Castaneda v. Dura-Vent Corp.

• Decision Date: 31 July 1981
• Docket Number: No. 78-3638,DURA-VENT,78-3638
• Citation: 648 F.2d 612
• Parties: 107 L.R.R.M. (BNA) 3179, 91 Lab.Cas. P 12,863 Rafael CASTANEDA, Pedro Valencia, Antonio Ochoa, John Rodelo, Raymond Herrera, Plaintiffs/Appellants, v.CORPORATION, a California corporation, Sheet Metal Workers, Local 355, an unincorporated association, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 612

648 F.2d 612

107 L.R.R.M. (BNA) 3179, 91 Lab.Cas. P 12,863

Rafael CASTANEDA, Pedro Valencia, Antonio Ochoa, John Rodelo, Raymond Herrera, Plaintiffs/Appellants, v. DURA-VENT CORPORATION, a California corporation, Sheet Metal Workers, Local 355, an unincorporated association Defendants/Appellees.

No. 78-3638.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 16, 1980.

Decided June 5, 1981.

Rehearing and Rehearing En Banc Denied July 31, 1981.

Martin Eichner, Romines & Eichner, Palo Alto, Cal., for plaintiffs/appellants.

Richard Harrington, Athearn, Chandler & Hoffman, David Rosenfeld, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for defendants/appellees.

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

Before ANDERSON and NELSON, Circuit Judges, and KARLTON, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Appellants are, or were, employees of the Dura-Vent Corporation (Dura-Vent) and members of Sheet Metal Workers Local 355 (the Union). Appellants' complaint alleged that Dura-Vent breached provisions of the 1975-1978 and 1977-1981 collective bargaining agreements, and that Dura-Vent coerced the ratification of the 1977-1981 collective bargaining agreement. They also alleged that the Union violated its duty of fair representation.

Summary judgment was granted to the defendants, the Union and Dura-Vent, and appellants appeal. We affirm in part and reverse in part and remand.

I. MOOTNESS OF APPEAL

The Union and Dura-Vent, after oral argument, have suggested that the appeal has become moot. They state that petitions have been filed with the National Labor Relations Board by two unions, the United Electrical, Radio & Machine Workers of America, and the Progressive Machine Workers Union, to replace the Union as the authorized bargaining representative of the employees at Dura-Vent. They contend that the only remedy appellants seek is to set aside the 1977-1981 collective bargaining agreement and have the Union and Dura-Vent negotiate a new contract. They argue that if a new union is elected, Dura-Vent will be obligated to bargain with the new union exclusively and any action by this court will have no effect upon the certification of the new union by the Board.

The filing of the petitions by the two unions has not rendered this appeal moot. The complaint seeks more relief than merely the setting aside of the 1977-1981 contract. The complaint alleges violations of both the 1975-1978 and 1977-1981 contracts. There are various claims for monetary damages due to the conduct of Dura-Vent and the Union. Thus even if a new union is elected, the appeal will not be rendered moot. See Bartenders & Culinary Workers v. Howard Johnson Co., 535 F.2d 1160, 1162 n.3 (9th Cir. 1976).

II. JURISDICTION

There is no question that the district court had jurisdiction pursuant to section 301 of the National Labor Relations Act, 29 U.S.C. § 185, over the various allegations concerning breaches by Dura-Vent of the 1975-1978 and 1977-1981 collective bargaining agreement and over the allegations that the Union breached its duty of fair representation in the handling and processing of those claims. See Vaca v. Sipes, 386 U.S. 171, 186-188, 87 S.Ct. 903, 914-916, 17 L.Ed.2d 842 (1967). And, the independent claims of breach of duty of fair representation against the Union, including the breach of duty of fair representation in negotiating the 1977-1981 agreement, and in collecting excessive amounts of initiation fees were cognizable under 28 U.S.C. § 1337. Beriault v. Local 40, Super Cargoes & Checkers of I L. & W. U., 501 F.2d 258, 264 (9th Cir. 1974); Retana v. Apartment, Motel, Hotel & Elevator Operators Union, 453 F.2d 1018, 1021-1022 (9th Cir. 1972).

However, whether the district court had jurisdiction to consider the claim that Dura-Vent had coerced the employees into ratifying the 1977-1981 contract is a more difficult question. But, we agree with the district court that the claim essentially alleged that Dura-Vent had committed unfair labor practices and thus the National Labor Relations Board had exclusive jurisdiction over the claim.

