Williams v. Pacific Maritime Association

• Decision Date: 30 October 1967
• Docket Number: No. 20719.,20719.
• Citation: 384 F.2d 935
• Parties: George R. WILLIAMS et al., Appellants, v. PACIFIC MARITIME ASSOCIATION et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

384 F.2d 935 (1967)

George R. WILLIAMS et al., Appellants, v. PACIFIC MARITIME ASSOCIATION et al., Appellees.

No. 20719.

United States Court of Appeals Ninth Circuit.

August 28, 1967.

Rehearings Denied October 30, 1967.

Irving A. Thau, New York City, Francis Heisler, Carmel, Cal., Arthur Brunwasser, San Francisco, Cal., for appellants.

Richard Ernst, Mary C. Fisher, Dennis T. Daniels, San Francisco, Cal., for appellee Pacific Maritime Ass'n.

Gladstein, Anderson, Leonard & Sibbett, Norman Leonard, San Francisco, Cal., for appellees International Longshoremen's & Warehousemen's Union et al.

Before POPE, HAMLEY and MERRILL, Circuit Judges.

POPE, Circuit Judge:

This is an appeal from an order dismissing the fourth amended complaint. This complaint alleges that the defendant Pacific Maritime Association represents all the employers who bargain with employee members of the International Longshoremen's and Warehousemen's Union (ILWU) and its affiliated local union, Local No. 10, ILWU and Local 10, also defendants, are labor unions, and ILWU is the certified collective bargaining representative for all employees of the employer members of Pacific Maritime Association (PMA) on the Pacific Coast engaged in loading and unloading vessels and operations incidental thereto including warehousing. ILWU and Local 10 are the exclusive bargaining representatives for all such employees.

Heretofore PMA signed a succession of collective bargaining agreements with ILWU and Local 10. At the time here in question an agreement was in effect covering the period June 16, 1961 to July 1, 1966. Rules relating to registration and deregistration of longshoremen in the Port of San Francisco, adopted about March 18, 1958, were a part of that agreement, and remained in effect until new rules relating thereto were adopted about June 17, 1963.

The complaint then alleges that the two labor unions, ILWU and Local 10, as exclusive bargaining representatives exercising statutory rights, owed a fiduciary duty to all longshore employees under this agreement, including Williams and 50 other employees who are made plaintiffs. This duty, it is alleged, includes the duty to represent such employees fairly, and to give all such employees an opportunity to know of and to be heard concerning all collective agreements and changes and modifications thereof.

The collective bargaining agreement provided for two classes of longshoremen. One was Class A, who had priority to available work. The other was Class B, who had limited rights to available work, and were not eligible to membership in Local No. 10. The rules stated standards for class B Longshoremen, and standards and procedures for their promotion to class A and for their possible deregistration.

Up until June 17, 1963, all plaintiffs were class B longshoremen under the collective bargaining agreement. They were, and had been for four years, registered as such and in good standing. It is alleged on the date mentioned the defendants (employer and unions) decided on deregistration of the plaintiffs. This was purportedly made pursuant to a new set of rules adopted a few weeks prior thereto. Plaintiffs were never informed of those new rules; they were never given an opportunity to be heard respecting their application.

It is alleged that these new rules were arbitrary, not reasonably relevant to the treatment afforded class B longshoremen; they were capricious, arbitrary and unfair, particularly as they were applied retroactively and to conduct that was not a violation of any rule when it occurred; and that they were applied discriminatorily against plaintiffs.

Plaintiffs allege they have exhausted all remedies under the agreement and have finally been deregistered so that they are now without livelihood, and that in agreeing to these new rules the unions have failed to represent plaintiffs fairly and have arbitrarily denied them their rights to work as longshoremen.

Other class B longshoremen were not deregistered. It is alleged that plaintiffs were thus discriminated against, and they were denied their rights under the union contract, all to plaintiffs' damage.

Because the ruling is based not only upon the complaint and the motion to dismiss it, but also upon matters presented by affidavit outside the pleading, the order appealed from was in fact an order for summary judgment under Rule 56 as required by Rule 12(b).

