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CURL v. GENERAL TEL. CO.

September 22, 1987

John Alton Curl, Plaintiff
v.
General Telephone Company of the Southwest and Communications Workers of America Local 6171, Defendants



The opinion of the court was delivered by: ROY

 ROY, U.S.D.J.

 According to the complaint, "about January 9, 1960, plaintiff was, by oral contract of hire, employed by GTSW. About July 18, 1979 in the course and scope of his employment plaintiff suffered a serious on-the-job injury and for all material times thereafter remained in a period of temporary total disability for which he received workers compensation benefits . . . ." The complaint also provides that "at all material times, there were in force Agreements of Recognition, Bargaining Procedure and Operating Contracts" between GTSW and the Union dated May 18, 1977, June 9, 1980, and May 16, 1983 "of which agreements plaintiff was and is a third-party beneficiary." Neither defendant disputes the truthfulness of these allegations, nor does either question plaintiff's assertion in the complaint that he received a letter from GTSW dated March 2, 1984 "which stated that [GTSW] 'considered that [plaintiff] resigned (his employment) February 29, 1984.'"

 In reviewing these motions to dismiss, the Court must construe the complaint liberally, accepting all allegations therein as true. Commenting upon the determination of motions to dismiss, the Eighth Circuit Court of Appeals stated, in Orlando v. Alamo, 646 F.2d 1288, 1289 (8th Cir. 1981):

 
Initially, we note that courts should be reluctant to dismiss a complaint summarily, and to that end should construe pleadings liberally. E.g., A. & P. Tea Co. v. Amalgamated Meat Cutters and Butcher Workmen Local 88, 410 F.2d 650, 652-53 (8th Cir. 1969). The speedy and efficient administration of justice requires, however, that 'meritless claims . . . be disposed of at the first appropriate opportunity.' Hungate v. United States, 626 F.2d 60, 62 (8th Cir. 1980).

 Defendants contend that this Court lacks subject matter jurisdiction over plaintiff's claims on two grounds -- first, because provisions of the National Labor Relations Act (29 U.S.C. § 158(b)) and the Labor Management Relations Act (29 U.S.C. § 185) preempt the state law upon which plaintiff seeks to rely and, second, because the six-month limitations period applicable to plaintiff's labor claims expired long before the filing of his complaint on February 19, 1987. *fn1" The statute having thus run, defendants contend that his claims are barred and the Court is without jurisdiction over them.

 As noted previously, plaintiff asserts that this is a tort case for wrongful discharge, outrage, and intentional infliction of emotional distress. Notwithstanding that assertion, plaintiff alleges that both defendants were guilty of wrongful conduct with respect to the termination of his employment with GTSW and his efforts to grieve that termination and recover other benefits allegedly due him.

 Addressing the Union's case first, it seems abundantly clear that plaintiff has failed to state a cognizable claim against the Union. The complaint provides in pertinent part:

 
[the Union] is made a party defendant to this action because it is or may be a necessary party, and because it will or may be required in the future to advocate on behalf of plaintiff with [GTSW] at least some of plaintiff's rights and entitlements from [GTSW] as determined by the court in this cause. [Complaint, para. 4.]

 That statement reflects that plaintiff has no specific claim against the Union, for there are no other allegations in the complaint directed toward the Union. Moreover, in his response to the Union's motion to dismiss, plaintiff declared that "the proof will be that at best [GTSW] and [the Union] 'went through the motions only' of the grievance process. However, that is not what this case is about. This case is about the retaliatory discharge of Mr. Curl and the tort of outrage, both committed by [GTSW] . . . ." Viewing the pleadings as a whole, plaintiff has failed to state any claim against the Union. Accordingly, the Court finds that the Union's motion to dismiss should be, and it is hereby, granted.

 A more difficult question is presented by the case of GTSW. As is evident from those portions of the complaint quoted herein, plaintiff has indeed alleged a number of claims against GTSW. Although plaintiff attempts to characterize them as tort claims, the Court views the allegations of the complaint as an artful attempt to avoid the preemptive effect of the federal labor laws.

 Wrongful discharge and outrage claims in the employment context are recognized in Arkansas. See, e.g., M.B.M. Company, Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). It is conceded by GTSW that the application of state law to disputes between employers and employees regarding collective bargaining agreements is not automatically preempted by section 301 of the Labor Management Relations Act. However, GTSW vigorously contends that it is crystal clear that state law is preempted when the resolution of such a dispute requires interpretation of a collective bargaining agreement, citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985).

 Plaintiff has attempted to portray his claims against GTSW as simple tort claims, but even a cursory reading of the complaint reveals that plaintiff's rights under the bargaining agreement between GTSW and the Union are at the heart of this lawsuit. In Johnson v. Hussmann Corp., 805 F.2d 795 (8th Cir. 1986), a case quite similar to the instant case, the Eighth Circuit affirmed the district court's dismissal of plaintiff's complaint on the preemption ground in spite ...


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