Atwood v. Pacific Maritime Ass'n, Civ. No. 74-853.

• Decision Date: 17 May 1977
• Docket Number: Civ. No. 74-853.
• Parties: Homer B. ATWOOD, Donald Froemke, Walter H. Hanson, George E. Herron, Ray Hoiness, Roy McCrady, Everett Nelson, Calvin B. Rickard, Charles A. Smyth, Oliver Staudinger, John P. Stennick, and William Stennick, Plaintiffs, v. PACIFIC MARITIME ASSOCIATION, Portland Stevedoring Company, an Oregon Corporation, and Local 21 of the International Longshoremen's and Warehousemen's Union, Defendants.
• Court: U.S. District Court — District of Oregon

432 F. Supp. 491

Homer B. ATWOOD, Donald Froemke, Walter H. Hanson, George E. Herron, Ray Hoiness, Roy McCrady, Everett Nelson, Calvin B. Rickard, Charles A. Smyth, Oliver Staudinger, John P. Stennick, and William Stennick, Plaintiffs, v. PACIFIC MARITIME ASSOCIATION, Portland Stevedoring Company, an Oregon Corporation, and Local 21 of the International Longshoremen's and Warehousemen's Union, Defendants.

Civ. No. 74-853.

United States District Court, D. Oregon.

May 17, 1977.

COPYRIGHT MATERIAL OMITTED

Charles Robinowitz, Portland, Or., for plaintiffs.

William F. Lubersky, Richard C. Hunt, Dezendorf, Spears, Lubersky & Campbell, Portland, Or., for Pacific Maritime Ass'n and Portland Stevedoring Co.

Raymond J. Conboy, Pozzi, Wilson & Atchison, Portland, Or., for Local 21.

MEMORANDUM ORDER

SKOPIL, District Judge.

BACKGROUND

This is an action under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). At all relevant times plaintiffs were longshoremen members of defendant Local 21, International Longshoremen's and Warehousemen's Union ("Union"). On April 2, 1968, plaintiffs were employed by defendant Portland Stevedoring Company. Defendant Pacific Maritime Association is and was bargaining representative for the stevedoring company. I refer collectively to these latter two defendants as the "Employers".

On April 2, 1968, plaintiffs were assigned as members of longshore "gangs" loading a cargo of paper rolls aboard the M. S. ILSE SCHULTE at the Port of Longview, Washington. A safety grievance arose, some longshoremen contending that the wrong types of clamps were in use. The "gangs" stopped work, stood by, and awaited a ruling by the local arbitrator, who was called pursuant to the collective bargaining agreement in effect among the defendants. The arbitrator ruled that the working conditions were safe.

What happened next is subject to dispute. Plaintiffs seem to claim that they were on station and willing to begin loading, but other members of their "gangs" — not parties here — refused to start work. Since the holds, winches, dock, etc. must be fully manned before loading can begin, no cargo moved. The Employers suggest collusive activity on the part of all members of the "gangs".

In any event, the Employers terminated the men and requested the Longview Joint Port Labor Relations Committee to suspend all those involved in the incident from all work subject to the collective bargaining agreement for fifteen days.

The matter was processed by a series of joint Union-Employer committees and arbitrators, with the Union actively representing the plaintiffs and resisting any proposal to punish them.

In January, 1970, the matter reached the Coast Arbitrator (the highest level of appeal under the contractual grievance procedure). Plaintiffs meanwhile had already "served" their fifteen-day suspensions, though the Union had dispatched at least some of them to jobs offered by others than the defendant Employers during the suspension period. The Coast Arbitrator remanded the case on a procedural question but retained jurisdiction to dispose of the case should it again have been referred to him. He did not reach the merits of plaintiffs' claim that they were improperly suspended.

During the next three and one-half years the grievance was discussed at numerous meetings of the Longview Joint Port Labor Relations Committee, but no final resolution occurred. Finally, the Union membership discussed the matter at a meeting in November, 1973, and voted to instruct the Union members of the Joint Port Committee not to pursue the case further.

Plaintiffs filed this action in October, 1974. They contend that the Union breached its duty of fair representation in abandoning the grievance. They contend that the Employers breached the collective bargaining agreement in firing them. Plaintiffs originally sought damages from both the Union and the Employers, and punitive damages from the Employers. Plaintiffs also seek recovery from the Employers on various state law theories of intentional infliction of emotional distress and outrageous conduct. As to these state law claims, it is not clear whether plaintiffs allege jurisdiction on diversity or pendent grounds, or both.

