Ct. 903, 17 L. Ed. 2d 842 (1967). Jurisdiction over such a claim is not preempted by the NLRB; nor is the court's jurisdiction pre-empted by the NLRB because the alleged violation of the duty may also involve unfair labor practices which are normally within the sole province of the NLRB. Vaca v. Sipes, supra. If there is no § 301 jurisdiction, however, we have no jurisdiction to hear related allegations that the defendants committed unfair labor practices.
We must determine, first, whether the complaints allege facts which state a violation of the duty of fair representation so as to give this court jurisdiction under § 301. If they do not we need not reach the question of possible other violations of the labor law since jurisdiction would be in the NLRB.
A union's duty of fair representation is a concept well established in the law. It might be advisable to restate what the duty is, however, because the plaintiffs' apparent concept of the scope of fair representation is not consistent with our understanding of the law.
The duty of fair representation is a judicially developed concept designed to protect individual union members from abuses by unions in the negotiation or administration of collective bargaining agreements. Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173 (1944). It is premised on the theory that since the union is the statutory exclusive bargaining representative of the employees, it has a corresponding statutory duty to fairly represent all those employees in its collective bargaining with the employer and in its enforcement and administration of the resulting contract. Vaca v. Sipes, supra ; Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S. Ct. 681, 97 L. Ed. 1048 (1953). "Fair" representation means the union must "serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, supra, at 177; Humphrey v. Moore, 375 U.S. 335, at 342, 84 S. Ct. 363, at 368, 11 L. Ed. 2d 370.
Plaintiffs apparently read Vaca and related cases to say that the duty of fair representation extends to any action a union takes toward its members which the members consider to be in derogation of their rights. We do not think the duty is that broad. The duty does not reach, into and control all aspects of the union's relationship with its members. The duty extends only to negotiating, administering or enforcing a collective bargaining agreement.
In order to bring § 301 action, a plaintiff must allege facts which disclose that there is a dispute involving a collective bargaining agreement.
According to the statute the complaint must allege a violation of the contract between an employer and a labor organization representing employees or between any such labor organizations. Where the duty of fair representation is involved the law is clear that in order to bring a § 301 action an employee need not necessarily allege a violation of a collective bargaining agreement. A plaintiff may allege, instead, that the union and employer have negotiated a contract which discriminates on the basis of race. Steel v. Louisville & Nashville R. Co., supra ; Humphrey v. Moore, supra. Or he may allege that a contract neutral on its face is being administered by the union in a discriminatory manner. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
In sum, in order to maintain a § 301 action for the violation of the duty of fair representation the plaintiff must allege that he was not fairly represented in the negotiation, enforcement or administration of a collective bargaining agreement.
While it is true that the courts strain to find a violation of the collective bargaining agreement,
nevertheless there must at least be a colorable argument that a collective bargaining agreement is somehow involved.
Here the plaintiffs have made no allegations concerning the negotiation, enforcement or administration of a collective bargaining agreement and for that reason the suit must fall because they have not alleged facts which give this court jurisdiction under § 301.
The relevant allegations in the complaint against the union are as follows:
"A. 1. Defendants have continuously through policies, practices, customs and usage, discriminated against black citizens, including Plaintiffs and members of this Class, with respect to employment, compensation, terms and conditions of employment, membership, due to race and/or color, through the utilization of hiring practices, segregated locals, the exclusion of black citizens from union office in Defendant organizations, standards, and procedures both prior to and subsequent to January 1, 1966.