United States District Court, D. Hawaii
MARK A. AVILA, Plaintiff,
SHEET METAL WORKERS LOCAL UNION NO. 293, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS
C. KAY SR. UNITED STATES DISTRICT JUDGE.
Mark Avila argues that Defendant Sheet Metal Workers Local
Union No. 293 (“Local 293”) has violated his
rights under Title I, Section 101 of the Labor Management
Reporting and Disclosure Act (“LMRDA”), 29 U.S.C.
§ 411 (Section 101), by refusing to allow him to execute
a collective bargaining agreement (“CBA”) on
behalf of his Hawaii business. Plaintiff argues that Local
293's refusal has effectively precluded him from
exercising his “right to transfer” his union
membership between local affiliates. Local 293 has moved to
dismiss the complaint under Federal Rules of Civil Procedure
12(b)(1) (lack of subject matter jurisdiction), 12(b)(6)
(failure to state a claim), and 12(b)(7) (failure to join an
Plaintiff's Union Membership
to the First Amended Complaint (“FAC”), ECF No.
20, Plaintiff is the sole director, officer, and shareholder
of a California profit corporation, Bayarea Balancing &
Cleanrooms, Inc., (“BABC California”), and he
holds the same positions with a Hawaii profit corporation
with the same name, Bayarea Balancing & Cleanrooms, Inc.
(“BABC Hawaii”). FAC ¶¶ 18-19.
Plaintiff is currently an owner-member of Sheet Metal Workers
Local Union No. 104 (“Local 104”), a local union
affiliated with the International Association of Sheet Metal,
Air, Rail and Transportation Workers (“SMART”)
with jurisdiction over California. FAC ¶ 24. Defendant
Local 293 is a local union also affiliated with SMART, with
jurisdiction over Hawaii. FAC ¶ 2. Local affiliates of
SMART are governed by SMART's Constitution and Ritual
(the “SMART Constitution”). See FAC
¶¶ 22-23; see also Ex. B., Mot. Dismiss;
Ex. A, Reply Br.
Plaintiff's Attempt to Transfer Membership
seeks to transfer his owner-membership status from Local 104
to Local 293. FAC ¶ 27. He alleges that the SMART
Constitution “allows members to transfer their union
membership to another local union by applying for a transfer
card, ” FAC ¶ 25, but that he has been unable to
exercise his right to transfer because Local 293 has declined
to allow him to execute its CBA, FAC ¶ 59.
around January 2017, Plaintiff notified Local 104 of his
desire to transfer his membership. FAC ¶ 27. Local 104
issued a transfer card to Plaintiff, which, according to
SMART's Constitution, would be “null and void
unless deposited within 30 days from the date of
issue.” FAC ¶ 29. Plaintiff presented the transfer
card to Local 293 and, “[a]pproximately two weeks
later, an employee or officer of Local 293 asked [Plaintiff]
to come to Local 293's offices to execute Local 293's
[CBA] on behalf of BABC.” FAC ¶ 30-31. Plaintiff
executed the CBA but was not provided with an executed
copy.FAC ¶¶ 32-33. When Plaintiff
later returned to tender his union dues, Local 293 advised
him that it could not accept the dues because of “an
ongoing investigation, which had been referred to Local
293's attorney.” FAC ¶ 34.
about March 23, 2017, Local 293 sent a letter to Plaintiff
advising that it had inquired with “the International
Representative” of SMART; that the International
Representative was “in discussions with [SMART's]
General-Secretary about the matter”; and that Plaintiff
would soon be notified “whether special approval is
required by the General President of the International
Association” to effectuate the transfer. FAC ¶ 35.
According to the letter, “an attempt to transfer as an
owner member is quite uncommon, ” which led Local 293
to inquire with SMART for guidance on how to proceed. FAC
¶ 35. Local 293 also informed Plaintiff of a
“pending grievance” and “outstanding
financial obligations” with Local 104, which precluded
transfer of his membership. FAC ¶ 36.
Plaintiff eventually resolved his outstanding financial
obligations and requested a new transfer card from Local 104,
he was advised by Local 104's Secretary/Treasurer that he
had to comply with certain conditions to receive a transfer
1. “[T]he owner-member provides proof of a signed
Collective Bargaining Agreement with the SMART local union
within the desired transfer area.”
