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STARKS v. PERLOFF BROS.

April 25, 1984

WILLIAM STARKS et al.
v.
PERLOFF BROTHERS, INC. et al.



The opinion of the court was delivered by: BRODERICK

 This action is brought by sixty warehousemen, all of whom were employed until December, 1982 by defendant Perloff Brothers, Inc., a food distributor, at its warehouse at 7th Street and Packer Avenue in Philadelphia. At the time, the plaintiffs were represented under the terms of a collective bargaining agreement with Perloff by defendant Warehouse Employees Union Local 169. The plaintiffs allege that while the collective bargaining agreement between Perloff and Local 169 was in effect, defendant Truck Drivers & Helpers Union Local 676 forced Perloff to recognize and bargain with it as representative of the employees at 7th and Packer and that Perloff then "awarded the entire jurisdiction" of the 7th and Packer warehouse to Local 676, resulting in the plaintiffs' loss of seniority rights and employment. Local 676 had for many years represented warehousemen employed by Perloff's wholly-owned subsidiary Alfred Lowry & Brother, Inc. (Lowry), which operated a food distribution business in Camden, New Jersey.

 The plaintiffs' claims against Local 169 and Perloff are based on § 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185. The plaintiffs allege that Perloff breached the collective bargaining agreement by recognizing Local 676 as the exclusive bargaining representative of the employees at 7th and Packer, and that Perloff made this decision because Local 169 breached its duty to "properly, adequately and fairly represent" the plaintiffs. The plaintiffs' claim against Local 676 is based on § 303 of the LMRA, 29 U.S.C. § 187, which provides a money damages remedy for a private party injured in his business or property by reason of violation of certain unfair labor practice provisions of the LMRA. The plaintiffs allege that Local 676 unlawfully threatened violence, strikes, and other unfair labor practice activity with the purpose of coercing and inducing Perloff to unlawfully breach its collective bargaining agreement with Local 169.

 Local 169 and 676 have moved to dismiss the complaint on the grounds that the complaint fails to state a cause of action and that the claims are barred by the statute of limitations. Local 676 also contends that the plaintiffs lack standing to pursue a § 303 claim. Rather than responding to the motions to dismiss, plaintiffs have requested leave to file an amended complaint, and have filed a copy of their proposed amended complaint. Local 169 has moved to dismiss the amended complaint, and Local 676 and Perloff have opposed the motion for leave to amend on the grounds that the proposed amended complaint fails to state a cause of action and is barred by the statute of limitations. The Court has considered the responses of Local 676 and Perloff, together with Local 676's earlier motion to dismiss, as motions to dismiss the amended complaint. The plaintiffs have responded to the statute of limitations contentions raised in these motions, but have not responded to the other contentions raised by the defendants.

 On March 27, 1984, this case was assigned to this Judge as related to two prior cases, Perloff Brothers, Inc. v. Teamsters Local Union No. 676 and Warehouse Employees Union Local No. 169, (Perloff v. Locals 169 and 676), No. 83-1307, and Arko v. Perloff Brothers, Inc., Local Union 169 and Local Union 676, (Arko), No. 83-3782. All of these actions involve the labor consequences of a consolidation of operations by Perloff between December, 1982 and May, 1983. In December, 1982, Perloff sold certain assets, including residual inventory and power equipment, which it had used in its operations at the 7th and Packer facility. In January, 1983, Perloff purchased certain assets, including inventory and rolling stock, from Monarch Institutional Foods, Inc., which had operated a food distribution business out of a warehouse in northeast Philadelphia. Perloff then consolidated all of its operations, including those of Lowry, its Camden subsidiary, at the 7th and Packer warehouse. Following the consolidation, Perloff employed many fewer warehousemen than had been employed at the three warehouses before consolidation. Some of the other labor consequences of this consolidation, including claims by the former Lowry drivers and the former Monarch warehousemen concerning their seniority, have been discussed in the April 4, 1984 memoranda in Arko and in Deal v. Local 500, Food Drivers, Helpers and Warehousemen Employees, No. 83-4470.

