Petition for Writ of Certiorari — Carr v. Pacific Maritime Ass'n

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Nc § 9-8 19— NOV 23 1990

— ee QOSEPH F. SPANIOL, JR.

IN THE , EK

SUPREME COURT

OF THE UNITED STATES

October Term, 1990

JOHN CARR, et al.,

Petitioners,

vs.

PACIFIC MARITIME ASS'N, et al.,

Respondents.

GREG BROOKS, JUDY CHECKERS, et al.,

Petitioners,

vs.

PACIFIC MARITIME ASS'N, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE W. SHAEFFER, JR.

SILVER, GOLDWASSER & SHAEFFER

1201 Dove Street, Suite 600

Newport Beach, California 92660

(714) 955-197]

Counsel for Petitioners

Lorraine Mitchel - Legal Briefs

732 E WASHINGTON BOULEVARD

LOS ANGELES. CALIFORNIA 90021

TELEPHONE (213) 747-5631

CONTENTS REPRODUCED FROM FURNISHED PRETYPED COPY.

QUESTIONS PRESENTED

1. Did the District Court err in

granting summary judgment on the ground

that Petitioners are barred from bringing

their actions due to their failure to

exhaust the collective bargaining grievance

procedure.

2. Are there genuine issues of

material fact showing Petitioners are

excused from exhausting the collective

bargaining grievance procedure.

3. Viewing the facts and the law

in the light most favorable to Petitioners,

are Petitioners excused from exhausting the

collective bargaining grievance procedure

for one or more of the following reasons:

a. The lack of neutrality in

the membership of the Port LRC renders the

exhaustion of the grievance procedure of

the non-§13 claims futile.

b. The lack of neutrality in

the membership of the Port LRC and the lack

of guaranteed arbitration of §13 claims

renders the exhaustion of the grievance

procedure of the §13 claims futile.

C. The grievance and

arbitration procedures are inadequate in

situations such as this which involve a

fundamental challenge to the registration

process.

d. The grievance procedure is

not speedy.

e. The unions' breach of

their duty of fair representation excuses

any Claim of exhaustion as a defense.

e. The repudiation of the

contract grievance and arbitration

procedures by Respondents permits judicial

review of Petitioners' breach of contract

claims.

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LIST OF PARTIES

The Petitioners before this Court are

too numerous to be conveniently listed.

Therefore, the identities of each of the

Petitioners are set forth in the appendix

hereto, p.la infra.

The Respondents before this Court are

the Pacific Maritime Association, the

International Longshoremen's and

Warehousemen's Union and two of its!

locals, Local 13 and Local 63.

TABLE OF CONTENTS

QUESTION PRESENTED. . ...... +

LIST OF PARTIES ...+ + © © © @ «

TABLE OF AUTHORITIES ......2e-s

OPINIONS BELOW > . * > > >. 7 > > > .

JURISDICTION . . «. © © © © © «© «© «

STATUTE INVOLVED .... +. 2 © « « «

STATEMENT OF THE CASE. . ... +s «

Nature of the Case and Course

of Proceedings. ......

Statement of Facts. .

TRO POFELES. « « 2 « «

Relevant contract

provisions

a. Non-§13 and §13

claims or jrievances.

b. Grievance procedure

The challenged

BOMABGEOCEOR « « 2 0 tc

The registration appeals

DEOCO@SB. « 2 2 2 © c ec

Petitioners' grievances.

nite

TABLE OF CONTENTS cont'd...

REASONS FOR GRANTING THE WRIT. ... .

The Doctrinaire Approach of the

Ninth Circuit's Decision in this

Matter Conflicts with Decisions of

this Court, Decisions of Other

Circuits, and Defeats the Overall

Purpose of Federal Labor Relations

POLICY « sos wa Se we wc

A. The Lack of Neutrality in the

Membership of the Port LRC

Renders the Exhaustion of the

Grievance Procedure of the Non-

Bid Game Bweese. «© 2 3s 8k et

As Senn /< 2 6 ee

2. Exhaustion of non-§13

Claims was futile .....

3. Exhaustion of §13 claims

i ees ss eee ef

B. The Grievance and Arbitration

Procedures are Inadequate in

Situations such as this which

Involve a Fundamental Challenge

to the Registration Process. .

Cc. The Grievance Procedure is

mot Speedy . ...+.+«-+-e«-s+e -.

D. The Union's Breach of its'

Duty of Fair Representation

Excuses any Claim of Exhaustion

as a Defense .. «+ +2 «ce © «

TABLE OF CONTENTS cont'd... PAGE

E. Repudiation of Contract

Grievance and Arbitration

Procedures by Defendants Permit

Judicial Review of Plaintiffs'

Breage @F COomtereact . . «2s e e 61

1. The Port LRC

Discouraged Appeals ... 62

CONCLUSION 65

vii

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TABLE OF AUTHORITIES

CASES PAGE

904 F.2d 1313 (9th Cir. 1990) 2

Cook Industries, Inc. v._

C.Itoh & Co., Inc,

449 F.2d 106, (2nd Cir. 1971) 34

Del Costello v. Internationa] —

Brotherhood of Teamsters

462 U.S. 151, 155, 103 S.Ct. 2281,

76 L.Ed.2a 476 (1983) 22

Early v. Eastern Transfer

699 F.2d 552, 558

(lst Cir. 1983) 34

393 U.S. 324, 89 S.Ct. 548,

21 L.Ed.2d 519 (1969) 29, 31-33

549 F.2d 1346 49

Repu a

379 U.S. 650, 85 S.Ct. 614,

13 L.Ed.2d 580 (1965) 28, 31-33

Sheet Metal Workers v. Kinney Air

Conditioni °

756 F.2d 742 (9th Cir. 1985) 32

viii

CASES PAGE

United Steelwor) e 2 ,

648 F.2d 905 (3d Cir. 1981) 34

Vaca v. Sipes

424 U.S. 554, 96 S.Ct. 1048,

47 L.Ed.2d 231 (1976) 29, 37, 38

61-62

Williams v. Pacific Maritime Assn,

617 F.2d 1321, 1330 n.15

(9th Cir. 1980) 45, 48

STATUTES

United States Code

28 USC §1254(1) 5

28 USC §1337 3

29 USC §185 3e3,6

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

JOHN CARR, ET AL.,

Petiticners,

Vv.

PACIFIC MARITIME ASS'N, ET AL.,

Respondents.

GREG BROOKS, JUDY CHECKERS, ET AL.,

Petitioners,

Vv.

PACIFIC MARITIME ASS'N, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioners respectfully pray that

a writ of certiorari issue to review the

judgment and opinion of the United States

Court of Appeals for the Ninth Circuit

entered in this action on May 21, 1990.

OPINIONS BELOW

The Opinion of the United States Court

of Appeals for the Ninth Circuit in this

matter is for publication. The Opinion is

reported at 904 F.2d 1313 (9th Cir. 1990).

The Opinion is reprinted in the Appendix

hereto, p.la, infra.

The District Court's Statement of

Uncontroverted Facts and Conclusions of

Law, and Summary Judgment (Fernandez, j.)

entered June 3, 1987 have not been

reported. They are reprinted in the

appendix hereto, p.6la and p.75a,

respectfully, infra.

The District Court's findings and

| judgment in the related actions of Brooks

/and Checkers are identical in all material

respects to Carr; therefore, they are not

reprinted in the appendix.

JURISDICTION

The jurisdiction of the District Court

was invoked pursuant to Section 301 of the

Labor Management Relations Act, 29 U.S.C.

§185(a) and (b), and 28 U.S.C. §1337.

On June 8, 1987, the District Court

entered summary judgment in favor of

Pacific Maritime Association (hereinafter

"PMA"), International Longshoremen and

Warehousemen's Union (hereinafter "ILWU"),

and International Longshoremen and

Warehousemen's Union, Locals 13 and 63

(hereinafter "Local 13" and “Local 63"),

and against the plaintiffs in the Carr

action.1 On July 6, 1987, the Carr

1 The individual plaintiffs in the

Carr, Brooks, and Checkers actions will be

hereinafter collectively referred to as

"Carr", "Brooks", and "Checkers" unless

otherwise indicated.

Plaintiffs filed a Notice of Appeal.

The Brooks and Checkers actions were

consolidated by the district court for all

purposes on September 21, 1987. On

September 29, 1987, the District Court

entered summary judgments in favor of PMA,

ILWU and Locals 13 and 63, and against the

plaintiffs in the Brooks and Checkers

actions. On October 16, 1987, the Brooks

and Checkers plaintiffs filed Notices of

Appeal.

On September 16, 1988, the case was

argued before a panel of the Ninth Circuit

Court of Appeals and submitted. On May

21, 1990, the Court's Opinion was filed

affirming the decisions of the District

Court. Judge Hall filed a lengthy dissent.

See, p.la, infra.

On June 6, 1990, a Petition for

Rehearing with Suggestion for Rehearing En

Banc was filed. On August 24, 1990, the

Ninth Circuit filed an order denying the

petition for rehearing, and rejecting the

suggestion for a rehearing en banc.

Petitioners have made no application

for an extension of time to file a Petition

for Writ of Certiorari.

The jurisdiction of this Court to

review the judgment in the Ninth Circuit is

invoked under 28 U.S.C. §1254(1).

STATUTES INVOLVED

29 U.S.C. §185. Suits by and against

labor organizations.

Venue, amount, and citizenship.

(a) Suits for violation of contracts

between an employee and a labor

organization representing employees in an

industry affecting commerce as defined in

this chapter, or between any such labor

organizations, may be brought in any

district court of the United States having

jurisdiction of the parties, without

respect to the amount of controversy or

without regard to the citizenship of the

parties.

STATEMENT OF THE CASE

A. Case _a

of Proceedings.

Petitioners' cases arise under Section

301 of the Labor-Management Relations Act

of 1947, 29 U.S.C. §185. The Carr action

was filed on November 5, 1985; the Brooks

action was filed on January 15, 1986; and

the Checkers action was filed on March 24,

1986. Petitioners filed actions against

Respondents alleging that their failure to

be registered as either longshoremen or

clerks was in violation of various terms of

the applicable collective bargaining

agreements. The actions seek the

registration of Petitioners as longshoremen

or clerks, the deregistration of

individuals who were improperly registered,

and the appointment of a special master to

control or monitor all future registrations

in the Los Angeles-Long Beach Harbors

(hereinafter "Harbors").

The underlyirg dispute arose when

Respondents registered additional Class "B"

longshoremen and Class "B" clerks for

Harbors. Employment as a longshoremen or

clerk is accomplished by a registration

process. The registration process being

challenged in this action occurred from

approximately September of 1984 through

early May of 1985. The Petitioners were

not selected for registration as either

longshoremen or clerks.

Pursuant to stipulation, the parties

agreed to limit their discovery and

thereafter engaged in extensive discovery

related to the issues of whether

Petitioners exhausted or were excused from

exhausting the collective bargaining

grievance procedure. Pursuant to the

stipulation, the parties engaged in no

formal discovery associated with the

specific contentions in the Complaints.

On June 11, 1986, the parties filed a

stipulation and the district court ordered

a stay of the proceedings in all three

actions until a scheduled arbitration

involving the timeliness of the

Petitioners' group grievances alleging

discrimination (§13 claims) could be heard

and decided by the coast arbitrator. The

district court's order specifically

permitted the completion of the outstanding

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discovery among the parties on the

exhaustion issues. The stipulation was

without prejudice to the parties’ claims

concerning the adequacy of the grievance

procedure. Petitioners intention to oppose

the Motions for Summary Judgment on any one

of the exceptions to the exhaustion rule

was Clearly stated in the stipulation.

The arbitrator issued his decision on

January 15, 1987 (discussed, infra.). The

arbitrator found Petitioners §13

discrimination claims were time barred, and

there had been no abuse of discretion in

failing to extend the ten day time period

for filing §13 discrimination claims. The

Petitioners' non-§13 claims were not the

subject of the arbitration award.

Summary judgments were entered in

favor of Respondents and against Carr on

June 8, 1987, and against Brooks and

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Checkers on September 2S, 1987. The

District Court held that Petitioners were

barred from maintaining their actions by

their failure to exhaust the collective

bargaining grievance procedure. The Ninth

Circuit affirmed with Judge Hall

dissenting. The merits of Petitioners’

claims have never been addressed by the

Port LRC, the arbitrator, the district

court, or the Ninth Circuit.

B. Statement of Facts.

1. The parties.

PMA is an association of West

Coast stevadoring, shipping, and terminal

companies. The ILWU is the exclusive

bargaining representative of longshoremen

and clerks who work for PMA members. Locai

13 is an affiliated local union of ILWU.

Local 13 represents longshoremen employed

by PMA member companies in the Harbors.

Local 63 is also an affiliated local union

of ILWU. Local 63 represents clerks

employed by PMA member companies in

Harbors.

PMA and ILWU are parties to a

collective bargaining agreement known as

the Pacific Coast Longshore and Clerks

Agreement (hereinafter “PCLCA"), which is

comprised of two documents: the Pacific

Coast Longshore Contract Document

(hereinafter "PCLCD"), and the Pacific

Coast Clerks Contract Document (hereinafter

"PCCCD"). The PCLCD governs the terms and

conditions of employment for longshoremen

employed by PMA member companies. The

PCCCD governs the terms and conditions of

employment for marine clerks employed by

PMA members companies. The parties to the

PCLCA, PCLCD, and PCCCD are PMA, on behalf

of its member companies, and the ILWU on

behalf of itself and certain of its

affiliated local unions.

Petitioners are 127 casual

longshoremen and clerks whose applications

for registration is class "B" longshoremen

or clerks in the Los Angeles Harbor area

were rejected.

2. Relevant contract

provisions

(a) Non-§13 and §13

claims or grievances,

Petitioners allege, in

their complaints filed in district court

and in the group grievances filed with the

Port LRC violations of various sections of

the collective bargaining agreements; the

Claims are denominated non-§13 and §13

(discrimination) claims. Petitioners' non-

§13 (non-discrimination) claims involve the

following allegations: A violation of §8.31

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of the PCLCD which requires the Joint Port

Labor Relations Committee and the Coast

Labor Relations Committee (hereinafter

"Port LRC"® and "Coast LRC") to control the

registration process.* Petitioners allege

a vioiation of §8.43 which prohibits

favoritism or discrimination in the hiring

of longshoremen.? Petitioners request the

deregistration and discharge of any

individual who violated §8.43 pursuant to

§8.44.4 Petitioners allege a violation of

§9.1 which recognizes the principle of

promotion from the ranks.° Petitioners

2 §8.31 is reprinted in the appendix

hereto, p.83a, infra.

3 §8.43 is reprinted in the appendix

hereto, p.83a, infra.

4 §8.44 is reprinted in the appendix

hereto, p.83a, infra.

