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decided: April 12, 1979.


No. 55 April Term 1978, Appeal from the Order of July 26, 1977 of the Court of Common Pleas of Clearfield County, Pennsylvania, Civil Division, at No. 77-879 C.D. - In Trespass.


Stanford A. Segal, Pittsburgh, for appellants.

William Caprio, III, Williamsport, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and He. Cercone, President Judge, concurs in result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 265 Pa. Super. Page 251]

This is an appeal from an order of the lower court dismissing appellants' preliminary objections to appellees' complaint in trespass. The issue is whether the lower court had subject matter jurisdiction over the cause of action alleged or whether its jurisdiction was preempted by virtue of the federal law of labor relations.*fn1

In 1969, appellants attempted to organize the employees of Treasure Lake, Inc. During the organizational campaign Treasure Lake discharged a number of employees; appellees were discharged on May 23, 1969, and fourteen other employees were discharged on June 20. On September 4, 1969, appellants filed with the National Labor Relations Board an action claiming that in discharging employees Treasure Lake had committed an unfair labor practice. On September 30, and on several occasions thereafter, appellees asked appellants whether their names had been included in the unfair labor practice action. Appellees allege -- and on demurrer we take the allegations as true -- that appellants promised them that their names would be included.

The unfair labor practice action was heard by an Administrative Law Judge, who ordered one employee reinstated. On appeal the NLRB ordered thirteen more employees reinstated, and awarded back pay and interest to all fourteen reinstated employees. On January 26, 1972, the United States Court of Appeals for the Third Circuit affirmed. The fourteen employees thus reinstated and awarded back pay were those employees who had been discharged on June 20, 1969. Appellees had in fact not been included in the action, and so were not either reinstated or awarded back pay. By the time appellees discovered that they had not been included in the action, the statute of limitations for filing their

[ 265 Pa. Super. Page 252]

    own action against Treasure Lake with the NLRB had run.*fn2 Alleging negligence*fn3 on the part of appellants in not including their names in the action, appellees brought the present action in trespass, demanding damages of $49,345.00*fn4 and punitive damages of $98,690.00.

The basis of appellants' jurisdictional preliminary objection to the complaint*fn5 may be summarized as follows: to recover from appellants, appellees must prove that in discharging them Treasure Lake committed an unfair labor practice;*fn6 under the National Labor Relations Act, whether an employer has committed an unfair labor practice is a determination exclusively within the jurisdiction of the NLRB; therefore, the lower court lacked subject matter jurisdiction of appellees' complaint. In dismissing appellants' objection*fn7 the lower court stated:

[ 265 Pa. Super. Page 253]

While it is true that were this a claim to remedy an unfair labor practice, this Court would have no jurisdiction, and while it is further true that in order to recover in this case Plaintiffs must prove an unfair labor practice to establish damages nevertheless, this Court is of the opinion that jurisdiction properly lies here. This in an Action in Trespass seeking recovery for the wilful or negligent conduct of the Defendants, and the alleged loss resulting therefrom. It is not an action to cure an unfair labor practice, although proof of such is an element in the Plaintiffs' case. Defendants admit that it is now impossible for the Plaintiffs to proceed on their own before the NRLB and to obtain their remedy in that manner, although they are within the Statute of Limitations to proceed in the above action. Therefore, the Plaintiffs only possible remedy is as set forth above, and if they are correct in their pleadings, a legally redressible situation exists.

To hold that the Plaintiffs do not now have the right to proceed because an element of their proof involves an unfair labor practice, which in and of itself does not fall within the jurisdiction of this Court, would effectively deny them the right to be heard on their claim. Therefore, this Court is of the opinion that the proof of the unfair labor practice is only important as it bears on the damages sustained by the Plaintiffs in the event they are able to prove liability on the part of the Defendants. The suit itself is not based upon an unfair labor practice, but upon an alleged tortious act by the Defendants over which this Court has jurisdiction. Thus, this Court dismissed Defendants' Preliminary Objections as to jurisdiction.

Lower Court Opinion at 2-3.

In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the Supreme Court of the United States established the following rule for determining whether the jurisdiction of a state court has been preempted:

[ 265 Pa. Super. Page 254]

When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.