2. “The owner-member provides proof that he or she has
permanently relocated to the jurisdiction for which the
transfer card is issued.” FAC ¶¶ 38-40 (the
“Transfer Conditions”). Plaintiff, through his
attorney, pushed back on those Transfer Conditions, arguing
that they violate SMART's Constitution.
FAC ¶ 41. In response, Local 104's counsel advised
that this interpretation of the SMART Constitution “is
the International Union's interpretation, not Local
104's interpretation.” FAC ¶ 42.
February 14, 2018, Plaintiff sent a letter and accompanying
affidavit to SMART appealing Local 104's decision to
condition a transfer card on the identified Transfer
Conditions. FAC ¶ 43. About one month later, SMART's
General President, Joseph Sellers, Jr., denied
Plaintiff's appeal. FAC ¶ 45. The General President
advised that “a transfer card is available only to a
member who intends to permanently relocate to another local
union's jurisdiction” and that the sheet metal shop
with which the member is connected must be “in signed
agreement with the local union or local unions having
jurisdiction over the shop.” FAC ¶ 46.
receiving the denial letter from SMART, Plaintiff requested
on April 5, 2018, that Local 293 allow him to execute Local
293's CBA on behalf of BABC Hawaii. FAC ¶¶
47-50. Local 293 advised Plaintiff, about one week later,
that it was “still investigating the matter in light of
recent correspondence from the International.” FAC
¶ 51. Several months later, on December 28, 2018, Local
293 formally denied Plaintiff's request to execute the
CBA, without having requested any additional information. FAC
¶ 52-54. Plaintiff alleges that Local 293's denial
set forth “arbitrary, capricious, unreasonable, and
pretextual bases in support of its decision not to allow Mr.
Avila to execute the CBA.” FAC ¶ 55. Plaintiff is
apparently “ready, willing, and able to secure
permanent residency in Honolulu, Hawaii” and his final
hurdle is entering into the CBA with Local 293 on behalf of
his business, BABC Hawaii. FAC ¶ 57-58.
The SMART Constitution
claims and allegations rely on several provisions of the
SMART Constitution. First, the SMART Constitution provides
that, inter alia, no owner “shall be eligible
to make application for membership or be accepted as a member
of this Association or of any local union or counsel thereof
. . . .” SMART Const., Art. 16 § 1(c). The SMART
Constitution carves out an exception for
“owner-members” in Section 1(d):
An owner, employer, contractor, jobber, or anyone who
otherwise participates as management in the sheet metal
industry shall be eligible to retain or apply for membership
in this International Association or any local union thereof
as an owner-member with the same rights and duties as other
members except as provided below:
(1). The sheet metal shop or business with which he or she is
connected is in signed agreement with the local union or
local unions having jurisdiction over the shop and the shop
or business must employ at least one journeyman sheet metal
worker who is a member of this Association.
(2). An owner-member shall not be entitled to attend any
meetings or be permitted to vote for election of local union
officers or on any question pertaining to wages, hours,
benefits, or other terms or conditions of employment or on
the acceptance or rejection of a collective bargaining
agreement, and further, shall not be permitted to serve in a
representative capacity or hold any office or position in the
local union. An owner-member who returns to any
classification represented by this Association shall not be
permitted to run for local union office in any local union
affiliated with SMART for a period of one (1) year. Such
period starts from the date that his or her classification is
changed on an official dues receipt issued by the financial
secretary-treasurer of the local union.
(3). An owner-member shall not be permitted to work in any
capacity in the sheet metal industry for another employer.
(4). Any owner-member who fails to fulfill his or her
financial obligations by making proper payment to his or her
employees for work performed or to contribute the contractual
obligations to fringe benefit funds shall be subject to
charges and penalties as prescribed in Article Seventeen (17)
of this Constitution.
(5). Any owner-member working with the tools of the trade
shall pay to all fringe benefit programs for the actual hours
worked in accordance with the respective collective
bargaining agreement, unless that collective bargaining
agreement provides for a different requirement.
(6). Nothing herein shall be construed to confer eligibility
for benefits to an owner-member from any particular employee
or fringe benefit plan, nor supersede any minimum hours or
participation requirements of such plans.
