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WILKES-BARRE PUBL. CO. v. NEWSPAPER GUILD OF WILKE

June 25, 1980

WILKES-BARRE PUBLISHING COMPANY
v.
NEWSPAPER GUILD OF WILKES-BARRE, LOCAL 120 et al.



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

The Wilkes-Barre Publishing Company instituted the above-captioned action on September 18, 1979, predicating jurisdiction on § 301(a) of the Labor Management Relations Act, *fn1" and the doctrine of pendent jurisdiction. *fn2" The complaint contains three counts and asserts interrelated causes of action against three distinct sets of defendants. Count I sets forth a claim against the Newspaper Guild of Wilkes-Barre, Local 120 (hereinafter referred to as "Guild Local"), *fn3" alleging that members of Guild Local violated a provision of the collective bargaining agreement prohibiting outside competitive activity by participating in the organization and operation of a strike newspaper. *fn4" Count II avers that The Newspaper Guild (hereinafter referred to as "Guild International") also breached or, alternatively, tortiously induced members of Guild Local to breach the "Outside Activity" clause. The remaining defendants, local and international unions representing other employees of plaintiff, *fn5" various officials of the defendant unions, *fn6" and the Wilkes-Barre Council of Newspaper Unions, Inc., owner and publisher of the strike newspaper known as the Citizens' Voice, are charged in Count III with tortiously interfering with the contractual relationship between plaintiff and Guild Local by procuring the participation of Guild Local members in the operation of the strike paper.

 All defendants have moved to dismiss, asserting among sundry grounds two common objections to the complaint: (1) that plaintiff has failed to exhaust administrative remedies, and (2) that judicial intervention in this labor relations matter is pre-empted by the National Labor Relations Act (NLRA). Additionally, the labor organization defendants, other than Guild Local, have moved to dismiss on the ground that the complaint fails to allege that they breached collective bargaining agreements with plaintiff; the Union officers have moved to dismiss on the basis that Union representatives cannot be held individually liable for actions taken in their official capacities; all defendants, other than Guild Local, have moved to dismiss on the ground that assertion of pendent jurisdiction over the state law claim of tortious interference with the performance of a contract is inappropriate; and defendants Joseph Maurer and the International Printing & Graphic Communications Union have moved to dismiss plaintiff's request for an injunction, contending that such equitable relief would offend their First Amendment rights.

 After close examination of the pertinent authorities and careful consideration of the parties' respective arguments, I have reached the following conclusions: (1) plaintiff's claim of tortious interference with a collective bargaining agreement is not subsumed under the federal common law of labor relations; (2) pendent party jurisdiction exists over plaintiff's state law claim of tortious interference; (3) plaintiff's claim of tortious interference is pre-empted by the NLRA; (4) plaintiff has failed to allege the existence of a collective bargaining agreement with Guild International; and (5) plaintiff has failed to exhaust arbitration remedies with respect to the § 301 claim asserted against Guild Local. *fn7"

 I. FACTUAL BACKGROUND

 At the core of this lawsuit is a protracted labor dispute between the Wilkes-Barre Publishing Company, which owns and publishes a daily newspaper of general circulation in the Wilkes-Barre area known as the Times Leader, and the labor organizations representing Times Leader employees for collective bargaining purposes. Since October of 1978, when the parties reached an impasse in contract negotiations, Times Leader employees, acting under the aegis of the unions named as defendants in this proceeding, have been on strike and operating a so-called "interim strike newspaper." Plaintiff does not contest in this forum the legitimacy of the publication as an economic strike weapon. Rather, plaintiff argues that members of Guild Local are contractually bound not to work on the strike paper, and that the remaining defendants tortiously induced Guild Local members to breach this commitment. Thus, the focal point of this action is the collective bargaining agreement between plaintiff and Guild Local.

 The last collective bargaining contract between Guild Local and plaintiff was executed on January 18, 1978, but had a retroactive effective date of October 3, 1976. *fn8" The duration of this contract is governed by Article XXV, which provides:

 
1. This agreement shall commence on the 3rd day of October, 1976, and expire on the 30th day of September, 1978, and shall inure to the benefit of and be binding upon the successors and assigns of the Publisher.
 
2. At any time within sixty (60) days prior to the termination of this agreement, the Publisher or the Guild (Local) may initiate negotiations for a new agreement to take effect at the expiration of the present agreement. The terms and conditions of this agreement shall remain in effect during such negotiations.
 