 In Perloff v. Locals 169 and 676, the first of the "Perloff cases" before this Court, Perloff sought an injunction restraining Locals 169 and 676 from interfering with its planned consolidation of operations. Perloff had previously filed an unfair labor practice charge against Local 676, alleging that 676 was violating § 8(b)(4)(D) of the NLRA, 29 U.S.C. § 158(b)(4)(D), by inducing strike activity and threatening and coercing Perloff with the object of forcing or requiring Perloff to assign the warehousing work at 7th and Packer to employees represented by 676. On March 4, 1983, the NLRB found that Perloff's charge lacked merit. The NLRB found that Local 676's threatened actions in refusing to load goods bound for other warehouses unless its members were promised work at the warehouse remaining after consolidation were taken "to protest the imminent loss of its members' jobs and to preserve bargaining unit work. Thus, the Union's actions did not give rise to a work assignment dispute within the meaning of Section 8(b)(4)(D)." The employer appealed this decision.

 Perloff asserted before this Court that 676's strike threat was in violation of § 301 of the LMRA because it was inconsistent with its contractual duties to Perloff. On March 28, 1983, a temporary restraining order from this Court took effect enjoining Locals 169 and 676 from interfering with Perloff's operations at any of its warehouses or with the movement of any merchandise into the 7th and Packer facility. The Court also scheduled a hearing on the Perloff's motion for a preliminary injunction. During the period the temporary restraining order was in effect, Perloff filed a motion alleging that Local 676 was in contempt of the order.

 On April 11, 1983, following several conferences in chambers, the parties reached a settlement, which was placed on the record. In this settlement Locals 169 and 676, both affiliated with the Teamsters' Union, agreed to submit their dispute concerning which Local had jurisdiction over the 7th and Packer facility to Teamsters Joint Council No. 53 for binding resolution, with the Council to render its decision within two weeks. The parties agreed that there were to be no strikes, showdowns or similar activity pending the Joint Council's decision, that there would be no layoffs of any employees during the two week period, and that Perloff would not move any inventory out of the Camden facility in excess of what it needed to fill customers' orders. In effect, the parties agreed to maintain the status quo pending the outcome of the Joint Council's decision. Finally, the agreement stated that a hearing on Perloff's motion for a preliminary injunction and for contempt would proceed promptly if the Joint Council did not decide the dispute within two weeks.

 On April 21, 1983 the Joint Council awarded jurisdiction to Local 676. Local 169 appealed to the International, which affirmed this decision on July 25, 1983. Pursuant to the settlement agreement between the parties, Perloff v. Locals 676 and 169 was dismissed.

 In evaluating the motions to dismiss, the Court must construe the allegations in the complaint along with the attached collective bargaining agreement in the light most favorable to the plaintiffs. Rogin v. Bensalem Township, 616 F.2d 680, 695 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981). The motion should be granted if "it appears beyond doubt that the plaintiffs can prove no set of facts in support of [their] claim which would entitle them to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In deciding the present motions to dismiss, the Court has considered the allegations of both the original complaint and the amended complaint and to determine if the plaintiffs have stated a cause of action against any of the defendants. Because the allegations of the complaint and the amended complaint are not sufficient to state a cause of action against any of the defendants, the motions to dismiss will be granted and this action dismissed.

 The plaintiffs' claim against Local 676 is brought under § 303 of the LMRA, 29 U.S.C. § 187, and is based on the allegation that Local 676 unlawfully threatened Perloff with violence, strikes, and other unfair labor practices, thereby inducing Perloff to breach its collective bargaining agreement with Local 169 and resulting in the plaintiffs' loss of seniority and employment. Local 676 has responded that the plaintiffs lack standing to sue under § 303, citing Fulton v. Plumbers & Steamfitters, 695 F.2d 402 (9th Cir. 1982), cert. denied, 464 U.S. 913, 104 S. Ct. 273, 78 L. Ed. 2d 254 (1983), and has also contended that the claim is barred by the statute of limitations. For the reasons which follow, the Court agrees that the plaintiffs lack standing to pursue this action against Local 676, and thus does not reach the statute of limitations issue.

 Section 303 of the LMRA provides:

 
(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section [8(b)(4) of the NLRA, as amended].
 
(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of [ 29 U.S.C. § 185] without respect to the amount in controversy, or in any other court having jurisdiction of ...

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