Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I would affirm this judgment on the basis of International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, rather than overrule it. I would not extend San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, so as to make Lockridge, the employee, seek his relief in faraway Washington, D.C., from the National Labor Relations Board.

When we hold that a grievance is 'arguably' within the jurisdiction of the National Labor Relations Board and remit the individual employee to the Board for remedial relief, we impose a great hardship on him, especially where he is a lone individual not financed out of a lush treasury. I would allow respondent recourse to litigation in his home town tribunal and not require him to resort to an elusive remedy in distant and remote Washington, D.C., which takes money to reach.

He has six months within which to file an unfair labor practice charge with the Regional Director and serve it upon the other party. If he does not file within six months, the claim is barred. 29 U.S.C. § 160(b). The charge must be in writing and contain either a declaration that the contents are true to the best of his knowledge, or else a notarization. 29 CFR § 101.2. When the charge is received, it is filed, docketed, and given a number (29 CFR § 101.4) and assigned to a member of the field staff for investigation. 29 CFR § 101.4.

Following the investigation, the Regional Director makes his decision. 'If investigation reveals that there has been no violation of the National Labor Relations Act or the evidence is insufficient to substantiate the charge, the regional director recommends withdrawal of the charge by the person who filed.' 29 CFR § 101.5. If the complaining party does not withdraw the charge, the Regional Director dismisses it. 29 CFR § 101.6. Following dismissal, the complainant has 10 days to appeal the decision to the General Counsel who reviews the decision. Ibid. If the General Counsel holds against the complaining party and refuses to issue an unfair labor practice complaint, the decision is apparently unreviewable. A. Cox & D. Bok, Labor Law 138 (7th ed. 1969); General Drivers, Chauffeurs and Helpers, Local 886 v. NLRB, 10 Cir., 179 F.2d 492.

From the viewpoint of an aggrieved employee, there is not a trace of equity in this long-drawn, expensive remedy. If he musters the resources to exhaust the administrative remedy, the chances are that he too will be exhausted. If the General Counsel issues a complaint, then he stands in line for some time waiting for the Board's decision. If the General Counsel refuses to act, then the employee is absolutely without remedy. For as Garmon states:

'(T)he Board may also fail to determine the status of the     disputed conduct by declining to assert jurisdiction, or by refusal of the General Counsel to file a      charge, or by adopting some other disposition which does not      define the nature of the activity with unclouded legal      significance. This was the basic problem underlying our     decision in Guss v. Utah Labor Relations Board, 353 U.S. 1,      77 S.Ct. 598, 609, 1 L.Ed.2d 601. In that case we held that     the failure of the National Labor Relations Board to assume      jurisdiction did not leave the States free to regulate      activities they would otherwise be precluded from regulating. It follows that the failure of the Board to define the legal     significance under the Act of a particular activity does not      give the States the power to act.' 359 U.S., at 245-246, 79      S.Ct., at 780.

From this it follows that if the General Counsel refuses to act, no one may act and the employee is barred from relief in either state or federal court. See Day v. Northwest Division 1055, 238 Or. 624, 389 P.2d 42, cert. denied, 379 U.S. 878, 85 S.Ct. 145, 13 L.Ed.2d 86.

When we tell a sole individual that his case is 'arguably' within the jurisdiction of the Board, we in practical effect deny him any remedy. I repeat what I said before, 'When the basic dispute is between a union and an employer, any hiatus that might exist in the jurisdictional balance that has been struck can be filled by resort to economic power. But when the union member has a dispute with his union, he has no power on which to rely.' Local 100 of United Association of Journeymen and Apprentices v. Borden, 373 U.S. 690, 700, 83 S.Ct. 1423, 1429, 10 L.Ed.2d 638 (dissenting).

Garmon involved a union-employer dispute. It should not be extended to the individual employee who seeks a remedy for his grievance against his union.

The complaint in this state court suit sought damages from the union for its action in causing the employer to discharge him pursuant to the union-security clause in the collective-bargaining agreement. It also asked for 'such other and further relief as to the court may appear meet and equitable in the premises.'

It appears that the collective agreement only required Lockridge to be a member of the union as a condition of employment, not a member in good standing. Lockridge, it appears, was one month delinquent in payment of dues but was still a member.

The case for relief by Lockridge in a state court is as strong as, if not stronger than, the case of Gonzales. Lockridge, who was refused employment because of the union's representations to the employer, had never been expelled from the union. On the other hand, Gonzales had been expelled from the union because he brought assault and battery charges against a representative of the union. He sued for restoration of membership and for damages. The state court found that the union had breached its contract with the employee and ordered him reinstated and awarded him damages. 356 U.S., at 618, 78 S.Ct., at 924. We sustained the state court, saying that 'the subject matter of the litigation * *  * was the breach of a contract governing the relations' between the employee and the union and that 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).' Id., at 621-622, 78 S.Ct., at 926. We held that in those circumstances the state court had power to order the employee reinstated to membership and was not deprived of jurisdiction to 'fill out' his remedy by awarding damages. Id., at 620-621, 78 S.Ct., at 925.

Whether in the present case the discharge of Lockridge was 'arguably' an unfair labor practice within the meaning of Garmon is irrelevant. The reason is that the Board would not have the power to supply the total remedy which Lockridge seeks even if the employer had committed an unfair labor practice. True, the Board has authority to award back pay but it has no authority to award damages beyond back pay. Moreover, under Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, the union is in a fiduciary relation to its members. As we stated in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842:

'Under this doctrine, the exclusive agent's statutory     authority to represent all members of a designated unit      includes a statutory obligation to serve the interests of all      members without hostility or discrimination toward any, to      exercise its discretion with complete good faith and honesty,      and to avoid arbitrary conduct.'

We emphasized in the Sipes case that the Garmon rule was 'not applicable to cases involving alleged breaches of the union's duty of fair representation.' Id., at 181, 87 S.Ct., at 912. We held that in this type of case Congress did not intend 'to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative.' Id., at 183, 87 S.Ct., at 913.

As demonstrated by Mr. Justice WHITE in his dissent in this case, the exceptions to the pre-emption rule are so many and so important that they make amazing the Court's 'uncritical resort to it.' The wrongs suffered by Lockridge stemmed from the union's breach of its contract. Rather than overrule Gonzales, we should reaffirm what we said there:

'(T)he protection of union members in their rights as members     from arbitrary conduct by unions and union officers has not      been undertaken by federal law, and indeed the assertion of      any such power has been expressly denied. The proviso to §     8(b)(1) of the Act states that 'this 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 U.S.C. §     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     possibility of some entanglement with the Board's enforcement      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.' 356 U.S., at 620, 78      S.Ct., at 925.

Where the quarrel between the employee and the union is over a particular job, his remedy is before the Board. Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; Local No. 207, International Ass'n of Bridge, Structural and Ornamental Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646. But where the union contract is breached by expulsion of the employee, as alleged in Gonzales, or where he is wrongfully treated as no longer being a member of the union (which is the present case) the suit lies in the state court for damages, for declaratory or other relief that he still is a member, and for such other remedies as may be appropriate.

While I joined the dissent in Gonzales, experience under Garmon convinces me that we should not apply its rule to the grievances of individual employees against a union. I would affirm the judgment below.