpinning of pre-

emption was Weber v. Anheuser-Busch, Inc.’ In that opin-

ion, holding that a state anti-trust law injunction would

not lie, Mr. Justice Frankfurter reiterated the Garner

theory of primary jurisdiction to decide what was pro-

hibited and what protected and the notion that the crux

of the pre-emption matter was the conflict of remedies.

Garner was, thus, said to turn on the fact that there

were ‘‘two similar remedies, one state and one federal,

brought to bear on precisely the same conduct.’’ And

it was on this ground that the Laburnum case was dis-

tinguished, ‘‘the violent conduct was reached by a remedy

having no parallel in and not in conflict with, any remedy

afforded by the federal Act.’’ While much of this still

sounded as if a conflict of primary rules was the diffi-

culty, the reference to Laburnum only served to empha-

size that it was competition among remedies which was

considered crucial. Weber finally declared that it did

$347 U.S. 656 at 671.

7348 U.S. 468 (1955).

68a

not matter that the state power was invoked to serve

some regulatory purpose other than the ordering of

labor relations. The pre-emption doctrine protected the

N.L.R.B.’s primary jurisdiction to characterize and remedy

conduct. Competition with that competence from state

tribunals was not to be countenanced on any theory,

The final pre-Garmon cases which are important here

are the Gonzales* and Russell® cases wherein the court

was again able to hold no pre-emption. These two cases

might be said to have represented the high-water mark

of concurrent state jurisdiction in labor law. The Russell

case involved a very ambiguous fact situation stemming

from conduct which was either very nearly as egregious

as that in Laburnum or else no more disorderly than might

be expected in any tense, major strike. In upholding an

award of exemplary and compensatory damages (as com-

pensation for lost wages during the strike) the United

States Supreme Court further muddied the waters. Where

Garner had rejected a distinction between actions to vindi-

cate public rights from those to compensate private rights

and where Weber had rejected the notion that there was

a relevant distinction between state general law and state

labor iaw, the Russell case seemed to go in exactly the

opposite direction. Although there was an N.L.R.B. rem-

edy which exactly duplicated the compensatory damages

for lost wages, the Russell opinion held that there was

no conflict of remedies. This, it was reasoned, was be-

cause the principles which supported the state court action

were private principles of general law, while those under-

lying the N.L.R.B. action were designed to vindicate public

rights and ‘‘to effectuate the purposes of the Federal Act.”

Therefore, it was said, precisely the same sanction directed

8 International Association of Machinists v. Gonzales, 356 U.S.

617 (1958).

® Automobile Workers v. Russell, 356 U.S. 634 (1958).

(iiieiceteatithinieceneennanelale

69a

at precisely the same conduct (and justified by findings

of a non-expert, non-federal tribunal) did not constitute

a conflict of remedies. After Russell it could reasonably

be said that general state tort law sanctions could be

freely directed at labor relations activity which, based upon

state court findings of fact, was not protected by federal

law.

Gonzales, upon which the majority relies so heavily, was

decided on the same day as Russell. It was a California

contracts case in which a union member, who claimed to

have been wrongfully expelled from his union, was ordered

reinstated and given damages for lost wages as well as

for mental and physical suffering caused by the union’s

breach of contract. Justice Frankfurter, again writing

for that Court, admitted that there might be an unfair

labor practice made out by the facts, but preferred to

characterize the action soiely as one giving effect to a

union member’s rights without reference to extra-union

employment or labor relations factors. This was so even

though the damages given closely paralleled the award

which the National Labor Relations Board could have im-

posed if it had found an unfair labor practice. The pos-

sibility of conflict with national labor policy was, for no

articulated reasons, said to be ‘‘too contingent, too re-

motely related to the public interest expressed in the Taft-

Hartley Act, to justify depriving state courts of jurisdic-

tion to vindicate the personal rights of an ousted union

member.’’*® This conclusion, which in terms of legal

and logical argument was mere ipse dixit was ‘‘empha-

sized’? by an examination of [the] way in which the lower

courts and the parties characterized the action. It was a

contracts action and, therefore, it served ‘‘internal’’ pur-

poses. If it had been a labor law case, presumably it

would have been ‘‘external’’ and pre-empted. Justice

Frankfurter’s examination of the theory of the pleadings

10356 U.S. 617, at 621.

70a

to establish the distinction between the state’s focus op

internal union matters and the national focus on externa]

labor relation matters smacks somewhat of the aridity

of the ancient forms of action.