Id. § 1(d); see also FAC ¶ 26
(quoting a portion of this section).
9 of Article 16 addresses “transfer cards.” The
Court will not quote all the provisions governing transfers
of membership, but the SMART Constitution generally provides
that “[a]ny good standing member of an affiliated local
union who desires to transfer or accept employment in the
jurisdiction of another local union, in the event such
employment involves a transfer of permanent address, shall
apply to the financial secretary-treasurer of his local union
for an official transfer card.” SMART Const., Art. 16
§ 9(a). Members are not entitled to a transfer card if
charges are pending against them, and not until “all
duties and all obligations, financial and otherwise, in
connection with said charges or trial have been fully
discharged.” Id. § 9(b). Members also
must be current on their local union and SMART dues.
Id. § 9(c).
SMART Constitution provides that a local union “is
obligated to issue official transfer cards to good standing
members in the manner specified in the Constitution without
action or approval of the members of the local union.”
SMART Const., Art. 16 § 9(d). And, when “properly
issued and presented for deposit with proper identification,
” the transfer card of any “good standing member
. . . shall be accepted by any local union in accordance with
this Constitution, ” except in certain circumstances
where strikes and other disputes are pending or unsettled.
See id. § 9(n). Finally, “a good standing
member shall obtain a transfer card in order to work within
the jurisdiction of another local union in the event he or
she changes his permanent residence to a location within the
territorial jurisdiction of the local union in which he or
she intends to perform work.” Id. § 9(s).
Internal Union Appeals
Constitution requires union members to appeal first to the
General President, then to the General Executive Council, and
then to the General Convention. SMART Const., Art. 19;
see also FAC ¶¶ 6, 15. Plaintiff alleges
in the FAC that he has satisfied the administrative
perquisites to a claim under Section 101. See FAC
¶¶ 6-17. The dates and order of events is somewhat
difficult to discern from the organization of the FAC; the
Court does its best to accurately convey them here:
The First Appeal. Plaintiff submitted an appeal to
SMART's General Secretary-Treasurer on May 9, 2018, after
Local 293 first denied Plaintiff's request to execute
Local 293's CBA (the “First Appeal”). FAC
¶ 6. Local 293 submitted an answer to the First Appeal
on June 5, 2018. FAC ¶ 7. Plaintiff's appeal was
denied on November 14, 2018. FAC ¶ 8. Plaintiff appealed
once more to SMART's General Executive Council on January
9, 2019. FAC ¶ 9. Local 293 submitted its answer on
March 4, 2019. FAC ¶ 12. At the time the FAC was filed,
SMART's General executive Council had not rendered a
decision as to the First Appeal. FAC ¶ 13.
The Second Appeal. At the same time, Plaintiff had
also appealed Local 293's formal letter denying
Plaintiff's request to execute the CBA, dated December
28, 2018 (the “Second Appeal”), to SMART's
General President. FAC ¶¶ 10, 52-54. Local 293
submitted its answer to the Second Appeal on February 19,
2019. FAC ¶ 11. Like the First Appeal, SMART's
General President had not rendered a decision on the Second
Appeal at the time the FAC was filed. FAC ¶ 14.
alleges that “SMART officials are hostile to Mr. Avila,
and Mr. Avila cannot hope to obtain a fair hearing on his
claim.” FAC ¶ 16. The FAC states that
“[f]ull exhaustion of [Plaintiff's] internal union
remedies would unreasonably delay [his] opportunity to obtain
a judicial hearing on the merits of his claim.” FAC
¶ 17. The FAC emphasizes the First and Second Appeals,
which began in May 2018 and are still pending before the
General Convention. FAC ¶ 17. According to the FAC, the
General Convention meets in August 2019 and Plaintiff
“will be unable to fully exhaust internal union
remedies until SMART's General Convention meets in 2024,
as SMART's Constitution states that SMART ‘shall
meet in a regular quinquennial (5-year) SMART General
Convention.'” FAC ¶ 17.
alleges one cause of action against Local 293 under 29 U.S.C.
Every member of a labor organization shall have equal rights
and privileges within such organization to nominate
candidates, to vote in elections or referendums of the labor
organization, to attend membership meetings, and to
participate in the deliberations and voting upon the business
of such meetings, subject to reasonable rules and regulations
in such organization's constitution and bylaws.