359 U.S. at 245, 79 S.Ct. at 780.

Applying this rule here, it is clear that if appellees had brought an unfair labor practice action against Treasure Lake, the action would have been under sections 8(a)(1) or 8(a)(3) of the National Labor Relations Act. See 29 U.S.C. § 158(a)(1), (3).*fn8 Therefore, if in the present case appellees had brought suit against Treasure Lake, either as the only defendant or as co-defendant with appellants, the jurisdiction of the lower court, at least with respect to the liability of Treasure Lake, would be preempted. See Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). The question is whether appellees have avoided this preemption by bringing their suit not against Treasure Lake but only against appellants. In order to answer this question we must examine the cases applying the rule of Garmon. As will be apparent, the rule is not to be applied literally, even in cases where the activities complained of were arguably, or even concededly,

[ 265 Pa. Super. Page 255]

    within the protections of section 7 or the prohibitions of section 8 of the Act.

Thus, the rule of Garmon has been held not to apply where the action is brought for a violation of a collective bargaining agreement under sections 301 and 303 of the Labor Management Relations Act of 1947,*fn9 see Smith v. Evening News Assoc., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), or where the action is against a union for breach of its statutory duty of fair representation, see Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).*fn10 These exceptions, however, do not

[ 265 Pa. Super. Page 256]

    help appellees, for the present action does not fit within any of them.*fn11

In addition, the rule of Garmon has been held not to bar an action where the activity in question is merely a peripheral concern of the Act, or where the action involves an interest so very deeply rooted in the local community that the Court will not infer an intent on the part of Congress to preempt the jurisdiction of the state court. Sears Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). Cases complaining of violence by a union or its members are perhaps the clearest example, see United Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954); see also Automobile Workers v. Russel, 356 U.S. 634, 640, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958) (WARREN, C. J., dissenting), but for purposes of decision here, it is especially instructive to consider the reasoning of the Supreme Court in Sears, Farmer, and Linn, for in those cases the Court held that a state court had jurisdiction of a tort action against a union even though the tort arose in the context of an unfair labor practice.

[ 265 Pa. Super. Page 257]

In Linn the Supreme Court held that the state court had jurisdiction over a tort action for libel brought by an officer of an employer, even though the alleged libel had occurred in the midst of an organizational campaign and despite the fact that the union that circulated the defamatory statement could have been brought before the NLRB in an action under section 8 to set aside the election. In so holding the Court considered the strong interest of the state in protecting its citizens from libel and also stressed the fact that the decision with respect to the merits of the libel action would not involve a decision of the merits of the unfair labor practice claim. According to the Court:

Nor should the fact that defamation arises during a labor dispute give the Board exclusive jurisdiction to remedy its consequences. The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the Board might find that an employer or union violated § 8 by deliberately making false statements or that the issuance of malicious statements during an organizing campaign and such a profound effect on the election as to require that it be set aside, it looks only to the coercive or misleading nature of the statements rather than their defamatory quality. The injury that the statement might cause to an individual's reputation -- whether he be an employer or union official -- has no relevance to the Board's function. Cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 84 L.Ed. 738, 60 S.Ct. 561 (1940). The Board can award no damages, impose no penalty, or give any other relief to the defamed individual.

On the contrary, state remedies have been designed to compensate the victim and enable him to vindicate his reputation. The Board's lack of concern with the "personal" injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for pre-emption.

[ 265 Pa. Super. Page 258]

Judicial condemnation of the alleged attack on Linn's character would reflect no judgment upon the objectives of the union. It would not interfere with the Board's jurisdiction over the merits of the labor controversy. 383 U.S. at 63-64, 86 S.Ct. at 663-664 (footnote omitted)*fn12

Similarly in Farmer the Court held that a state court was not preempted from exercising jurisdiction over a cause of action brought by a union member against the union for intentional infliction of emotional distress. In that case the union member had complained about the union's hiring hall practices. He alleged that because of this complaint the union had discriminated against him in hiring hall referrals and had subjected him to a campaign of personal abuse and harassment, causing him severe emotional distress. The Court held that the action for emotional distress would lie. In so holding the Court considered the strong interest of the state in redressing outrageous and emotionally distressing conduct, citing its decision in Linn, and noting that in defamation actions and actions arising out of violence by the union, a decision by the state court would not intrude upon the federal scheme since those actions can be adjudicated without regard to the merits of the underlying labor controversy. 430 U.S. at 299-300, 97 S.Ct. at 1065, citing, Automobile Workers v. Russell, supra, 356 U.S. at 649, 78 S.Ct. 932. Said the Court:

There is, to be sure, some risk that the state cause of action for infliction of emotional distress will touch on an area of primary federal concern. . . .

