International Longshoremen's & Warehousemen's U. v. Kuntz

• Decision Date: 26 June 1964
• Docket Number: No. 18981,18987.,18981
• Citation: 334 F.2d 165
• Parties: INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Appellant, v. Paul R. KUNTZ and John G. Cvitkovic, Individually and as Members of a Class, Appellees. PACIFIC MARITIME ASSOCIATION, Appellant, v. Paul R. KUNTZ and John G. Cvitkovic, Individually and as Members of a Class, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

334 F.2d 165 (1964)

INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Appellant, v. Paul R. KUNTZ and John G. Cvitkovic, Individually and as Members of a Class, Appellees.

PACIFIC MARITIME ASSOCIATION, Appellant, v. Paul R. KUNTZ and John G. Cvitkovic, Individually and as Members of a Class, Appellees.

Nos. 18981, 18987.

United States Court of Appeals Ninth Circuit.

June 26, 1964.

COPYRIGHT MATERIAL OMITTED

Norman Leonard, Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., Robert Duggan, Seattle, Wash., for appellant International Longshoremen's and Warehousemen's Union.

Richard Ernst, Marvin Taylor, G. L. Munter, Jr., San Francisco, Cal., J. Tyler Hull, Bogle, Bogle & Gates, Seattle, Wash., for appellant Pacific Maritime Ass'n.

Paul D. Jackson, Seattle, Wash., for appellees.

Before JERTBERG, MERRILL and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Plaintiffs Kuntz and Cvitkovic brought this class action under § 301(a) of the Labor Management Relations Act 29 U.S.C. § 185(a)¹ on behalf of themselves and 36 other ship clerks on the Seattle waterfront and against the Pacific Maritime Association P.M.A. and the International Longshoremen's and Warehousemen's Union I.L.W.U.. The gravamen of their claim is a breach of the P.M.A. and I.L.W.U. collective bargaining contract; they contend that the breach consisted of a contract amendment that stripped them of a "vested right," namely a preferred seniority status previously granted by the defendants.

Defendants filed motions to dismiss the action on the several grounds that the Federal Court lacked jurisdiction over the subject matter of the suit; that the complaint failed to state a claim on which relief might be granted and that plaintiffs had failed to exhaust administrative remedies. Additionally, they moved to stay all proceedings until after plaintiffs had resorted to grievance and arbitration procedures, assertedly available both under the contract itself and § 9 of the N.L.R.A. (29 U.S.C. § 159(a)).

The District Judge denied all these motions (as well as plaintiffs' motion for temporary injunctive relief) but stated that in his opinion the orders, although interlocutory, involved controlling questions of law within the meaning of 28 U.S.C. § 1292(b). Agreeing, this court permitted defendants to appeal. For reasons hereinafter appearing, we reverse the order denying defendants' motion to dismiss the action for failure to state a claim, and remand the cause with directions to the District Court to grant summary judgment in favor of defendants.²

Defendants' motion attacking jurisdiction was without merit, as the District Judge correctly held. Until Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) it was not clear whether any claim at all of an individual arising from breach of the collective bargaining contract was within the jurisdiction of the federal courts by virtue of § 301. However, in that case the Supreme Court, after considering a number of its earlier decisions, concluded that some claims were, saying "the concept that all suits to vindicate individual employee rights arising from a collective bargaining contract should be excluded from the coverage of § 301 has thus not survived." Id., 371 U.S. at 200, 83 S.Ct. at 270. But in Smith the dispute was over wages and it still was not clear until Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), decided after the District Judge had made his rulings, whether a claim founded on breach of contract but which also was arguably within the jurisdiction of the N.L.R.B. could be prosecuted in the courts under § 301. However, in Humphrey the Supreme Court held such a claim is.³ As the concurrence of Justice Goldberg served to emphasize, 375 U.S. at 351-359, 84 S.Ct. 363 in certain circumstances, actions for breach of a bargaining representative's duty of fair representation see Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) may be laid under § 301 if a sufficient connection between the contract and breach of duty is shown, 375 U.S. at 343, 84 S.Ct. 363. Thus, for example, if the action complained of is taken pursuant to or implemented by the contract (as here) jurisdiction may vest under § 301.