5 §9.1 is reprinted in the appendix

hereto, p.83a, infra.

allege a violation of §9.2 which requires

some of the qualifications for promotion to

be length of service in the industry and

competency. ® Petitioners allege a

violation of the good faith guarantee, §18,

which requires the Respondents to observe

the agreements in good faith.’ Finally,

Petitioners allege a §13 (discrimination

claim) in violation of §13 on the basis of

membership or non-memberships in the

Union. 8

(b) Grievance procedure.

The relevant collective

bargaining grievance procedure is set forth

in §17 of the PCLCA and PCLCD. The details

6 §9.2 is reprinted in the appendix

hereto, p.83a, infra.

7 §18.1 is reprinted in the appendix

hereto, p.83a, infra.

8 §13 is reprinted in the appendix

hereto, p.83a, infra.

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of the various provisions of the grievance

procedure are discussed in Williams v.

Pa s & 617 F.2d.

1321, 1323-26, 1329 (Sth Cir. i960).

Generally, the grievance procedure provides

a process to resolve non-discrimination or

non-§13 grievances, and a procedure to

resolve discrimination or §13 grievances.

A §13 grievance is explicitly limited to

claims of discrimination based upon, inter

alia, membership or non-membership in the

Union. Williams v. Pacific Maritime

Association, supra, at 1329.

Non-§13 grievances are

processed pursuant to the provisions of

§17.23.2 Section 17.23 empowers the Port

LRC to investigate and adjudicate the

9 §17.23 is reprinted in the appendix

hereto, p.83a, infra.

;

grievance. Pursuant to 517.2419, a

decision of the Port LRC on the grievance

is final and binding except were there is a

disagreement between the employer and union

members of the Port LRC. Thus, an

individual grievant relying on provisions

of the PCLCA other than §13 has no right of

appeal beyond the Port LRC. (Id.)

If a grievant alleges a

Claim of discrimination in violation of §13

(a §13 claim or grievance), the grievance

is processed according to the terms of

g§17.4.11 The process is described in

§17.41 and is started by filing a grievance

with the Port LRC setting forth the facts

of the alleged discrimination. The

10 §17.24 is reprinted in the

appendix hereto, p.83a, infra.

11 §17.4 is reprinted in the appendix

hereto, p.83a, infra. :

grievance is to be filed within ten days of

the date of the occurrence of the alleged

discrimination. The Port LRC is to

investigate the grievance and to allow the

grievant to appear, to state his case, and

to present oral and written evidence and

argument. 12 Section 17.411 permits the

Port LRC to extend the time for filing a

Claim of discrimination by up to six months

when it determines that an extension is

necessary to prevent inequity.13 Section

17.42 permits the grievant, the employer,

or the union to appeal a decision of the

Port LRC to the Coast LRC.14 pursuant to

§17.421, the Coast LRC is empowered to

12 §17.41 is reprinted in the

appendix hereto, p.83a, infra.

13° §17.411 is reprinted in the

appendix hereto, p.83a, infra.

14 §17.42 is reprinted in the

appendix hereto, p.83a, infra.

confirm, reverse or modify the decision of

the Port LRC with or without a further

hearing.1> Section 17.43 provides that:

"An appeal from the decision of the [Coast

LRC}] can be presented to the Coast

Arbitrator....by the individual involved,

the Employers, or the Union."16 Section

17.431 defines the arbitration procedure to

be "(tjhe procedures generally applicable

under this agreement..."17 Section 17.5

describes the powers of the arbitrators and

the finality of their decisions on the

parties.

3% The challenged

registration.

15 §17.421 is reprinted in the

appendix hereto, p.83a, infra.

16 §17.43 is reprinted in the

appendix hereto, p.83a, infra.

17 §17.431 is reprinted in the

appendix hereto, p.83a, infra.

The Coast LRC authorized the

registration of 350 additional Class "B"

longshoremen and clerks in Harbors in

August, 1984. Approximately 30,000

applications were handed out for

registration as a longshoremen or clerk.

Approximately 22,250 completed

applications were returned by September 26,

1984. The applications were scored by a

committee comprised of representatives of

PMA and Locals 13 and 63. The applications

were scored by the committee and those

individuals with the highest scores were

interviewed. In January of 1985, the

committee commenced registering successful

applicants in groups of 50. The initial

phase of the registration was completed on

May 4, 1985 resulting in the registration

of 300 Class "B" longshoremen, 50 marine

Clerks, and an additional 40 individuals

with tied scores. Ultimately, 410

individuals were registered as

longshoremen, and between 58 and 60

individuals were registered as clerks.

4. The registration appeals

process.

Pursuant to the direction of

the Coast LRC, a notice was posted on May

6, 1985 in the longshore, clerk, and casual

dispatch halls notifying individuals that

the initial phase of registration had been

completed, and appeals would be considered

timely if received on or before May 15,

1985.

5. Petitioners' grievances.

Approximately 318 appeals or

grievances were filed by unsuccessful

applicants for registration on or before

May 15, 1985. Among those filing

individual appeals or grievances were 28 of

the original Carr Petitioners. Carr

Petitioners Wasserman and Schreiner raised

nepotism and favori -* in the registration

process in their individual grievances.

The grievances of Schreiner and Wasserman

are still pending before the Port LRC.

(Ia.)18 All of the other’ individual

grievances by the Carr Petitioners were

denied.

All of the Brooks Petitioners

filed individual appeals with the Port LRC

on or before May 15, 1985. Brooks

Petitioners Booher, Carlisle, and

Juergensen received no notification from

the Port LRC regarding the status of their

18 schreiner and Wasserman are

permitted by the summary judgment to pursue

only the timely filed individual

grievances.

appeal.19 the individual grievances filed

by all other Brooks Appellant were denied

by the Port LRC.

All but four of the Checkers

Petitioners filed individual appeals with

the Port LRC. The individual appeals which

were filed were denied.

On October 16, 1985, a

statement of grievance was submitted to the

Port LRC on behalf of the Carr Petitioners.

The grievance was amended and mailed to the

Port LRC on October 23, 1985.29 The first

19 Booher, Carlisle, and Juergensen

are permitted by the summary judgment to

pursue only the timely filed individual

grievances.

20 The Carr complaint was filed in

district court on November 5, 1985. The

proximity of the complaint and the group

grievance filed on October 16, 1985 was due

to the six month statute of limitation

which applies to these types of actions.

Del_ Costello v. International Brotherhood

of Teamsters 462 U.S. 151, 155, 103 S.Ct.

2281, 2285, 76 L.Ed.2d 476 (1983). Carr

amended statement of grievance (hereinafter

"amended grievance") includes as an

attachment "B" the preliminary factual

basis for the claim of favoritism in the

selection process. Attachment "B" shows

the family connection between many of those

registered and union members, or PMA and

Union officials.

The basic grounds for the group

grievances filed by the Carr Petitioners

waS a contention that the individuals

listed in attachment "B" to the amended

grievance were registered in violation of

§8.43 of the contract documents which

prohibit favoritism or discrimination in

the hiring of longshoremen or clerks.

was concerned that if the six month

limitation period accrued on May 6, 1985,

the date the notice of the grievance period

was posted at the casual hall, the six

month limitation period would expire on

November 6, 1985.

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Additional facts were alleged in the group

grievances showing a violation of §§8.3,

8.43, 8.44, 9.1, 9.2, 9.3, 13 and 18.1 of

the PCLCD.

On January 16, 1986, and March

25, 1986, the Brooks and Checkers

Petitioners, respectively, filed appeals

with the Coast LRC which incorporated as

the ground for appeal the amended grievance

of the Carr Petitioners.

The statement of grievance

filed by the Carr Petitioners with the Port

LRC on October 16, 1985 provides, inter

alia, that "[Ajll grievants raise common

Claims which are based upon. recently

discovered facts derived from the

collaborative efforts of grievants. fThus,

grievants believe the instant grievances

are properly before the committee for

resolution of their claims." The Port LRC

had the discretion to hear the group

grievance pursuant to the provisions of

§17.411. §17.411 permits a discretionary

six month time period within which to file

a §13 claim of discrimination to prevent

inequity. See note 14, supra.

Carr was advised on April 11,

1986 by the Port LRC that the group

grievance was denied on the grounds that it

was untimely. Carr was notified that

appeals were to be filed within ten days of

either the action giving rise to the

grievance or the occurrence of the alleged

discrimination. Since the Carr grievance

was filed more than five months after the

completion of the registration, the

grievance was denied as being untimely.

(Id.) Carr was further notified by the

Port LRC in the April 11, 1986 letter that

the decision was not appealable and final

with respect to all matters relating to the

application and registration process.

However, an appeal of bona fide claim of

discrimination in violation of §13 could be

filed with the Coast LRC.

An appeal was filed with the

Coast LRC. On May 1, 1986, the Carr

Petitioners were notified by the Coast LRC

that the grievance was denied as being

untimely for the reasons stated in the Port

LRC's decision of April 11, 1986. The Carr

Petitioners were advised that they could

appeal to the Coast Arbitrator the issue of

the timeliness of their §13 claims of

discrimination. On May 1, 1986, the Coast

LRC also notified the Brooks and Checkers

Petitioners that their group grievances

were denied, but they had the right to

appeal to the Coast Arbitrator claims which

asserted discrimination in violation of §13

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of the PCLCA.

Appeals were filed to the Coast

Arbitrator. Ina letter from the Coast LRC

dated May 16, 1986, all Petitioners were

advised that: "Your appeal with respect to

this case shall be limited to the

timeliness of the filing of §13

discrimination claims by the above-named

individuals." The arbitration was to be

heard in San Francisco.

The Coast Arbitrator issued his

decision on January 15, 1987. The

Arbitrator found Petitioners' §13

discrimination claims were timed nerve.

and there had been no abuse of discretion

by the Port LRC in failing to extend the

ten day time period for filing §13

discrimination claims under §17.411.

The merits of Petitioners’

grievances were not presented or resolved

during the collective bargaining agreement

grievance procedure. 21

REASONS FOR GRANTING THE WRIT

As a general rule, employees must

attempt to exhaust the grievance and

arbitration procedures established in a

collective bargaining agreement prior to

bringing an enforcement action in district

court. Republic Steel Corp. v. Maddox 379

U.S. 650, 85 S.Ct. 614, 13 L.Ed.2da 580

21 petitioners also filed intra-union

appeals with the ILWU. The appeals were

identical to those filed with the Port LRC.

The ILWU decided not to hear these appeals.

—

(1965); Vaca v. Sipes 424 U.S. 554, 563, 96

S.Ct. 1048, 1056, 47 L.Ed.2d 231 (1976).

The exhaustion requirement is subject

to a number of exceptions under a variety

of situations when the _ doctrinaire

application of the exhaustion rule would

defeat the overall purposes of the federal

labor relations policy. Glover _v. St.

Louijis-S.F.Ry. 393 U.S. 324, 329-31, 89

S.Ct. 548, 551, 21 L.Ed.2d 519 (1969). The

Petition presents such situations.

A. The Lack of Neutrality in the

Membership of the Port LRC

Renders the Exhaustion of the

Griev e Non-

1. Introduction.

The Court is requested in this

Petition to settle the confusion

Surrounding the degree of attempt which

must be made to utilize the private

collective bargaining grievance procedure

when such attempt would be clearly futile.

As Judge Hall notes in her dissent, the

Ninth Circuit's majority opinion in this.

case “[(Cjompletely emasculates' the

bias/futility exception". (Slip Op.

Appendix p.46a).

The majority opinion requires

Petitioners to file grievances with a

biased committee an allege in the grievance

that the committee is biased. As Judge

Hall notes, the Petitioners in this action

implicitly raised their objection by

specifically alleging in the grievance

particular family connections between

successful registrants and PMA and union

officials, members and employees;

therefore, the Petitioners objection to the

Port LRC's lack of nuetrality on the

appeared on the face of the grievance.

(Slip Op. Appendix at p.43a). Judge Hall

states that the Petitioners should be

excused from exhausting the grievance

procedure “(Bjecause it would have been a

futile act to submit a nepotism grievance

to a biased Port LRC panel on which both

union and management representatives had

engaged in the cronyism of which the

appellants complained." (Slip Op. Appendix

at p.47a).

Judge Hall notes that Maddox

was decided by this Court prior to Glover.

It appears logical that an attempt to

exhaust the collective bargaining grievance

procedures is required prior to claiming

such procedures are inadequate. However,

such an attempt is useless if plaintiffs

fit within the bias/futility exception.

(Slip Op. Appendix p.46-47, 50 & nn.6 and

9a). Judge Hall correctly notes that in

Glover the only attempt to exhaust

contractual remedies consisted of a simple

informal complaint to the company regarding

discrimination; the Glover employees never

utilized the grievance procedure by filing

a formal complaint with the union or the

company. (Slip Op. Appendix p.46 n.6a).

Finally, the majority holds

that Petitioners waived their right to

claim bias on the part of the Port LRC by

failing to raise the objection when the

committee convened. The majority,

therefore, rejects Petitioners’ claim that

they are excused from exhausting the

collective bargaining grievance procedure

because the grievance procedure it futile.

The majority relies upon the Ninth Circuit

Cpinion of Sheet Meta] Workers

International Association, Local No. 420 v.

Kinney Air Conditioning Company 756 F.2d

742 (9th Cir. 1985).

The Ninth Circuit's application

of Kinney to the present matter effectively

overrules this Court's opinion in Glover as

stated by Judge Hall in dissent. (Slip Op.

Appendix p. 46-47a). Judge Hall readily

distinguishes Kinney from the present

matter. Petitioners were not signatories

to the collective bargaining agreement,

Petitioners had no direct say in the

establishment of the procedures for

selecting panelists to the committee, and

Petitioners have never obtained a

determination on the merits of their

contract claims. (Slip Op. Appendix p.42-

43a). Therefore, Petitioners stand on a

much different footing than the parties in

Kinney who claimed bias at the conclusion

of the dispute resolution process although

_s _ —_ , 4 ™ oA ene dl

the bias was known in advance to the

parties prior to the arbitration. Kinney

clearly waived his objecticn when he failed

to object to the selection of the board

members at the time they were seated to

hear the grievance. Kinney, supra at 746.

The following three other cases

cited by the majority opinion conflict with

the facts in the instant matter: Early v.

Eastern Transfer, 699 F.2d 552, 558 (1st

Cir. 1983), cert denied, 464 U.S. 824

(1983); Cook Industries, Inc. v. C.Itoh &

Co., Inc., 449 F.2d 106, 107-08 (2d Cir.

