Local No. 3-193 Intern. Woodworkers of America v. Ketchikan Pulp Co.

• Decision Date: 21 January 1980
• Docket Number: No. 77-3057,77-3057
• Citation: 611 F.2d 1295
• Parties: 103 L.R.R.M. (BNA) 2494, 87 Lab.Cas. P 11,818 LOCAL NO. 3-193 INTERNATIONAL WOODWORKERS OF AMERICA, Plaintiff-Appellant, v. KETCHIKAN PULP COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1295

611 F.2d 1295

103 L.R.R.M. (BNA) 2494, 87 Lab.Cas. P 11,818

LOCAL NO. 3-193 INTERNATIONAL WOODWORKERS OF AMERICA Plaintiff-Appellant, v. KETCHIKAN PULP COMPANY, Defendant-Appellee.

No. 77-3057.

United States Court of Appeals Ninth Circuit.

Jan. 21, 1980.

Herman L. Wacker, Vance, Davies, Roberts, Reid & Anderson, Seattle, Wash., for plaintiff-appellant.

Thomas S. Zilly, Lane, Powell, Moss & Miller, Seattle, Wash., on brief; Eugene R. Nielson, Seattle, Wash., for defendant-appellee.

On Appeal from the United States District Court for the District of Alaska.

Before CHAMBERS and TANG, Circuit Judges, and THOMPSON, ^* District Judge.

BRUCE R. THOMPSON, District Judge:

This action was instituted in an Alaska Superior Court by Local 3-193 International Woodworkers of America (Union) versus Ketchikan Pulp Company (Ketchikan) to interpret and enforce Article I a collective bargaining agreement between the parties which provided:

"During the life of this agreement, the Union shall be the sole collective bargaining agency for all production, booming and rafting, cookhouse, construction and maintenance employees of the Ketchikan Pulp Company in its logging operations in Southeastern Alaska; but excluding clerical and office employees, guards, professional employees, supervisory employees; and the employer does hereby recognize such Union and the bargaining agency."

The action was removed by defendant to the United States District Court upon the assumption that the complaint stated a claim for relief under Section 301 of the Labor Management Relations Act (29 U.S.C. § 185).

At the time the collective bargaining agreement between the Union and the employer was entered into, the employer operated one logging operation in Thorne Bay, Alaska.

During the life of the agreement, the employer acquired several other logging operations in Southeastern Alaska, but refused to recognize the Union as the representative of employees of those operations. These operations were geographically distinct, had no interchange of employees, and were autonomously operated by subsidiary corporations. Neither the Union nor Ketchikan sought relief from the National Labor Relations Board. The District Court found that the employees of the newly acquired operations were needed for a just adjudication under Fed.R.Civ.P. 19 (CT 173). Because appellant refused to amend its complaint to join the employees, the case was dismissed for failure to join indispensable parties. This was the sole ground for dismissal stated by the District Court in its written order dated July 25, 1977.

On appeal both parties agree that the District Court erred in basing its order of dismissal on the notion that the employees, or representatives of the employees, of the logging camps in dispute were indispensable parties to this litigation. This was an issue raised Sua sponte by the District Court relying on Culinary Workers & Bartenders Union Local 814 v. Salatich, 318 F.Supp. 1047 (C.D.Cal.1970). While the cited case is in point, other precedents demonstrate that it does not represent the law in this Circuit. In Retail Clerks Union Local 1222 v. Alfred M. Lewis, Inc., 327 F.2d 442 (9th Cir. 1964), the Court held that jurisdiction lies under Section 301 at the behest of the local union against the employer to enforce a cost-of-living wage adjustment section of a collective bargaining agreement for the benefit of all the union members, and that it was not, in essence, an effort to enforce individual wage claims, requiring the presence of individual union members as indispensable parties. The conclusion that individual union members affected by the dispute are not indispensable parties to a Section 301 action between the union and the employer was reaffirmed in Fibreboard Paper Products Corp. v. East Bay Union of Machinists Local 1304, 344 F.2d 300 (9th Cir.), Cert. denied, 382 U.S. 826, 86 S.Ct. 61, 15 L.Ed.2d 71 (1965). See also: Kaplan v. Int'l Alliance of Theatrical Employees, 525 F.2d 1354 (9th Cir. 1975).

The relief sought by the Union as expressed in the prayer of the complaint is:

"1. An order of this court declaring that Article I of the Labor Agreement between the parties means that plaintiff is the bargaining agent for the employees of all logging companies owned by defendant in Southeastern Alaska.

