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KECK v. EMPLOYEES' INDEP. ASSN.

December 23, 1974

RICHARD KECK, et al., Plaintiffs
v.
EMPLOYEES' INDEPENDENT ASSOCIATION, by Earl J. Wenner, its General Chairman, et al., Defendants



The opinion of the court was delivered by: HUYETT

 HUYETT, District Judge.

 Plaintiffs, as individual members of defendant Employees' Independent Association (EIA) and as members and officers of divisions of defendant EIA, have filed this action on their own behalf and on behalf of the General Office Division, Lehigh Division, and Pottsville Division of defendant EIA. *fn1" They allege that pursuant to Article XII *fn2" of the Union Constitution, they initiated petitions for a referendum to amend the Union Constitution and submitted it to the officers of the governing body of the union who refused to submit them to the general membership. *fn3" This refusal, plaintiffs contend, violates their rights under Sections 101(a) (1) (29 U.S.C. § 411(a) (1)), and 501 (29 U.S.C. § 501) of the Labor Management Reporting and Disclosure Act (LMRDA) and Section 301 (29 U.S.C. § 185) of the Labor Management Relations Act (LMRA).

 Defendants are the parent union (EIA) and individual members and officers of the governing body (General Committee) of the parent union. Defendants admit that in accordance with the Union Constitution the individual plaintiffs, as members of EIA divisions, initiated petitions to amend the constitution, that the petitions were submitted to the respective EIA divisions, that the petitions submitted to the Lehigh and Pottsville divisions were submitted by these divisions to the General Committee, and that the General Committee refused to submit the petitions to the general membership. Defendants contend, however, that pursuant to Article XI *fn4" of the Union Constitution, they properly refused to submit the petitions since the petitions, if approved by the general membership, would destroy the identity of EIA. *fn5"

 Defendants have filed motions to dismiss for failure to state a claim, lack of jurisdiction, and improper venue. Since matters outside the pleadings are presented by defendants, we shall treat defendants motion to dismiss for failure to state a claim as one for summary judgment pursuant to Fed.R.Civ.P. 12(b)(6). See George v. Hillman Transportation Company, 313 F. Supp. 1115, 1116 (W.D.Pa. 1970). Plaintiffs have filed a cross motion for summary judgment. Defendants have also moved to transfer to the Middle District of Pennsylvania under Section 1404(a). This motion is denied. *fn6"

 Before entertaining the remaining motions, we shall consider whether or not jurisdiction is pre-empted by the National Labor Relations Board (NLRB). When an activity is arguably subject to Section 7 or 8 of the National Labor Relations Act (NLRA), we must defer to the exclusive jurisdiction of the NLRB. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959). As the Supreme Court recently stated, Garmon "established the general principle that the NLRA pre-empts state and federal jurisdiction to remedy conduct that is arguably protected or prohibited by the Act." Amalgamated Association of Street Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 29 L. Ed. 2d 473, 91 S. Ct. 1909 (1971). The authority to determine representational matters under the Act is vested exclusively with the NLRB. National Association of Women's & Children's Apparel Salesmen v. F.T.C., 479 F.2d 139, 144 (5 Cir. 1973). The only possible question which the activity in this case raises is a question of who is the proper representative of the general membership. If we find that this question is raised, we must defer to the exclusive jurisdiction of the NLRB.

 Plaintiffs claim that their petition is for an amendment of the Union Constitution, and defendants claim that the request is for an affiliation. Whether we label it an amendment or an affiliation, the effect is that EIA will unite with the International Brotherhood of Electrical Workers (IBEW) and become a local of the IBEW. *fn7" It is not uncommon for such occurrences to take place, and often, when local unions change their affiliation from one labor union to another, the change is not by unanimous choice; frequently a number of members seek to continue the previous affiliation. See CCH Labor Law Reporter, Labor Relations para. 3157 (1974). In American Range Lines Incorporated and Marine Beneficial Association, 13 NLRB 139 (1939), the NLRB stated that its policy was to treat a change in affiliation as a matter of internal union policy having no impact on the employees' choice of a representative. The NLRB does not consider an intra union dispute over affiliation as giving rise to a question of who is the proper representative of the union membership unless it determines that the dispute is so basic as to create such confusion in the bargaining relationship that stability can be restored only by an election. Gate City Optical Company, 175 NLRB 172 (1969); Hershey Chocolate Corporation & Local 464 Bakery and Confectionery Workers IVA, 121 NLRB 124 (1958).