The complaint combines two distinct claims: one is a claim similar to that involved in Vaca v. Sipes, (Feb. 27, 1967), 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842,¹ and the other is a claim by the employees against the employer of the kind contemplated by Sec. 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185. (The plaintiff in Vaca also asserted a second claim against the employer.)

The first of these two types of claims, like the one in Vaca, is not based upon an alleged breach of contract between the union or the employee, and the employer, but it is based upon what the Supreme Court calls the "statutory duty of fair representation" of the employees by the union. This doctrine, which originated with Steele v. Louisville & N. R. Co., and which has been extensively applied and extended (see footnote 1, supra), states the fiduciary duty of a union which is the exclusive bargaining representative of employees whether union members or not.

The union contract here provides for several joint labor relations committees. The order deregistering the plaintiffs was the joint order of the Joint Coast Labor Relations Committee composed of representatives of both PMA and the Union. Each group had equal vote or power. "Each side of the Committee shall have equal vote." Thus it appears that the union representatives joined in the deregistration.

The order appealed from indicates that one reason for the court's dismissal of the complaint was that it thought it had no jurisdiction over such a cause of action because exclusive jurisdiction over the alleged wrongful acts lay in the National Labor Relations Board and that the Labor Management Relations Act preempted jurisdiction to deal with breach of fair representation by a union to the Labor Board.

In their first briefs in this case the appellees took that view relating to preemption. That view must now be rejected because of the decision in Vaca, supra, which dealt with a similar contention that a court could not entertain a suit of that character because of such preemption of jurisdiction to the Labor Board. The Court there upheld the jurisdiction of the court to entertain such a suit predicated on claims on unfair representation. It said (pp. 180-181, 87 S. Ct. p. 912): "A primary justification for the pre-emption doctrine — the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union duty of fair representation."

This preemption doctrine was sought to be applied by counsel in the Vaca case because the Board had held in its Miranda Fuel decision, enforcement denied, 2 Cir., 326 F.2d 172, that a violation of the duty of fair representation by a union was an unfair labor practice over which the Board had jurisdiction. The Fifth Circuit, Local 12 United Rubber Workers v. NLRB, 5 Cir., 368 F.2d 12, unheld the Board's Miranda Fuel doctrine. In Vaca, the Supreme Court did not express any view as to whether Miranda Fuel was right or wrong because the Court held, as indicated above, that assuming jurisdiction in the Labor Board, there was nevertheless an exception to the preemption doctrine which permitted the maintenance of the Vaca suit in a court.

The argument of the Supreme Court is a very cogent one. For instance, the Court noted that the Board's general counsel had unreviewable decision to refuse to institute an unfair labor practice complaint. Therefore the injured party having a valid claim based on denial of fair representation could not be assured of a remedy if the courts were deemed ousted of their traditional jurisdiction in such cases. At any rate, this reason given by the trial court for denying jurisdiction is demonstrably wrong in view of Vaca.

On its face, the complaint here would appear to state a claim against the union based on the doctrine requiring fair representation of all employees. It alleges that the union is the certified collective representative, and the exclusive collective bargaining representative for all employees loading and unloading vessels; that there was a "collective bargaining agreement" and that as a part thereof, there were certain rules respecting registration and de-registration of longshoremen in the Port of San Francisco, these rules being adopted in 1958.

It is set forth that longshoremen fell into two categories of registration, the preferred employees being called Class A and the limited registered longshoremen, Class B; that in June, 1963, all the plaintiffs were registered as Class B longshoremen, were in good standing, were guilty of no current infractions, had corrected all past violations of rules, and were entitled to assignment for work and were in fact regularly assigned to work.

It is alleged that on the 17th day of June, 1963, the defendants jointly decided on the promotion of some 400 Class B longshoremen to the Class A category and at the same time decided upon the deregistration of all other existing Class B longshoremen, including the plaintiffs who were thereupon notified of their immediate and summary de-registration.

It is alleged that the decision for deregistration of the plaintiffs was made pursuant to "an alleged new set of rules, adopted by the defendants jointly a few weeks prior to the summary notification of the * * * decision to de-register them"; that plaintiffs had been denied notification or knowledge of the adoption of said new...