After 1958 it might readily be concluded that there wag

a wide area of activity, or cases, or remedies which were

solely the province of the National Labor Relations Board,

And, especially after Gonzales and Russell, it could be

as well concluded that there was as wide an area which

was subject to the concurrent jurisdiction of the state

and national tribunals. There was not, however, any well-

evolved set of clear principles which could be applied to

determine into which category a given case might fall,

As we pointed out the first time that Mr. Lockridge’s

litigation was before us the law in the area was confused

and unsettled.’ The various cases seemed each to an-

nounce a new rationale repugnant to the last. The diff.

culty, as the justices had never ceased to mention and as

professor, and later solicitor general, Cox had early pointed

out, was that Congress had never delineated the boundaries

of the two jurisdictions.» The Supreme Court had at-

tempted to fill this breach by statutory interpretation

which was based on the assumption that there had to be

some, but not much, concurrent state jurisdiction. Pro

fessor Cox had rightiy warned that this allowance of

simultaneous jurisdiction over the same matter would

ultimately lead to excessive litigation and confusion as

every point of state law would ultimately have to be passed

11 Lockridge v. Amalgamated Ass’n of St. El. Ry. & M. C. Em-

ployees, 84 Idaho 201, 208, 369 P.2d 1006 (1962).

12 See Cox, Federalism in the Law of Labor Relations, 67 Harv.

L.Rev. 1297 (1954).

18 Compare International Ass’n of Machinists v. Gonzales, 356

U.S. 617 (1958), and Garner v. Teamsters Union, 346 U.S. 485

(195.°, with Guss v. Utah Labor Relations Board, 353 U.S. 1

(1957).

7la

on by the United States Supreme Court. That Court’s

effort to draw the jurisdictional boundaries according to

sensitive, subtle judgments about the relative positions

of the competing state and national interests through a

process of ‘litigating elucidation’’ on a case by case basis

had, as we have seen, come a cropper. The justices had

simply been unable to state coherently what the controlling

considerations were. Some of the supposed ‘‘principles,’’

especially the notion of conflict of remedies, seemed to

be tenuously related to considerations of national labor

policy at best. It was this background against which the

strict, even ‘‘wooden”’ rule of the Garmon case stands so

starkly. A careful reading of Garmon indicates that in

it, the majority of the Supreme Court, led again by Justice

Frankfurter, embarked on a new course departing sub-

stantially from the line of decisions which preceded it.

The majority opinion in San Diego Building Trades

Council v. Garmon” began by describing the difficult process

of attempting to give meaning to a statutory framework

which was vague, poorly foreseen or utterly unperceived

as a process of ‘‘giving application to congressional in-

completion.’” This complaint of congressional inactivity

was followed by a plea that, if a better and more sensitive

demarcation than that provided by the courts was wished,

it was up to the Congress to draw better and more precise

boundaries by enactment. This suggested action, echoing

Professor Cox’s argument made five years before, if it

had been acted upon by the National Congress, might well

have saved the parties and the courts of Idaho most of

the time and money expended in litigating the jurisdictional

question in this case.

Having concluded that the legislature had not given

the courts much guidance, Justice Frankfurter explicitly

“Cox, supra note 12, at 1315-1317.

6 359 U.S. 236 (1959).

72a

disavowed the attempted, subtle, case-by-case decisional

process of the preceding decade.

