On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 85-5654.
Sloviter, Becker and Garth, Circuit Judges.
This appeal involves an action by members of a local union against the regional joint board of the union and the international union claiming that defendants violated their respective constitutions and bylaws by failing to represent effectively the members of the Local in a number of respects, and that defendants violated their constitutions and bylaws and RICO, 18 U.S.C. §§ 1962(c), by failing to rebate a share of dues to the local union and shop association and assessing dues from disabled workers. The local union was also named as a defendant originally, but plaintiffs have contended both here and in the district court that the Local was only a nominal defendant because its treasury was in the control of agents of the other defendants. It has since been dropped as a defendant. Plaintiffs also included in their complaint a claim under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 414 (LMRDA), and a pendent state law fraud claim.
The district court denied plaintiffs' motion for class certification and granted defendants summary judgment on plaintiffs' individual claims on the ground that under DelCostello v. International Bd. of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), those claims were barred by the six-month statute of limitations of section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). This appeal followed.
Appellants Rose Grasty, Pat Poore and Barbara Scullen, who are the named plaintiffs, are employees of Downs Carpet Company (Downs) and are members of a bargaining unit represented by Local Union 80 (Local 80), of the Amalgamated Clothing & Textile Workers Union (ACTWU). Appellee ACTWU is the international union and appellee Mid-Atlantic Regional Joint Board of Textile Workers Union of America (Joint Board) is the intermediate union with jurisdiction over Local 80.*fn1 (Unless otherwise noted, appellees are collectively referred to as "the Unions").
Plaintiffs allege that through a variety of actions or inactions, the Unions failed to fairly and faithfully represent them and other members of a class consisting of members of the bargaining unit. Their claims are based primarily upon the manner in which Jacqueline Lupo discharged her responsibilities as representative of the Joint Board to Local 80.
Plaintiffs allege that the Unions, acting through Lupo, broke a strike in February 1983 by fraudulently engineering the ratification of a bargaining agreement between Local 80 and Downs. According to the complaint, the agreement was rejected by a vote of 59 to 52 taken on February 15, 1983 which was tabulated by a committee of the members of the bargaining unit. Three days later, Lupo called the negotiation and election committees to a meeting and informed them that the ballots had been recounted and that the vote was 51 to 49 to accept Downs' proposal. Plaintiffs contend that "Lupo did not want to administer and conduct the strike and fabricated the 'recount' to that end." Appellant's Brief at 10.
Plaintiffs also allege that the Unions, again acting primarily through Lupo, allowed Local 80 to "fall into chaos" and failed and refused to conduct elections and other procedures to maintain Local 80 as a viable organization; that the Unions failed and refused to provide them and other members of the bargaining unit with effective representation in their day-to-day relationship with Downs by failing to handle worker grievances or disputes which occur on the second shift, by refusing to press grievances of terminated workers, and by refusing to protest when the company unilaterally doubled the deduction from employee wages for medical insurance from $.05 per hour to $.10 per hour; that the Unions collected excessive dues by assessing dues when bargaining unit members were disabled and not working and then causing Downs to deduct the extra dues from the members' wages when they returned to work; and that the Unions failed and refused to supply bargaining unit members with copies of the bargaining agreement and copies of their respective constitutions.
Finally, plaintiffs claim that the Unions failed for the five-year period prior to the filing of the complaint to rebate to the Downs shop association the $.25 per employee per month for its use as was required by their respective constitutions and bylaws. The complaint also alleges that the failure to rebate dues and the assessment of dues from employees who were disabled were part of a pattern of racketeering activity conducted in violation of RICO.
In a Memorandum Opinion and Order of May 30, 1986, the district court denied class certification on the ground that appellants Grasty and Poore cannot adequately represent the interests of the class since they were officers of Local 80, a defendant, during the relevant period. App. at 236-37. On June 2, 1986, the day scheduled for trial, the district court informed the parties that it would grant the Unions' motion for summary judgment in certain respects and deny it in others.*fn2 Plaintiffs then informed the district court that the remaining factual allegations of misconduct did not apply to their individual claims absent the possibility of class recovery. On July 31, 1986, the district court issued an order granting the Unions' motion for summary judgment. By Memorandum Opinion of August 9, 1986 the district court held that "all claims not waived by the individual plaintiffs, which the plaintiffs claim to have affected them personally, are barred by the statute of limitations." App. at 242.
On August 15, 1986 plaintiffs moved for reconsideration of the district court's order granting summary judgment. That motion was denied on September 12, 1986. Plaintiffs appeal from the district court's orders denying class certification, granting summary judgment in favor of the Unions, denying reconsideration of the order granting summary judgment, and various procedural orders.
In this appeal, as in that recently decided in Lewis v. International Bhd. of Teamsters, 826 F.2d 1310, slip op. at 5-12 (1987), we are obliged to satisfy ourselves of our jurisdiction and that of the district court since federal subject matter jurisdiction over all the claims is not immediately apparent from the face of the complaint.*fn3 We cannot use the RICO count to support pendent jurisdiction over the remaining counts because the failure to rebate dues, the essence of the RICO claim, does not appear to be based on operative facts common to the other claims. For the same reason the LMRDA claim alleging failure to provide copies of the Unions' constitutions and the bargaining agreement will not support jurisdiction over the remaining counts. Accordingly, if we are to accept plaintiffs' counsel's vigorous assertion that he is not alleging that the Unions breached their duty of fair representation, in the face of what appears to us to be several such allegations in the complaint,*fn4 we are required to decide whether plaintiffs' claim of a violation of the Unions' constitutions evokes federal jurisdiction under section 301(a) of the Labor Management Relations Act.
Our decision in Lewis is controlling. In that case we held that jurisdiction exists under section 301(a) over a claim by an individual union member for breach of the international union's constitution. In this case, plaintiffs allege breach of the constitutions of the international union and the governing joint board. Accordingly, we conclude that, regardless of how the remaining ...