Viewed, however, in light of the discrete concerns of the federal scheme and the state tort law, that potential for

[ 265 Pa. Super. Page 259]

    interference is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens. If the charges in Hill's complaint were filed with the Board, the focus of any unfair labor practice proceeding would be on whether the statements or conduct on the part of union officials discriminated or threatened discrimination against him in employment referrals for reasons other than failure to pay union dues. See n 11, supra. Whether the statements or conduct of the respondents also caused Hill severe emotional distress and physical injury would play no role in the Board's disposition of the case, and the Board could not award Hill damages for pain, suffering, or medical expenses. Conversely, the state court tort action can be adjudicated without resolution of the "merits" of the underlying labor dispute. Recovery for the tort of emotional distress under California law requires proof that the defendant intentionally engaged in outrageous conduct causing the plaintiff to sustain mental distress. State Rubbish Collectors Assn. v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282, 240 P.2d 282 (1952); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 468 P.2d 216, 86 Cal.Rptr. 88, 468 P.2d 216 (1970). The state court need not consider, much less resolve, whether a union discriminated or threatened to discriminate against an employee in terms of employment opportunities. To the contrary, the tort action can be resolved without reference to any accommodation of the special interests of unions and members in the hiring hall context.

430 U.S. at 303-05, 97 S.Ct. at 1065-1066 (footnotes omitted)*fn13

More recently in Sears the Court held that the jurisdiction of a state court was not preempted when the action was in trespass against union picketing. Citing Farmer, and applying it to the situation before it, the Court stated:

[ 265 Pa. Super. Page 260]

In the present case, the controversy which Sears might have presented to the Labor Board is not the same as the controversy presented to the state court. If Sears had filed a charge, the federal issue would have been whether the picketing had a recognitional or work reassignment objective; decision of that issue would have entailed relatively complex factual and legal determinations completely unrelated to the simple question whether a trespass had occurred. Conversely, in the state action, Sears only challenged the location of the picketing; whether the picketing had an objective proscribed by federal law was irrelevant to the state claim. Accordingly, permitting the state court to adjudicate Sears' trespass claim would create no realistic risk of interference with the Labor Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices.

The reasons why pre-emption of state jurisdiction is normally appropriate when union activity is arguably prohibited by federal law plainly do not apply to this situation; they therefore are insufficient to preclude a State from exercising jurisdiction limited to the trespassory aspects of that activity.

436 U.S. at 198, 98 S.Ct. at 1758, 56 L.Ed.2d at 226. (footnote omitted.*fn14

[ 265 Pa. Super. Page 261]

From this examination of the cases it may be seen that in deciding whether the jurisdiction of the lower court was preempted, it is not enough simply to note that the action is against the union for negligence, and not specifically directed toward the labor relationship between the union, the employer, and the employees.*fn15 Instead, one must examine the action in the context of the federal scheme. In particular, one must inquire whether the state has a strong interest in redressing the alleged injury, and if it does, whether the state court can adjudicate the action without deciding the merits of the underlying labor controversy, or in other words, without running the risk of interfering with the NLRB's primary jurisdiction to enforce the federal statutory prohibition against unfair labor practices. When this inquiry is made here, it becomes apparent that the jurisdiction of the lower court was preempted.

It may be said that a state has a strong interest in redressing an injury negligently inflicted upon one of its citizens. The interest alleged here, however, cannot be regarded as of comparable concern to the state as the interests alleged in Linn, Farmer, and Sears. Another way of putting this point is to say that the interest alleged here is not as separate from, or independent of, or peripheral to,

[ 265 Pa. Super. Page 262]

    the labor relations aspect of the case as were the interests alleged in Linn, Farmer, and Sears.

However this may be, the point is not decisive. It may be granted that the cases do not yield a clear definition of what is meant by "a strong state interest." What is decisive, however, is that it is plain that the interest appellees assert is one that could not be adjudicated by the lower court without deciding the merits of the underlying labor controversy. Appellees' entire claim is premised upon their ability to prove, and the lower court's ability to decide, whether, when Treasure Lake discharged appellees, it committed an unfair labor practice that would have been decided in appellees' favor by the NLRB. Therefore, unlike the state courts in Linn, Farmer, and Sears, the lower court here, if permitted to proceed, would have to reach and resolve the merits of the underlying labor controversy.