1971), cert denied, 405 U.S. 921 (1972);

United Steelworkers of America Local 1913

v. Union Railroad Co., 648 F.2d 905, 913-14

(3d Cir. 1981). As Judge Hall notes, all

three cases involve situations where

individuals went through an arbitration

process without objecting until they

received an adverse ruling. The plaintiffs

then complained in federal court about bias

situations which they knew prior to

proceeding with the arbitration. (Slip Op.

Appendix p.40 n.4a).

Judge Hall notes in dissent

that the Petitioners in this action are

required under the majority opinion to

present their bias claim té6 the Port LRC

before proceeding to federal court.

Because Petitioners failed to specifically

state that the committee members of the

Port LRC were "biased", Petitioners waived

their right to object to the bias of the

board. This interpretation overrules

Glover. As we previously stated bias of

the committee is clearly established in the

group grievance and in the evidence

presented in opposition to the motion for

Summary judgment. The doctrinaire approach

of the majority in this case defeats the

overall purpose of federal labor relations

policy. The majority opinion makes it now

impossible to bring a §301 action.

2. Exhaustion of non-§13

Claims was futile.

Petitioners assert many non-§13

discrimination claims. For example,

individuals were encouraged to falsify

information and documentation on their

applications, individuals were coached,

applications were prescored, individuals

were registered with little or no prior

maritime employment experience, and

Respondents failed to give priority in

registration to those individuals working

out of the casual hall. As_ previously

stated, the parties agreed to limit their

discovery to the exhaustion issues, the

subject of the present appeal.

36,

| Nevertheless, Petitioners conducted thier

own informal investigation. Petitioners

have identifed 223 of the _ successful

registrants who have little) or no hours of

experience as casual longshoremen. Thus,

Petitioners have presented evidence

establishing the validity of their

contentions that sections of the PCLCD

other than §13 were violated by

Respondents.

The identical lack of

neutrality found to exist in Glover exists

in the present appeal. The Petitioners are

challenging the very decision of the Port

LRC in registering those individuals with

family connections to members of the Port

LRC. The Port LRC minutes of October 16,

1985 reflect the minutes of the meeting at

which time the Petitioners presented to the

Port LRC their group grievance. The

chairman of the committee was David Arian,

President of Local 13. Charles Young, an

employee of PMA, was present for the

employers.

Arian's sister was registered

as a clerk during the 84-85 registration.

Young's mother was registered as a clerk

during the recent registration, and Young's

girlfriend was registered as a

longshoremen.

Moreover, Arian and Young were

two of the individuals who participated in

reviewing the grievances filed by the 318

individuals who had filed appeals or

grievances from their unsuccessful

registration. The minutes of the Port LRC

identify those individuals who reviewed the

registration grievances or appeals on

behalf of PMA and the Locals. Young and

Arian considered a total of 109 grievances

icc cael

from May 20, 1985 through July 9, 1985.

Furthermore, additional

represent-atives of the Port LRC who

reviewed some or many of the 318 individual

grievances also had family members who were

registered. Judge Hall identifies 6 Port

LRC representatives who had from 1 to 7

family members’. registered. (Slip Op.

Appendix p.38 n.3a).

The futility of presenting the

Appellant's grievance during the ten day

time period, assuming arguendo that the

months of collation and investigation could

have been compiled and presented prior to

May 15, 1986, is also shown by the

experiences of three of the Petitioners.

Davis was an unsuccessful applicant for

registration. Davis timely filed a

grievance and alleges generally favoritism

in the selection process. Davis' grievance

provides in relevant part: "Of the 15

women who were first chosen for

registration they were all related or close

friends of such people as _ Local 63

president, Local 63 dispatch, Local 63

committee member, Local 13 committee

member, and PMA committee member."

In a letter of July 19, 1985,

Davis was notified that her appeal was

denied. Young was a member of the

registration’ committee which heard the

appeal of Davis on or about July 19, 1985.

Young testified in his deposition that the

committee "did not feel she had a §13

grievance." Young believed Davis was vague

as to her allegations and she wasn't very

specific to §13. Wasserman and Schreiner

presented §13 claims to the Port LRC in

which they alleged favoritism and nepotism

in the selection process. Both individual

appeals were pending before the Port LRC at

the time the case was submitted to the

Ninth Circuit.

Viewing the evidence in the

light most favorable to Petitioners, there

are genuine issues of material fact

concerning the futility or lack of

neutrality of the Port LRC who would have

heard Petitioners' non-§13 claims had they

been presented on or before May 15, 1986.

The proper focus of the

futility argument should be during the time

period May 5 through May 15, 1986, the

relevant time period to file appeals. The

details of the identities of those

registered was not known during the 10 day

appeal period; the identities of those

individuals who would hear appeals was not

known; and the specific family connections

between those who would hear appeals and

a ae

those who were registered was not known.

The information regarding family

connections of those registered was not

easily obtained. The Port LRC has never

published or made available to anyone other

than union or PMA officials an entire or

partial list of those applicants who were

registered as either a longshoremen or a

clerk during the 1984-85 registration

process.

3. Exhaustion of §13 claims

was futile.

Appellees argued to the

district court that resort to the grievance

and arbitration process in the collective

bargaining agreement is not _ futile.

Appellees argued that an individual's right

to pursue §13 claims to the Coast

Arbitrator insulates Appellees from a claim

that the grievance and arbitration

procedures are futile. However, in the

present petition, this claim should be

rejected. Under the specific terms of the

collective bargaining agreement, the Port

LRC has original jurisdiction over §13 and

non-§13 claims. As such, the Port LRC's

neutrality is at issue irrespective of the

availability of further levels of appeal.

Secondly, the present petition

presents contract claims which are not §13

discrimination claims. The decision of the

Port LRC on Petitioners' contract claims or

non-§13 claims is final and binding.

Grievants can pursue only their §13 claims

to the Coast LRC and to the Coast

Arbitrator. However, the Coast LRC's

consent to an arbitration before the Coast

Arbitrator is required.

For example, Petitioner

Wasserman presented §13 claims to the Port

LRC. Wasserman's grievance alleged

favoritism and nepotism in the selection

process. The Port LRC rejected these

claims. Wasserman appealed to the Coast

LRC. The Coast LRC remanded the matter

back to the Port LRC to conduct a hearing

on Wasserman's claims. A §13 grievance

hearing was conducted by the Port LRC in

October of 1985. No decision had been

rendered. Therefore, the Wasserman

situation is instructive. There is no

guarantee in the collective bargaining

grievance procedure that grievant's §13

grievance will be heard by any entity other

than the Port LRC.

Davis also presents an

instructive example of situations showing

the futility of appealing a §13 grievance.

Davis received no notification of her

appeal rights from the denial of a §13

oP Ore eS LOE NY LEE LEE LET LN OLN AS RE NTRS! LF. UNUM MONE NR AE

irievance which was based upon favoritism

n the selection process. Davis was

‘equired by the Coast LRC to -eceive

iotification of her rights of appeal from

the denial of a §13 crievance.

B. The Grievance and Arbitration

Procedures are Inadequate in

to the Registration Process.

An additional exception to the

‘xhaustion rule is that the process and

remedies must be adequate. Republic Steel

orporation v. Maddox, supra at 653, 85

.Ct. at 616. Williams v. Pacific Maritime

issociation, supra at 1328 and n.13. In

‘he instant matter, neither the procedures

ior the remedies available in the grievance

nd arbitration process are adequate to

ddress the merits of the claims of the

Petitioners.

Discovery of the application and

supporting documents of the successful

applicants is critical to proving: the

merits of the contentions of the

Petitioners. Once the applications and

supporting documents are obtained, the

merits of the various contentions of the

Petitioners can be verified. The accuracy

of the information contained on the

successful applicants' applications and

Supporting documents can be verified

through employers and _ school records.

Family connections can be verified by the

addresses, and if necessary, drivers’

licenses. 22 Until the application and

Supporting documents are obtained through

22 An example of a completed

application and the information requested

On such an application is in the record.

Cire yee on ineeerenn irs Siac aaa

Ag SEO GE

-he discovery process, the merits of the

contentions cannot be conclusively proven.

The Petitioners' grievances allege a

yreach of various sections of the

collective bargaining agreement (non-§13

jrievances), and Plaintiffs' §13

jrievances. Both grievances are originally

considered by the Port LRC. The Port LRC

ioes not permit an employee to be

represented by an attorney. Additionally,

there is no pre-hearing discovery permitted

in §13 grievances, and by implication, non-

$13 grievances.

At the Port level, parties do not have

the power to compel by subpoena or

Stherwise the production of documents or

appearance of witnesses. The Coast

Arbitrator does not have the power to

subpoena witnesses or documents according

-O the deposition testimony of Inter-

national Vice President Rubio, and PMA Vice

President Holtgrave believe otherwise.

Pre-hearing discovery is essential in

this type of case. Even if the Coast

Arbitrator was able to subpoena records to

an arbitration, the Petitioners would be

limited to attacking the validity of the

documents on their face. Obviously, the

Petitioners would have insufficient time to

conduct the necessary investigation to

determine the validity of the statements

contained in the application and the

supporting documents from the successful

applicants.

Moreover, the arbitrator's powers are

limited strictly to the application and

interpretation of the agreement as written.

See PCLCD §17.52, and Williams v. Pacific

Maritime Association, supra at 1328 n.13.

The arbitrator has no power to award

successful grievants attorneys fees. The

Coast Arbitrator does not have the power to

appoint the special master as requested in

the Brooks and Checkers complaints to

control future registrations. Petitioners

contend that the favoritism and nepotism in

the selection process during the 84-85

registration process is ae revisit to

illegally disguised sponsorship. In

National Labor Relations Board v.

international Longshoremen's and

Warehousemen's Union, Local 13 549 F.2d

1346, 1351 (9th Cir. 1977), the Court

enforced the NLRB's findings that’ the

sponsorship program required in Harbors at

one time was a form of discrimination in

violation of §§8(b) (1) (A) & (2) of the

National Labor's Relation Act, 29 U.S.C.

§§158(b) (1) (A) & (2).

Finally, the Ninth Circuit's Opinion

we tse, = ec 2s !lC

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contradicts this Court's decision in Maddox

and Hines. Both Maddox and Hines require

that some attempt be made to exhaust

contractual grievance procedures prior to

bringing an enforcement suit. This Court

has not described with any degree of

specificity the nature of the requisite

attempt. In this particular matter, Judge

Hall's dissent clearly describes the

efforts of Petitioners in attempting to

exhaust the collective bargaining grievance

procedure. (Slip Op. Appendix p.50a et

seq.) It was virtually impossible to

establish persuasive evidence of nepotism

and favoritism within the registration

process within the ten day filing period.

Moreover, the details of the

identities of those registered was not

known during the 10 day appeal period; the

identities of those individuals who would

ee ee ee ee a es ee ee ey Cm ee Ne

hear appeals was not known; and the

specific family connections between those

who would hear appeals and those who were

registered was not’ known. The record

describes the collaborative efforts of the

Petitioners in discovering the information

which is identified in attachment "B" to

the amended grievance, and the extensive

exhibits attached to the Frank Rodriguez

declaration.

The information regarding family

connections of those registered was not

easily obtained. The Port LRC has never

published or made available to anyone other

than union or PMA officials an entire or

partial list of those applicants who were

registered as either a longshoremen or a

Clerk during the 1984-85 registration

process.

The information contained in

‘weer eS ee ee ae ee ee ee ee eee oe a

attachment "B" to the amended grievance and

exhibits 1 through 4 to the Frank Rodriguez

declaration was obtained by the Petitioners

interviewing a substantial number of people

over a long period of time. The specific

information was simply not available by May

15, 1985, the purported deadline in which

to appeal one's non-registration.

The Petitioners submitted their claims

to the Port LRC; it refused to hear it.

The Port LRC had the discretion to hear the

grievances for up to six months; it

rejected them. As Judge Hall notes:

"Considering the difficulty in obtaining

evidence, Plaintiffs' good faith effort to

file their grievance should have been

allowed." (Slip Op. Appendix p.57a.) Judge

Hall states, "The majority treats

appellants' unsuccessful attempt as if it

were equal to no attempt!!! Thus barring

Petitioners' complaint. (Slip Op. Appendix

p.53a & 54a.)

Petitioners attempt to pursue the

contractual remedies was sufficient to

satisfy the Maddox requirements. Genuine

issues of material fact exist as to the

adequacy of the remedies and procedures in

the grievance procedure concerning the

issues presented in this appeal.

Cc. The Grievance Procedure jis not

Speedy.

In this action, the Petitioners' group

grievances were filed in October of 1985.

The attorney for Petitioners received a

response from the Port LRC on April 14,

1986, denying the grievances on the grounds

of timeliness. Pursuant to the notice from

the Port LRC, an appeal was filed to the

Coast LRC. On May 1, 1986, the Petitioners

were advised by the Coast LRC that their

i te ee

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rrr

grievances were denied as being untimely.

Pursuant to the notice of the Coast LRC, an

appeal to the Coast Arbitrator was filed,

and the Coast LRC notified Petitioners on

May 16, 1986 that an arbitration before the

Coast Arbitrator was scheduled.

The parties agreed to submit to the

Coast Arbitrator, Sam Kagel, the evidence

supporting their respective contentions by

July 16, 1986. On or before August, 1986,

the parties agreed to mail their respective

legal briefs to the Coast Arbitrator. By

agreement of the parties, the deadline for

submitting briefs was extended to August 8,

1986. The arbitrator did not rule until

January 15, 1987. Thus, the timeliness of

Petitioners' §13 grievances was not

determined for a period of 15 months from

the initial submission of the grievances in

October, 1985.

“ye

Dy sags Seg RY

Moreover, the grievance procedure is

not designed to speedily resolve the types

of claims presented by Petitioners in this

action. Assuming that the Petitioners'

claims had been presented to the Port LRC

prior to May 15, 1985 with the degree of

specificity of the October, 1985

grievances, the Port LRC would have

original jurisdiction over the claims. The

Petitioners could only appeal the non-§13

claims. Their evidence concerning §13

claims would then be presented to the Coast

LRC should there be an appeal, and if

permitted by the Coast LRC, to the Coast

Arbitrator. Such a process would obviously

exhaust even the most intrepid, patient and

financially solvent grievant.

Finally, neither Petitioners Wasserman

nor Schreiner had received notice from the

Port LRC of the final disposition of their

POT LOS ROTI LOIS AILS TS 8 NAM EIT UM, PIE gE BE MOONY TOPS EUST YC TRAE A LAI OD

claims of favoritism and nepotism in the

selection process from the Port LRC at the

time the case was submitted to the Ninth

Circuit. Schreiner's individual grievance

has been pending since July of 1985, and

Wasserman's grievance has been pending

since October of 1985. Genuine issues of

material fact exist as to whether the

grievance procedure is speedy when the

claims presented in this appeal are

involved.

