Retana v. Apartment, Motel, Hotel & El. Op. U., Loc. No. 14

• Decision Date: 10 January 1972
• Docket Number: No. 23624.,23624.
• Parties: Nora RETANA, individually, and Nora Retana, as member of Apartment, Motel, Hotel and Elevator Operators Union Local No. 14, on behalf of herself and all other members of Local No. 14 similarly situated, Plaintiffs-Appellants, v. APARTMENT, MOTEL, HOTEL AND ELEVATOR OPERATORS UNION, LOCAL NO. 14, AFL-CIO, an unincorporated association, Adlaw Investment Company, Ltd., a limited partnership, and Doe One through Doe Five, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

453 F.2d 1018 (1972)

Nora RETANA, individually, and Nora Retana, as member of Apartment, Motel, Hotel and Elevator Operators Union Local No. 14, on behalf of herself and all other members of Local No. 14 similarly situated, Plaintiffs-Appellants, v. APARTMENT, MOTEL, HOTEL AND ELEVATOR OPERATORS UNION, LOCAL NO. 14, AFL-CIO, an unincorporated association, Adlaw Investment Company, Ltd., a limited partnership, and Doe One through Doe Five, Defendants-Appellees.

No. 23624.

United States Court of Appeals, Ninth Circuit.

January 10, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Norman S. Nayfach, Marvin S. Kayne, Michael S. Sorgen, of San Francisco Legal Assistance Foundation, San Francisco, Cal. for plaintiffs-appellants.

Philip Paul Bowe, of Carroll, Davis, Burdick & McDonough, Kelso, Cotton, Seligman & Ray, San Francisco, Cal., for defendants-appellees.

Before HAMLIN, BROWNING, and TRASK, Circuit Judges.

BROWNING, Circuit Judge:

Appellant was a member of appellee union, employed as a hotel maid by appellee company.¹ She was discharged, and filed this suit. Her complaint alleged three causes of action, two based upon wrongful discharge in violation of the collective bargaining agreement between the union and employer, the third upon a breach by the union of its duty of fair representation to herself and other Spanish-speaking members of the union. The district court dismissed the wrongful discharge causes of action because appellant failed to exhaust the remedies available to her under the collective bargaining agreement. It dismissed the fair representation cause of action for want of jurisdiction. We reverse and remand.

I

It is conceded that the district court had jurisdiction of the wrongful discharge causes of action under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a).² See Vaca v. Sipes, 386 U.S. 171, 186-187, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

We conclude that the court also had jurisdiction to decide the fair representation claim under 28 U.S.C. § 1337.³ The duty of fair representation is a statutory duty implied from the grant to the union by section 9(a) of the National Labor Relations Act, 29 U. S.C. § 159(a),⁴ of exclusive power to represent all employees of the collective bargaining unit.⁵ Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. 903, 17 L.Ed.2d 842; Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Williams v. Pacific Maritime Ass'n, 384 F.2d 935, 936-937 (9th Cir. 1967). The National Labor Relations Act is an "Act of Congress regulating commerce." See Capital Service, Inc. v. NLRB, 347 U.S. 501, 504, 74 S. Ct. 699, 98 L.Ed. 887 (1954). Suit for breach of the duty is one "arising under" such a statute within the meaning of 28 U.S.C. § 1337.

On the basis of this analysis, the courts of appeals of three circuits have held that section 1337 confers jurisdiction over suits alleging breach of the duty of fair representation. Waters v. Wisconsin Steel Works, 427 F.2d 476, 490 (7th Cir. 1970); De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 283 n.1 (1st Cir. 1970); and Nedd v. United Mine Workers, 400 F.2d 103, 106 (3d Cir. 1968). This conclusion is supported by Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 213, 65 S.Ct. 235, 89 L.Ed. 187 (1945), which holds that section 1337 confers jurisdiction upon federal district courts over suits for breach of a duty of fair representation implied from "comparable provisions of the Railway Labor Act." Ford Motor Co. v. Huffman, supra, 345 U.S. at 337, 73 S.Ct. at 686. See note 5 supra; International Ass'n of Machinists v. Central Airlines, 372 U.S. 682, 690 n.13, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963); Brady v. TWA, 401 F.2d 87, 94 (3d Cir. 1968). It is also supported by Syres v. Oil Workers, International, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955), which involved 28 U.S.C. § 1331, the companion statute conferring subject matter jurisdiction in cases involving suits arising under a federal statute. See Machinists v. Central Airlines, supra; De Arroyo v. Sindicato de Trabajadores Packing, supra.

