Belaustegui v. Int'l Longshore & Warehouse Union

Citation36 F.4th 919
Decision Date07 June 2022
Docket Number21-55434
Parties Leon BELAUSTEGUI, Plaintiff-Appellant, v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION ; Pacific Maritime Association, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Derek T. Anderson (argued), Derek T. Anderson APC, San Diego, California, for Plaintiff-Appellant.

Thomas M. Peterson (argued), Morgan Lewis & Bockius LLP, San Francisco, California; Clifford D. Sethness, Morgan Lewis & Bockius LLP, Los Angeles, California; for Defendant-Appellee Pacific Maritime Association.

Lindsay R. Nicholas, Leonard Carder LLP, San Francisco, California, for Defendant-Appellee International Longshore and Warehouse Union.

Before: Daniel A. Bress and Patrick J. Bumatay, Circuit Judges, and Roger T. Benitez,** District Judge.

BRESS, Circuit Judge:

The plaintiff in this case left his job as an entry-level longshore worker to enlist in the U.S. Air Force. After nine years of active duty, he returned to work as a longshoreman and requested a promotion to the position he claims he likely would have attained had he not served in the military. When his request was denied, he filed suit alleging discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301, et seq. , a federal law that, inter alia , protects servicemembers in their reemployment following service in the armed forces.

We are principally asked to decide whether the district court erred in concluding that the plaintiff did not demonstrate the denial of a benefit that USERRA protects, and, specifically, whether certain hours credits and elevation in longshore worker status, as set forth in a collective bargaining agreement, qualify as "benefits of employment" under USERRA. We conclude that they do, and further hold that the plaintiff may pursue a USERRA discrimination claim based on the defendants' alleged failure to reinstate him to the position he was reasonably certain to have attained absent his military service.

The defendants argue that the plaintiff is still ineligible for USERRA's protections because his period of military service exceeded a five-year statutory limitation, to which they claim no exception applies. We leave that issue to the district court in the first instance. We vacate the district court's grant of summary judgment to the defendants and remand for proceedings consistent with this opinion.


The plaintiff, Leon Belaustegui, began working as a longshoreman at Port Hueneme, California in February 2000. His work at Port Hueneme was covered by a collective bargaining agreement (CBA) negotiated by the defendants, who are (1) the International Longshore and Warehouse Union (ILWU), the collective bargaining representative for all longshore workers in California, Oregon, and Washington; and (2) the Pacific Maritime Association (PMA), the collective bargaining representative for about fifty member companies operating out of ports in all three states.

The CBA created three primary classifications of longshore workers. "Casual" is the lowest, "Class B" the next-highest, and "Class A" the highest. Entry-level Casual workers receive only the work that is left after Class A and Class B workers have been assigned to shifts. Promotion to Class B status affords a longshore worker more job opportunities, as well as vacation pay, holiday pay, and other benefits that Casual workers do not receive.

Casual workers advance to Class B status when the number of existing Class B workers is insufficient to fill the jobs at the ports. The order of promotion is determined by accumulated hours of paid work as a Casual worker, not by the number of days worked or years of experience. When a new Class B worker is needed, the Casual worker with the most accumulated hours advances to Class B status first.

Belaustegui spent the first few years of his longshoreman career as a Casual worker. In 2004, he voluntarily enlisted in the U.S. Air Force. Belaustegui initially enlisted for four years of active duty, to conclude in March 2008. But in November 2007, before his initial term of enlistment expired, he reenlisted for an additional four years and nine months. Whether this reenlistment was voluntary, or whether Belaustegui was ordered to reenlist by his superior officers, is disputed.

In October 2008, Belaustegui was deployed to Kuwait, where he served until about April 2009. In August 2012, Belaustegui reenlisted in the Air Force for an additional four years. But in April 2013, he requested and received early separation from the military. He was honorably discharged after just over nine years of continuous active duty.