Judge Hall notes in dissent that the

unreasonable delays in the process both

"(Ijluminates the fundamental procedural

inadequacy of the grievants and arbitration

procedure to deal with a large class

related grievances arising out of an

allegedly discriminatory registration

process." (Slip Op. Appendix p.58a).

Defense.

The Opinion conflicts with this

Court's observation in Vaca v. Sipes, supra

at 186, 87 S.Ct. at 914 that Congress did

not intend "[T]jo shield employers from the

natural consequences of their breaches of

bargaining agreements by wrongful union

conduct in the enforcement of such

agreements." In this case, the Petitioners

have been left remediles.

The Unions herein owe a duty of fair

representation to the employees in the

bargaining units represented by the ILWU,

Locals 13 and 63. This statutory duty to

fairly represent all of the employees in

the bargaining unit applies to the

collective bargaining with the employer,

eel ke Seta A cee aioe

Net ae Ch He, Pads Ty PLD] ae eae, WEP ee EIS EE eee Lee Oe ee are

and in the Union's enforcement of the

resulting collective bargaining agreement.

Vaca v. Sipes, supra at 177, 87 S.Ct. 909-

910.

The Union owes a duty of fair

representation to all Petitioners, except

those 16 Petitioners who did not work as

casual longshoremen or clerks during the

relevant time period, and who were not

employed in Local 63's office clerical

division. 23

The exhibits attached to the Rodriguez

declaration show the blatant favoritism in

the selection process. The relationship

between the successful registrants and past

and present Union officials or members are

23 The Coast minutes of August 10,

1984 include the categories of casuals as

individuals who are included within the

definitions of longshoremen in {1.91 of the

PCLCD, and the definition of clerk in {1.71

of the PCCCD.

statistically extraordinary.

Attached to the Rodriguez declaration

are three exhibits. Exhibit 1 identifies

many of the successful registrants who have

a family connection with a Union or PMA

official. One hundred and nineteen (119)

names of successful registrants who are

related to Union or PMA officials are

listed.

Exhibit 2 identifies many of the

successful registrants who have a family

connection with a current member of the

Union. One hundred and ninety (190) names

of successful registrants who have a family

connection to a Union member are included.

‘Exhibit 3 identifies many of the

successful registrants who have little or

no hours of experience as casual

longshoremen. Two hundred twenty-three

(223) successful registrants are listed.

Finally, the statistical information

presented in the Frank Rodriguez

declaration is even more remarkable when

considered in the context of the

registration. Approximately 30,000

applications were handed out for

registration as a longshoreman or clerk.

Approximately 22,250 of the applications

were returned. Four hundred and ten (410)

individuals were originally registered as

longshoremen, and between fifty eight (58)

and sixty (60) individuals were registered

as clerks. As of April 20, 1987, one

hundred and nineteen (119) of the four

hundred and seventy (470) individuals who

are registered have a family connection to

PMA or Union officials. An additional one

hundred and ninety (190) successful

registrants have a family connection to

current Union members. Thus, approximately

twenty-five percent (25%) of those

registered had a family connection to PMA

or Union officials. Three hundred and nine

(309) of the four hundred and seventy (470)

successful applicants, or over sixty

percent (60%), have a family connection to

PMA or Union officials or members.

Genuine issues of material fact exist

as to whether the Unions’ served the

interests of affected Petitioners without

hostility or discrimination, with complete

good faith and honesty, and without

arbitrary conduct. Vaca v. Sipes, supra at

177, 87 S.Ct. 909-10.

E. Repudiation of Contract

Breach of Contract.

An employee can obtain judicial review

of his breach of contract claim despite his

failure to pursue contractual remedies

where the conduct of the employer amounts

to a repudiation of those procedures. Vaca

v. Sipes, supra at 185, 87 S.Ct. at 914.

In such a_ situation, an employer is

estopped by his own conduct in asserting

exhaustion as a defense. 7 For the

same reason, a Union is estopped from

raising exhaustion as a defense if it

repudiates the contractual remedy

procedures. In this action, Respondents

are estopped by their own conduct from

asserting exhaustion of the collective

bargaining grievance procedure as a

defense.

1. Cc j age

Appeals.

PMA area manager Lane testified

that the Port LRC did not wish to solicit

acho i si ae as es ea ati

FN. Pe te ee ed ae oP aed

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pee ee ee ONE Wee ee OP ee een

Pe eo Pt, eh ee) eT

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.large numbers of appeals. The Committee

was concerned that should it begin handling

appeals in large numbers, the appeals would

stop registration process. Id. Thus, the

Port LRC gave no consideration to notifying

the unsuccessful applicants of their appeal

rights at the time the $5.00 application

fee was mailed to each of the applicants.

(CR35:215).

The Port LRC meetings wherein

the individual appeals from unsuccessful

registrants were considered and reflected

in their minutes of May 20 through May 30,

1985, and July 9, 1985. The minutes show

that registration appeals were summarily

reviewed and rejected by the Port LRC. PMA

and Young testified that individuals were

not requested to appear before the Port LRC

to discuss the substance of their appeals.

The Port LRC's discouragenent

of appeals is also reflected in individual

instances involving the Petitioners. Davis

was notified on July 19, 1985, that her

appeal was denied. The Davis grievance

specifically alleges favoritism in the

selection process and gives general

examples. The Port LRC denied Davis'

grievance on the grounds that it was not a

§13 grievance. Moreover, the Coast LRC

requires a §13 grievant to be notified in

writing of his or her appeal rights by the

Port LRC when the Port LRC denies a §13

grievance. The Port LRC failed to notifiy

Davis of further avenues of appeal in the

notice of denial.

The declarations of Petitioners

Wasserman and Schreiner show that nepotism

and favoritism in the registration process

were raised in their individual grievances.

To date, both grievances are pending before

the Port Committee.

Therefore, Respondents are

estopped from the action of the Port LRC

from asserting exhaustion as a defense.

The Port LRC or its members have actively

discouraged appeals, summarily rejected

appeals, failed to notify individuals of

further appeal rights, and ignored appeals.

CONCLUSION

For the foregoing reasons, it is

respectfully requested that the Petition

for Writ of Certiorari be granted.

DATED: November 20, 1990

Newport Beach, CA

Respectfully submitted,

SILVER, GOLDWASSER & SHAEFFER

A Professional Law Corporation

wy LU Shaiff-

GEORGE W. SHAEFFER, JR.

Attorneys for Petitioners

A0306.PET

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SES AON Ee

Pid

APPENDIX

. - in Ta ee eS ee eee ee

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN CARR, et al.,

Plaintiffs-Appellants, Nos. 87-6137

87-6497

Vv.

D.C. Nos.

PACIFIC MARITIME ASS'N, CV-85-7243 FFF

St Gi, CV-86-0345 FFF

CV-86-1859 FFF

Defendants~Appellees.

/ OPINION

GREG BROOKS, JURY CHECKERS,

et al.,

Plaintiffs-Appellants,

Vv.

PACIFIC MARITIME ASS'N,

et al.,

De fendants-Appellees.

as /

Appeal from the United States District

Court for the Central District of California

Ferdinand F. Fernandez, District

Judge, Presiding

Argued and Submitted

September 16, 1988-Pasadena, California

Filed May 21, 1990

Before Wm. A. Norris, Cynthia H. Hall

and Alex Kozinski, Circuit Judges.

Opinion by Judge Kozinski;

Dissent by Judge Hall

“|

KOZINSKI, Circuit Judge:

Applicants for registration as class

B longshoremen and clerks seek damages and

injunctive relief, claiming that the

registration process was tainted by

nepotism, favoritism and discrimination.

The district court found that the

applicants failed to exhaust contractual

grievance procedures and that their failure

was not excused. Plaintiffs appeal the

district court's grant of summary judgment

and dismissal of their action. We review

the district court's grant of summary

judgment de novo. DParring v. Kincheloe 783

F.2d 874, 876 (9th Cir. 1986).

I. FACTS

Plaintitfs are 128 casual

longshoremen and clerks whose applications

for registration as\class B longshoremen or

Clerks in the Los Angeles area were

2 a

rejected. + Defendants are the Pacific

Maritime Association (PMA), an association

of West Coast stevedoring, shipping and

terminal companies; the International

Longshoremen's and Warehousemen's Union

(ILWU), the exclusive bargaining

representative of longshoremen and clerks

who work for PMA members; ILWU Local 13

(Local 13), the chartered, affiliated local

of the ILWU for longshoremen in the Los

Angeles area; and ILWU Local 63 (Local 63),

the chartered, affiliated local of the ILWU

for clerks in the Los Angeles area.

Defendants are parties to the Pacific Coast

1 Three groups brought suit: The Carr

Group (109 unsuccessful Class Bunion

registrants) filed suit on November 5,

1985; the Brooks Group (11 unsuccessful

Class B union registrants) filed suit on

January 15, 1986; and the Checkers Group (8

unsuccessful Class B union registrants)

filed suit on March 24, 1986. These three

actions have been consolidated on appeal.

; 6

Longshore Contract Document and the Pacific

Coast Clerk Con*.ct Document (the

Contract), which govern the terms and

conditions of employment for longshoremen

and clerks.

This controversy arises out of the

registration of approximately 387 class B

longshoremen and clerks by defendants in

late 1984. Approximately 22,250

applications were submitted for

registration by September 26,- 1984.

Appiications were scored by a Joint

Registration Committee, a tripartite

committee composed of representatives of

the PMA, Local 13 and Local 63.

The first phase of the registration

process was completed on May 4, 1985. The

Coast Labor Relations Committee (Coast

LRC), which issues rules governing the

registration and grievance process, had

4 a

established a ten-day grievance filing

period to commence upon completion of the

registration process. On May 6, 1985,

notices were posted in the longshore, clerk

and casual dispatch halls notifying

individuals that the initial phase of the

registration had been completed, and that

appeals would be considered timely if

received by the Joint Port Labor Relations

Committee (Port LRC) on or before May 15,

1985. The Port LRC received 318 timely

grievances.

On October 23, 1985, more than five

months after the close of the grievance

filing period, 109 unsuccessful registrants

(the Balsley Group) filed their First

‘Amended Statement of Grievance with the

Port LRC. They alleged favoritisn,

nepotism, arbitrary scoring and coaching of

applicants (non-section 13 Contract claims)

5 a

ee ee eA ee Se ee See a SS ee ee ee ee aay eee

Be Pe bt ot ie Ee be

and discrimination on the basis of non-

union membership (section 13 Contract

claims) by the Joint Registration

Committee. They also alleged violations of

Local 13's and Local 63's duty of fair

representation, and a breach of the

collective bargaining agreement by all

defendants.

Under the terms of the Contract, 2

the Port LRC resolves all non-section 13

Claims. Its decision is final and binding

2 section 11 of the Coastwise

Registration Rules, adopted by the Coast

LRC on August 10, 1984, provides that the

grievance procedures set forth in the

Contract "shall be the exclusive remedy

with respect to any disputes involving

registration or deregistration...[of]

persons working or seeking to work under

this Agreement....No other remedies shall

be utilized by any persons with respect to

any dispute involving registration or

deregistration until the grievance has been

exhausted." Coastwise Registration Rules,

§11 (August 10, 1984), quoted in David

Balsley, et al., Arbitrator's Decision at 7

(January 15, 1987) (Kagel, Arb.).

6 a

on all parties, unless there is

disagreement between the union and

managenent members of the Port LRC, in

which case an appeal to the Coast LRC is

allowed. See Contract §17.24.

Section 13 claims are _ processed

pursuant to section 17.4 of the Contract.

All section 13 claims must be filed within

ten days of the alleged discriminatory

incident. Contract §17.41. The Port LRC

has direction to extend the deadline for

filing section 13 claims up to six months

from the date of the alleged discriminatory

act "to prevent inequity." Contract

§17.411. The Port LRC's decision may be

appealed to the Coast LRC, provided the

request for review is made within seven

days of the Port LRC's decision. Contract

§17.42. The Coast LRC's decision is

further appealable to the Coast Arbitrator,

7, @

eee ee ee

again under the condition that the appeal

be made within seven days of the Coast

LRC's decision. Contract §17.43. Neither

the Port LRC, the Coast LRC nor the Coast

Arbitrator can extend the latter two

periods or the period for challenging non-

section 13 claims.

On April 11, 1986, the Port LRC

ruled that the Balsley Group's section 13

and non-section 13 claims were time-barred.

The Port LRC also rejected the grievants'

request that it extend the filing deadline

for the section 13 claims to six months.

The Balsley Group appealed its

section 13 claims to the Coast LRC on April

17, 1986.2 On May 1, 1986, the Coast LRC

3 Two other groups filed grievances

with the Coast LRC, incorporating by

reference the allegations made in the

Balsley Group grievance. The Checkers

Group filed on March 25, 1986; the Brooks

Group filed on January 16, 1986. Neither

8 a

held that the group's section 13

discrimination claim was time-barred. The

Coast LRC also ruled that the Port LRC did

not abuse its discretion by refusing to

extend the filing period for the section 13

claims.

The Balsley, Brooks and Checkers

Groups filed a consolidated appeal before

the Coast Arbitrator in May 1986. The

parties stipulated that the only issue

before the Coast Arbitrator was the

timeliness of their section 13 claims.

District court proceedings were stayed

pending the Coast Arbitrator's decision.

On January 15, 1987, the Coast

Arbitrator held that the grievants' section

group filed a group grievance with the Port

LRC before pursuing their remedies with the

Coast LkC. The grievances of both groups

were found to be time-barred by the Coast

LRC.

13 discrimination claims were time-barred.

He found that the grievants either knew or

should have been aware of allegations of

nepotism, favoritism and discrimination in

the registration process prior to the May

15, 1985, filing deadline. The Coast

Arbitrator concluded that the allegations

made in the October 23, 1985, amended

grievance could have been raised in a

timely manner. The Coast Arbitrator found

that the Port LRC did not abuse its

discretion in deciding not to extend the

filing deadline for section 13 claims.

The district court granted summary

judgment for defendants in all three

actions.4 The district court refused to

4 See Carr v. Pacific Maritime Ass'n,

No. CV 85-7243-FFF (C.D.Cal., filed June 3,

1987); Brooks v. Pacific Maritime Ass'n,

No. CV 86-345 FFF (C.D.Cal. Sept. 29,

1987); Checkers v. Pacific Maritime Ass'n,

No. CV 86-1859 FFF (C.D.Cal. Sept. 29,

10 a

excuse plaintiffs’ failure to exhaust their

contractual remedies and dismissed their

claims for breach of collective bargaining

agreements and for breach of the union's

duty of fair representation under section

301 of the Labor Management Relations Act

of 1947, 29 U.S.C. §185 (1982).°

II. DISCUSSION

{1} A. As a general rule, members

of a collective bargaining unit must first

exhaust contractu?l grievance procedures

before bringing an action for breach of the

collective bargaining agreement. See,

e.g., Clayton v. UAW 451 U.S. 679, 686

(1981). This requirement applies with

equal force to claims brought against a

1987).

