Willis v. Pacific Maritime Assoc.

• Decision Date: 27 March 2001
• Docket Number: Nos. 97-16778,97-16779,s. 97-16778
• Citation: 244 F.3d 675
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: (9th Cir. 2001) DAVID WILLIS, Plaintiff-Appellant, v. PACIFIC MARITIME ASSOCIATION;INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL #10.; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Defendants-Appellees. PAUL GOMEZ, Plaintiff-Appellant, v. PACIFIC MARITIME ASSOCIATION;INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL#10.; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION; INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL #34, Defendants-Appellees

Page 675

244 F.3d 675 (9th Cir. 2001)

DAVID WILLIS, Plaintiff-Appellant, v. PACIFIC MARITIME ASSOCIATION;INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL #10.; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Defendants-Appellees.

PAUL GOMEZ, Plaintiff-Appellant, v. PACIFIC MARITIME ASSOCIATION;INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL#10.; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION; INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL #34, Defendants-Appellees.

Nos. 97-16778, 97-16779

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 3, 1998

Filed January 10, 2001

Amended March 27, 2001

Kathleen A. McCormac and Carolyn Hunt Cottrell, Schneider & McCormac, San Francisco, California, for the plaintiffsappellants.

D. Ward Kallstrom and Gregory D. Wellons, Lillick & Charles LLP, San Francisco, California; Richard S. Zuckerman, Leonard, Carder, Nathan, Zuckerman, Ross, Chin & Remar, San Francisco, California, for the defendantsappellees.

Gwendolyn Young Reams, Associate General Counsel, Philip B. Sklover, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, and Barbara L. Sloan, Attorney, Washington, D.C., for amicus Equal Employment Opportunity Commission.

Appeals from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-95-04379-VRW D.C. No.CV-96-00628

Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain, and Ferdinand F. Fernandez, Circuit Judges.

ORDER AND AMENDED OPINION ALARCON, Circuit Judge:

ORDER

The opinion filed January 10, 2001 is hereby amended as follows:

On page 342 of the slip opinion filed January 10, 2001, delete the first paragraph of part II and insert instead:

II

Willis and Gomez contend that the Appellees dis criminated against them by failing to make a reason able accommodation for their disabilities. They argue that "Appellees are required to provide reason able accommodation for disabled individuals even if such accommodation is contrary to the terms of the collective bargaining agreement." Appellants' open ing brief at 14.

They do not contend nor have they demonstrated that alternative accommodations may have been avail able outside the seniority provisions of the CBA. Willis and Gomez summarize the district court's decision as follows: "The District Court ruled that reasonable accommodation under ADA does not require employers to reassign employees in a way that would violate the seniority rights of other employees under a bona fide seniority system."

Willis and Gomez also assert that the seniority sys tem is not bona fide, and that the seniority provisions of the CBA were disregarded in the past by the Appellees. We conclude that the CBA contained a bona fide seniority system that was not disregarded in the past by Appellees, and that an accommodation that is contrary to the seniority rights of other employees set forth in a CBA would be unreasonable per se.

We also reject their contention that the provisions of the ADA "preempts" the NLRA. We hold that the preemption doctrine applies solely to conflicts between state and federal law.

With the above amendments, Judges O'Scannlain and Fernandez vote to deny the petition for rehearing en banc. Judge Alarcon would so recommend.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote thereon. Fed. R. App. P. 35.

The petition for rehearing en banc is denied.

ORDER

On July 6, 1999, we deferred issuance of the mandate in these matters pending determination of the petition for a rehearing en banc in Barnett v. U.S. Air, Inc. , 157 F.3d 744 (9th Cir. 1998) ("Barnett I"). In an order filed on February 1, 2000, this court ordered that Barnett be reheard en banc and that the three-judge panel opinion in Barnett I not be cited as precedent by this court. This court's en banc opinion in Bar-nett v. U.S. Air. Inc., 228 F.3d 1105 (9th Cir. 2000) ("Barnett II") was filed on October 4, 2000.

Our opinion contains several references to Barnett I. Because Barnett I cannot be cited as precedent, our opinion in these matters is withdrawn and the clerk is directed to file the attached opinion which deletes all references to Barnett I. The mandate shall issue in these matters 21 days after the entry of judgment or further order of this court.