Belaustegui returned to Port Hueneme that same month and requested reemployment and benefits as a longshore worker. The CBA contains provisions that implement USERRA's protections for servicemembers. Relevant here, the CBA provides that eligible longshore workers who leave to serve in the military are entitled to "reinstatement to the position, along with applicable benefits, [that] an employee would have held had s/he not taken Uniformed Services Leave." "Reinstatement includes seniority and seniority-based benefits ... that would have been attained had the employee remained continuously employed" instead of leaving for the military.

Because promotion to Class B status is based on hours worked, the CBA also sets out methods for attributing hours to servicemembers on military leave. Under the "rotational method," a servicemember is credited with eight hours of paid work if his or her dispatch number would have been called on a given day (Casual workers are called for available work sequentially based on their dispatch numbers). But if there are insufficient records to determine how many times the servicemember's number would have been called, the CBA employs the "peer method." Under the peer method, the Port Hueneme Casual worker with the most hours worked in a given payroll quarter is designated as the "peer," and the servicemember is credited with eight hours worked each time the peer worked.

When Belaustegui returned to Port Hueneme, he requested hours credit and a corresponding promotion to Class B status, which he claimed he would have received had he not enlisted in the Air Force. The local labor committee promptly reemployed Belaustegui but referred his request for hours credit to the coast-wide labor committee. More than two and a half years later, the coast-wide labor committee denied Belaustegui's request under the CBA's USERRA policy. The coast-wide labor committee concluded that Belaustegui was ineligible for the requested benefits because his period of military service exceeded five years and he did not fit any exceptions.1 As we discuss further below, providing protections only to servicemembers who were away in the military for no more than five years (subject to exceptions) is based on corresponding provisions in USERRA.

Belaustegui filed a union complaint asserting that he had been wrongfully denied Class B status and hours credit. He requested a hearing and an opportunity to present evidence establishing that the five-year limit did not apply to him. Specifically, Belaustegui maintained that he qualified for an exception to the five-year rule because he was allegedly ordered to reenlist in November 2007 and had not done so voluntarily. A PMA representative questioned whether Belaustegui had any documents showing that his November 2007 reenlistment was involuntary. Belaustegui explained that he had been orally ordered to reenlist and that he did not have additional documentation.

In November 2019, having received no further decision from the coast-wide labor committee, Belaustegui filed a complaint in federal court asserting a single claim of discrimination under 38 U.S.C. § 4311 against the PMA and ILWU. Belaustegui alleged that defendants had violated USERRA by denying him hours credit and Class B registration for time missed due to his military service.

The district court granted summary judgment to defendants, although it did so on purely legal grounds, concluding that Belaustegui had not alleged the denial of any "benefit of employment" under USERRA and that he could not invoke § 4311 to challenge defendants' decision not to reemploy him as a Class B worker. The district court did not reach whether Belaustegui was ineligible for USERRA benefits based on his length of service exceeding five years.

Belaustegui timely appealed. Our review is de novo. KST Data, Inc. v. DXC Tech. Co. , 980 F.3d 709, 713 (9th Cir. 2020).


USERRA was enacted in 1994 "to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service." 38 U.S.C. § 4301(a)(1). USERRA is a successor statute to prior federal laws that also sought to protect the rights of servicemembers returning to civilian employment. See Huhmann v. Fed. Express Corp. , 874 F.3d 1102, 1108 n.4 (9th Cir. 2017) (discussing predecessor statutes). Through USERRA, Congress endeavored to "clarify, simplify, and, where necessary, strengthen the existing veterans' employment and reemployment rights provisions." Leisek v. Brightwood Corp. , 278 F.3d 895, 898 (9th Cir. 2002) (quotations omitted). As a law advancing the interests of veterans, USERRA is "liberally construed for the benefit of those who left private life to serve their country in its hour of great need." Ziober v. BLB Res., Inc. , 839 F.3d 814, 819 (9th Cir. 2016) (quoting Fishgold v. Sullivan Drydock & Repair Corp. , 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) ).

USERRA requires "the prompt reemployment" of eligible servicemembers upon the completion of their military service, and prohibits "discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(2)(3). USERRA also entitles eligible servicemembers to "reemployment rights and...

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