As stated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the general rule is that "(w)hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board " Id. at 245, 79 S.Ct. at 780. This rule, however, "(does) not preempt a court's jurisdiction over a section 301 action for a breach of contract that was also an unfair labor practice." ¹ Waggoner v. R. McGray, Inc., 607 F.2d 1229, 1234 (9th Cir. 1979). In that situation, the NLRB and the courts have concurrent jurisdiction over the action. See Motor Coach Employees v. Lockridge, 403 U.S. 274, 298, 91 S.Ct. 1909, 1923, 29 L.Ed.2d 473 (1971); Orange Belt District, etc. v. Maloney Specialties, 639 F.2d 487 (9th Cir. 1980). However, jurisdiction exists under section 301 only to the extent that the dispute is focused upon and governed by the terms of the collective bargaining agreement. Motor Coach Employees v. Lockridge, 403 U.S. at 300-301, 91 S.Ct. at 1924-1925; Waggoner v. R. McGray, 607 F.2d at 1235. Thus where a claim or defense necessitates a determination of whether an unfair labor practice has been committed as opposed to a contract-type determination, section 301 provides no basis for a court's jurisdiction over the claim. Cf., Waggoner v. R. McGray, Inc. (the fact that a contract clause may be a violation of section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e) may not be raised as a defense to a breach of contract claim); Atchison Topeka & Santa Fe Railway Co. v. Locals No. 70, 85 and 315, etc., 511 F.2d 1193 (9th Cir. 1975) (the identification and remedy of a contract provision that constituted an unfair labor practice was exclusively within the jurisdiction of the NLRB); West Coast Tel. Co. v. Local U., 431 F.2d 1219 (9th Cir. 1970) (although there may have been a possible avenue of relief through the NLRB, jurisdiction existed under section 301 to reform the contract which inaccurately reflected the agreement reached by the parties).

Here, the appellants alleged that Dura-Vent coerced the ratification of the 1977-1981 agreement by laying off employees to prevent them from participating in the ratification of the proposed agreement, by threatening to immediately discharge all employees if the agreement was not ratified, and by forcing the employees to vote on the ratification of the agreement in a short period of time. Although the claim was not couched in terms of unfair labor practices, "(i)t is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern." Motor Coach Employees v. Lockridge, 403 U.S. at 292, 91 S.Ct. at 1920. In this case, the resolution of appellants' allegations would have required determinations of whether unfair labor practices had occurred: whether Dura-Vent had interfered with, restrained or coerced employees in the exercise of their section 7 rights, 29 U.S.C. § 158(a)(1), or whether Dura-Vent had refused to bargain in good faith, 29 U.S.C. § 158(a)(5). These unfair labor practice claims were within the Board's exclusive jurisdiction.

III. STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c). On appeal, all possible inferences from the record must be drawn in favor of the non-moving party. Gee v. Tenneco, Inc., 615 F.2d 857, 859 (9th Cir. 1980).

The party opposing the motion may not rest upon the allegations of its pleadings when an adequately-supported motion for summary judgment is presented. Turner v. Local Union No. 302, Int'l Broth. of Teamsters, 604 F.2d 1219, 1228 (9th Cir. 1979). The opposing party must come forward and expose the existence of genuine issues for trial; mere conclusory allegations will not suffice. Id.

"However, when the material submitted by the moving party is insufficient or demonstrates on its face issues of material fact, the non-moving party need not file any affidavits or other supporting material. See, e. g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 439 (9th Cir. 1979)."

Gee v. Tenneco, 615 F.2d at 859.

IV. DISCUSSION

Appellants alleged that Dura-Vent breached provisions of the 1975-1978 and the 1977-1981 collective bargaining contracts. On many of the contract claims, the district court granted summary judgment because it determined that no genuine issue had been raised to indicate that appellants had exhausted the contractual grievance procedures. In connection with this determination, the district court also ruled that the appellants had not shown that the Union had breached its duty of fair representation in handling and processing the grievances such that they should be excused from having to exhaust the grievance procedures.

Because the breach of contract claims are so intertwined with the issue of the Union's breach of duty of fair representation, we shall first consider the Union's breach of duty of fair representation in relation to the exhaustion of the grievance procedures, then we shall review the individual contract claims. Following that discussion, we shall consider the Union's breach of duty of fair representation as an independent cause of action.

A. Failure to Exhaust Grievance Procedures

While employees may sue their employer for breach of a collective bargaining contract pursuant to section 301, employees must attempt to exhaust the contractual grievance...