‘*The nature of the judicial process precludes an ag

hoc inquiry into the special problems of labor-

ment relations involved in a particular set of occur.

rences in order to ascertain the precise nature and de.

gree of federal-state conflict there involved, and more

particularly what exact mischief such a conflict would

cause.’’ **

This is directly at war with the spirit of ‘elucidating

litigation’? which had animated the previous cases. But,

if this were not enough, the point was emphasized as

Justice Frankfurter began to review the law derived from

the cases. Not all reasoning in them was of determinative

importance, and much of the language used in the past

did not articulate the principles upon which the decisions

rested :

‘*We state these principles in full realization that,

in the course of a process of tentative, fragmentary

illumination carried on over more than a decade dur-

ing which the writers of opinions almost inevitably,

because unconsciously, focus their primary attention

on the facts of particular situations, language may

have been used or views implied which do not com-

pletely harmonize with the clear pattern which the

decisions have evolved.’’ '*

And, in any event, the process of elucidation was now

over, and the court was going to state the correct rules

to decide cases based on a decade’s experience. Garmon

was clearly and consciously meant to strike a new course.

16 359 U.S. 236, at 242.

* 359 U.S. 236, at 241.

But a new course as to what? The majority in today’s

opinion would restrict Garmon to cases involving picketing.

Justice Frankfurter’s words, however, do not support that

conclusion. The issues decided by the Garmon case were

framed as broadly as possible.

“The case before us concerns one of the most teasing

and frequently litigated areas of industrial relations,

the multitude of activities regulated by §§7 and 8 of

the National Labor Relations Act. * * * The extent

to which the variegated laws of the several states

are displaced by a single, uniform, national rule

ee @ 9918

73a

There was no broader way to frame the issue in the case.

When a justice as experienced, precise and lawyer-like

as was Justice Frankfurter so obviously chooses to have

a case cover the most ground possible, we can only con-

clude that the decision to be doctrinaire was purposeful.”

Having clearly indicated that Garmon was to state a

new rule for the entire catalogue of labor law pre-emption

cases, the opinion went on to state the salient considera-

tions which underlay the new doctrine.

“The unifying considerations of our decisions has

been regard to the fact that Congress has entrusted

administration of the labor policy for the Nation to

a centralized administrative agency armed, with its

own procedures and equipped with its specialized

knowledge and cumulative experience.’’ *

Citing Garner, the court also noted that the N.L.R.B. had

as an expert tribunal, primary jurisdiction over questions

359 U.S. 236 at 241.

"See Currier, Defamation in Labor Disputes: Preemption and

the New Federal Common Law, 53 Va.L.Rev. 1, 2, 7-14; Michelman,

supra note 1, at 648.

* 359 U.S. 236 at 242.

nor nn rey

74a

within its competence.” And, most importantly, the court

referred to the completeness of the federal regulatory

scheme, the dense interrelationship between the rules,

the administrative process, the expert agency and the rem.

edies. Therefore pre-emption was necessary whenever

this delicate and purposeful national law system might be

encroached upon in any way.

‘‘When it is clear or may fairly be assumed that the

activities which a state purports to regulate are pro.

tected by §7 * * * [or prohibited by] §8 due regard

for the federal enactment requires that state juris.

diction must yield.’’ ™

And, because it is often not clear when matters are subject

to either section or are meant to be utterly unregulated

and because the pre-eminent principle is complete respect

for the federal scheme,

‘*When an activity is arguably subject to §7 or §8

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

must defer to the exclusive competence of the Na-

tional Labor Relations Board if the danger of state

interference is to be averted.’’™

The governing consideration was the necessity of absolute

avoidance of even potential interference with federal labor

policy.

There were only two narrow exceptions allowed to this

rule of practically total pre-emption. The first was con-

*1 359 U.S. 236 at 242-243, 244. The doctrine of primary juris-

diction, originally designed to protect the uniformity of Interstate

Commerce Commission rules, has turned chiefly on the alleged ex-

pertness of federal administrative bodies in recent years. L. Jaffe,

Judicial Control of Administrative Action 121-151 (1965).