We treat defendants' motion to dismiss for failure to state a claim as a motion for summary judgment to be disposed of as provided in Rule 56, F.R.Civ. P. This procedure is permissible under Rule 12(b), F.R.Civ.P., for here there were on file, and the court considered, numerous affidavits which demonstrated conclusively the absence of any genuine issue of material fact.⁴

Thus, from the materials before the District Court, the following uncontroverted facts appear:

The defendant P.M.A. is the collective bargaining representative of employers of ship clerks along the West Coast of the United States, and its co-defendant I.L.W.U. is the representative of the clerks themselves. The parties' contract is administered by the Joint Coast Labor Relations Committee (Coast Committee), a body composed of equal numbers (3) of employee-employer representatives having the broad power to make amendments and other changes in its provisions. The Seattle Checkers Joint Labor Committee (Local Committee), an adjunct of the Coast Committee, is charged with the day to day administration of the contract in the area of the Port of Seattle, subject always to the "ultimate control" of the Coast Committee. Accordingly, the Local Committee maintains the lists of longshoremen eligible for employment in Seattle and vicinity and may make such increases or reductions in the number of men carried on them as it deems essential to a stable and sufficient labor supply. It also has charge of the dispatching hall, investigates and adjudicates all grievances and disputes, and performs all other functions specified in the contract or assigned it by the defendants directly or through the Coast Committee.

Ship clerks in the Seattle area are classified for the purpose of employment and are carried on the employment lists in the following order of seniority: Class "A" clerks, consisting of fully registered men; Class "B" clerks, those of limited registration, and unregistered clerks or "casuals" as they are generally termed. Registration carries with it the right to tenure of employment, vacations with pay, pensions, medical care, and other valuable benefits not enjoyed by the unregistered employee.

During the first half of the year 1963, the Local Committee, after securing permission from the Coast Committee to increase the number of Class "B" registrants, took applications from and gave competitive examinations to a large number of "casuals." From them it selected and registered the 38, by and on behalf of whom this suit was brought, and dropped all remaining casuals from the employment lists. Fourteen of the latter then filed charges with the N.L. R.B., asserting that the P.M.A. (pursuant to a conspiracy with the I.L.W.U.) had committed unfair labor practices in violation of § 8 of the N.L.R.A.; more particularly they asserted that the Local Committee had unfairly conducted the examination, that its selections were arbitrarily made and that it had disregarded the rules and standards for registration approved by the Coast Committee.

During the investigation, officials of the N.L.R.B. suggested an administrative settlement and informally agreed to drop the charges if the 38 new registrants were de-registered and all former casuals were reinstated.⁵ The matter was submitted for consideration to the Coast Committee. At a series of meetings held during August, 1963 that Committee disapproved the action of the Local Committee and ordered the restoration of the status of all men who had been affected, and the resumption of former procedures for the dispatch of non-registered clerks. At the same time the P.M.A. and I.L.W.U. formally approved by amendment to the collective bargaining contract the action of the Coast Committee. On August 27, 1963, the Local Committee implemented these orders and the N.L.R.B. afterwards dismissed the charges against P.M.A. Then, during October, the Coast Committee, after adopting and approving rules and procedures for selecting and registering ship clerks, ordered 53 Class "B" clerk positions — instead of 38 previously settled upon — added to the registration lists at Seattle.⁶

In support of their motion to dismiss, defendants point out that both the N.L. R.A. and the collective bargaining agreement under which they operate vested them as representative of their respective groups, with power to amend the agreement as it related to seniority of employee units; they urge, citing Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953) and Hardcastle v. Western Greyhound Lines, 303 F.2d 182 (9th Cir. 1962) cert. den. 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229, that the exercise of that power, unless motivated by "hostile discrimination" is not actionable and that here the complete absence of such a motive conclusively appears.⁷

Plaintiffs reply that neither of those cases was a suit for breach of contract under § 301, but instead both were predicated upon a breach of the duty of fair representation flowing from the relationship created by the contract. Their position is that "Section 301 invokes traditional contract law (and) the broad authority granted collective bargaining agents by the policy of Federal Labor Law does not totally vitiate the law of contracts and third party beneficiaries."⁸ Further, plaintiffs argue that motive, if relevant at all in this type of suit, is a matter of defense to be pleaded and proved, not by them, but by the collective bargaining representatives.

While it is true that neither Ford nor Hardcastle were brought under § 301, nevertheless we conclude that the proposition they stand for is necessarily applicable to a suit predicated upon the amendment of a...