The opinion of the court was delivered by: VAN DUSEN
The factual background of this case is set forth at pages one through five of the Memorandum Sur Defendant's Motion under Rule 12(b) (Document 23).
Intervenors have adopted as the first three counts of their Complaint the three counts of the original Complaint in this action filed by the Trustees of the Local 837 Pension Fund. Defendants have moved to dismiss the first three counts of Intervenors' Complaint on the same grounds upon which they moved to dismiss the original Complaint. An order identical to the one entered on the motion to dismiss the original Complaint will be entered on defendant's motion to dismiss the first three counts of Intervenors' Complaint.
The fourth count of Intervenors' Complaint, to which the defendants have raised several objections, alleges in paragraph four thereof:
"4. This Count is based upon a breach of the duty of fair representation, which all the defendants, both the union Governors and the employer Governors, of the U.I.U. National Pension Trust, owe to the employees in the intervening class. The said duty of fair representation is a fiduciary duty, which obliges the defendants herein to represent, and to act for, the employees for whose benefit the Pension Trust was created, fairly, equitably, and honestly, and without unfair or hostile discrimination against any group of them. The fiduciary relationship is stated expressly in the Trust Indenture establishing the U.I.U. Pension Trust (Exhibit B attached to the original Complaint) which is a contract between an employer and a labor organization within the provisions of Section 301. And a similar fiduciary relationship, as to the Union Governors, of the Trust, arises out of the position as exclusive bargaining representative which the Upholsterers International Union occupied, with respect to the intervening class, at all times material hereto."
The "duty of fair representation" as that term is commonly understood in the field of labor law is a duty owed by a labor union to those persons for whom it is collective bargaining representative.
The defendants in this case are, and are sued as, the Board of Governors of the U.I.U. National Pension Trust (Document 1, P3). Some of them are officials of the U.I.U., and some of them are employers or officers of employers who subscribe to the U.I.U. National Pension Program. In their capacity as trustees of the U.I.U. Pension Trust, defendants are not representatives of the U.I.U. See United Marine Division v. Essex Transportation Co., 216 F.2d 410 (3rd Cir. 1954). Therefore, insofar as the fourth count of Intervenors' Complaint is based upon breach of "the duty of fair representation," it will be dismissed.
However, the fourth count will not be dismissed insofar as it alleges a breach by the defendants of a fiduciary duty to administer the trust fairly for the benefit of all the beneficiaries, i.e., all covered employees. It may be shown at trial that the defendants breached such a duty imposed upon them by either the terms of the U.I.U. Pension Trust Indenture
or § 302 of the Taft-Hartley Act (29 U.S.C. § 186), or both.
Defendants' contention that paragraph G of Article X of the U.I.U. Trust Indenture requires that any claim against the trustees for breach of their obligation to administer the trust impartially be brought only in the courts of the Commonwealth of Pennsylvania is not supported by the language of that provision. Paragraph G of Article X provides as follows:
"G. The Trust created in this Indenture is an irrevocable trust created and accepted in the Commonwealth of Pennsylvania and all questions pertaining to the validity or construction of this Indenture and of the acts and transactions of the parties hereto shall be determined in accordance with the laws of the said Commonwealth."
This paragraph merely states what law shall govern; it does not refer to the forum.
Nor is defendants' contention that intervenors' failure to submit their claims to the Board of Governors of the Trust, i.e., the defendants, as allegedly required by paragraph H of Article X of the U.I.U. Trust Indenture, precludes them from bringing this suit supported by the language of the provision relied on. Paragraph H begins: "All questions or controversies pertaining to claims for pensions under the program shall be submitted to the Board for decision . . . ."
Since intervenors are not seeking by this suit to obtain payments to themselves in the form of pensions, that clause has no application here. In any event, it would be useless to require these intervenors to submit their claims to the Board of Governors when that body has already refused to do what intervenors demand in their Complaint, i.e., turn over the aliquot portion to the trustees of the Local 837 Pension Trust, and is, in fact, resisting that demand to the point of litigation. See, also, Boeing Company v. International Union, U.A.W., 370 F.2d 969 (3rd Cir. 1967).
The briefs of the parties concerning the above Motion have been filed as Documents 42 to 44, with the letter of November 29 attached to Document 43 and the letter of December 1 attached to Document 44.
And now, February 9, 1967, it is ...