#2 359 U.S. 236 at 244.

8 359 U.S. 236 at 245.

—

75a

duet which breached or threatened to breach the public

The Laburnum and Russell cases were limited in

their holdings to this narrow rule. The second exception

was conduct which was of only ‘‘peripheral concern’’ of

the Act. Gonzales was the only case cited for this last

proposition.

And, finally, Garmon rejected much of the reasoning

in the old cases. Remedies, conflicting or otherwise, were

no longer determinative. The language about conflicting

remedies in Laburnum was explicitly rejected. It was

conduct alone which was regulated. If the conduct even

arguably came within the scope of the national policy,

all adjudication about it had to be commenced in the

N.L.R.B. Also the distinctions between general laws and

specific labor regulation, or those based on the charac-

terizations of the parties, juries, or state tribunals were

not of importance. It was, again, state regulation of

conduct—no matter on what theory—which was to be avoid-

ed. If the activities which inspired the litigation were

even arguably among those which had been entrusted to

the judgment of the expert National Labor Relations

Board for application of the comprehensive scheme of

federal rights and remedies, then jurisdiction was solely

in the national board. Any intervention in such areas

by the inexpert state courts, even if the Board would not,

in its discretion, choose to rule on the merits, was absolutely

prohibited by Garmon.

The Garmon case, thus, represents a watershed in the

jurisprudence of pre-emption. It purported to be and

was a complete break with the decisions in the past. It

stated a simple, omnibus rule: if conduct was even argu-

ably subject to adjudication by the expert National Board

it was ungovernable by state power. It narrowed the

permissible scope of state jurisdiction to conduct which

threatened good order or which was utterly irrelevant to

national policy. And it foreclosed recourse to the con-

TE ert

76a

fused jumble of cases out of which it was born. It was

now to be the rule in Garmon’s case which was to control,

The preceding cases had vitality only to the extent allowed

them by Garmon. The rule was intentionally crude, even

‘‘wooden’’, because it was, at least in part, designed to

provide a ‘‘bright line’’ for deciding jurisdictional issues

and, thereby, to cut off the cascade of state court litiga-

tion which the cases through Russell and Gonzales threat-

ened to inspire.* It is possible that in declaring this

unsubtle rule in reaction to the confusion of the preceding

decade, the Supreme Court of the United States was guilty

of throwing out the baby with the bath water. But even

if that is so, under the Supremacy Clause this court has

no choice but to follow that lead. Garmon is absolutely

the controlling case.

While it was not perfectly clear that Garmon was the

determinative decision when this case first came before

this Court over seven years ago, it is now indisputable.

In the ten years since the Garmon decision the cases in

the United States Supreme Court® and in the state

courts*® which recognize the supremacy of the rule in that

ease are legion. The most important among these for

our purposes are the Borden** and Perko* cases which

* Currier, supra note 19, at 7-14; Michelman, supra note 1, at

648; Updegraff, Preemption, Predictability and Progress in Labor

Law, 17 Hastings L.J. 473, 484-485.

5 F.g., Marine Engineers Beneficial Ass’n v. Interlake Stcam-

ship Co., 370 U.S. 173, (1962); Hanna Mining Co. v. Dist. 2,

Marine Engineers Ben. Ass’n, 382 U.S. 181 (1965).

26 F.g., Cox’s Food Center, Inc. v. Retail Clerks Union, Local

No. 1653, 91 Idaho 274, 420 P.2d 645 (1966); Day v. Northwest

Division 1055, 389 P.2d 42 (Ore., 1964) ; Fullerton v. International

Sound Technicians, 194 Cal.App.2d 801, 15 Cal. Rptr. 451 (1961);

and cases cited in Currier, supra note 19, at 2 n. 7.

