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June 19, 1970


The opinion of the court was delivered by: Robert D. Morgan, District Judge.


The amended complaint herein, in a single count, seeks damages against all defendants, jointly and severally, on account of alleged breaches of successive collective bargaining agreements by defendant Westinghouse Air Brake Company (herein WABCO), plaintiff's former employer, on account of alleged failure of defendant unions (herein Lodge 158 and International, respectively, or the unions) to fairly represent him as his collective bargaining representative, and because Travelers Insurance Companies, Inc. (herein Travelers) is apparently underwriter of certain insurance benefits provided in the collective bargaining agreements.

The amended complaint was tendered for filing and served on defendants after hearing on the motions decided hereby. Motion for leave to file same was not immediately granted, but the defendants have all addressed themselves to it by renewed and supplemental motions and memoranda of authorities. It simply adds specifications of alleged wrongs, leaves out the former allegation that plaintiff is "totally, permanently, completely and wholly disabled," and alleges that Travelers is a necessary party under Rule 19, F.R. Civ.P. Consequently, this court, on June 15, 1970, did enter an ex parte order permitting it to be filed. The court herein treats all matters of substance in any of the motions attacking the complaint as applicable to the amended complaint; and that document should hereafter be considered by all concerned as if it had been filed by plaintiff in the first instance.

Travelers moves for dismissal as to it essentially because there are no allegations of fact indicating any liability on its part to the plaintiff; and that motion must be allowed as it was originally at the hearing on April 9, 1970. Whatever potential liability Travelers might have as underwriter of any of WABCO's collective bargaining obligations would clearly depend on matters not before the court or necessary for litigation in this action.

Local 158 and WABCO have filed motions to dismiss or in the alternative for summary judgment, and International has moved to dismiss.*fn1 These motions have been renewed and supplemented as indicated above. Several affidavits in support of and in opposition to said motions have been filed and supported by copies of pertinent documents which are sworn to be true and correct. The sworn material before the court produces a file at this stage in the proceeding approaching three inches in thickness, and includes, without factual dispute, the two successive and applicable collective bargaining agreements, the texts of two decisions and awards by distinguished labor contract arbitrators of grievances handled by the unions on behalf of plaintiff, the constitution of defendant International, the WABCO Insurance Program and Pension Plan, and a Social Security examiner's decision, dated May 1, 1969, to continue disability benefits to plaintiff which began August 31, 1966. The court also has before it a "Summary of Employment, Disability and Grievance History of John Nuest with Westinghouse Air Brake Company and Predecessor Company" from 1942 to September 25, 1969, when his release from employment was sustained by arbitrator M.S. Ryder (and including information that a workmen's compensation proceeding begun by plaintiff on December 9, 1969, to reopen an award against WABCO, was continued on March 10, 1970), sworn to be true and correct by W.W. Kimmel, Vice President of WABCO (Construction Equipment Division), which is largely uncontroverted by plaintiff, except possibly in regard to WABCO conclusions therein or sought to be inferred or implied therefrom. In addition, there is a volume of miscellaneous correspondence between plaintiff and his union officials, grievance and workmen's compensation documentation, etc. Because of this material which has been presented and not excluded by the court, it seems apparent that under Rule 12(b), F.R. Civ.P., this court must dispose of the pending motions as provided in Rule 56, F.R. Civ.P. To that end the parties were given an opportunity to present any additional pertinent material within 10 days after the hearing. All material filed has had the careful consideration of the court, and the complexities are immense.

Jurisdiction is claimed under Section 301 of the National Labor Relations Act, 29 U.S.C. § 185, the suit being for violations of a collective bargaining agreement and on account of alleged diversity of citizenship under 28 U.S.C. § 1332(a). Complete diversity does not exist to sustain jurisdiction under 28 U.S.C. § 1332(a), but jurisdiction under 29 U.S.C. § 185(a), if otherwise proper, may be founded here "without respect to the amount in controversy or without regard to the citizenship of the parties."

What appears to this court to be the principal substance of the uncontroverted facts before the court follow in lettered paragraphs.

(a) Plaintiff had been an employee of WABCO and its predecessor corporation and a member in good standing of Lodge 158 and International since January 11, 1942. During the year 1964, plaintiff was instrumental in organizing a wildcat strike, which fact was unknown to WABCO until admitted in the complaint herein. This strike arose out of an alleged failure of Lodge 158 to adequately represent its employees to WABCO, and resulted in the resignation of certain officers of Lodge 158.

(c) At all times material hereto, WABCO, Lodge 158 and International were parties to a collective bargaining agreement, the latest of which was dated September 28, 1967, which succeeded a previous agreement entered into on September 2, 1964. These agreements provided for the terms and conditions of employment of employees within the bargaining unit and both agreements provided for similar employee grievance procedures, but it should be noted that only the union, not the employee himself, could invoke the higher stages of the grievance machinery which included arbitration.

(d) Plaintiff was paid a total of one year's "sick leave" by the company, under the union contract, between April, 1965 and January 18, 1967, on account of his injury of April 19, 1965.

(e) Plaintiff refused assigned work for which the WABCO medical director released him in February, 1968, which WABCO interpreted as self-severance. Local 158 carried a grievance over this separation through arbitration, resulting in reinstatement without compensation for time lost, because, as the arbitrator said, "he was the moving party in creating the condition" which prevented return to employment, and directing reemployment without seniority loss provided he accept temporarily a job the medical director decided he could perform.

(f) Plaintiff filed a charge of unfair labor practice against WABCO before the National Labor Relations Board on March 6, 1968, charging discharge for union activity, but shortly withdrew it.

(g) An arbitrator of the Illinois Industrial Commission, in workmen's compensation proceedings filed by plaintiff, found two separate injuries due to accidents on April 19, 1965 and April 29, 1966, respectively.

(h) Plaintiff was finally released from employment by WABCO on November 14, 1968, because of his physical condition, and this termination was sustained by a grievance arbitrator in a proceeding carried forward on ...

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