5 The district court dismissed

without prejudice claims by plaintiffs

whose grievances were timely filed.

Ai ty ahve Sets alt £8

union for breach of the duty of fair

representation. See Vaca v. Sipes 386 U.S.

171, 184-85 (1967). Failure to utilize the

grievance procedures, or to invoke them in

a timely manner, bars’ grievants from

pursuing remedies in court. See Republic

Steel Corp. v. Maddox 379 U.S. 650, 652

(1965). At a minimum, therefore, members

of the bargaining unit must first turn to

the grievance procedures for a remedy. Id.

at 652-53.

(2) Plaintiffs argue that they are

excused from exhausting tneir contractual

remedies because the alleged lack of

neutrality of the Port LRC rendered resort

to grievance process futile. See Republic

Steel, 379 U.S. at 652 (quoting Steele v.

Louisv ashv » 833 BB. Ba,

206 (1944) ("employees should [not] be

required to submit their controversy to ‘a

12 a

group which is in large part chosen by the

{(defendants] against whom their real

complaint is made'")); see also Williams v.

Pacific Maritime Ass'n, 617 F.2d 1321, 1328

n.13 (9th Cir. 1980) (dicta), cert. denied,

449 U.S. 1101 (1981). We have held,

however, that a plaintiff waives his right

to claim bias on the part of the grievance

committee unless he raises the objection

when the committee convenes. Sheet Metal

Wo : Vv

Kinney Air Conditioning Co., 756 F.2d 742,

746 (9th Cir. 1985). This is the rule in

several other circuits as well. See e.g.,

Ea Vv 1 , 699 F.2d 552,

558 (lst Cir.), cert. denied, 464 U.S. 824

(1983); Cook Industries, Inc. v. ¢. Itoh &

Co., Inc., 449 F.2d 106, 107-08 (2d Cir.

1971), cert. denied, 405 U.S. 921 (1972);

United Steelworkers of America Local 1913

13 a

v. Union Railroad Co., 648 F.2d 905, 913-14

(3d Cir. 1981).

{3} In Kinney, plaintiffs attempted

to overturn an unfavorable arbitration

award on the theory that the grievance

process was. biased. We held that

plaintiffs had waived their bias claim

because they had not objected to the makeup

of the arbitration board at the time of the

grievance procedure. Kinney, 756 F.2d at

746. The rule of Kinney is easily extended

to this case.© Here, plaintiffs failed to

6 The dissent argues that this case

is distinguishable from Kinney because

"appellants are not signatories to the

applicable collective bargaining

agreement," and therefore "had no direct

say in the establishment of procedures for

selecting panelists who would hear and

impartially decide their grievances."

Dissent at 5125. This seems to us

irrelevant. It will almost always be true

that a grievant will not be a signatory to

the collective bargaining agreement; by

virtue of representation, individual union

members rarely have much of a direct say in

14 a

object in a timely manner to alleged bias

in the Port LRC. Moreover, they did not

attempt to use the grievance procedure

within the specified time limits. Yet they

come to court now claiming that such

the procedures set up to arbitrate

grievances. Surely the Kinney rule is not

limited to signatories to the collective

bargaining agreement; any grievant is

capable of objecting to the composition of

an arbitration panel. See e.g., United

Steelworkers 648 F.2d at 913-14 (applying

the rule to an individual union member);

Early 699 F.2d at 558 (same). Perhaps the

dissent is referring to the fact that

plaintiffs are not union members. se

cannot be, however, that non-members of the

union have greater rights to avoid

grievance procedures than union members.

The dissent also contends that

plaintiffs' statement of grievance to the

Port LRC may be read as an implied

objection to the neutrality of the Port LRC

itself. Dissent at 5125-26. This, too, is

irrelevant. Plaintiffs' filed their

grievance, over five months after the

deadline. If, at the time of the original

filing deadline, plaintiffs had reason to

Suspect the Port LRC was biased, plaintiffs

could have filed their "implied" objections

timely; if they did not suspect bias at

that time, they had no reason not to file.

15 a

failure should be excused because of bias

in the Port LRC. It would defy logic to

hold that plaintiffs, like those in Kinney,

who use a grievance procedure without

objection waive their right to claim bias,

while those, like the present plaintiffs,

who offer no objection to the procedure and

fail to use it are to be afforded the

protection of the courts. To allow these

plaintiffs to bring their bias claim would

create perverse incentives to avoid

grievance procedures that would undermine

our traditional deference to private

dispute resolution in labor relations.

Therefore, because plaintiffs did not

timely notify the Port LRC that’ they

believed the grievance procedure was

16 a

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tainted, they cannot claim bias now.’

Appellant Nancy Davis presents a

special case. She filed her grievance with

the Port LRC before the close of the filing

period. In her letter of April 24, 1985,

to the Port LRC, Davis alleged, inter alia,

nepotism, favoritism and coaching of

favored applicants. The Port LRC rejected

her claim without notifying her of her

right to appeal any section 13 claims she

might have presented. The Coast

Arbitrator, in interpreting the Contract,

apparently found that Davis had raised a

7 Contrary to the dissent's

assertions, we do not require that

plaintiffs have “exhausted the grievance

procedure," or that they "go through the[ ]}

entire" process. Dissent at 5126-27. To

preserve their bias/futility clain,

plaintiffs simply needed to notify the Port

LRC in a timely manner that they believed

the grievance procedure was biased so that

the Port LRC might have an opportunity to

act on that complaint.

17 a

section 13 claim, but that she had waived

her right to appeal it by failing to appeal

the Port LRC's decision to the Coast LRC

within several days. Although a Coast LRC

rule requires the Port LRC to inform all

grievants who allege section 13 claims of

their right to appeal to the Coast LRC, see

Letter from ILWU-PMA Joint Coast Labor

Relations Committee to ILWU Locals and PMA

Area Offices (July 18, 1979), we cannot

overturn the Coast Arbitrator's

interpretation of the contract or his

application of the rules issued pursuant to

it. "({A]s long as the arbitrator is even

arguably construing or applying the

contract and acting within the scope of his

authority, that a court is convinced he

committed serious error does not suffice to

overturn his decision." United Paperworkers

Int'l Union v. Misco, Inc., 484 U.S. 29, 38

18 a

(1987). We must therefore reject Davis'

claim as well.

(4) B. Plaintiff's next allege that

their failure to exhaust their contractual

remedies should be excused because of the

inadequacy of the grievance processes and

remedies. They argue that the grievance

mechanics are flawed because they do not

provide for pre-hearing discovery,

representation by counsel before the Port

LRC, appointment of a special master by the

Coast Arbitrator to control future

registrations, or the award of attorney's

fees to grievants who succeed before the

arbitrator. None of these alleged flaws,

however, prevented plaintiffs from at least

attempting to invoke the contractual

19 a

‘

remedies in a timely manner.® At a

minimum, grievants must present and

prosecute their grievances through

contractual procedures before complaining

8 The dissent argues that "(i]t was

highly unreasonable to expect individuals

to muster, in ten days and without any

discovery, proof of pervasive nepotism and

favoritism sufficient to prepare a

grievance stating a claim for violation of

the collective bargaining agreement."

Dissent at 5128-29. But, under the

collective bargaining agreement, grievants

aren't required to "muster proof"; the

initial filing need only set out "the facts

as to the alleged discrimination."

Contract §17.41. It is the job of the Port

LRC to "“investigate" all grievances.

Contract §17.124. Three hundred and

eighteen other grievants apparently had no

problem meeting the 10-day requirement.

This group included Carr appellant Nancy

Davis, whose timely filing alleged

favoritism and nepotisn.

Instead of filing timely, plaintiffs

conducted an independent five-month

investigation. As the dissent states, "the

collective bargaining agreement neither

required not forbade" plaintiffs'

investigation. Dissent at 5129 n.10. But

the agreement did require that plaintiffs

at least notify the Port LRC that they had

a complaint.

20 a

of the inadequacy of those processes. See

e.g., Hines _v. Anchor Motor Freight, 424

U.S. 554, 563 (1976) (grievant cannot

"sidestep the grievance machinery...unless

he attempted to utilize the contractual

procedures for settling his dispute with

his employer"); Beriault v. Local 40, Super

Cargoes & Checkers, Int'l Longshoremen's &

Warehousemen's Union 501 F.2d 258, 262 (9th

Cir. 1974). Thus, the assertion by

plaintiffs that the grievance and

arbitration procedures were inadequate is

entirely speculative, since plaintiffs

failed to avail themselves of those

remedies in a timely manner.

¢)} im We must also reject

Plaintiffs' claim that the Port LRC's

refusal to extend the filing deadline for

their section 13 discrimination claim and

its "discouragement of appeals" amounts to

a repudiation of the grievance procedure.

The plaintiffs' ability to have a neutral

arbitrator review the Port LRC's decision

cures whatever bias there may have been in

the Port LRC's decision making process.

See Ritza_v. Int'l Longshoremen's &

Warehous 's Union, 837 F.2d 365, 370

(9th Cir. 1988) ("any hostility that may

exist at the joint coast level is cured by

the availability of neutral arbitration").

As already noted, the Coast Arbitrator

determined that the Port LRC's decision not

to extend the deadline was not an abuse of

discretion. We must accord great deference

to such findings by arbitrators acting

pursuant to collective bargaining

procedures. See e.g., Misco, 484 U.S. at

36-38. As to the non-section 13 claims,

the Port LRC had no authority to extend the

filing deadline. Plaintiffs may therefore

22 a

not complain that the Port LRC abused its

discretion or acted with partiality in

failing to extend those filing deadlines.

The Port LRC's failure to notify

applicants of their right to appeal the

Joint Registration Committee's decision

when applicants' registration fees were

returned does not constitute repudiation of

any aspect of the contract. All

applications contained a notice to

applicants of their right to appeal the

Joint Registration Committee's decision; no

other notification was required.

Nor does plaintiffs' suggestion that

"registration appeals were summarily

reviewed and rejected by the Port LRC,"

Appellants' Brief at 47, establish that the

Port LRC discouraged appeals. Indeed, the

fact that numerous applicants successfully

appealed the Joint Registration Committee's

23 a

decision suggests that the Port LRC was

more than a rubber stamp.

D. Plaintiffs also claim the

union's alleged breach of its duty of fair

representation excuses their failure to

comply with the grievance procedures.

Although plaintiffs claim that the union

breached its obligation to "represent those

in a designated unit, to serve their

interest without hostility or

discrimination, and to exercise its

discretion with complete good faith,

honesty, and to avoid arbitrary conduct,"

Appellants' Brief at 40, in essence their

fair representation claim focuses not on

the union itself but on the actions of the

union members on the Joint Registration

Committee and the Port LRC.

There are two situations in which a

breach of the duty of fair representation

24 a

excuses the exhaustion requirement: First,

where “the union has sole power under the

contract to invoke the higher stages of the

grievance procedure, and it...the employee-

plaintiff has been prevented from

exhausting his contractual remedies by the

union's wrongful refusal to process the

grievance," Vaca v. Sipes, 386 U.S. at 185

(emphasis original); second, where

grievants allege a breach of the duty of

fair representation with regard to

negotiating the collective bargaining

agreement. Seé Williams, 617 F.2d at 1328.

The district ccurt correctly found

neither exception applicable. See Carr v.

Pacific Maritime Ass'n, No. CV 85-7243 FFF

(C.D. Cal., filed June 3, 1987); Brooks v.

Pacific Maritime Ass'n, No. CV 86-345 FFF

(C.D. Cal. Sep. 29, 1987); Checkers v.

Pacific Maritime Ass'n, No. CV 86-1859 FFF

25 a

(C.D.Cal. Sep. 29, 1987). The first

exception to the exhaustion requirement is

inapplicable, because the grievants can

utilize the contractual remedy process

without the help or approval of the union.

Thus, this case is distinguishable from

those where the union has assumed sole

responsibility of preparing and presenting

the grievant's claim. See Vaca v. Sipes,

386 U.S. at 185. Nor is this a case where

the grievants are seeking a remedy not

available through the grievance procedure,

such as modification of the contract. See

Beriault, 501 F.2d at 266. Plaintiffs are

not challenging some aspect of the

registration process that cannot be

corrected under existing grievance

procedures; instead, they merely allege

that certain union representatives on the

Joint Registration Committee and the Port

26 a

LRC unfairly reviewed their applications.

This allegation neither excuses plaintiffs’

failure to file their grievances on time or

to state their complaints with specificity,

nor justifies their decision to sidestep

the grievance process.

E. We do not consider plaintiffs'

argument that their failure to exhaust

contractual remedies is excused because of

delays in the grievance process, as that

allegation was not raised in the complaint.

Nor could they have raised such a claim

when their suits were filed, as they sought

judicial relief either before or shortly

after filing their group grievances. The

Carr Group brought suit on November 5,

1985, eleven days after filing its amended

grievance before the Port LRC; the Brooks

action was filed on January 15, 1986, one

day before that group submitted its

27 a

grievance to the Coast LRC; the Checkers

action was filed on March 24, 1986, one day

before that group filed its group grievance

before the Coast LRC. Thus, plaintiffs base

their assertion of unreasonable delay on

what occurred after, rather than prior to,

their resort to the district court.

For the same reasons, we do not

consider Wasserman's and Schreiner's claims

that the Port LRC's delay in deciding their

section 13 claims excuses their failure to

exhaust the grievance procedures. In July

1985, the Coast LRC remanded Wasserman's

section 13 grievance for further

proceedings before the Port LRC. On

October 3, 1985, the Port LRC considered

his individual grievance. On month later,

Wasserman filed suit in district court.

See Carr v. Pacific Maritime Ass'n, No. CV

85-7243-FFF (C.D.Cal. Nov. S, 1985).

28 a

Schreiner brought suit less than four

months after filing his second complaint

with the Port LRC. See Carr v. Pacific

Maritime Ass'n, No. CV 85-7243-FFF

(C.D.Cal. Nov. 5, 1985). Schreiner's and

Wasserman's claims are based on what

occurred after, rather than prior to, the

commencement of this action. The district

court was therefore correct in dismissing

both Wasserman's and Schreiner's claims

without prejudice and allowing them to

pursue their contractual remedies.

AFFIRMED.

HALL, Circuit Judge, dissenting:

The federal courts have long

followed a policy of giving great deference

to private dispute resolution in labor

relations. That policy is generally a

sound one, but private resolution has its

29 a

limits. As the United States Supreme Court

noted in Hines _v. Anchor Motor Freight,

Inc., 424 U.S. 554, 571 (1976), "Congress

has put its blessing on private dispute

settlement arrangements provided in

collective agreements, but it was

anticipated, we are sure, that the

contractual machinery would operate within

some minimum levels of integrity." In the

factual situation presented by this appeal,

the private law system appears to have

failed in its fundamental function of

dispensing industrial justice. This case

is thus an appropriate one for judicial

intervention.