"2. That plaintiffs be awarded damages for their loss of initiation fees and dues from employees of Ketchikan Pulp Company, engaged in logging outside of the Thorne Bay camp in Southeastern Alaska."

The Union promptly moved for partial summary judgment for a declaration in conformity with its first prayer. Ketchikan countered with a motion for summary judgment supported by affidavits and contended that the undisputed material facts showed that the logging operations outside of the Thorne Bay camp were not covered by the labor agreement under the doctrine of accretion.

Although the Union argued the principle of accretion before the District Court, its basic claim is that this is strictly an action under Section 301 to construe and enforce a collective bargaining agreement and that the doctrine of accretion is totally irrelevant.

On appeal a jurisdictional issue has also been posed. Citing West Point-Pepperell Inc. v. Textile Workers Union, 559 F.2d 304 (5th Cir. 1977), it is suggested that the District Court lacked jurisdiction under Section 301 because the issue here is in reality a representational issue, not a contract issue, and the National Labor Relations Act vests exclusive authority in the NLRB to pass on questions of representation. Neither party agrees with this contention. The Union argues that all it wants the Court to do is declare the meaning of the plain language of the contract, taken by its four corners, and that it has jurisdiction under Section 301 to do so. If, after such a declaration, either party commits what may arguably be deemed an unfair labor practice, appropriate complaints may be filed with the NLRB. On the other hand, Ketchican points to Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964) as direct authority that the federal courts have jurisdiction under Section 301 to enforce the arbitration clause of a collective bargaining agreement even if the contract issue to be interpreted involved a question of representational status. Ketchikan argues that we should accept jurisdiction and decide the accretion issue on the merits because neither party has seen fit to invoke the primary jurisdiction of the NLRB. Ketchikan argues that in the light of Carey (supra) if arbitrators have the right to consider representation issues, a district court has the same power in an action under Section 301 when the collective bargaining agreement contains no arbitration clause. In the words of Judge Browning (Bartenders & Culinary Workers Union Local 340 v. Howard Johnson Co., 535 F.2d 1160, 1163 (9th Cir. 1976)), "There is no incisive response, in purely conceptual terms, to this argument." Nevertheless, we think the Supreme Court has made it fairly clear in subsequent cases that a decisive factor in the Carey case was the very strong policy favoring the invocation of arbitration to resolve all kinds of labor disputes under collective bargaining agreements providing for arbitration. Justice Douglas said in part: "The superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area." Carey, 375 U.S. at 272, 84 S.Ct. at 409. When it is clear under the facts of the particular case that the thrust of the Section 301 action is to impose the terms of a collective bargaining agreement upon an employer who was not a party to it, did not assume it and could not by operation of law be equitably charged with responsibility for it, the action must fail. Howard Johnson Co. v. Detroit Local Jt. Exec. Bd., Hotel Employees Union, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Bartender & Culinary Workers Union Local 340 v. Howard Johnson Co. (supra). It is also established that a Section 301 action will lie to enforce a no-strike clause of a contract, and this despite the fact that the claim might also be processed as an unfair labor practice before the NLRB. William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974). A lockout, which also may give rise to an unfair labor practice charge, is fair meat for a Section 301 breach of contract charge. Smith v. Evening News Ass'n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962).

But there is a critical difference between an unfair labor practice charge and the basic policy of the National Labor Relations Act vesting primary (if not exclusive) jurisdiction in the NLRB in two decisive areas of labor-management relations: (1) the designation of an exclusive bargaining agent, and (2) identification of an appropriate collective bargaining unit under Section 9 of the Labor Management Relations Act (29 U.S.C. § 159). The Fifth Circuit in West Point-Pepperell, Inc. v. Textile Workers, supra; and in Nat'l Ass'n of Women's and Children's Apparel Salesmen, Inc. v. FTC, 479 F.2d 139 (5th Cir.), Cert. denied, 414 U.S. 1004, 94 S.Ct. 360, 38 L.Ed.2d 240 (1973), has proclaimed NLRB jurisdiction to be exclusive, citing NLRB v. Cabot Carbon Co., 360 U.S. 203, 79 S.Ct. 1015, 3 L.Ed.2d 1175 (1959). We cannot read Cabot Carbon as supporting this conclusion, particularly in the light of Carey, supra, which recognizes arbitration as an appropriate alternative process for the resolution of representation issues. It is, nevertheless, evident from the precedents that there is a very, very strong policy of self-determination using the procedures vested in the NLRB under our National Labor Relations Act for the promotion of industrial peace, and while contracted for arbitration is a useful and viable alternative to the same end, it should be observed that Care...