SHERIDAN, Chief Judge.
These are motions by the defendants, Associated Transport, Inc. (Associated), The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (International), and General Drivers & Helpers Local Union 229 (Local 229), an affiliate of International, to dismiss the complaint, or in the alternative, to stay the proceedings.
Jurisdiction is based on Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C.A. § 185. Plaintiffs, members of Local 229, brought the action pursuant to Rule 23(a) of the Federal Rules of Civil Procedure, on behalf of themselves and all persons similarly situated who are members of Local 229. The complaint alleges that International and Local 229 (sometimes referred to herein as the Union), in action with Associated, have accepted employees from the Binghamton, New York, terminal of Associated for employment at the Dunmore, Pennsylvania, terminal and have intermingled or "dovetailed" their seniority with that of the employees at the Dunmore terminal; that this is a violation of plaintiffs' rights under a collective bargaining agreement
in effect between Local 229 and Associated; that plaintiffs complained to Local 229 and International which acted with fraud and in bad faith in processing their complaints and that this is a breach of their duty to represent their members fairly and impartially; that all defendants have discriminated against plaintiffs and their actions constitute unfair labor practices in violation of laws of the United States; that plaintiffs have exhausted Union remedies.
Specifically, plaintiffs allege that the men transferred from Binghamton are not within the scope of the contract; that if they are within its scope, defendants have violated Section 8(c)2 since there was no work transferred to Dunmore from Binghamton which was sufficient to justify the number of men whose seniority has been dovetailed, and that there was no work available within the intendment of this section to justify such dovetailing; that a decision of the Eastern Conference Joint Area Committee
which permitted the dovetailing is void because the Local 229 representative had no right to enter into an agreement (a part of the decision) and, in fact, he never signed the agreement; that the chairman of the committee was not properly selected; that the agreement is in violation of Article 7, Section 4 of the collective bargaining agreement; that even if the determination is valid, it has been improperly construed by Associated and Local 229; that all of these actions by defendants are in violation of seniority rights established by Sections 1-5 of Article 5 of the collective bargaining agreement. Plaintiffs pray for a declaratory judgment defining their seniority rights, and a judgment of money damages for lost employment.
Local 229 and International moved to dismiss the complaint on the grounds that the court lacks jurisdiction over the subject matter, and the plaintiffs have no standing to sue because only the Union has the right to bring and process grievances; and to dismiss the complaint or to stay the proceedings pending arbitration because the claimed breach of contract is a matter subject to arbitration under the terms of the collective bargaining agreement. Associated filed a separate motion in which it joined in the motion of the Union.
The defendants argue that even though the complaint alleges breach of a collective bargaining agreement, the gravamen is that the Union has failed to properly represent the plaintiffs in their grievances over seniority, an unfair labor practice, that exclusive jurisdiction is in the National Labor Relations Board (NLRB), which prevents the exercise of authority by all other entities even as to matters properly within their jurisdiction.
In Humphrey v. Moore, (1964) 375 U.S. 335, 11 L. Ed. 2d 370, 84 S. Ct. 363, the plaintiffs, members of a union, brought a class action against their union and the company. They alleged that a decision of the Joint Conference Committee, dovetailing seniority of the company by whom they were employed with that of another company, violated their rights under a collective bargaining agreement; that the Committee exceeded its power and that the decision of the Committee was brought about by dishonest union conduct in breach of its duty of fair representation. In passing on whether the court below had jurisdiction under Section 301 of the LMRA, the Court said:
" . . . this action is one arising under § 301 of the Labor Management Relations Act and is a case controlled by federal law, . . . even though brought in the state court. . . . Although there are differing views on whether a violation of the duty of fair representation is an unfair labor practice under the Labor Management Relations Act, it is not necessary for us to resolve that difference here. Even if it is, or arguably may be, an unfair labor practice, the complaint here alleged that Moore's discharge would violate the contract and was therefore within the cognizance of federal and state courts, . . . subject, of course, to the applicable federal law.
In Smith v. Evening News Ass'n, (1962) 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267, plaintiff brought a class action in the state court against his employer alleging violation of non-discrimination provisions of a collective bargaining agreement by payment of wages to non-union employees while other employees, members of a non-striking union, were not permitted to work because employees of another union were on strike. The trial court dismissed the action for lack of jurisdiction because the allegations showed an unfair labor practice within the exclusive jurisdiction of the NLRB. The state Supreme Court affirmed. The Supreme Court of the United States reversed.
" . . . The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301. . . ."
Here, the complaint alleges a violation of rights guaranteed under a collective bargaining agreement as well as unfair labor practices and jurisdiction is properly in this court. Bieski v. Eastern Automobile Forwarding Co., (D. Del. 1964) 231 F. Supp. 710; Mandel v. Highway And Local Motor Freight Drivers, etc., Local Union No. 707, (S.D.N.Y. 1964) 246 F. Supp. 805; Cf. Adams v. Budd Co., (3 Cir. Pa. 1965) 349 F.2d 368.
Defendants attempt to distinguish Humphrey. They say the basic cause of action was for breach of a collective bargaining agreement which was identical and inseparable from a cause of action for breach of fair representation and, therefore, the court did not pass upon the preemption argument because the two causes merged. This attempted distinction is without merit. In Humphrey, the Supreme Court made no finding of or distinction involving inseparability of claims. The summary of the complaint, 375 U.S. at page 340, indicates that the allegations are similar to those in the instant complaint in that it is alleged that a union representative through "false and deceitful action" and in conjunction with others failed to represent plaintiffs in a dispute on dovetailing; that the international union conspired with the local union in bringing about the result complained of; and that the decision of a Joint Conference Committee which had decided the matter was arbitrary and violative of the collective bargaining agreement. Thus, even if the "inseparability" argument had substance, the complaint in this action shows causes which are as inseparable as those in Humphrey.
The plaintiffs in this case, as in that, complain about certain action taken with respect to rights under a collective bargaining agreement. Moreover, even if unfair labor practice was the principal cause of action, it would not oust this court of jurisdiction because a violation of a collective bargaining agreement was also charged. In referring to cases dealing with alleged violations of a collective bargaining agreement, the Court said in Smith:
" . . . In Lucas Flour [ Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593] as well as in Atkinson [ Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S. Ct. 1318, 8 L. Ed. 2d 462] the Court expressly refused to apply the preemption doctrine of the Garmon case; and we likewise reject that doctrine here where the alleged conduct of the employer, not only arguably, but concededly, is an unfair labor practice within the jurisdiction of the National Labor Relations Board. . . ."