Appellants have made quite a

compelling and troubling showing that the

1984-85 registration process was tainted

with nepotism and favoritism: perhaps 309

30 a

of the 410 successful longshore registrants

(out of 22,250 total applicants) had either

family or other close connections with

union or PMA officials, or with union

members. Allegations regarding the

composition of the Port LRC that conducted

the challenged registration process, and

then decided appellants’ and the individual

grievances that followed, are even more

troubling: several of the union and PMA

representatives to that committee

themselves had relatives among the

successful applicants.

Appellants also persuasively argue

that the informal grievance and arbitration

procedures, conducted within an extremely

constricted time frame and without

provisions for any meaningful discovery,

were wholly inadequate to the task of

fairly adjudicating the individual or class

31a

claims of nepotism and favoritism that

arose out of the 1984-85 registration.

Appellants' showing is sufficient to raise

serious questions of bias in, and futility

of, resort of the grievance and arbitration

process.

It is generally true that employees

must attempt to exhaust the grievance and

arbitration procedures established in a

collective bargaining agreement prior to

bringing an enforcement action in district

court under section 301 of the Labor

Management Relations Act, 29 U.S.C. §185.

Republic Steel Corp. v. Maddox, 379 U.S.

650, 652-53 (1965); Vaca v. Sipes, 386 U.S.

171, 184-85 (1967); Beriault v. Local 40

Super Cargoes & Checkers of ILWU, 501 F.2d

258, 262 (9th Cir. 1974). This exhaustion

requirement is, however, "subject to a

number of exceptions for the variety of

32 a

situations in which doctrinaire application

of the exhaustion rule would defeat the

overall purposes of federal labor relations

policy." Glover v. St, Louis-San Francisco

Ry.Co., 393 U.S. 324, 329-30 (1969);

Williams _v. Pacific Maritime Ass'n., 617

F.2d 1325, 1328, n.13 (9th Cir. 1981),

cert. denied, 449 U.S. 1101 (1981).2

In Williams, 617 F.2d at 1328-29 n.

13, we noted that there are several

situations in which an employee's failure

to completely exhaust contractual remedies

will be excused: (1) where the adjudicating

body in the private law system lacks

neutrality because it was chosen by the

very defendants against whom the employee's

1 through this exception is a judge-

made one, it should also be remembered that

the exhaustion requirement itself is a

judge-made requirement, not one mandated by

section 301 or the collective bargaining

agreement.

real complaint is made, Glover, 393 U.S. at

330-31; (2) where plaintiff's attempt to

use the grievance process is not successful

because the process is not "plain, speedy,

and adequate," see, Maddox, 379 U.S. at

652-53; and (3) where the judicial relief

requested is beyond the limited powers of

the arbitrator to grant, Beriault, 501 F.2d

at 266.

II.

Appellants' most compelling argument

concerns the first exception, namely, that

bias of the Port LRC makes the exhaustion

of administrative procedures futile.

Futility due to lack of neutrality can

arise where the union and management are in

collusion. Submission to administrative

procedures "would entrust representation of

the complaining employee to the very union

he claims refused hin fair

34 a

representation...." Lusk v. Eastern

Products Corp., 427 F.2d 705, 708 (4th Cir.

1970) (plaintiffs alleged that the

agreement bargained for between union and

management deprived them of proper wages;

lower court dismissed on theory that

defendants were required to submit

complaint to arbitration, appellate court

would have reversed on that theory but

affirmed on another theory). A grievance

and arbitration procedure, "administered by

the union, by the company, or both to pass

on claims by the very employees whose

rights they have been charged with

neglecting and betraying," could not be

trusted to remedy discrimination practiced

by union and employer in concert. Glover,

393 U.S. at 330-331. See also, Battle v.

Clark Equipment Co., 579 F.2d 1338, 1345-46

(7th Cir. 1978) overruled on other grounds,

35 a

679 F.2d 685 (7th Cir. 1982) (employees

alleged that their signatures to a

modification to the collective bargaining

agreement were fraudulently obtained, court

ruled that summary judgment could not be

sustained on the ground that appellants

failed to exhaust administrative remedies) ;

Fu fe) No Vv >» @€23 F.28 212

(Sth Cir. 1969), cert. denied, 406 U.S. 946

(1972) (appellant, who had been fired, was

not required to exhaust administrative

remedies which dictated that he bring

unfair practice charges before, first, the

very person who fire him, and second, the

board whose member he had accused of

misconduct).

In the instant case, appellants

present a plausible argument showing a

Similar type of futility due to collusion

between union and management to engage in

36 a

nepotism and favoritism during the

registration process. The registration

process is conducted by the Port LRC, which

is composed of representatives of the union

and management. If appellants’ allegations

are true, both union and management members

of the Port LRC panel that actually heard

and rejected appellants' group grievance

had close relatives who were successful

registrants in the 1984-85 registration

procedures. 2 Furthermore, the Port LRC not

only controls the registration process, but

also decides appeals regarding its own

registration decisions. Any pursuit of the

nepotism and favoritism claims through the

2 For example, when the Port LRC met

on October 16, 1985, to hear appellants'

grievance, David Aiian, President of Local

#13, sat as committee chair; Charles Young

was present to represent management.

During the 84-85 registration, Arian's

sister and Young's mother and girlfriend

were registered.

37 a

Port LRC would require Arian and Young (and

any other LRC members in a like situation?)

to concede their own misconduct. As we

stated in Williams, "({i]t is unlikely that

such persons could be entirely fair and

impartial. This lack of neutrality in the

adjudicating bodies renders exhaustion of

remedies futile." 671 F.2d at 1329, n.13.

Apparently, the majority recognizes

that the Port LRC may have been biased in

its review of the group. registration

3 Other members of the Port LRC who

reviewed the grievances and who also had

relatives registered are as follows:

Name Affiliation Relatives

Registered

D. Bark ILWU #63 2 sons

H. Kazmark ILWU #63 5 family members

A. Luera ILWU #13 7 family members

J. McCoy ILWU #13 1 family member

R. Ortega ILWU #13 3 family members

G. Peyton ILWU #63 2 family members

38 a

grievance. However, they decline to

address the merits of the appellants' bias

argument, denying the appellants’ access to

federal court solely because appellants’

attempt to file a registration grievance

was untimely, no matter how badly tainted

with bias the grievance procedures may have

been. I do not read our precedents as

requiring such a harsh application of the

exhaustion requirement.

The majority holds that appellants

"waived" their right to claim bias on the

part of the Port LRC by failing to raise

the objection when the committee convened.

The case on which they rely, Sheet Metal

Workers e ion ssociatio oca

#420 v. Kinney Air Conditioning Co., 756

F.2d 742 (9th Cir. 1985), simple does not

39 a

compel such a conclusion. 4 Kinney was an

action brought in federal court by a union

to enforce an arbitration award that was

entered against an employer after an

4 Such a conclusion is also not

mandated by the other three circuits which

the majority claims have similar rules.

Majority opinion at 5113. The cases cited

all involve appellants who went through an

arbitration process without objecting until

they received an adverse ruling. Then they

complained in federal court about bias

situations which they knew of prior to

proceeding with the arbitration. Such

situations are different from the instant

case where appellants claim that an attempt

to file a grievance would have been

fruitless. See Early; 699 F.2d at 558

(dismissed employee should have objected at

hearing to seating of local union president

when employee feared president would be

biased due to employee's past participation

in dissident union groups); Cook

Industries, 449 F.2d at 107-8 (appellant

cannot remain silent during arbitration

when he knows that one of four arbitrators

is employed by a competitor and then raise

the issue when an adverse ruling is

received); Unite W , 648 F.2d

at 913-14 (petitioner cannot wait until

second remand to challenge the composition

of the original hearing board that

investigated his dismissal from his

employment).

40 a

adjudication on the merits of the union's

contract claim. The employer claimed the

award should be vacated due to the

partiality of the arbitration panel. ve

rejected Kinney's bias argument because the

employer was a party to the agreement which

established the arbitration procedure,

because the panel members' financial

interest in the outcome of the proceedings

were known to Kinney before the hearing,

and because Kinney failed to object to the

selection of the panel members at the time

they were seated. Id. at 746.

Kinney does not rule on when a party

may be excused from exhausting the

grievance procedure before filing in

federal court. Rather, the petitioners in

Kinney had exhausted the grievance

procedure and were suing to vacate the

arbitrator's award. The court was

41 a

unwilling to allow the petitioners, who had

willing gone through the entire arbitration

hearing without complaint of partiality, to

make this argument for the first time in

federal court, as a way of circumventing

the arbitrator's adverse decision.

The instant case is distinguishable

from Kinney in several important respects.

First, appellants are not signatories to

the applicable collective bargaining

agreement. Unlike the employer in Kinney,

they had no direct say in the establishment

of procedures for selecting panelists who

would hear and impartially decide their

grievances, and for otherwise ensuring that

longshore registrations were conducted in

conformity with the substantive terms of

the agreement. In further contract to

Kinney, appellants never obtained a

determination on the merits of their

42 a

contract claims. It cannot be said of

appellants, as it could of the employer in

Kinney, that they came to federal court

seeking a redetermination of issues decided

adversely to them in the private system of

dispute resolution.

Furthermore, appellants in the

instant case implicitly did raise their

objection to having members of that body

adjudicate their grievance. By alleging

particular family connections between

successful registrants and PMA and union

officials, members, and employees, the

appellants’ objection to the Port LRC's

lack of neutrality appeared on the face of

the grievances. Thus, appellants have

preserved their right to claim bias on the

part of the Port LRC. Appellants' failure

to timely file their grievance is explained

by their belief that the Port 1RC would not

43 a

have given them a fair hearing and their

lack of pertinent information. The

appellants knew that many of the Port LRC

members were biased. In fact, there has

been a long history of court actions

against the Pacific Maritime Association

and the ILWU on just these grounds.°

5 This is the twelfth time allegations

of bias by the ILWU and the Pacific

Maritime Association have come before this

court. See Ritza v. ILWU, 837 F.2d 365

(9th Cir. 1988) (per curiam);

ILWU, No. 84-4061 (9th Cir. Apr. 22, 1985)

(slip opinion); Scott v, Pacific Maritime

Ass'n., 695 F.2d 1199 (9th Cir. 1983);

Williams vy. Pacific Maritime Ass'n., 617

F.2d 1321 (9th Cir. 1980); cert. denied,

449 U.S. 1101 (1981); Gibson vy. Local 40,

Supercargoes and Checkers, ILWY, 543 F.2d

1259 (9th Cir. 1976); NLRB v. ILWU, 514

F.2d 481 (9th Cir. 1975); Beriault v. Local

40, Supercargoes and Checkers, ILWY, 501

F>2d 258 (9th Cir. 1974); Griffin v.

Pacific Maritime Ass'n., 478 F.2d 1118 (9th

Cir. 1973)(per curiam), cert. denied, 414

U.S. 859 (1973); Pacific Maritime Ass'n, v.

NLRB, 452 F.2d 8 (9th Cir. 1971); Local 13,

ULWU vy. Pacific Maritime Ass'n., 441 F.2d

1061 (9th Cir. 1971) cert. denied, 404 U.S.

1016 (1972);

Ass'n., 434 F.2d 281 (9th Cir. 1970), cert.

44 a

Because the appellants were unaware of the

identities of the particular Port LRC

members who were to hear their cases, they

were unable to collect evidence in a timely

fashion. See section III of this dissent.

The majority's puzzling

interpretation of Kinney seems to suggest

that plaintiffs may be excused from the

requirement that they file their

registration grievances with the Port LRC

because of that committees' bias against

such claims, but that they would remain

subject to a separate requirement that they

present their bias "claim" in that forum

before proceeding to federal court with a

section 301 action. The majority's argument

suggests that because the longshoremen

denied, 401 U.S. 1009 (1971); Williams v.

Pacific Maritime Ass'n., 384 F.2d 935 (9th

Cir. 1967), cert. denied, 390 U.S. 987

(1968).

45 a

failed to complete this latter step, they

waived their right to object to the bias of

the board. This interpretation would

completely emasculate the bias/futility

exception. If the longshoremen had filed a

timely claim, they would not need the

exception to the exhaustion requirement

(for they would have successfully exhausted

the grievance procedure). The underlying

premise of the exception is that to force

the plaintiffs to file with a biased board

and go through their entire procedure is a

waste of time and money, merely delaying

6 The attempt to exhaust contractual

remedies made by petitioners in Glover

consisted simply of informal complaints to

the company regarding discrimination; they

have utilized the grievance procedure by

filing a formal complaint with the union or

the company. In the instant case there

have been at least as many complaints of

bias against the Pacific Maritime

Association and the International

46 a

not read Kinney so as to effectively over-

rule Glover. Thus the appellants should be

excused from failing to meet the 10-day

filing deadline, and indeed from filing at

all, because it would have been a futile

Longshoremen's and Warehousemen's Union, as

evidenced by the long list of lawsuits

(including this one) filed against them on

this ground. See n.5, above.

Additionally, appellants herein attempted

to comply by filing their claims five

months after the occurrence (there is no

time limit in the collective bargaining

agreement as to non-section 13 claims, and

the Port LRC could have granted a 6-month

filing extension on the section 13 claims).

Ritza also accepts the proposition

that there are exceptions to the exhaustion

requirement, making no mention of a

requirement that the petitioner first

"attempt" (but presumably fail) to utilize

the grievance procedure. Rather, the point

of the exception is that the plaintiff does

not have to fulfill the Maddox requirement

of first attempting to use the grievance

procedure. 837 F.2d at 370.

Thus, if plaintiffs fit within the

bias/futility exception, they are excused

from the requirement that they seek relief

in the grievance and arbitration process,

whether in a timely or untimely fashion.

47 a

act to submit a nepotism grievance to a

biased Port LRC panel on which both union

and management representatives had engaged

in the cronyism of which the appellants

complained. It is unlikely that if

appellants had filed their appeal within

ten days, the LRC would have found that it

was, indeed, selecting registrants

unfairly.

I would require the district court

to hold an evidentiary hearing (or at least

consider affidavits submitted by the

applicants’) on the issue of the potential

bias of the Port LRC regarding plaintiffs’

non-section 13 claims. In this manner,

7 In the instant case the judge made

no factual finding as to whether the panel

was actually biased, ruling instead that

mandated dismissal on the grounds

that petitioners waived their bias

objection by not presenting it to the LRC.

