# Florin Dente v. International Organization of Masters, Mates and Pilots, Local 90, Anunincorporated Labor Organization

> Court of Appeals for the Ninth Circuit · May 28, 1974 · 492 F.2d 10

URL: https://www.frixlaw.com/law-library/cases/9460315

## Case

- **Full name:** Florin DENTE, Appellee, v. INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, LOCAL 90, an Unincorporated Labor Organization, Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 28, 1974
- **Citations:** 492 F.2d 10
- **Precedential status:** Published
- **Opinion:** Concurrence by Browning
- **Judges:** Browning, Chambers, Ely
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460315

## Opinion text

BROWNING, Circuit Judge
(concurring in the result):
It is unnecessary to decide whether section 301(a) extends to suits for violation of a contract between an employer and an organization representing supervisory personnel, a problem more difficult for me than the opinion of the court would suggest. It is also unnecessary to decide the extent to which the statutory duty of fair representation bars conduct that might be characterized as negligent in traditional tort law; certainly the duty may be breached by conduct nei *13 ther hostile nor malicious. Vaca v. Sipes, 386 U.S. 171, 191 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967); Retana v. Local 14, Elevator Operators, 453 F.2d 1018 , 1023 n. 8, 1024 n. 10 (9th Cir. 1972). The judgment should be reversed, but upon other grounds.
1. There was no breach of a federal duty of fair representation. This federal duty is a concomitant of the right of exclusive representation conferred by section 9(a) of the National Labor Relations Act; no other source of the duty has been suggested. See, e. g., Ford Motor Co. v. Huffman, 345 U.S. 330, 337 , 73 S.Ct. 681 , 97 L.Ed. 1048 (1953); Vaca v. Sipes, supra, 386 U.S. at 177 , 87 S.Ct. 903 , 17 L.Ed.2d 842 ; Retana v. Local 14, Elevator Operators, supra, 453 F.2d at 1021-1022; Richardson v. Communications Workers of America, 443 F.2d 974, 980 (8th Cir. 1971). But the appellant union was not granted exclusive bargaining power by section 9(a). Section 9(a) grants such power only to “representatives designated or selected for the purposes of collective bargaining by the majority of employees” (emphasis added). The members of appellant union are not “employees” for the purposes of secton 9(a); they are all supervisors. Cf. Hanna Mining Co. v. MEBA, 382 U.S. 181, 188-189 , 86 S.Ct. 327 , 15 L.Ed.2d 254 (1965). Since no duty of fair representation is imposed upon appellant union by federal law, any duty with regard to representation owed to appellee by appellant union must be based upon state law and, absent an independent ground for federal jurisdiction, could be enforced only in state courts.
2. Even if a federal action would be maintainable against appellant union under section 301(a) for simple breach of the collective bargaining agreement, as distinguished from breach of- a federal duty of fair representation, no such breach was shown. The collective bargaining agreement only required the Licensed Personnel Board to meet promptly to consider grievances; no provision of the agreement imposed a duty upon the union to present grievances promptly to the Board.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460315. Public record. Not legal advice.