Any increases in wages or other changes shall be retroactive to October 1, 1978. (emphasis added)

 In accordance with Article XXV, Guild Local, on July 26, 1978, advised the Federal Mediation and Conciliation Service and the Pennsylvania Department of Labor and Industry that written notice of the proposed termination or modification of the existing collective bargaining agreement had been served upon plaintiff. On August 29th, the first of the currently ongoing series of collective bargaining sessions was conducted between representatives of Guild Local and plaintiff. The talks concerning a new agreement continued through September 1978. Negotiations with the other labor organizations representing Times Leader employees also were conducted during this time period. None of the unions, however, entered into a collective bargaining agreement with plaintiff, and on October 6, 1978, the labor organizations sanctioned and ratified a strike against Times Leader. Several weeks prior to the walkout, representatives of the defendant unions undertook organizational activities to publish and distribute the Citizens' Voice as a strike newspaper. On or about September 27, 1978, some three days prior to the contract's expiration date, articles of incorporation were filed under the Pennsylvania Non-Profit Corporation Law by representatives of the local unions, including Guild Local, on behalf of the Wilkes-Barre Council of Newspaper Unions, Inc. The avowed purpose of this nonprofit entity was "to create, establish, and administer a newspaper ... throughout the pendency of the current labor dispute by and between the Wilkes-Barre Publishing Company and any one or more of the following unions; namely, Wilkes-Barre Printing Pressman's and Assistant's Union Local 137, Wilkes-Barre Typographical Union Local 187, Wilkes-Barre Stereotyper's and Electrotyper's Union Local 139, and Newspaper Guild of Wilkes-Barre Local 120 ...." The Citizens' Voice was first published on October 9, 1978, using, among others, striking employees represented by Guild Local.

 Plaintiff alleges that negotiations with Guild Local are continuing, and that the 1976 collective bargaining agreement therefore remains operative. Its position is stated in a letter circulated in a negotiation session conducted September 28, 1979. The letter emphasized that "the terms of the present agreement, including the grievance and arbitration obligations, continue during negotiations after the expiration date of September 30." The letter also admonished that "(t)he Company ... will pursue all legal remedies available (including an action for monetary damages incurred) against the Wilkes-Barre Newspaper Guild, its agents and all others who may be held legally culpable in the event that the Guild should fail to live up to its obligations under the law."

 Plaintiff initially attempted to grieve the outside activity question by letter dated November 9, 1978. This letter concluded:

 
The existing agreement of the parties contemplates a meeting within five (5) days after receipt of this request and further contemplates a standing committee meeting prior to referral to American Arbitration Association for arbitration. If I have not been contacted by you to schedule a meeting within five (5) days after your receipt of this letter, I shall assume that you disagree with our position and that you desire to waive any meetings concerning this grievance. In that event, we will promptly submit this matter to the American Arbitration Association for arbitration.

 Counsel for Guild Local responded by letter dated November 15, 1978, advising plaintiff that the union was taking the position that the 1976 contract had terminated, and, consequently, that "there is no right or obligation of either party to utilize or respond to the grievance procedure contained in the expired Agreement." On December 4, 1978, plaintiff submitted its grievance to the American Arbitration Association. By letter dated January 16, 1979, Guild Local selected its preferences from a list of arbitrators, but reserved its right to have issues of substantive arbitrability determined, if deemed appropriate, by a court. At an arbitration hearing conducted September 27, 1979, Guild Local reiterated its reservations to proceeding before the arbitrator:

 
So the record is clear, and I want it to be very clear, we are specifically reserving the right to contend, if it becomes necessary, that this matter is not substantively arbitrable and/or that there is no collective bargaining agreement which is applicable.
 
We are willing and in fact interested, because it's really an interesting issue, although I think it's a clear issue, even were there an effective contract in existence, to go ahead with the merits of the case; that is, whether or not the establishment by the Guild of a strike paper that it has been conducting for the duration of this rather nasty and prolonged work stoppage can conceivably constitute a violation of the clause to which reference has been made.
 
So we are willing to go ahead and to have you render a decision on that. But we want your decision to reflect and the record to reflect that by so doing we do not waive other rights....
 
We are willing to come to an end product with you of whether or not our activities constituted a violation of that clause, but we reserve the right, and do so by putting everyone on notice, that we are not prejudicing our right to contend that this entire issue is not substantively arbitrable and/or that there is no collective bargaining agreement in effect. But this is not the forum in which to do that, so we are prepared to go forward with you in this forum.

