Alexander v. Pacific Maritime Association

• Decision Date: 28 February 1963
• Docket Number: No. 18324.,18324.
• Citation: 314 F.2d 690
• Parties: Fred A. ALEXANDER et al., Appellants, v. PACIFIC MARITIME ASSOCIATION, a non-profit corporation et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.2d 690 (1963)

Fred A. ALEXANDER et al., Appellants, v. PACIFIC MARITIME ASSOCIATION, a non-profit corporation et al., Appellees.

No. 18324.

United States Court of Appeals Ninth Circuit.

February 28, 1963.

Howard B. Crittenden, Jr., San Francisco, Cal., for appellants.

Gladstein, Andersen, Leonard & Sibbett, and George R. Andersen, San Francisco, Cal., for appellees I. L. W. U.

Kelso, Cotton & Ernst, and Richard Ernst, San Francisco, Cal., and Marvin C. Taylor, Washington, D. C., for appellees Pacific Maritime Assn., J. A. Robertson, R. J. Pfeiffer, and R. R. Holtgrave.

Before POPE, HAMLIN and MERRILL, Circuit Judges.

MERRILL, Circuit Judge.

This appeal is taken from judgment of the district court dismissing the action of the appellants upon the ground that the complaint did not state a claim within the court's jurisdiction. The holding of the district court was that the appellants were complaining of unfair labor practices under the National Labor Relations Act which were initially within the exclusive jurisdiction of the National Labor Relations Board. The correctness of this determination is the issue upon appeal.

Appellants are ship clerks employed at the Port of San Francisco. They are not union members. The central theme of their complaint is that the International Longshoremen's and Warehousemen's Union, their bargaining agent, with the co-operation of Pacific Maritime Association, the employers' bargaining agent, has discriminated against them and in favor of union members in the manner in which employment and employment benefits have been dispensed under the collective bargaining agreement.

Since the complaint charges both the union and the employer with discrimination against appellants solely on the basis of their nonunion status, §§ 8(a) (3), 8 (b) (2) of the National Labor Relations Act would arguably apply to the conduct to which appellants object.¹ Accordingly, the district court ruled, under San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, that initial jurisdiction lay exclusively with the National Labor Relations Board.

Appellants assert that this constituted error. They rely upon a line of cases which recognizes federal court jurisdiction to enforce the duty of fair representation owed by the unions to those they represent. Those cases, however, do not support appellants' contention. In none of them was there available any administrative remedy which would serve to deprive the federal courts of jurisdiction. Therefore the doctrine of primary jurisdiction of the National Labor Relations Board never was brought into play.

Many of the cases cited arose under the Railway Labor Act, which makes no provision for administrative means for correcting breaches of the duty of fair representation.² The remaining cases cited involved acts of discrimination which were not, even arguably, unfair labor practices under the National Labor Relations Act. As an example, the discrimination charged in Syres v. Oil Workers (1956), 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785, and Hardcastle v. Western Greyhound Lines (9 Cir., 1962), 303 F.2d 182, was against union members and was clearly not antiunion in character. Further, as distinguished from Radio Officers Union of Commercial Telegraphers Union, A. F. L. v. National Labor Relations Board (1954), 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455, there was in those cases no charge that the discrimination was aimed at securing active rather than merely passive union membership.

While resort to the federal courts was proper under those circumstances, it would be improper here in the face of the competence of the National Labor Relations Board to handle the alleged discrimination.

If a claim cognizable by the federal courts is stated by the complaint herein, it is not, therefore, for the reasons asserted in the district court, but must be by virtue of § 301 of the Act³ as construed by Smith v. Evening News Association (1962), 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246. In that case it was held that primary jurisdiction of the board does not apply to prevent the bringing of suit in the federal courts by an individual employee for violation of a collective bargaining agreement.

The opinion in that case was handed down by the Supreme Court while this appeal was pending. By that opinion the law was first established (contrary to the holding in Association of Westinghouse Salaried Employees v. Westinghouse Corporation (1955), 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510) that a claim of damages for breach of a collective bargaining agreement might under § 301 be asserted by an individual employee.⁴ Since, in the court below, it was not understood that such was the law, the complaint is not couched in § 301 terms and the applicability of that section as construed in Smith v. Evening News is presented for the first time upon this appeal. This is the question to which we address ourselves.

The complaint alleges that ILWU is the exclusive collective bargaining agent for all ship clerks in the maritime industry on the Pacific Coast; that Local 34 is the organization designated by ILWU to represent ship clerks under that agreement for the Port of San Francisco; that Pacific Maritime Association is an Association of ship owners and maritime employers and is the collective bargaining agent for its members; that ILWU and Pacific Maritime Association have entered into a collective bargaining agreement which governs the employment of ship clerks in the Port of San Francisco.

The complaint alleges:

"That said bargaining agreement contains provisions that persons employed as Ship Clerks thereunder who constitute the full-time working force and depend on such work as Ship Clerks for their livelihood are designated as `registered\' Ship Clerks in said written agreement in contrast to those who are only seasonal or occasional members of the working force of Ship Clerks and who depend upon other employment for their principal livelihood and are not permanent full-time members of the regular working force. That said bargaining agreement designates said `registration\' and under Sec. 14 of the Master Agreement for Checkers and Related Classifications, there is provided:

"`(a) All registration shall be by mutual consent, except that this section shall not deprive either party to the agreement from demanding additions to or subtractions from the registration lists as may be necessary to meet the needs of the port. When objecting to the registration of any man, members of the Joint Port Labor Relations Committee shall be required to give reasons therefor.

"`(b) When it becomes necessary to drop men from the registration list, seniority on the list shall prevail.\'

"`That Sec. 15 of the Agreement provides:

"`(a) When it becomes necessary to add men to the registration list, first preference of registration shall be given to men who now have partial or limited registration and employment in the industry; second preference of registration shall be given to men with previous registration in the industry who were not de-registered for cause; third preference of registration shall be given to men who had partial or limited registration in the industry and who were not de-registered for cause.

"`(b) Suitable personnel with clerical background or experience in the maritime industry, longshoremen and other workers covered by contracts with the PMA and ILWU shall likewise be accorded preference of registration after the application of the

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