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filed: January 11, 1988.


Appeal from the Order dated October 28, 1986, of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD85-10911.


Daniel W. Ernsberger, Pittsburgh, for appellants.

Ronald L. Gilardi, Pittsburgh, for Carpenters Dist., appellees.

Rowley, Johnson and Montgomery, JJ.

Author: Montgomery

[ 370 Pa. Super. Page 296]

This action was instituted by Plaintiff-Appellants Cecelia Driscoll and William Dailey, claiming that they were the subjects of discrimination in job referrals by the Defendant-Appellee labor organizations. Their Complaint asserted that they were denied job referrals through a "Hiring Haul (sic)" job referral system maintained by the Appellee, as a result of intentional sex discrimination against Ms. Driscoll, and retaliation against her father, Mr. Dailey, because he complained of the alleged sexually discriminatory treatment experienced by his daughter. They based their claims upon rights provided in the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, § 1, et seq., 43 P.S. § 951, et seq.*fn1 After discovery procedures, the Appellees filed a Motion for Summary Judgment, contending that the claims arising in this action were preempted by applicable federal labor law, and also contending that the action was untimely filed by virtue of the limitations period set forth in the Human Relations Act. The trial court found merit in the preemption argument, granted summary judgment in favor

[ 370 Pa. Super. Page 297]

    of the Appellees, and dismissed the Complaint. This appeal arises from that action by the lower court.*fn2

In our review of an order granting summary judgment, our function is normally to determine whether any genuine issue of triable fact exists. Bowman v. Sears, Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976). Pa.R.C.P. 1035 provides that summary judgment may be granted when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together, reveal that there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Bobb v. Kraybill, 354 Pa. Super. 361, 364, 511 A.2d 1379, 1380 (1986).

At least with regard to the preemption issue, there does not appear to be any real question of the alleged factual basis for the Appellants' action. In their Complaint, the Appellants recited that they were both members of the Appellee labor organizations, and had completed necessary apprenticeship requirements and job training to qualify as journeymen carpenters. They alleged that by the terms of a "Labor Agreement"*fn3 and "Hiring Haul (sic) Practices", the Appellants and similarly situated members of the Appellee labor organizations are to be referred to employment opportunities as they are made known to the Appellees. The Appellants then declared that contrary to the "Labor Agreement" and permissible "Hiring Haul (sic) Practices", Ms. Driscoll had been discriminated against because of her

[ 370 Pa. Super. Page 298]

    sex and had been assigned to little or no employment since she became a "Journeymen (sic) Carpenter" on June 1, 1983. In the Complaint, the Appellants further alleged that while Ms. Driscoll was qualified for available work, and had requested the Appellee to assign her to available work, it had refused to assign her to such work and instead assigned male members to such work. It was claimed that the Appellees had retaliated against her, on account of her demands for work, by refusing to assign her father to work. The Appellants also maintained that Mr. Dailey had been the subject of discrimination on account of sex, in retaliation for his daughter's request for work, and his own demands for work for her. Both of the Appellants contended that they had suffered substantial economic loss as a result of denial of employment opportunities, and had also suffered emotional harm and humiliation as a consequence of the Appellees' purported discrimination and retaliation.

The lower court determined that the issues presented by the Appellants' Complaint were subject to dismissal, as the resolution of them was a subject of federal law and the jurisdiction of the National Labor Relations Board (hereinafter often referred to as the "NLRB"). This appeal from that determination appears to present a question of first impression in the courts of our Commonwealth. That question is the narrow one of whether the doctrine of federal preemption precludes the courts of our Commonwealth from exercising jurisdiction over a dispute involving claims of individual plaintiffs, under Pennsylvania law, of sexual discrimination by a labor organization in the conduct of its operation of a hiring hall or job referral system, considering the applicability of the National Labor Relations Act, as amended (29 U.S.C. § 141, et seq.).*fn4

[ 370 Pa. Super. Page 299]

The doctrine of federal preemption rests upon the provisions of Article VI, Clause 2, of the United States Constitution, known as the Supremacy Clause, which states:

This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The appropriate analytical approach to be taken by a court, when faced with a question of possible preemption, has been the subject of discussion in numerous cases. The process of review in such circumstances is ...

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