 II. THE LEGAL ISSUES

 The paramount issues raised by defendants' motions are (1) whether plaintiff must litigate its § 301 claim against Guild Local before an arbitrator; and (2) whether plaintiff's claims are pre-empted by the NLRA. Affirmative responses to both questions dispose of the entire action. The parties, however, have also interposed a number of objections that relate to individual facets of the litigation, and these subsidiary matters will be addressed first. *fn10"

 A. The § 301 Claim for Tortious Interference with a Contractual Relationship

 It is well-settled that representatives of a labor organization may not be held accountable in damages for authorized conduct taken in their official capacities. See Atkinson v. Sinclair Refining Co., 370 U.S. 238, 245-49, 82 S. Ct. 1318, 1322-25, 8 L. Ed. 2d 462 (1962). It is also well-settled that section 301 creates federal jurisdiction only over parties to the collective bargaining agreement. See Teamsters Local 30 v. Helms Express, Inc., 591 F.2d 211 (3d Cir.), cert. denied, 444 U.S. 837, 100 S. Ct. 74, 62 L. Ed. 2d 48 (1979). Thus, it would appear that the individual defendants are not subject to suit under § 301, and that subject matter jurisdiction exists only over Guild Local and Guild International, the two labor organizations alleged in the complaint to have been parties to the 1976 collective bargaining agreement. Plaintiff argues, however, that these two axioms of federal labor law have no applicability here because its complaint may be construed as alleging that union officers did not act on behalf of the labor organizations they represent, and that the federal common law fashioned under § 301 would encompass a claim of tortious interference with the performance of a collective bargaining agreement asserted against individuals and the unions they represent. *fn11"

 The mandate to construct substantive federal law in suits arising under § 301 is indeed broad. As the Court indicated in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S. Ct. 912, 918, 1 L. Ed. 2d 972 (1957), "(t)he range of judicial inventiveness will be determined by the nature of the problem." But there is little authority supporting the proposition that a claim of tortious interference with a collective bargaining agreement is subsumed under the federal common law of labor relations. Although the Court of Appeals for the Third Circuit has ruled that "a claim of tortious interference with the collective bargaining agreement by a (pension) Fund Trustee states a non-frivolous cause of action under § 301 of the Taft-Hartley Act sufficient to support pendent jurisdiction of state law claims in federal court," Nedd v. U.M.W., 556 F.2d 190, 198 n.12 (3d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 727, 54 L. Ed. 2d 757 (1978); see also Chapman v. Southeast Region I.L.G.W.U. Health and Welfare Recreation Fund, 265 F. Supp. 675, 679 (D.S.C.1967), its holding was carefully limited: "The issue before us is neither the legitimacy of such a cause of action nor the capacity of federal common law to encompass it, but rather the appropriateness of couching it in terms of § 301." *fn12" Nedd v. U.M.W., 556 F.2d at 198 n.12 (emphasis added).

 More recently, the Court of Appeals intimated that § 301 could not be utilized to assert federal jurisdiction over a claim of tortious interference with a collective bargaining agreement. In Teamsters Local 30 v. Helms Express, Inc., 591 F.2d 211, (3d Cir.), cert. denied, 444 U.S. 837, 100 S. Ct. 74, 62 L. Ed. 2d 48 (1979), the court, quoting approvingly from a decision refusing to recognize a § 301 cause of action for tortious interference, stated:

 
Section 301 creates federal jurisdiction only over parties to the contract, and federal jurisdiction under § 301 is limited to "(suits) for violation of contracts between an employer and a labor organization....' 29 U.S.C. § 185. Thus, in Aacon Contracting Co. v. Ass'n of Catholic Trade Unionists, 178 F. Supp. 129 (E.D.N.Y.1959), claiming that the defendant union attempted to compel plaintiff to breach a collective bargaining agreement it had with another union, plaintiff attempted to assert federal jurisdiction over the dispute even though there was no contractual relationship between plaintiff and defendant. The complaint was dismissed and the Second Circuit affirmed, 276 F.2d 958 (2d Cir. 1960), on the opinion of the trial judge: "The language of the statute is explicit. It specifically refers to suits for violation of contracts between an employer and a labor organization. In this case there is no contractual relationship between the parties.' 178 F. Supp. at 130. While clearly this does not prevent Sever, as an individual member of a ...

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