FAC ¶ 62 (quoting 29 U.S.C. § 411(a)(1)).
theory of liability is that Local 293 has, by its refusal to
sign the CBA, effectively precluded Plaintiff from exercising
his owner-member “right to transfer” his
membership between local unions. FAC ¶ 59; see
also FAC ¶ 64 (“Local 293 has denied Mr.
Avila equal rights and privileges under SMART's
Constitution by arbitrarily, capriciously, and unreasonably
refusing to allow Mr. Avila to execute its CBA, and by
relying on pretextual reasons for such refusal, thereby
preventing Mr. Avila from obtaining a transfer card from
Local 104 and interfering with his rights under Article 16,
Section 9 of SMART's Constitution.”). He alleges
that, “[a]s a result of Local 293's refusal to
allow Mr. Avila to execute its CBA on behalf of BABC Hawaii,
Local 293 is denying Mr. Avila each of the equal rights and
privileges afforded to members of Local 293 under 29 U.S.C.
§ 411(a)(1).” FAC ¶ 66. On this basis,
Plaintiff seeks injunctive relief to force Local 293 to
execute the CBA with BABC Hawaii so that Plaintiff may
effectuate the transfer between local affiliates. FAC
Local 293 has filed a motion to dismiss the FAC, alleging
that (1) the district court lacks subject matter
jurisdiction, (2) the complaint fails to state a claim under
the LMRDA, (3) Plaintiff failed to join an indispensable
party (SMART), and (4) declaratory relief is not warranted.
See Mot. Dismiss, ECF No. 24-1. The Motion to
Dismiss attaches twelve exhibits and the Reply brief attaches
one, none of which were attached to the FAC. See
Exs. A-L, Mot. Dismiss, ECF No. 24; Ex. A, Reply Br., ECF No.
29; see also FAC.
293 filed its opening brief on March 29, 2019. ECF No. 24.
Plaintiff filed his opposition brief on July 23, ECF No. 28,
and Local 293 filed a reply brief on July 29. A hearing was
held on August 13, 2019, at 11:00 a.m.
Motion to Dismiss for Lack of Subject Matter
defendant may challenge a court's subject matter
jurisdiction under Federal Rule of Civil Procedure
(“Rule”) 12(b)(1). “A party invoking the
federal court's jurisdiction has the burden of proving
the actual existence of subject matter jurisdiction.”
See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.
challenge to a court's subject matter jurisdiction may be
either “facial” or “factual.”
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
2004). In a facial attack, “the challenger asserts that
the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”
Id. (quoting Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). When
opposing a facial attack on subject matter jurisdiction, the
nonmoving party is not required to provide evidence outside
the pleadings. Id.; see Doe v. Holy See,
557 F.3d 1066, 1073 (9th Cir. 2009) (treating defendant's
challenge to subject matter jurisdiction as facial because
defendant “introduced no evidence contesting any of the
allegations” of the complaint). In deciding a facial
Rule 12(b)(1) motion, the court must assume the allegations
in the complaint are true and draw all reasonable inferences
in the plaintiff's favor. Wolfe, 392 F.3d at 362
contrast, in a factual attack, “the challenger disputes
the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction.” Id.
(quoting Safe Air, 373 F.3d at 1039). The moving
party may bring a factual challenge to the court's
subject matter jurisdiction by submitting affidavits or any
other evidence properly before the court. Colwell v.
Dep't of Health & Human Servs., 558 F.3d 1112,
1121 (9th Cir. 2009). The nonmoving party must then
“present affidavits or any other evidence necessary to
satisfy its burden of establishing that the court, in fact,
possesses subject-matter jurisdiction.” Id.
(citation omitted). In these circumstances, the court may
look beyond the complaint without having to convert the
motion into one for summary judgment. U.S. ex rel. Meyer
v. Horizon Health Corp., 565 F.3d 1195, 1200 n.2 (9th
Cir. 2009). When deciding a factual challenge to the
court's subject matter jurisdiction, the court
“need not presume the truthfulness of the
plaintiffs' allegations.” Id.
Motion to Dismiss for ...