Although, as we have said, the district court spoke in terms of lack of jurisdiction, there is some indication that the court may have intended to dismiss the fair representation claim for failure to state a cause of action under section 9(a).⁶

The obstacles to affirmance of a dismissal on this ground are formidable. "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Dismissal for insufficiency as a pleading is proper only when the complaint affirmatively discloses "some insuperable bar to relief." Wright, Federal Courts 286 (1963). See Harman v. Valley National Bank, 339 F.2d 564 (9th Cir. 1964), and authorities there cited. Mere vagueness or lack of detail will not justify dismissal. Id. at 567.

In Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), the Supreme Court sustained a complaint that alleged violation of the duty of fair representation only in general and conclusory terms.⁷ The Court said (27, 90 S.Ct. 772):

"Although the complaint was not as specific with regard to union discrimination as might have been desirable, we deem the complaint against the union sufficient to survive a motion to dismiss. As the Court of Appeals indicated, `where the courts are called upon to fulfill their role as the primary guardians of the duty of fair representation,\' complaints should be construed to avoid dismissals and the plaintiff at the very least `should be given the opportunity to file supplemental pleadings unless it appears "beyond doubt" that he cannot state a good cause of action.\'"

Measured by these generous standards, the allegations of the present complaint relating to breach of the union's duty of fair representation were adequate to withstand a motion to dismiss.

Appellant alleges that she and a "very substantial" number of other members of the union understand little English and are "almost entirely limited for communication" to Spanish. Many are recent immigrants and lack familiarity with "the customs and practices of American labor management relations." She alleges that the union violated its duty of fair representation to these members: (1) by failing to provide bilingual liaison between such members and the union; (2) by failing to provide them with a copy of the collective bargaining agreement in Spanish; (3) by failing to explain their rights and responsibilities as union members to them, including their right to have the union process a grievance on their behalf; and (4) by failing to seek the establishment through collective bargaining of a bilingual supervisorial system that could direct, advise, and assist such union members in the performance of their employment duties.

The district court thought the allegations insufficient because they did not "concern any provision of the collective bargaining agreement." See note 6. This places too narrow a construction either upon the union's duty or the allegations of the complaint, or both.

The duty imposed upon a union is broad and demanding. It must "serve the interests of all members without hostility or discrimination toward any, . . . exercise its discretion with complete good faith and honesty, and . . . avoid arbitrary conduct." Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. at 910.⁸

Moreover, most of the allegations of this complaint "concern" matters related to the negotiation or administration of the collective bargaining agreement. Such matters are not beyond the duty of fair representation simply because they do not involve the breach of a specific provision of the collective bargaining agreement:⁹

"The bargaining representative\'s duty not to draw `irrelevant and invidious\' distinctions among those it represents does not come to an abrupt end . . . with the making of an agreement between union and employer. Collective bargaining is a continuous process. Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by the contract. The bargaining representative can no more unfairly discriminate in carrying out these functions than it can in negotiating a collective agreement." (Footnotes omitted and emphasis added). Conley v. Gibson, supra, 355 U.S. at 46, 78 S.Ct. at 102.

It is not difficult to conceive a set of facts that might be proven under the allegations of this complaint, in which a minority group of union members were effectively deprived of an opportunity to participate either in the negotiation of a collective bargaining contract or in the enjoyment of its benefits by a language barrier which union officials exploited, or took no steps to overcome. Such acts or omissions¹⁰ of union officials might well violate the union's duty "to make an honest effort to serve the interests" of all members of the bargaining unit. Ford Motor Co. v. Huffman, supra, 345 U.S. at 337, 73 S. Ct. at 686. See also Conley v. Gibson, supra, 355 U.S. at 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80; Wallace Corp. v. National Labor Relations Board, 323 U.S. 248, 255, 65 S.Ct. 238, 89 L.Ed. 216 (1944).

It is no answer to say that the complaint relates to appellee union's "internal" policies and practices. The duty of fair representation "arises out of the union-employee relationship and pervades it." Id. 400 F.2d at 106. Nothing could be more peculiarly an internal interest of a union than the control over admission to union membership that was held subject to the duty of fair representation in Wallace Corp. v. Labor Board, supra. As a practical matter, intra-union conduct could not be wholly excluded...