48 a

only meritorious claims of futility of

exhaustion due to bias will reach the

federal courts. Thus I would remand this

case for a judicial finding as to whether

the bias of the Port LRC made filing a

grievance with them futile. If the judge

finds that this exception to the exhaustion

requirement has been proven by the

plaintiffs,® I would allow them to file in

federal court. If the plaintiffs fail to

8 Because I do not command a majority

of this panel, I will not delineate the

standard of proof that the plaintiffs would

be required to satisfy. However, there are

a number of options, including requiring

the plaintiff to show a prima facie case of

bias so as to get past summary judgment;

having them prove bias by a preponderance

of the evidence; or requiring them to show

bias by clear and convincing proof. If

they make only a prima facie showing, they

will have to prove bias at trial. I

believe an argument can be made (for

requiring clear and convincing proof in an

evidentiary hearing before trial, in order

to further the policy of private dispute

resolution in the employment context,

except where this machinery breaks down.

49 a

prove that the Port LRC was biased, the

judge should then dismiss the complaint.

Iil

Appellants' second argument for why

they should be excused from exhausting

their contractual remedies is that the

grievance process is inadequate. Unlike

the bias/futility exception (see n.6,

supra) this exception does, in the normal

Situation, require that appellants make

some attempt to implement the procedures

and find them inadequate. See Maddox, 379

U.S. at 653.9

It is undisputed that appellants

attempted to follow contractual procedures

9 Maddox was decided prior to Glover.

It is only logical that for the inadequate

exception the petitioner must attempt to

implement the procedures before finding

them inadequate, while with the futility

exception such an attempt would be useless.

50 a

—

for obtaining relief on their group

grievance by filing before the

discretionary six-month deadline for

section 13 grievances. The majority

summarily dismisses plaintiffs' attempt

because their grievance wasn't filed within

the 10-day filing period. It was highly

unreasonable to expect individuals to

muster, in ten days and without any

discovery, proof of pervasive nepotism and

favoritism sufficient to prepare a

grievance stating a claim for violation of

the collective bargaining agreement.1°

10 Details of the identities of those

registered was not known during the 10-day

appeal period; identities of those

individuals who would hear appeals was not

known; thus the specific family connections

could not be known during the 10-day

period. The information regarding family

connections of those registered was not

easily obtained because the Port LRC has

never published, or made available to

anyone other than union or PMA officials, a

list of applicants who were registered

51a

Instead, appellants diligently pursued such

proof through the informal channels of

discovery before filing their "group

grievance" in October 1985, well within the

six-month period allowable at the

discretion of the Port LRc.12 Given the

during the 1984-85 registration process.

Appellants gathered information by

interviewing a substantial number of people

over a long period of time.

Of course, the collective bargaining

agreement neither required nor forbade

appellants' investigation. However, the

fact that they felt the need to conduct an

independent investigation indicates that,

although they knew that grievances were

supposed to be filed within the 10-day

period, they believed it would have been

futile to proceed before a biased panel of

the Port LRC without rock-solid and

compelling proof of a violation of the

collective bargaining agreement.

11 «It is important to note that there

is no time limit stated ir the collective

bargaining agreement for filing non-section

13 grievances.

The Coast LRC, apparently with the

consent of union representatives,

established the ten-day period for

52 a

potentially hostile forum to which

appellants were initially required to

present their proof, I would hold that

their attempt to pursue contractual

remedies was sufficient to satisfy the

Maddox requirement that grievants must

generally attempt to use the administrative

grievance process before asking for a

judicial declaration of its inadequacy.12

The majority treats appellants’

grievances arising out of the 1984-85

registration. It may not have been, and

the Coast Arbitrator concluded it was not,

an abuse of discretion to refuse to apply

the six-month limitations period to

appellants' section 13 claims. Note,

however that that was the only issue

presented to the neutral arbitrator.

Whether appellants' non-section 13 claims

were timely filed is a separate issue that

was decided only by the Port LRC and

(implicitly) by the district court.

12 The plaintiff in maddox made no

attempt to use the 3-step administrative

grievance procedure to recover severance

pay. Instead, three years later, he filed

an action in federal court.

53 a

unsuccessful attempt as if it were equal to

no attempt and states that appellants are

barred from federal court because

"grievants must present and prosecute their

grievances through contractual procedures

before complaining of the inadequacy of

those processes" and appellants have not

completed such processes. (Majority

opinion at page 5115-16). They rely on

Hines, 424 U.S. at 563, and Beriault, 501

F.2d at 262, to support their assertion. I

do not read these two cases to preclude an

exception in the instant case.

The Hines case contains absolutely

no discussion of what the "attempt" must

consist of, as the appellant in Hines had

fully exhausted the grievance procedure,

and obtained an adverse administrative

decision. The court allowed the federal

suit, despite a final arbitration decision

54 a

{

“on the merits, because the grievance

procedure and arbitration had been

inadequate. This inadequacy stemmed from

the union's failure to even minimally

investigate the theft charges against the

appellee, which later information revealed

to be false. The court held that "[ajs is

the case where there has been a failure to

exhaust, however, we cannot believe that

Congress intended to foreclose the employee

from his §301 remedy otherwise available

against the employer if the contractual

processes have been seriously flawed by the

union's breach of its duty to represent

employees honestly and in good faith and

without invidious discrimination or

arbitrary conduct." Hines, 424 U.S. at

55 a

570.13

Likewise in Beriault the Court again

noted the general rule that employees must

attempt to exhaust the grievance

arbitration procedure, but goes on to note

that "fujnder certain circumstances,

however, an employee may obtain judicial

review of his’ breach-of-contract claim

despite his failure to pursue contractual

remedies." Beriault, 501 F.2d at 262. In

Beriault the plaintiffs made no real effort

to prosecute their grievance. Id. These

plaintiffs failed to present any evidence

to support their grievance at a hearing

13° In Hines there was no conspiracy

between the union and the employer. The

employer honestly believed the employee was

stealing, the union just failed to

adequately investigate the charges. There

was no bias on the part of the arbitration

hearing committee, thus the futility/bias

exception was not applicable. Yet the

court allowed petitioner to file in

district court under section 301.

56 a

befcre the Joint Port Labor Relations

Committee. Plaintiffs were invited to

return and present additional evidence at a

later time, but again failed to do so.

Plaintiffs' actions in Beriault, thus,

cannot be said to be in any way similar to

the appellants' actions in the case at bar.

The appellants in the instant case made

every reasonable attempt to gather and

present evidence of bias, but the Port LRC

refused to hear it. Further, the Port LRC

had discretion to allow plaintiffs'

grievances to be filed for a period of up

to six months. Considering the difficulty

of obtaining evidence, plaintiffs' good

faith effort to file their grievance should

have been allowed.

Furthermore, unlike the majority, I

would not reject the appellants’ argument

57 a

that their failure to exhaust

administrative remedies should be excused

because the grievance procedures are

subject to unreasonable delays. As far as

we can tell, at the time this appeal was

filed, those members of the appellant

Classes who timely filed individual

grievances alleging favoritism and nepotism

were still awaiting a decision by the Port

LRC. Certainly the majority would not

expect appellants to sit on their contract

rights until an "unreasonable" period of

time had elapsed, and risk running afoul of

the statute of limitations for a court

action. I would accept the appellants'

argument about unreasonable delays in the

private law system at least insofar as it

illuminates the fundamental procedural

inadequacy of the grievance and arbitration

procedure to deal with a large class of

58 a

related grievances arising out of an

allegedly discriminatory registration

process.

The majority further believes that

even if the Port LRC was biased, or the

grievance procedures-were inadequate, any

such bias or inadequacy was cured by having

an independent arbitrator available at the

end of the grievance and arbitration

process. I recognize and concede the

validity of this argument with respect to

the section 13 claims. See Ritza v. Int'l.

F.2d 365, 370 (9th Cir. 1988). However,

independent arbitration was not available

to appellants for their non-section 13

Claims of favoritism (nepotism) and bad

faith in the registration and employment of

59 a

longshore workers and clerks.14 Thus these

Claims are not barred by the Ritza

analysis.

Appellants' showing, with respect to

both the registration process and the

procedures for guaranteeing that

registration is conducted in accordance

with the tervs of the collective bargaining

agreement, is sufficiently troubling as to

indicate that this is, regrettably, one of

those are cases in which the private law

system has broken down. It would have been

a futile act to submit a timely grievance

based only on rumors and speculations for

investigation and decision to a biased Port

14 Independent arbitration is

available only for section 13 claims, by

appeal from the Port LRC to the Coast LRC,

and then to the Coast Arbitrator. In the

case of non-section 13 grievances, the Port

LRC is the sole and final arbiter.

60 a

LRC panel on which both union and

management representatives had what appears

to be a serious conflict of interest. The

private machinery for dispensing industrial

justice appears to have broken down in this

case. If appellants can prove bias, I

would excuse them from exhausting the

contractual grievance procedures, and allow

them to proceed with their proof on the

merits of their group grievance. Thus I

would REVERSE AND REMAND.

61 a

FILED

JUN 3, 1987

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No.

CV 85-7243 FFF

JOHN CARR, et al.,

)

Plaintiffs, )

) STATEMENT OF

Ve ) UNCONTROVERTED

) FACTS AND

PACIFIC MARITIME ASSN., ) CONCLUSIONS OF

et al., ) LAW

)

Defendants. )

)

The motions of defendants Pacific

Maritime Association ("PMA"), International

Longshoremen's and Warehousemen's' Union

("ILWU"), and International Longshoremen's

and Warehousemen's Union Locals 13 and 63,

for summary judgment were heard by this

Court on April 20, 1987. The Court, having

considered the evidence, determines’ the

following facts to be uncontroverted and

makes the following conclusions of law.

62 a

UNCONTROVERTED FACTS

1. PMA is a multi-employer

association that handles labor relations

matters for employers in the _ shipping

industry in ports along the pacific coast.

ILWU and its Local 13 and 63 represent the

longshoremen, clerks, and foremen who

comprise the affected bargaining unit in

this industry.

2. PMA and ILWU operate dispatch

halls in each port area from _ which

longshore labor is dispatched to various

waterfront locations. From time to time,

PMA and ILWU agree to register or

deregister laborers. Only registered

longshoremen are eligible for dispatch from

these halls.

3. In August 1984, the Joint Coast

Labor Relations Committee ("Joint Coast

LRC") which is composed of employer and

63 a

labor union representatives, authorized the

registration of 300 additional Class B

longshoremen and 50 additional Class B

marine clerks for the Los Angeles/Long

Beach area. Approximately 30,000

applications were distributed to interested

persons. By September 26, 1984,

approximately 22,250 completed applications

were returned.

4. The plaintiffs, 109 unsuccessful

applicants for registration, contend that

the registration process was tainted by

favoritism, nepotism, cronyism, coaching of

certain applicants and improper scoring of

certain applications. It is uncontroverted

that the allegations of improprieties were

common knowledge among members of the

casual longshore work force. Most of the

plaintiffs worked as casual longshoremen

and clerks.

64 a

—__—_

‘

5. By April 9, 1985 the

registration committee completed the

registration of 50 clerks and 250

longshoremen. The committee agreed to

proceed with the registration of 87

additional longshoremen. The additional

registrations were completed by May 4,

1985.

6. The union and employer members

of the registration committee could not

agree on the mechanics of an appeal

procedure for unsuccessful registration

applicants. The disagreement was referred

to the Joint Coast LRC. On April 26, 1985,

the Joint Coast LRC instructed the

registration committee to post notice when

the current phase of registration had been

completed. The Joint Coast LRC further

instructed that grievances concerning that

phase of registration must be filed within

65 a

ten days of the posting of such notice.

7. On May 6, 1985, the registration

committee posted notice of the termination

of the initial phase of the registration

process at various locations including the

offices of the PMA, the ILWU Local 13

longshore dispatch hall, the ILWU Local 63

dispatch hall, and the casual dispatch hall

located at Berth 179, Wilmington,

California. The notice advised that

appeals or grievances filed after May 15,

1985 would be considered untimely.

8. Several of the plaintiffs saw

the posted notice. The notice was also

widely discussed.

9. In response to the notice,

approximately 318 appeals were filed by

unsuccessful applicants. Of these, 30 were

subsequently registered.

10. On October 16, 1986, plaintiffs

; 66 a

Te Ee

filed a formal group grievance with the Los

Angeles-Long Beach Port LRC. The grievance

complained of arbitrary testing, selections

for registration based on family

connections, and selective disclosure of

information to aid certain applicants.

11. The employment of longshore

workers is governed by a collective

bargaining agreement, the Pacific Coast

Longshoremen's and Clerk's Agreement

("PCLCA"). The plaintiffs' grievance

alleged the registration process violated

various provisions of PCLCA that call for

good faith in the registration process,

promotion from the ranks, promotion based

on merit, and provisions that forbid

favoritism and discrimination.

12. The instant action was filed

November 5, 1985.

13. The Joint Port LRC denied

2 67 a .

plaintiffs' grievance on April 11, 1986.

The grounds for the denial were that the

grievance was not filed within the ten-day

period specified in the May 6, 1985 notice.

In addition, the denial was based on PCLCA

§17.41, which provides that one may file a

Claim for discrimination within ten days of

the occurrence of the discrimination.

14. Plaintiffs appealed their

grievance to the Joint Coast LRC which

upheld the Port LRC's decision. They then

appealed the discrimination claims to the

Coast Arbitrator, Sam Kagel. There is no

evidence that plaintiffs ever objected to

the lack of neutrality of either LRC or the

arbitrator.

15. On January 15, 1987, Kagel

issued his decision denying plaintiffs'

Claims on the grounds of untimeliness. He

found that grievants knew or should have

68 a

known of the May 15, 1985 appeal deadline

and the alleged improprieties in the

registration process. He also rejected

plaintiffs' argument that the appeal

limitations periods should have been

extended.

16. The PCLCA states that it

provides the exclusive remedy for disputes

arising between employees and the PMA. In

addition, the Joint Coast LRC's Memorandum

of Coastwise Rules Covering Registration

and Deregistration of Longshoremen and

Clerks provides that the PCLCA's grievance

procedures shall be the exclusive remedy

with respect to registration disputes

between an applicant for registration, the

PMA, and the ILWU. The PCLCA and Coastwise

Rules also provide that no other remedies

may be utilized until the grievance

procedure has been exhausted.

69 a

17. Plaintiff John Carr alleges

that he was told by Local 13 President

David Arian that there was no need to

appeal the denial of this application for

registration, but rather to update his

application. Plaintiff Jesse Gann's

"understanding" from a loudspeaker

announcement was that one must have had an

interview in order to appeal. Neither Carr

nor Gann denies knowledge of the widely

disseminated notices explaining the appeals

procedure.

18. At least one of the plaintiffs,

Stanley Wasserman, did file a timely

individual grievance regarding the denial

of his registration. That grievance is

still pending.