27 Local 100 of United Ass’n of Journeymen and Apprentices v.

Borden, 373 U.S. 701 (1963).

28 Local No. 207, International Ass’n of Bridge, ete., Iron Workers

v. Perko, 373 U.S. 701 (1963).

77a

the majority attempts, unsuccessfully, to distinguish from

Lockridge. Those cases did not turn on the fact of mem-

bership or non-membership in the defendant union. The

touchstone in each of those cases was a denial of the

rights of a union member which effectively caused that

member to be deprived of employment which he otherwise

had. The form or theory of the pleadings, whether the

action sounded in contract or in tort or was a hybrid labor

relatious case did not matter. After Garmon the key to

analysis, When pre-emption is urged, is the character of

the conduct. In Borden and Perko the court catalogued

the ways in which the conduct complained of could ‘‘rea-

sonably’’ arguably have been characterized by the expert

National Labor Relations Board as either §7 or §8 con

duct. This discussion, required for decision after Garmon,

is what the majority refers to when it says ‘‘Justice

Harlan * * * pointed to many important policy questions

involved in those cases which were more properly to be

decided by the Board.’’ That lengthy treatment is not

needed in this instance; the majority concedes that the

conduct complained of did indeed constitute an unfair labor

practice. Following Borden and Perko and Garmon, that

concession is all that is needed; the conduct is § 8 activity;

jurisdiction is, therefore, pre-empted.

The majority, however, attempts to rely on the ‘‘dis-

tinction’’ which Justice Harlan drew between the Borden

and Perko cases and Gonzales. The Gonzales case was

different because, according to Justice Harlan, it ‘‘turned

on the Court’s conclusion that the lawsuit was focused

on purely internal union matters.’’* That, the majority

would urge us to believe is also true here. There are two

answers to that contention. The first is to hypothesize

Mr. Lockridge’s answer if we were to ask him if he would

like his union membership back or his seniority rights

and his damages, but not both. And the second answer,

a corollary of the first, is that it is impossible to say

* 373 U.S. 690 at 697.

“esr amrm arty

ee iat

78a

that this Court in this case has not focused sharply on

conduct touching Lockridge’s employment relation when

all of the relief—excepting restoration of simple union

membership—necessarily had to turn on this Court’s in-

terpretation of §3 of the collective bargaining contract

between the defendant union and Greyhound. How could

we award seniority rights and back wages to this plain-

tiff if we had not concluded that the union had not been

acting in pursuance of a lawful union security agreement?

And that determination is not ‘‘merely peripheral’’ to

the Act nor is it one which involves wholely internal union

matters. The conclusions which the Court has made in

this case today are on precisely the sort of ‘‘difficult and

complex problems’’ which, under the primary jurisdic-

tion rationale of Garmon, are solely within the competence

of the expert National Labor Relations Board. The prob-

lems of interpretation of the union charter and the bar-

gaining contract here are no less difficult than are some

of the ‘‘problems of definition’’ consigned to the Board

in Perko. It is not, despite the ipse dixit of the ma-

jority, ‘‘obvious * * * that Lockridge was not subject to

suspension or dismissal.’’ And it is not for us to decide

if our intrusion into the regulation of this conduct will

‘‘not militate against the discipline which is necessary

to preserve the goals of concerted action, but rather mili-

tate in favor of the basic purpose for which national labor

law was created.’’ That determination, no matter what

may be our own view of our competence, has been taken

from us and vested wholely in the expert N.L.R.B., as

a matter of federal law, under the Garmon rule. Whatever

the current status of the Gonzales case might be, it is

clear that the rule in the Garmon case, as applied in

Borden and Perko, requires that the courts of Idaho

refuse to assert the jurisdiction which they do not have

in this case.