To allow the lower court to do this would constitute a plain violation of the federal scheme. The lower court's decision, whether by judge or jury, and any subsequent decision by this court on appeal, would necessarily involve the risk of interpretation and application of the Act in a manner inconsistent with the decision already reached by the NLRB with respect to the fourteen other employees. Suppose, for example, that the lower court were to find that when Treasure Lake discharged appellees, it did not commit an unfair labor practice. At once, the question would arise whether that decision was consistent with the NLRB's decision that when Treasure Lake discharged the fourteen other employees, it did commit an unfair labor practice. Or the supposed case may be turned around, with the same result: if the lower court were to find that appellees had been unfairly discharged, still the question would arise whether that decision was consistent with the NLRB's; appellees were discharged in May, the fourteen other employees in June; the circumstances may have been quite different.

Aggravating this inevitable risk of inconsistency is the fact that the lower court has no expertise in deciding such an issue as whether a discharge represents an unfair labor

[ 265 Pa. Super. Page 263]

    practice; nor does this court have such expertise. However, even if the lower court did have such expertise, it would be immaterial. The court's mere act of engaging in the decision making process would violate the preemption principle. In placing jurisdiction within the NLRB, the Congress "'did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal.'" Motor Coach Employees v. Lockridge, supra, 403 U.S. at 286, 91 S.Ct. at 1918, quoting, Garner v. Teamsters Union, 346 U.S. 485, 490-91, 74 S.Ct. 161, 98 L.Ed. 228 (1953). The fact that the lower court's decision on the merits of the unfair labor practice charge would not result in the imposition of a remedy against Treasure Lake but against appellants is also immaterial, for in determining whether a court has subject matter jurisdiction, we do not look to the possible result of the specific action but instead to the power of the court to enter upon the inquiry. See Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106 (1952); Woodward Heating & Air Conditioning Co. v. American Arbitration Ass'n., 259 Pa. Super. 460, 393 A.2d 917 (1978).*fn16

[ 265 Pa. Super. Page 264]

Finally, certain other aspects of a decision to permit the lower court to proceed may be noted -- not as dispositive but as illustrative of the violation of the federal scheme that would ensue. Before the lower court, appellants might be led as defendants to take the position that Treasure Lake did not commit an unfair labor practice with respect to appellees. This position might be inconsistent with appellants' earlier position before the NLRB with respect to the fourteen other employees of Treasure Lake. In addition, an award against appellants would subject the union treasury to a damage claim where the underlying cause of the damages incurred was Treasure Lake.*fn17

We recognize that the effect of holding that the lower court did not have subject matter jurisdiction deprives appellees of any remedy with respect to receiving damages they may have suffered because of their discharge by Treasure Lake. That fact, however, does not have the importance assigned to it by the lower court. In the first place, appellees had six months from their discharge in May to bring their own unfair labor practice action before the NLRB,*fn18 and yet they appear to have done nothing until September, and then to have relied on the union to bring their action, even though they were not members of the union. In the second place, and more fundamental, however, is the principle that a court may not, on the basis of what may seem to it to be equitable considerations, assume jurisdiction. In Smith v. Pittsburgh Gage & Supply Co., 412 Pa. 171, 194

[ 265 Pa. Super. Page 265]

A.2d 181 (1963), the Supreme Court of Pennsylvania was met with an argument similar to appellees' argument here. Said the Court:

The Employees' final contention is that, since they had no knowledge of the Union-Employer conspiracy until after the passage of the time within which charges must be filed with the Board under the Act, they now have no right to resort to the Board and the state court, under the circumstances, should assume jurisdiction. The Congress has seen fit to place exclusive jurisdiction in this field of litigation in the Board. If relief from the impact upon the Employees of the statutory period of limitations for the filing of charges with the Board is to be afforded, such relief can come only from the Board. That the Employees' resort to the Board for the determination of their charges against the Union and the Employer is now barred cannot create jurisdiction in state courts where none, under the Congressional will, exists. The Employees' contention that the state court should assume jurisdiction under the circumstances is without merit.

412 Pa. at 179, 194 A.2d at 185.

The order of the lower court is reversed and the complaint is dismissed.

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