19. Any statement of uncontroverted

fact that are included in the conclusions

of law are incorporated herein.

70 a

CONCLUSIONS OF LAW

1. The Court has jurisdiction over

this action pursuant to Section 301 of the

Labor Management Relations Act, 29 U.S.C.

§185.

2. Exhaustion of contract grievance

procedures is a prerequisite to a Section

301 action. Republic Steel Corp. v.

Maddox, 379 U.S. 650, 85 S.Ct. 614, 13

L.Ed.2d 580 (1965). Failure to invoke a

timely grievance constitutes a failure to

exhaust the grievance procedures. “Sée,

Stephens _v. Postmaster General, 623 F.2d

594, 595 (9th Cir. 1980).

3. When a collective bargaining

agreement calls for final and binding

arbitration, the arbitrator's decision is

ordinarily final, see United Steel Workers

v. Enterprise Wheel and Car Corp., 363 U.S.

593, 599, 80 S.Ct. 1358, 1362 (1960),

71a

including the arbitrator's decision

regarding the timeliness of the grievance.

See John Wiley & Sons, Inc. v. Livingston,

376 U.S. 543, 84 S.Ct. 909 (1964).

4. The Coast Arbitrator's decision

concerning plaintiff's claims of

discrimination is final and binding. No

extraordinary circumstances are present

that would justify overturning that

decision.

5. The remainder of plaintiffs'

group claims are similarly barred due to

the failure to file them by May 15, 1985.

In that regard, the decisions of joint

employer grievance committees are binding.

See Donley v. Motor Freight Express, 344

F.Supp. 290 (W.D. Penn. 1972), aff'd, 481

F.2d 1398 (3d Cir. 1973).

6. This Court cannot accept

plaintiffs' argument that they attempted to

72 a

exhaust their administrative remedies once

they had sufficient evidence with which to

do so. Arbitrator Kagel's finding that

plaintiffs were in a position to file their

Claims of discrimination prior to May 15,

1985 was supported by the record and

applies with equal force to all of

plaintiffs' claims.

7. The Court also rejects

plaintiffs' attempt to excuse their failure

to exhaust administrative remedies on the

grounds that defendants repudiated the

PCLCA's procedures or that the procedures

were somehow inadequate. Plaintiffs

offered only speculative argument in this

regard.

8. Similarly untenable is

plaintiffs' contention that exhaustion was

futile because the Joint Port LRC was

biased against them. Plaintiffs failure to

ve @

challenge the composition of the Committee

when they submitted their grievance to it

effects a waiver of the bias objection.

Cf. Sheet Metal Workers Int'l Ass'n v.

Kinney Air Cond., 756 F.2d 742 (9th cir.

1985).

9. In addition, the Court finds no

basis for excusing the untimeliness of

plaintiffs' claims on the grounds that the

union defendants breached their duty of

fair representation. This is not a case in

which the unions are alleged to have

breached their duty in negotiating a

collective bargaining agreement, see

Williams _v. Pacific Maritime Ass'n., 617

F.2d 1321 (9th cir. 1980), or in which the

plaintiffs were prevented from exhausting

contractual remedies by the unions'

wrongful refusal to process a grievance.

See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct.

74 :~«a

903 (1967).

10. The testimony of plaintiffs

Carr and Gann that they relied on erroneous

advice and understandings concerning the

appeal process does not raise a material

issue of fact barring summary judgment.

Under the circumstances, it was not

reasonable to disregard the information

contained in the notice of termination of

the initial phase of the registration

process. Cf. Stephens v. Postmaster

General, 623 F.2d, 594, 595 (9th Cir.

1980).

11. Defendants' motions for summary

judgment are hereby GRANTED. Nothing

herein is intended to prevent the

plaintiffs from proceeding with any

grievances that were timely filed.

12. All statements of undisputed

facts that are deemed to be conciusions of

75 a

law are so found.

13. The Court incorporates its

comments from the bench on April 20, 1987

as further explanation for its

determinations.

DATED: June 2, 1987

FERDINAND F. FERNANDEZ

U.S. DISTRICT JUDGE

76 a

FILED

JUN 3, 1987

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JOHN CARR, et al., Case No.

CV 85-7243-FFF

Plaintiffs,

SUMMARY JUDGMENT

Vv.

PACIFIC MARITIME ASSN.,

et al.,

)

Defendants. )

)

The motions of defendants Pacific

Maritime Association International

Longshoremen's and Warehousemen's Urion and

International Longshoremen's and

Warehousemen's Union Locals 13 and 63 for

summary judgment under Rule 56 of the

Federal Rules of Civil Procedure were heard

in the United States District Court for the

Central District of California before the

77 a

Honorable Ferdinand F. Fernandez, United

States District Judge. George W. Shaeffer,

Jr. appeared for plaintiffs; Dennis A.

Gladwell, Gibson, Dunn & Crutcher, appeared

for defendant Pacific Maritime Association;

George Shibley appeared for defendant

International Longshoremen's' and

Warehousemen's Union Local 13; and William

Carder of Leonard, Carder & Zuckerman,

appeared for defendants'9 International

Longshoremen's and Warehousemen's Union and

its Local 63.

After full consideration of the

moving and responding papers, all support

papers and exhibits, and oral argument of

counsel and the plaintiff, the Court finds

that there is no triable issue of material

fact as to defendants' formative defense

that plaintiffs' suit is barred by their

failure to exhaust contractual remedies.

78 a

Therefore, defendants are entitled to

summary judgment in this case.

In accordance with the Statement of

Uncontroverted Facts and Conclusions of Law

filed herein,

IT IS SO ORDERED AND ADJUDGED:

i. That plaintiffs' allegations

concerning Section 13 of the collective

bargaining agreement between the ILWU and

Pacific Maritime Association are barred by

their failure to exhaust administrative

remedies.

.. That plaintiffs' claims under

other provisions of the collective

bargaining agreement -*re barred by

plaintiffs' failure to exhaust contractual

remedies.

3. That defendants are entitled to

summary judgment, and this case shall be

dismissed with prejudice, provided,

79 a

however, that nothing in this judgment is

intended to prevent the plaintiffs from

proceeding with grievances which were

timely filed pursuant to the applicable

agreements and notices.

Dated: June 3, 1987

Ferdinand F. Fernandez

U.S. District Judge

A0306.APP

80 a

The Petitioners before this Court

are:

John Carr, Arron Alexander, Mike Andrews,

Elie Anthony, Anna Ashbrook, Raymond G.

Ayala, Patsy Badderley, David Balsley, Don

Bean, Ken Bennett, James Biller, William

Blackwood, Jim Bockrath, Conrad Bojorquez,

Don Brickey, Dennis Brueckner, John Bryant,

Glen Buchanan, Jon J. Buchanan, John

Burtsch, Keath Butner, Paul Butner, Isadore

Califano, Pat Califano, Joe Camello,

Richard Campos, Jim Carbone, Jennifer

Chambers, Gary Coad, Russ Coates, Kay

Collins, James Cuff, Antonio DelIorio,

Richard DePippo, Tim DeSantis, Miodrag

Dimitrijevic, James W. Duff, Vince Ferrara,

Linda Galaz, Jess Gann, Robert C. Gonzales,

Ruben A. Gonzales, JTEes Charles

Greisjraber, Michael J. Gutierrez, D. Roy

Haggerty, Judy Haggerty, Patty Hamlin, Bill

Haney, Charles Hecht, Raymond Jones, John

Kalina, Henry Keliihoomalu, Vince Lauro,

Frank Lipanovich, John Madrigal, Savetta

Mann, George Martin, William Martin, Vince

Mattera, Madison D. May, Jack McConnachie,

Sr., Bill McFarland, David McKelvey, Rudy

Melgosa, Jenny Milburn, Ron Miller, Bert

M.D. Minter, George Mitchell, Sam Morreale,

Ty Neal, Ramon Ochart, Cheryl Y. Olivas,

Jim Pandora, Bill Pearia, Dee Pollock,

Maria Radakovic, Dennis Regan, Jerry Rios,

Rich Risso, Jr., Roy Risso, David Rivera,

Richard Rivera, Harry Roberts, Frank

Rodriguez, Raul Rodriguez, Raul Rojas,

Reginald Roland, Diana Rosas, George

Roybal, Jeff Schaap, Joe Schaffer, Jr.,

Steve Schaffer, Neal Schreiner, Jim Seixas,

Joe Simon, David Singh, Gary B. Taylor,

8la

Astrid B. Thangen, Steve Torres, Gary

Trujillo, John Tuck, Ralph Tupaz, Jim

Vickers, Stanley Wasserman, B.J. White,

Peter Camez, William R. Cannady, Phil

Menzes, Judy Checkers, Patricia Potter, Ed

Harris, Jose Miranda, Augustine Onorato,

Frank Onorato, Linda oOnorato, Gabino

Pedroza, Greg Brooks, Robert Campbell, Ron

Chamberlin, Ben Lopez, Frank Mattera,

Bertrand Miller, Armand Montano, Tom Utley,

Ronald Booher, John Carlisle, and Kevin

Juergensen.

82 a

RELEVANT SECTIONS OF THE

APPLICABLE COLLECTIVE BARGAINING

AGREEMENT DISCUSSED IN THE PETITION

§8.31 provides in relevant part:

"The Joint Port Labor Relations Committee

in any port, subject to the ultimate

control of the Joint Coast Labor Relations

Committee, shall exercise control over

registered lists in that port, including

the power to make additions to or

subtractions from the registered lists as

may be necessary...."

§8.43 provides: "Their shall be no

favoritism or discrimination in the hiring

or dispatching or employment of any

longshoremen qualified and eligible under

the agreement."

§8.44 provides: "Any longshoremen or

dispatching hall employee found guilty by

the Joint Port Labor Relations Committee of

favoritism or discrimination or bribery

shall immediately be discharged and dropped

from the registered list."

§9.1 provides: "The principle of

promotion from the ranks is’ hereby

recognized and agreed to. For the purpose

of this Contract Document, promotion is

defined as upgrading registered long-

shoremen covered by this Contract Document

and the classifi-cations contained in the

respective Port Supplements."

83 a

§9.2 provides in relevant part:

"There shall be established in each port a

joint committee of registered lcngshoremen

and of employers. It shall be the duty of

such committee to establish qualifications

for promotions tc classifications covered

by this Contract Document, including

trainees, and to pass on alle such

promotions. The promotions committee shall

determine the trainees under policies laid

done by the Joint Port Labor Relations

Committee. Such qualifications’ shall

include length of service in the industry,

competency and ability to perform skilled

operations...."

§18.1 provides: "As an explicit

condition hereof, the parties are committed

to observe this Agreement in good faith.

The Union commits the locals and every

longshoremen it represents to observe this

commitment without resort to gimmicks of

subterfuge. The Employers give the same

guarantee of good faith observance on their

part."

§13 provides: "There shall be no

discrimination in connection with any

action subject to the terms of this

Agreement either in favor of or against any

person because of membership or non-

membership in the Union, activity for or

against the Union or absence thereof, or

race, creed, color, sex, age, national

origin or religious or political beliefs.

§17.23 provides: "If the grievance

is not settled as provided in 17.21 or

17.22 or does not arise on the job, it

84 a

shall be referred to the Joint Port Labor

Relations Committee which shall have the

power and duty to investigate and

adjudicate it.

§17.24 provides: "In the event that

the Employer and Union members of any Joint

Port Labor Relations Committee shall fail

to agree upon any question before it, such

question shall be immediately referred at

the request of either party to the

appropriate Joint Area Labor Relations

Committee for decision.

§17.4 provides: "When any

longshoremen (whether a registered

longshoremen or an applicant for

registration or a casual longshoreman)

claims that he has been discriminated

against in violation of Section 13 of this

Agreement, he may at his’ option and

expense, or either the Union or the

Association may at its option and at their

joint expense, have such complaint

adjudicated hereunder, which procedure

shall be the exclusive remedy for any such

discrimination."

§17.41 provides: "Such remedy shall

be begun by the filing of the grievance

with the Joint Port Labor Relations

Committee setting forth the grievance and

the facts as to the alleged discrimination.

Such a grievance shall be timely if

presented within ten (10) days of the

occurrence of the alleged discrimination.

Such grievance shall be investigated by the

Joint Port Labor Relations Committee at a

regular or special meeting of the Committee

85 a

at which the individual involved shall be

permitted to appear to state his case, at

which time he may present oral and written

evidence and argument.

§17.411 provides: "With respect to

any claim of violation of Section 13, the

Joint Port Labor Relations Committee shall

extend the time for filing of such claim

beyond the time established in Section

17.41 whenever such extension is necessary

because the period of limitation otherwise

applicable is determined to be unlawful or

because in the judgment of the Committee in

the exercise of its sound discretion, such

an extension is otherwise necessary to

prevent inequity but in no event shall the

time for filing of such claims be extended

beyond six (6) months from the date of the

occurrence of the alleged discrimination."

§17.42 provides: "Either the

Employers, the Union or the man involved

may appeal the decision of the Joint Port

Labor Relations Committee. Such appeal

shall be to the Joint Coast Labor Relations

Committee by letter addressed to the Joint

Coast Labor Relations Committee. To be

timely, such appeal must be delivered or

mailed within seven (7) days of the

decision of the Joint Port Labor Relations

Committee."

§17.421 provides: "If such an

appeal is taken within the time limits

allowed, the Joint Coast Labor Relations

Committee shall either confirm or reverse

or modify the decision of the Joint Port

Labor Relations Committee without any

86 a

further hearing, or order a further hearing

and thereupon issue its decision on the

basis of the entire record including that

at both hearings."

§17.43 provides: "An appeal from

the decision of the Joint Coast Labor

Relations Committee can be presented to the

Coast Arbitrator (or by agreement of the

Joint Coast Labor Relations Committee to an

Area Arbitrator) by the individual

involved, the Employers or the Union.

Appeal shall be by a written request for an

arbitrator's hearing mailed or delivered to

the Union and the Employer representatives

of the Joint Coast Labor Relations

Committee if by an individual, or to the

individual and the other party's represent-

ative on the Joint Coast Labor Relations

Committee if by either the Union or the

Employers. Such an appeal shall be timely

\only if such request for an arbitrator's

hearing is so filed in writing with the

Joint Coast Labor Relations Committee no

later than seven (7) days after issuance of

the decision of the Joint Coast Labor

Relations Committee from which an appeal to

an arbitrator is taken.

§17.431 provides: "The arbitration

procedure shall be carried on in accordance

with the procedures generally applicable

under this Agreement for arbitration before

the Coast Arbitrator."

Sections 8.31, 8.43, 8.44, 9.1, 9.2,

13.1, and 18.1 of the PCCD are identical to

the terms of the PCLCD except for the

reference to "clerks" instead of

"longshoremen".

87 a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.