Appeal from the United States District Court for the Southern District of Illinois No. 82-5080 -- William L. Beatty, Judge.
Before BAUER and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
SWYGERT, Senior Circuit Judge. Plaintiff-appellant Ray Lewis appeals from the district court's order granting defendant-appellee's, Local Union No. 100 of the Laborers' International Union of North America, AFL-CIO ("the Union"), motion to dismiss with prejudice his five-count amended complaint. The district court dismissed the complaint on the grounds that (1) Lewis' claims were subject to the exclusive jurisdiction of the National Labor Relations Board ("NLRB"); (2) Lewis' claims were time-barred; (3) Lewis failed to exhaust intra-union remedies; or (4) punitive damages are not recoverable in fair representation lawsuits. We affirm in part, reverse in part, and remand for further proceedings.
The allegations in this case, which we take as true for the purposes of determining the propriety of the dismissal of this action, are as follows. Lewis is a member of the Union. Pursuant to a collective bargaining agreement between the Union and the Southern Illinois Builders' Association, the Union operates an exclusive hiring hall that refers its members out for employment.*fn1 Between February 1980 and June 1982 the Union refused to refer Lewis out of the hiring hall or referred him to employments of shorter duration than other Union members. When the Union did refer him to employments of longer duration, it pressured employers to terminate him. Lewis' attempts to pursue his grievances against the union were frustrated by the Union's refusal to furnish him with copies of the Union's constitution, bylaws, and collective bargaining agreement. The Union's conduct was wilful, wanton and malicious, without justification or excuse, and the product of a personal dispute between himself and Union officials that had no bearing on Lewis' standing in the Union.
The Union moved to dismiss Lewis' amended complaint on the grounds set forth, ante at 1. Without giving reasons, the district judge granted the motion to dismiss the complaint in its entirety. On appeal the Union asserts that any one ground would be an adequate basis on which this court could affirm the district court's dismissal of this action. We discuss each of them separately below.*fn2
The Union first argues that the facts as alleged by Lewis which form the foundation for all five counts of the complaint constitute "activity [that] is arguably subject to § 7 or 8 of the National Labor Relations Act ("the NLRA" or "the Act")," San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959), and hence the courts are preempted from hearing any of Lewis' claims. See id. The Union apparently acknowledges that claims under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) ("LMRA"),*fn3 for breach of the labor contract are not preempted even though the conduct giving rise to the claim is concededly an unfair labor practice.*fn4 See Appellee's Brief at 5. The Union maintains, however, that Lewis has failed to allege such a breach. Appellee's Brief at 7.
Lewis seems to concede that his claims are based on conduct arguably subject to section 7 or section 8 of the NLRA. Counts II and III expressly allege an unfair labor practice based upon the discriminatory job referrals. And Lewis does not appear to, nor in our view could he, seriously contest the fact that the district court properly dismissed these two counts of the complaint on preemption grounds.*fn5 Nonetheless, he disputes the Union's contention that count I is not a contract claim under section 301(a) of the LRMA.*fn6
We agree with Lewis. The contract claim is not a model of artful pleading. The allegations of count I are somewhat vague, and count I does not even explicitly claim a breach of contract. Indeed, it is the only count of the complaint that does not state a particular legal theory for relief. Nonetheless, it is clear that under "simplified "notice pleading," Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957), the allegations of the complaint should be liberally construed, and the "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 46 (footnote omitted). Here, Lewis alleges that a labor contract exists between the Union and a builders' association, and that the labor contract contained a provision authorizing the Union to cooperate a hiring hall and to "refer to the . . . [builders' association] such applicants as are competent to fulfill the requirements of the position sought to be filled." See supra note 1. He further alleges that the Union "violat[ed] [its] . . . duties . . . pursuant to its contracts," (complaint, P7), by failing to refer Lewis for employment in the same manner that it referred other Union members. We think that these allegations may be fairly construed to allege a breach of contract. See Conley, 355 U.S. at 48.
Although we have decided that Lewis has alleged a breach of contract, our analysis does not end here for it has not been resolved, at least by this circuit, whether a union member can sue his union under section 301(a) for breach of contract. Moreover, even if we decide this issue in favor of Lewis, it does not necessarily follow that Lewis' contract claim is cognizable under section 301(a). Individual employees may only sue under section 301(a) "for breach of promise embedded in the collective bargaining agreement that was intended to confer a benefit upon the individual [employee]." Amalgamated Assoc. of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 298-99, 29 L. Ed. 2d 473, 91 S. Ct. 1909 (1971). We now turn to the resolution of these two issues.
