904 F.2d 1313 (9th Cir. 1988), 87-6137, Carr v. Pacific Maritime Ass'n

Docket Nº:87-6137, 87-6497.
Citation:904 F.2d 1313
Party Name:John CARR, et al., Plaintiffs-Appellants, v. PACIFIC MARITIME ASS'N, et al., Defendants-Appellees. Greg BROOKS, Judy Checkers, et al., Plaintiffs-Appellants, v. PACIFIC MARITIME ASS'N, et al., Defendants-Appellees.
Case Date:December 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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904 F.2d 1313 (9th Cir. 1988)

John CARR, et al., Plaintiffs-Appellants,


PACIFIC MARITIME ASS'N, et al., Defendants-Appellees.

Greg BROOKS, Judy Checkers, et al., Plaintiffs-Appellants,


PACIFIC MARITIME ASS'N, et al., Defendants-Appellees.

Nos. 87-6137, 87-6497.

United States Court of Appeals, Ninth Circuit

December 7, 1988

Argued and Submitted Sept. 16, 1988.

Memorandum Withdrawn March 17, 1989.

Decided May 21, 1990.

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[Copyrighted Material Omitted]

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George W. Shaeffer, Jr., Silver, Kreisler, Goldwasser & Shaeffer, Newport Beach, Cal., for plaintiffs-appellants.

Robert Remar, Leonard, Carder & Zuckerman, San Francisco, Cal., for defendants-appellees, Intern. Longshoremen's and Warehousemen's Union and its Local 63.

J. Kevin Lilly, Gibson, Dunn & Crutcher, Newport Beach, Cal., for defendant-appellee, Pacific Maritime Ass'n.

George Shibley, Long Beach, Cal., for defendant-appellee, Local 13.

Appeal from the United States District Court for the Central District of California.

Before NORRIS, HALL and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

Applicants for registration as class B longshoremen and clerks seek damages and injunctive relief, claiming that the registration process was tainted by nepotism, favoritism and discrimination. The district court found that the applicants failed to exhaust contractual grievance procedures and that their failure was not excused. Plaintiffs appeal the district court's grant of summary judgment and dismissal of their action. We review the district court's grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).


Plaintiffs are 128 casual longshoremen and clerks whose applications for registration as class B longshoremen or clerks in the Los Angeles area were rejected. 1 Defendants are the Pacific Maritime Association (PMA), an association of West Coast stevedoring, shipping and terminal companies; the International Longshoremen's and Warehousemen's Union (ILWU), the exclusive bargaining representative of longshoremen and clerks who work for PMA members; ILWU Local 13 (Local 13), the chartered, affiliated local of the ILWU for longshoremen in the Los Angeles area; and ILWU Local 63 (Local 63), the chartered, affiliated local of the ILWU for clerks in the Los Angeles area. Defendants are parties to the Pacific Coast Longshore Contract Document and the Pacific Coast Clerk Contract Document (the Contract), which govern the terms and conditions of employment for longshoremen and clerks.

This controversy arises out of the registration of approximately 387 class B longshoremen and clerks by defendants in late 1984. Approximately 22,250 applications were submitted for registration by September 26, 1984. Applications were scored by a Joint Registration Committee, a tripartite committee composed of representatives of the PMA, Local 13 and Local 63.

The first phase of the registration process was completed on May 4, 1985. The Coast Labor Relations Committee (Coast LRC), which issues rules governing the registration and grievance process, had established a ten-day grievance filing period to commence upon completion of the registration process. On May 6, 1985, notices were posted in the longshore, clerk and casual dispatch halls notifying individuals that the initial phase of the registration had been completed, and that appeals would be considered timely if received by the Joint Port Labor Relations Committee (Port LRC) on or before May 15, 1985. The Port LRC received 318 timely grievances.

On October 23, 1985, more than five months after the close of the grievance filing period, 109 unsuccessful registrants (the Balsley Group) filed their First Amended Statement of Grievance with the Port LRC. They alleged favoritism, nepotism, arbitrary scoring and coaching of applicants (non-section 13 Contract claims) and

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discrimination on the basis of non-union membership (section 13 Contract claims) by the Joint Registration Committee. They also alleged violations of Local 13's and Local 63's duty of fair representation, and a breach of the collective bargaining agreement by all defendants.

Under the terms of the Contract, 2 the Port LRC resolves all non-section 13 claims. Its decision is final and binding on all parties, unless there is disagreement between the union and management members of the Port LRC, in which case an appeal to the Coast LRC is allowed. See Contract Sec. 17.24.