OPINION

We must consider for the first time whether the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12101-12213, requires an employer to violate the seniority provisions of a collective bargaining agreement to accommodate a disabled employee. We affirm because we conclude that such an accommodation would be per se unreasonable where, as here, the collective bargaining agreement contains bona fide seniority provisions.

I

Appellants David Willis ("Willis") and Paul Gomez ("Gomez") are both longshore workers who worked on the docks in the San Francisco Bay area. They are members of the International Longshore and Warehouse Union ("ILWU").¹ The International Longshore and Warehouse Union, Local 10 ("Local 10") represents longshore workers. The International Longshore and Warehouse Union, Local 34 ("Local 34") represents marine clerks. The ILWU and its local unions are parties to a collective bargaining agreement ("CBA") with the Pacific Maritime Association ("PMA"), an association of the area's main employers of dockworkers. Because the work for each employer is sporadic, the PMA and the ILWU and its locals have established a system through collective bargaining by which the union members report each day for a work assignment to a hiring hall jointly maintained by the unions and the PMA. Work assignments are determined in large part by one's registration status as either a Class A or Class B longshore worker. Class A workers have the greatest senior-ity. They have first priority in being dispatched to jobs. The Class B workers have less seniority than the Class A group. The remaining workers are classified as "casual " workers. They can only receive a work assignment after the job has been offered to and refused by the Class A and Class B workers.

Although almost all dock work is very physically demanding, the jobs requiring the least exertion are assigned to Class A workers. In addition, Class A workers who are either over age 55 or disabled may request placement on the Dock Preference Board ("DPB"). Members of the DPB are given priority for light duty work assignments as they come in each day. If additional light duty work is available after all DPB workers have been offered the opportunity, it is offered to Class A and then Class B workers. Approximately five Class B or casual longshore workers, temporarily disabled by pregnancy, have also been offered this work over the past few years, after the DPB workers and Class A workers, but before other Class B workers.

At the time this action was initiated, the DPB was limited to approximately 30 workers out of a workforce of 950, because of the reduction in light duty work opportunities. Due to the desirability of light duty work, there is a waiting list for the DPB. It is organized by seniority and contains about 60 to 70 names. Once a worker is on the DPB, however, he or she cannot be "bumped" off the DPB by a worker with greater seniority who subsequently is added to the DPB waiting list.

Until 1995, dock preference work remaining, after being offered to all DPB members, was next available to workers who had Dock Preference status in their "gang " (a group of workers dispatched to jobs as a unit). In 1995, the PMA and the unions agreed to disband the gang system. As a result of that agreement and prior agreements governing the gang system, twenty-three former gang members, most of whom were already Dock Preference workers under the gang system, were transferred to the DPB in 1995-96. An additional seven workers were added to the DPB off the DPB waiting list in 1995-96, based on seniority.

The DPB, like all work arrangements and rules, is governed by collective bargaining agreements between the unions and the PMA. The joint Labor Relations Committee ("LRC") determines which union members are eligible for the DPB and the DPB waiting list. The LRC consists of at least three union representatives and at least three employer representatives, with an equal vote on each side.

The CBA also governs the transfer of longshore workers to Local 34, the marine clerks union. Class A longshore workers with more than five years' seniority may request a transfer toLocal 34. The work responsibilities of a marine clerk require less physical effort. Half of the transferees are selected by the LRC based purely on seniority, while the other half are selected by employers based on merit.

Willis became a Class A longshore worker in 1969. He alleged in his complaint that he had received various injuries to his back and neck during his employment. For purposes of this appeal, it is uncontested that he is disabled as defined by the ADA.

Willis was placed on the DPB waiting list in 1986, but continued to do other longshore work until injured again in 1992. At that time, he requested placement on the DPB. His request was denied because no additional workers were being assigned to the DPB. In 1994, he again requested placement on the DPB. His request was denied due to his lack of seniority. He was number 35 on the DPB waiting list. He remained on the DPB waiting list until his retirement in 1996.

Gomez has been working for the PMA since 1988. He has been a Class A longshore worker since 1993. In 1994, he sustained a leg injury, and was diagnosed with cancer later that year. In October, 1995, his doctor released him for light duty work. He requested a transfer to Local 34 in 1996. Because Gomez did not have five years' seniority as a Class A longshore worker, the LRC denied his request. Gomez also claims he requested...