To make one point for a second time, the concession

that the conduct regulated in this instance did probably

constitute an unfair labor practice (which conclusion is

79a

not thai, tervibly clear) should have ended this case. The

statement by the majority that:

‘‘Pre-emption is not established simply by showing

that the same facts will sustain two different legal

wrongs. This would be analogous to precluding a

contract action by proving the facts also establish a

tort,’’

grossly misinterprets the Garmon-Perko-Borden rule which

specifically rejects the notion that what is important is

the theory upon which a case is tried. The rule is if

conduct which is to be regulated is reasonably arguably

covered by §7 and §8 of the Act, then the jurisdiction

to regulate that conduct belongs solely to the national

agency.

The correct rule is clearly a crude, simple device. It

fails to make subtle distinctions ‘‘in order to ascertain

the precise nature and degree of federal-state conflict

* * * and more particularly what exact mischief such a

conflict would cause.’’*° It is thus on purpose. It is

designed to avoid the sort of confused and unbelievably

protracted litigation with which we are faced in this case.

It should have been allowed to have effect the first time

this case came to this Court well over seven years ago.

It should, as a function of our position in the federal

system as defined by the Supremacy Clause, be given

effect even now.

The Supreme Court of the United States sought for a

decade to devise a better rule. It could not. The rule

which we have in Garmon is at least easy to apply—and

we should apply it. If we are unhappy with this situa-

tion we can only plead with those responsible for the domi-

nant federal law—the United States Supreme Court, and,

more importantly, the Congress—to make a change.

*° San Diego Building Trades Council v. Garmon, 359 U.S. 236,

242 (1959).

ELROD OE OLE ESOL IA

J neers

ee rn

80a

APPENDIX I

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution: Supremacy Clause

Article VI, Section 2 of the Constitution of the United

States reads in pertinent part as follows:

‘“‘This Constitution and the Laws of the United

States which shall be made in Pursuance thereof * * *

shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the Con-

trary notwithstanding.’’

National Labor Relations Act: Sections 7, 8(a)(3), 8(b)(1)(A)

and 8(b)(2)

The pertinent statutory provisions are the following,

in the National Labor Relations Act, as amended, 49 Stat.

449, 29 U.S.C. §§ 151 et seq.:

Section 7, 29 U.S.C. § 157, provides:

‘‘Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations, to

bargain collectively through representatives of their

own choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining or

other mutual aid or protection, and shall also have

the right to refrain from any or all such activities

except to the extent that such right may be affected

by an agreement requiring membership in a labor

organization as a condition of employment as author-

ized in section [8(a)(3)] of this title.’’

Section 8(a)(3), 29 U.S.C. § 158(a)(3), makes it an un-

fair labor practice for an employer:

‘*by discrimination in regard to hire or tenure of

employment or any term or condition of employment

—

to encourage or discourage membership in any labor

organization: Provided, That nothing in this sub-

chapter, or in any other statute of the United States,

shall preclude an employer from making an agree-

ment with a labor organization * * * to require as a

condition of employment membership therein on or

after the thirtieth day following the beginning of such

employment or the effective date of such agreement,

whichever is the later, * * *: Provided further, That

no employer shall justify any discrimination against

an employee for non-membership in a labor organiza-

tion * * * (B) if he has reasonable grounds for

believing that membership was denied 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 membership.’’

Section 8(b)(1)(A), 29 U.S.C. §158(b)(1)(A), makes

it an unfair labor practice for a labor organization or

its agents ‘‘to restrain or coerce * * * employees in the

exercise of the rights guaranteed in section [7]: 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 * * *.’’

Section 8(b)(2), 29 U.S.C. § 158(b)(2) provides in per:

tinent part as follows:

8la

“‘Tt shall be an unfair labor practice for a labor

organization or its agents—* * * to cause or attempt

to cause an employer to discriminate against an em-

ployee in violation of subsection (a)(3) of this sec-

tion 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 initia-

tion fees uniformly required as a condition of ac-

quiring or retaining membership.’’

0 REG OOPS 554

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