Section 13 claims are processed pursuant to section 17.4 of the Contract. All section 13 claims must be filed within ten days of the alleged discriminatory incident. Contract Sec. 17.41. The Port LRC has discretion to extend the deadline for filing section 13 claims up to six months from the date of the alleged discriminatory act "to prevent inequity." Contract Sec. 17.411. The Port LRC's decision may be appealed to the Coast LRC, provided the request for review is made within seven days of the Port LRC's decision. Contract Sec. 17.42. The Coast LRC's decision is further appealable to the Coast Arbitrator, again under the condition that the appeal be made within seven days of the Coast LRC's decision. Contract Sec. 17.43. Neither the Port LRC, the Coast LRC nor the Coast Arbitrator can extend the latter two periods or the period for challenging non-section 13 claims.

On April 11, 1986, the Port LRC ruled that the Balsley Group's section 13 and non-section 13 claims were time-barred. The Port LRC also rejected the grievants' request that it extend the filing deadline for the section 13 claims to six months.

The Balsley Group appealed its section 13 claims to the Coast LRC on April 17, 1986. 3 On May 1, 1986, the Coast LRC held that the group's section 13 discrimination claim was time-barred. The Coast LRC also ruled that the Port LRC did not abuse its discretion by refusing to extend the filing period for the section 13 claims.

The Balsley, Brooks and Checkers Groups filed a consolidated appeal before the Coast Arbitrator in May 1986. The parties stipulated that the only issue before the Coast Arbitrator was the timeliness of their section 13 claims. District court proceedings were stayed pending the Coast Arbitrator's decision.

On January 15, 1987, the Coast Arbitrator held that the grievants' section 13 discrimination claims were time-barred. He found that the grievants either knew or should have been aware of allegations of nepotism, favoritism and discrimination in the registration process prior to the May 15, 1985, filing deadline. The Coast Arbitrator concluded that the allegations made in the October 23, 1985, amended grievance could have been raised in a timely manner. The Coast Arbitrator found that the Port LRC did not abuse its discretion in deciding not to extend the filing deadline for section 13 claims.

The district court granted summary judgment for defendants in all three actions. 4 The district court refused to excuse plaintiffs' failure to exhaust their contractual

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remedies and dismissed their claims for breach of collective bargaining agreements and for breach of the union's duty of fair representation under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. Sec. 185 (1982). 5


A. As a general rule, members of a collective bargaining unit must first exhaust contractual grievance procedures before bringing an action for breach of the collective bargaining agreement. See, e.g., Clayton v. UAW, 451 U.S. 679, 686, 101 S.Ct. 2088, 2093-94, 68 L.Ed.2d 538 (1981). This requirement applies with equal force to claims brought against a union for breach of the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967). Failure to utilize the grievance procedures, or to invoke them in a timely manner, bars grievants from pursuing remedies in court. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). At a minimum, therefore, members of the bargaining unit must first turn to the grievance procedures for a remedy. Id. at 652-53, 85 S.Ct. at 616.

Plaintiffs argue that they are excused from exhausting their contractual remedies because the alleged lack of neutrality of the Port LRC rendered resort to grievance process futile. See Republic Steel, 379 U.S. at 652, 85 S.Ct. at 616 (quoting Steele v. Louisville & Nashville Ry., 323 U.S. 192, 206, 65 S.Ct. 226, 234, 89 L.Ed. 173 (1944) ("employees should [not] be required to submit their controversy to 'a group which is in large part chosen by the [defendants] against whom their real complaint is made' ")); see also Williams v. Pacific Maritime Ass'n, 617 F.2d 1321, 1328 n. 13 (9th Cir.1980) (dicta), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981). We have held, however, that a plaintiff waives his right to claim bias on the part of the grievance committee unless he raises the objection when the committee convenes. Sheet Metal Workers International Ass'n Local 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 746 (9th Cir.1985). This is the rule in several other circuits as well. See e.g., Early v. Eastern Transfer, 699 F.2d 552, 558 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983); Cook Industries, Inc. v. C. Itoh & Co., Inc., 449 F.2d 106, 107-08 (2d Cir.1971), cert. denied, 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 (1972); United Steelworkers of America Local 1913 v. Union Railroad Co., 648 F.2d 905, 913-14 (3d Cir.1981).

In Kinney, plaintiffs attempted to overturn an unfavorable arbitration award on the theory that the grievance process was biased. We held that plaintiffs had waived their bias claim because they had...

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