The opinion of the court was delivered by: HUYETT
The complaint filed November 29, 1971, alleges that plaintiff "has been unable to secure employment in his former occupation, solely by reason of the illegal, wrongful and improper expulsion" from membership in defendant unions.
Plaintiff's inability to secure employment in his former occupation has existed since his expulsion from defendant unions on January 10, 1956. The nature of the illegality charged to the defendants consists of expelling plaintiff from the unions without affording him an opportunity for notice and hearing on the grounds for expulsion. This action by the defendants, plaintiff contends, violated the Constitution and By Laws of the defendant unions, the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania.
Three of the defendants,
the International Organization Masters, Mates and Pilots of America, Inc. (International), Morris Weinstein, Trustee, International Organization Masters, Mates and Pilots Local No. 2 (Trustee), and International Organization Masters, Mates and Pilots, Philadelphia Branch Local No. 14p (Philadelphia Branch), have moved to dismiss on the grounds that (1) the court lacks jurisdiction because the necessary diverse citizenship of the parties does not exist and because the subject matter of the action is within the exclusive jurisdiction of the National Labor Relations Board and (2) the complaint is barred by the applicable statute of limitations and by plaintiff's laches.
Plaintiff's complaint, in which the allegations made are accepted as being true for purposes of deciding defendants' motion to dismiss, 2A Moore's Federal Practice para. 12.08, p. 2267 and para. 12.10, p. 2314, establishes that prior to January 10, 1956, plaintiff was a member in good standing of the International, Local No. 2 and Philadelphia Branch Unions.
C. T. Atkins was the President of the International; Morris Weinstein was Vice President and Trustee of Local No. 2; John J. Handley was Secretary-Treasurer of Local No. 2 and the Philadelphia Branch.
Following an investigation by the International of Local No. 2, Atkins appointed Weinstein trustee for the Local on or about June 28, 1955. A suit brought by Local No. 2 in the Court of Common Pleas to enjoin the trusteeship was apparently unsuccessful. Plaintiff was then expelled from membership in the defendant Unions on or about January 10, 1956. This action, plaintiff contends, was taken without notice or hearing on the grounds for expulsion. Further, plaintiff contends that he was not guilty of "any infractions, violations or wrongs sufficient in law to justify his expulsion." The action by the defendants is claimed to be violative of the Constitution and By Laws of Local No. 2, the Constitution of the International,
the Constitutions of the United States and of the Commonwealth of Pennsylvania.
Plaintiff recites the efforts he made through intra-union appeals to secure his reinstatement in the unions.
Finally, plaintiff alleges his inability to obtain employment in his former occupation because of defendants' actions, and that "he will in all probability be unable to secure regular employment in his trade or occupation in the maritime field since the control of said union exceeds 90% of all licensed maritime jobs and employment in the United States of America." The complaint prays that this court (1) order defendants to restore plaintiff to his former status in the unions, (2) order defendants to pay amounts to the Pension and Welfare Fund for plaintiff's benefit, (3) order defendants to restore plaintiff's benefits and rights in the Pension and Welfare Fund, (4) award damages for loss of earnings, for mental pain and suffering, and (5) award punitive damages.
In construing the complaint in this labor relations case most liberally in favor of plaintiff Abrams v. Carrier Corporation, 434 F.2d 1234 (2d Cir. 1970), cert. denied, United Steelworkers of America v. Abrams, 401 U.S. 1009, 91 S. Ct. 1253, 28 L. Ed. 2d 545 (1971), two distinct actions by the defendants have allegedly wronged the plaintiff. First, defendants have deprived plaintiff of employment. This result could only occur if defendants have in some manner coerced plaintiff's prospective employers not to hire plaintiff. No specific action to this effect, however, has been pleaded by the plaintiff. Secondly, defendants had in 1956 unlawfully deprived plaintiff membership in defendant unions. Defendants have challenged this court's jurisdiction to provide relief for either of the alleged wrongs committed.
Insofar as plaintiff's complaint alleges that defendant unions have deprived plaintiff of employment in his former occupation by coercing prospective employers not to hire plaintiff, this court's jurisdiction to grant relief is pre-empted by the National Labor Relations Board. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959). As stated recently by the Supreme Court, Garmon "established the general principle that the National Labor Relations Act pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act." Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 276, 29 L. Ed. 2d 473, 91 S. Ct. 1909 (1971). Section 8(b)(2) of the National Labor Relations Act, as amended 61 Stat. 141, 29 U.S.C. § 158(b)(2), makes it an unfair labor practice for a union
"to cause or attempt to cause an employer . . . to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership."
It is clear that any conduct allegedly taken by the defendants in an effort to prevent an employer to hire plaintiff in his former occupation is "arguably subject to § 7 or § 8 of the Act." Furthermore, action by a union to coerce an employer not to hire a person because his prior expulsion from the union was for reasons other than a failure to tender dues is certainly not a purely internal union matter. Thus, this aspect of plaintiff's claim for relief is not governed by the International Association of Machinists v. Gonzales, 356 U.S. 617, 2 L. Ed. 2d 1018, 78 S. Ct. 923 (1958) precedents that support state and federal diversity court jurisdiction over purely internal union matters.