By prior order filed October 13, 1976, I denied motions for summary judgment filed by plaintiffs and the Employers. I also granted a motion by the Employers to dismiss the claims for punitive damages and emotional distress. Finally, I ordered that the issue of the Union's liability for breach of the duty of fair representation be segregated for trial from the issue of breach of the collective bargaining agreement.

Counsel have filed a number of additional motions. I heard oral argument on these motions on April 22, 1977. In deciding these motions I have also had the benefit of extensive memoranda as well as helpful responses to my questions at oral argument.

A. PLAINTIFFS' MOTION TO DISMISS LOCAL 21 OF THE INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION

As noted in my order filed October 13, 1976, and as reaffirmed by counsel in their memoranda and at oral argument, the parties concede that the initial issue in this case is whether the Union breached its duty of fair representation to plaintiffs. It is not necessary to determine¹ whether the defendant Employers breached the collective bargaining agreement unless and until the trier of fact² finds that the Union breached its duty of fair representation. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1970); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

While plaintiffs concede, as noted, that they must prove that the Union breached its duty of fair representation, they desire at this late date³ to dismiss the Union as a party. Plaintiffs' position is that the Employers are solely liable for any of plaintiffs' damages and thus that it would be appropriate to drop the Union as a party defendant.⁴

The Union, not surprisingly, does not oppose this motion, while the Employers vigorously contend that it should be denied.

The first step in my consideration of this motion is to determine the applicable legal standard for evaluating the respective positions of the parties. Plaintiffs fail to state upon which Federal Rule of Civil Procedure they bring their motion. The Employers assume that Rule 21 (court may drop parties in case of misjoinder at any stage of the proceedings on such terms as are just) applies. The Union is unclear as to the rule upon which it relies in supporting the motion.

While I am of the tentative opinion that Rule 41(a)(2) (unless prior to appearance by adverse party or by stipulation, dismissal by plaintiff to be by order of court "upon such terms and conditions as the court deems proper") applies here, it is not necessary for me to so decide. The same standard applies whether Rule 21 or Rule 41(a)(2) is the appropriate procedural basis for this motion. See Altman v. Liberty Equities Corp., 54 F.R.D. 620 (S.D.N.Y.1972); 5 Moore's Federal Practice ¶ 41.06-1 (1976).

In considering a motion by plaintiffs to dismiss a defendant who is not misjoined and whose presence does not destroy subject matter jurisdiction, I must exercise my discretion considering the rights of all the parties. Fair v. Trans World Airlines, 22 F.R.D. 60 (E.D.Ill.1957); see 9 Wright & Miller, Federal Practice § 2364 (1971). The issue was well stated by one court as follows:

"After issue has been joined, a motion by the plaintiff for a voluntary dismissal of a suit . . . calls for the exercise of judicial discretion to avoid an unfair effect on anyone else incident upon such a termination of the suit. The fact that the suit will be dismissed with prejudice⁵ to the plaintiff is not the only consideration before the court; the possible effect on others must be considered." Beaver Associates v. Cannon, 59 F.R.D. 508, 510 (S.D.N.Y.1973).

I find that it would be unfairly prejudicial to dismiss the Union at this stage in the proceedings. There are a number of reasons for this decision.

First and most important, it is simply unfair to expect the Employers to litigate and defend the Union against plaintiffs' claim of unfair representation. The Union has best access to the appropriate witnesses and evidence and should defend its own position. While the Employers certainly have an interest in this issue and may participate in its trial, they should not be required to assume sole responsibility — especially in view of the relative longevity of this action.

Second, the Employers have relied upon the presence of the Union in this case. If plaintiffs had not originally joined the Union as a party defendant, the Employers may well have been entitled to implead the Union as a third-party defendant. Fed.R. Civ.P. 14(a). Alternatively, the Employers may well have successfully moved for joinder of the Union under Rule 19. See Kinnunen v. American Motors Corp., 56 F.R.D. 102 (E.D.Wis.1972); Johnson v. Colts, Inc., 306 F.Supp. 1076 (D.Conn.1969). As a matter of judicial efficiency, it would be inappropriate at this time to drop a party when by subsequent motion it is likely that the party will come back into the case.

Third, there is pending before me a Motion to Refer Case to Grievance Procedure. By this motion the Employers seek reference back to the contractual grievance machinery for consideration of the breach of contract claim in the event that it is found that the Union unfairly represented plaintiffs. As I indicate in Section C, infra, it is not necessary to decide the motion to refer unless and until there is a finding of breach of duty of fair representation. At oral argument counsel for the Union conceded that it is necessary to retain the Union as a party as long as the motion to refer is still pending for the reason that any order to pursue the grievance process would necessarily be directed to the Union as well as the other parties.

Finally, the...