The opinion of the court was delivered by: ROBERT L. CARTER
Petitioner Thomas C. Puma ("Puma"), owner of Ace Sign & Rigging, Corp. and an owner-member of respondent Sheet Metal Workers' International Association, Local Union #137 (the "Union") seeks a preliminary injunction preventing his ouster from Union membership. He asserts that his petition states a claim cognizable under section 101(a)(1) of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(1) (1985), and that jurisdiction is proper under section 102 of the LMRDA, 29 U.S.C. § 412 or alternatively under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1985). He also asserts federal question jurisdiction pursuant to 28 U.S.C. § 1337 (1993) and/or under the Declaratory Judgment Act, 29 U.S.C. 2201 and 2202 (1994). The Union moves pursuant to Rules 12(b)(1) and 12(b)(6), F.R.Civ.P., for dismissal of Puma's petition on the bases that: (1) the court lacks subject matter jurisdiction under any of the foregoing statutes; and (2) the petition fails to state a claim upon which relief may be granted. In the alternative, the Union argues that petitioner's request for a preliminary injunction should be denied because Puma has failed to establish any basis for granting such relief.
Thomas Puma, a principal and employee of Ace Sign & Rigging, Corp. ("Ace"), has been a member of Local 137 since 1970; first as an apprentice and journeyman, and more recently as an owner-member, his status having changed as per the terms of the Union's Constitution after becoming a principal of Ace. (See pet. Exs. A & H.) On September 9, 1993, petitioner requested in writing that the Union convert his membership from owner-member to financial core member. Through its Financial Secretary/Treasurer, Paul Collins, the Union responded in a letter dated September 17, 1993, indicating that it was unclear as to petitioner's intent, but offering instead to issue him a withdrawal card. On November 5, 1993, petitioner's counsel wrote to the Union citing the case from which the term "financial core" member was derived, i.e. Communications Workers of America v. Beck, 487 U.S. 735, 101 L. Ed. 2d 634, 108 S. Ct. 2641 (1988),
and offering to discuss the matter with the Union directly if it still had any questions. However on December 10, 1993, Collins responded directly to petitioner stating that the Union had no such classification as financial core member, and that it would treat petitioner's request to become this type of member as a voluntary withdrawal. Included with this letter were materials concerning petitioner's annuity fund and COBRA information. Subsequently, on December 13 and 17, 1993, petitioner's attorney wrote back to Collins stating that petitioner should not be dismissed from the Union for asserting his rights under Beck, and that the Union had made a "quantum leap" in suggesting that petitioner's request for a change in status amounted to a resignation of Union membership. Moreover, petitioner's counsel made clear to the Union that petitioner wished to remain as an owner-member during the pendency of the disagreement concerning his financial core membership. As of the date of the filing of the petition, the Union had not responded to this request.
In support of its motion to dismiss under Rule 12(b)(1), F.R.Civ.P., the Union argues that the court lacks subject matter jurisdiction and that petitioner's claims are preempted by the NLRA because an unfair labor practice charge has been filed before the Board. In addition, the Union argues that Puma's petition should be dismissed because he fails to state a claim upon which relief may be granted.
As to the claim that the court lacks subject matter jurisdiction, the Union contends that petitioner, as the owner of Ace, does not have the same rights and protections as employee union members; that the absence of a collective bargaining agreement between Ace and Local 137 deprives the court of jurisdiction; and that petitioner has not alleged federal question jurisdiction pursuant to 28 U.S.C. §§ 1137 and 2202.
In arguing that petitioner does not have the same rights and protections of employee union members, the Union looks to section 101(a)(1) of the LMRDA, which provides the following:
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.
29 U.S.C. § 411(a)(1). It then examines Article 16 § 1(d) of the Union's Constitution which states that:
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 an office or position in the local union.
Constitution and Ritual of the Sheet Metal Workers International Association and Affiliated Local Unions, State, District and Provincial Councils ("Union Constitution"), Art. 16, § 1(d)(2). [Pet. Ex. A] Comparing these two sections, the Union concludes that section 101(a)(1) cannot apply to both owner-members and employee members because the constitution's prohibition of owner-members from participating in elections and attending meetings is incompatible with section 101(a)(1)'s guarantee of this right for all union members. Thus, in order to reconcile this apparent contradiction, respondent simply asserts that owner-members are not really members of the Union and that section 101(a)(1) does not apply to them. Respondent further contends that under the Union Constitution, section ...