 This dispute does not present the question of who is the proper representative of the union membership. Since an affiliation does not necessarily raise this question, and since confusion would not arise until after the decision to affiliate, a petition to allow the union members to vote on whether or not to affiliate does not raise this question. Thus, we conclude that there is no intrusion upon the jurisdiction of the NLRB.

 SECTION 101(a)(1)

 A basic purpose of the LMRDA is to assure "full and active participation by the rank and file in the affairs of the union." American Federation of Musicians v. Wittstein, 379 U.S. 171, 182-183, 13 L. Ed. 2d 214, 85 S. Ct. 300 (1964). Plaintiffs contend that Section 101(a)(1) of the LMRDA provides for this broad participation by guaranteeing union members the right to participate in the deliberation of a labor organization and vote upon its business. *fn8" Plaintiffs find authority for this proposition in Gurton v. Manuti, 235 F. Supp. 50 (S.D.N.Y. 1964). In Gurton Judge Levet was presented with the question of whether, in refusing to accept two proposed amendments for publication and consideration at the next by-law meeting, the local union's Executive Board violated Section 101(a)(1) and (2). The Executive Board challenged the court's jurisdiction, claiming that the complaint did no more than allege violation of the local by-laws. While recognizing that a violation of a union by-law does not in and of itself give rise to a federal claim, Judge Levet noted that by-laws are only the starting point of any analysis in determining Section 101 violations and that the inquiry must be directed towards determining whether or not the conduct violates the rights guaranteed by Section 101. After discussing the union's statutory right to "prescribe and apply reasonable rules to protect themselves against undue disruption of their institutional function," 235 F. Supp. at 55, Judge Levet rejected as unreasonable the Executive Board's interpretation and held that the refusal of the Executive Board to permit the membership to vote on the proposals would appear to violate plaintiffs' rights guaranteed by Sections 101(a)(1) and (2).

 Later the same year the Supreme Court was presented with a claim that "provisions of the union bylaws and national constitution violated the Act in that they infringed" the right of members of the local union to nominate candidates in elections of the local, a right guaranteed to each member of the local by Section 101(a)(1). Calhoon v. Harvey, 379 U.S. 134, 135, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964). Responding to the claim that Section 101(a)(1) guarantees a broad right to nominate, Justice Black stated:

 
Plainly, this is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote. And Congress carefully prescribed that even this right against discrimination is 'subject to reasonable rules and regulations' by the union. The complaining union members here have not been discriminated against in any way and have been denied no privilege or right to vote or nominate which the union has granted to others . . . It is true that they were denied their request to be candidates, but that denial was not a discrimination against their right to nominate, since the same qualifications were required equally of all members. (emphasis added)

 In Gurton v. Arons, 339 F.2d 371 (2 Cir. 1964), *fn9" the Second Circuit was faced with a Section 101(a)(1) question arising from the same fact pattern as that of Gurton v. Manuti. At the direction of Judge Levet in Gurton v. Manuti the Executive Board of the local union placed the proposed resolution on the agenda of the by-laws meeting. The resolution was adopted by a majority vote, but the International Board held that the resolution violated the by-laws of the International and invalidated the vote. Plaintiffs in Gurton v. Arons claimed that the International's action denied their equal right to vote in elections or referendums and argued that "if they are not allowed to vote in accordance with the limitations on voting contained in the . . . resolutions, they will be denied their right to vote." Citing Calhoon v. Harvey the court in Gurton v. Arons held:

 
But the guaranty of the equal right to vote is surely not a general commission for the federal courts to review the constitution and by-laws of the union. As long as no claim is made that provisions of the constitution and by-laws are being applied in such a way as to deny equality in voting, there is nothing in § 101 which authorizes consideration of those documents. § 101 ...

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