Dean K. Buckley, Plaintiff-Appellant v. Gilardy, Preston & Dore dba Interlines Blankenship Motor Express et al., Defendants-Respondents.

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Court of Appeal, First District, Division 4, California.

Dean K. Buckley, Plaintiff-Appellant v. Gilardy, Preston & Dore dba Interlines Blankenship Motor Express et al., Defendants-Respondents.

No. 1 Civil 26517

Decided: June 18, 1970

Plaintiff's action was dismissed following an order sustaining a demurrer to his complaint without leave to amend, and he appeals. The action is against trucking operators. It is alleged that the defendants conspired with Line Drivers Union Local 468 by a secret agreement that the operators ‘will not hire or will discharge from their employ any driver, including plaintiff, not members of LOCAL 468, whom the union directs them to not employ or discharge from employment.’ Local 468 is a line drivers union which has jurisdiction of ‘over the road’ or ‘long line’ drivers who drive rigs for long distances. Plaintiff, Buckley, is a member of a truck drivers union, but his union has jurisdiction over drivers in a confined area. He has attempted, unsuccessfully, to gain admission to Local 468. Plaintiff prays for writ of mandate or an injunction to compel his hiring as a long haul driver by respondents, and to compel his admission into membership in Local 468 (Local 468 is not a party to this appeal); for damages, compensatory and punitive; and for counsel fees.

The judge of the superior court sustained the demurrer without leave to amend for the reason that the superior court has no jurisdiction over the subject matter of the causes of action. We agree with this decision. Matters arguably protected or prevented by the National Labor Relations Act are preempted from the jurisdiction of state and federal courts. (San Diego Bldg. Trades Council v. Garmon, [37 LC ¶65,367] 359 U. S. 236, 245; Directors Guild of America, Inc. v. Superior Court, 64 Cal. 2d 42; Russell v. Electrical Workers Local 569, 64 Cal. 2d 22; Bricklayers & Masons Union No. 1 v. Superior Court, 216 Cal. App. 2d 578, 582-585; United Assn. of Journeymen & Apprentices v. Borden, [47 LC ¶50,832] 373 U. S. 690; International Assn. etc. Iron Workers Union v. Perko, [47 LC ¶50,833] 373 U. S. 701, 705.) That the subject matter contained in plaintiff's complaint is at least arguably protected or privileged matter under the National Labor Relations Act appears from the following:

(1) The very essence of the conduct of the employer respondents which plaintiff complains of, which, if true, is obviously a discriminatory practice.

(2) The fact, as shown by exhibits to the complaint, that the National Labor Relations Board actually has considered the very case which plaintiff would put before the superior court. A referee decided, after a full hearing and upon conflict of evidence, that the employers as well as Local 468 had engaged in a discriminatory practice against plaintiff; the National Labor Relations Board overruled the referee on the ground of insufficiency of the evidence, and there has been an appeal to the U. S. Court of Appeals where the matter presently is pending.

(3) Plaintiff has been unable to cite any post Taft-Hartley case in which an employer has been held subject to the jurisdiction of a state court, when conduct of the nature herein alleged was the basis of the action. We mean a case in which ‘the crux of the complaint necessarily pertains to employment relations rather than to union membership.’ (Directors Guild of America, Inc. v. Superior Court, supra, 64 Cal. 2d at p. 54.) Of course, the failure to cite authority is understandable in the light of the Garmon case, supra. The case of James v. Marinship Corp., [9 LC ¶62,475] 25 Cal. 2d 721, cited by appellant, is quite distinguishable: (a) It was decided before the Taft-Hartley amendments to the National Labor Relations Act, which made it an unfair labor practice for an employer to discharge an employee because he is deprived of membership in a union or is deprived of employment because of a closed shop agreement. (29 U. S. C. A. § 158(a)(3).) (b) It was decided before the holding of the Garmon case. (c) In the James case, it was pointed out (25 Cal. 2d at p. 743) that the dispute in the case was essentially between the members of a labor union and certain individual workers, and that the employer was made a party solely in order to render effective any order issued with respect to the union defendants. There was no charge that the employer had committed an unfair labor practice.

We recognize the principle that the protection of union members from arbitrary conduct by unions and union officers is not a matter which has been undertaken by federal law (International Assn. of Machinists v. Gonzalez, [34 LC ¶ 71,547] 356 U. S. 617), and that enforcement of a union member's right to fair representation by the union in its bargaining with an employer, and in its enforcement of a resulting collective bargaining agreement is also a subject which has not been preempted. (Vaca v. Sipes, [55 LC ¶11,731] 386 U. S. 171.) But the case before us plainly does not fall within these categories. It is not merely a controversy between a member and his union, and indeed is not one in which a union is presently a party.

The judgment of dismissal is affirmed.

DEVINE, P. J.

RATTIGAN and CHRISTIAN, Judges, concur.