In our view, the threshold question of whether a union member can sue his union under section 301(a) for a union's breach of the collective bargaining agreement has already been decided in the affirmative by the Supreme Court. See Lockridge, 403 U.S. at 274; Humphrey v. Moore, 375 U.S. 335, 11 L. Ed. 2d 370, 84 S. Ct. 363 (1964); Smith v. Evening News, 371 U.S. 195, 197, 9 L. Ed. 2d 246, 83 S. Ct. 267 ). In Evening News the Court held that notwithstanding the fact that an employee was not a signatory to the collective bargaining agreement, he could sue his employer under section 301 for breach of that agreement. The Court specifically rejected the argument that ". . . § 301 . . . exclude[s] all suits brought by employees . . . and . . . only suits between unions and employers are within the purview of § 301." Id. at 200. Relying on Evening News the Court in Humphrey held that section 301(a) supports a claim by a union member against the union and the employer for certain conduct that is alleged to violate a provision of the collective bargaining agreement and also to breach the union's duty of fair representation.
That is precisely the situation presented in the instant case, except for the fact that Lewis makes no claim against the employer. And we think that Lewis' failure to make such a claim is immaterial. First, the Court in Humphrey gave little attention to the presence of the employer as defendant in its analysis of the propriety of maintaining the section 301(a) claim against the union. The Court was satisfied that the suit was one to enforce the collective bargaining agreement. Second, we would be creating an artificial and irrational distinction by holding that section 301(a) permits suits by employees against employers, but not against unions. Moreover, such an irrational distinction would clearly undercut the broad rationale of Evening News, and the clear congressional policy choices behind section 301(a) which were identified by the Court in that case. See id. at 199-200. Finally, although Lockridge might at first glance suggest that the presence of the employer as a defendant is critical to section 301(a) jurisdiction, see id. at 298-99, a closer look reveals that in that case the employee sued his union for breach of an implied agreement between the union and the employee, not for the union's breach of the collective bargaining agreement. Indeed, in Lockridge, the Court explicitly noted without qualification that ". . . individual employees have standing to protect rights conferred upon them by such agreements." Id. at 298 (citations omitted). See also United Association of Journeymen & Apprentices of the Plumbing & Pipefitters, Industry v. Local 334, 452 U.S. 615, 69 L. Ed. 2d 280, 101 S. Ct. 2546 (1981) (permitting suit by one union against another for alleged violations of a union constitution to be maintained under section 301); Rutledge v. Aluminum Brick & Clay Workers Int's Union, 737 F.2d 965 (11th Cir. 1984); International Union, Allied Industrial Workers v. Local Union No. 589, 693 F.2d 666, 671 (7th Cir. 1982); Hill v. Iron Workers Local Union, No. 25, 520 F.2d 40 (6th Cir. 1976); Dente v. Masters, Mates & Pilots Local 90, 492 F.2d 10 (9th Cir. 1973), cert. denied, 417 U.S. 910, 41 L. Ed. 2d 214, 94 S. Ct. 2607 (1974). Thus, there can be little doubt that an employee can maintain an action under section 301(a) against the union for breach of the labor contract, at least, where, as here, the employee has also alleged a breach of the duty of fair representation.
The second issue -- whether the contract provisions on which Lewis relies were "intended to confer a benefit upon . . . [Lewis]," Lockridge, 403 U.S. at 298-99, -- is less clear. Those provisions may have been negotiated solely for the benefit of the employer as a protection against a union's abusing its exclusive power to refer employees. For example, in this case, the employers demand to be allowed to veto the Union's referrals, and they insist that the Union promise to refer competent applicants to them and also not to discriminate against nonunion workers. If the Union breaks this promise the employers can sue the Union under section 301(a), but the employee cannot because the promises do not run to him. And there is no allegation that any employer covered by the agreement in this case is dissatisfied because the Union has not referred Lewis to him. It may be doubtful therefore whether this is a suit "by a union member against his union that seeks to redress union interference with rights conferred on individual employees by the employer's [or the union's] promises in the collective-bargaining agreement," Lockridge, 403 U.S. at 299 (emphasis added).
Nonetheless, we cannot be so certain as to be justified in affirming the dismissal of Lewis' complaint on the pleadings. There can be no question that hiring halls confer a benefit on employees, which may be why employees often pay a fee to be able to participate in the hiring hall. See Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 672, 6 L. Ed. 2d 11, 81 S. Ct. 835 (1961); Gorman, Basic Text on Labor Law 668-69; Meltzer, Labor Law: Cases, Materials, and Problems 1066 (2d ed. 1977). Indeed, additional facts not before this court may show that the referral provisions were negotiated with the added objective of assuring "competent" employees who used the hiring hall that they would be referred in the same manner as all other "competent" employees, or that the nondiscrimination provision in the collective bargaining agreement may have been intended to protect all employees in the collective bargaining unit from any discriminatory referrals. If these or other similar facts are shown on remand to exist then Lewis would probably have a good cause of action.
Thus, based on the limited record before us, we find that Lewis has alleged a breach of contract claim against the Union that is cognizable under section 301(a).*fn7 Ordinarily, that would end our discussion of the preemption issue,*fn8 because under Humphrey the fair representation claims in counts IV and V could be maintained in the same section 301(a) action. But the Union here also asserts that the district court properly dismissed the fair representation claims. It argues that allegations of discriminatory job referrals do not constitute a claim for breach of the duty of fair representation;*fn9 and that even if they do, Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. ...