Petition for Writ of Certiorari — Gonzalez v. International Longshoremen's Ass'n, Local No. 1581

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. €4-507 |

RIGOBERTO GONZALEZ, ET AL.,

Petitioners,

versus

INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION

LOCAL NO. 1581, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Kenneth L. Tilley

802 Texas Professional Tower

Houston, Texas 77002

(713) 222-9017

Attorney for Petitioners

INDEX

Page

PE CEO ica secs ccncnanneerecdseeccucess l

i an nec c ee Gy cakes Kons Chine 50k a9 2

STATUTORY PROVISIONS INVOLVED .......... 2

REASONS FOR GRANTING THE WRIT ........... 3

STATEMENT OF THE CASE ...................... 3

eee e Cig. chs seeks bene seb its sue eens 7

ee ccc crwceebaddes csancvessnnass 7

cr eines senuceechnki age eade& 13

Pe PNET WOU occas race ecacesicnccrscvens» 15

ee et eer ee ere ee 17

CERTIFICATE OF SERVICE ..................... 17

ET Ske h GANGA REL SUKSS 4s KEK ROAD OOo bn RSs la

Ue edad eau cals ehsiees «4 4S eo banne 6 4a

ii

CITATIONS

Deaton Truck Line v. Local Union 612, 341 F.2d

ay es Ss SD vac sxe vanvdebbixsesanewcevus's 6,11

Genesco, Inc. v. Joint Council 13, United Shoe

Workers of America, 230 F.Supp. 923

(S.D.N.Y. 1964) aff'd 341 F.2d 482 (2nd Cir.

Ree ere rere Ea ee me? De eA an 6,10

Local 138, International Union of Operating

Engineers, AFL-CIO, 148 NLRB 679 ............. 11

N.L.R.B. v. Houston Maritime Ass’n of Texas,

418 F Be 160 Gs Cir. 16GB)... cccncaccssecsecces 13

N.L.R.B. v. Industrial Union of Marine & Ship-

building Workers of America, AFL-CIO, 148

NE oi Vic beak Ga he Rk ae Gda CONE RAAUA SA 11

N.L.R.B. v. International Longshore Ass’n,

Local No. 1581, 489 F.2d 635 (5th Cir. 1974). ...... 10

Rae v. United Parcei Service of Pa., E.D. Pa.

ee ee a OU ks one see voneeaeenane woes 6,10

Retail Clerks Inter. Ass’n v. Lion Dry Goods,

ae. SD UL. TF GE AE: GOED nnn ccs ccnssesscnsss 12

Vaca v. Sipes, 386 U.S. 171 (87 S.Ct. 903) ........ 6,7,9

STATUTES

Section 301(a) LMRA, 29 U.S.C. § 185(a) ........... 2.3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No.

RIGOBERTO GONZALEZ, ET AL..

Petitioners,

versus

INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION

LOCAL No. 1581, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners herein respectfully pray that a Writ of

Certiorari issue to review the decision and judgment of

ihe United States Court of Appeals for the Fifth Circuit

rendered on August 1, 1974 which affirmed a judgment of

the United States Court for the Southern District of Texas

dismissing the complaint for want of jurisdiction.

OPINIONS BELOW

The Memorandum and Order of the District Court

2

rendered on December 22, 1972 is appended hereto as

Appendix “A.”

The Memorandum Opinion and Order of the District

Court rendered on December 28, 1973 is appended hereto

as Appendix “B.”

The opinion of the Court of Appeals rendered on August

1, 1974 is appended hereto as Appendix “C.”’

JURISDICTION

Jurisdiction is predicated on Section 301(a) of the Labor

Management Relations Act, 1947, 29 U.S.C.A. §185(a).

The District Court, in its Memorandum and Order of

December 22, 1972, held that “the Plaintiffs have suf-

ficiently pied a cause of action for breach of the duty of

fair representation within 29 U.S.C. §185(a) and have in-

voked the jurisdiction of this Court.” (App. “A,” p. 3a).

However, in its Memorandum and Order of December 28,

1973 the District Court reversed itself and dismissed the

complaint for want of jurisdiction. The Court of Appeals

placed the case on its Summary Calendar and affirmed

the District Court’s dismissal in a per curiam decision.

STATUTORY PROVISIONS INVOLVED

Section 301(a) of the Labor Management Relations Act,

1947, 29 U.S.C.A. §185(a) provides as follows:

Suits for violation of contrdtts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this chapter, or between any such

‘.

3

labor organizations, may be brought in any dis-

trict court of the United States having jurisdic-

tion of the parties, without regard to the

citizenship of the parties.

REASONS FOR GRANTING THE WRIT

1. The Court Of Appeals Has Decided A Federal

Question In A Way In Conflict With

Applicable Decisions Of This Court.

2. The Court Of Appeals Has So Far Departed

From The Accepted And Usual Course Of

Judicial Proceedings As To Call For An Ex-

ercise Of This Court's Power Of Supervision.

3. The Court Of Appeals Has Decided An Im-

portant Question Of Federal Labor Law And

Policy Which Has Not Been, But Should Be,

Settled By This Court.

STATEMENT OF THE CASE

bargaining agreements with private employers, in-

cluding (but not limited to) Manchester Terminal Cor-

poration, Petty Terminal Corporation and Long Reach

Plant of Gulf Atlantic Warehouse Company.

In January, 1971 the Port of Houston Authority

Purchased Long Reach in mid-contract at which time it

4

agreed orally with Respondent to abide by the exclusive

hiring hall procedure pursuant to the agreements with

the private employers, and to pay the prevailing wages

and fringe benefits provided for in these privately

negotiated agreements. In October, 1971 Respondent

adopted a'seniority system based on total years worked

through the Respondent’s exclusive hiring hall, as

reflected by social security records. The assignments of

seniority thereunder were and are fair and equitable and,

as found by the District Court, “was generally a for-

malization of the informal system put into effect when the

Port took over Long Reach” (App. “B,” p. 8a).

A majority of the employees became dissatisfied

because they were not receiving as much work as the

Petitioners who, although in the minority, possessed

greater seniority. Consequently in June, 1972 the Respon-

dent acquiesced in a majority vote to reassign seniority

by departments. Aside from the fact that the June, 1972

seniority assignments cannot be authenticated, and are

otherwise arbitrary, the below comparisons reflect the

more glaring examples of the adverse effects on employ-

ment opportunities:

October June.

1971 1972

Frank V. Gonzalez 25 yrs. 7 yrs.

Manuel Villareal 35 yrs. 9 yrs.

Carlos Rivera 30 yrs. 3 yrs.

Ruben Perez 31 yrs. 3 yrs.

Sam Ramos 31 yrs. 10 yrs.

Guadalupe Ayala 35 yrs. 6 yrs.

Jose Perea 35 yrs. 10 yrs.

Ramon M. Castellon 25 yrs. 10 yrs.

Elogio L. Rivera 30 yrs. 2 vrs.

C. G. Murillo 25 yrs. 1 vr.

5

Petitioners filed charges with the National Labor

Relations Board and also filed the instant lawsuit.

After the charges with the NLRB were dismissed for

want of jurisdiction and all appeals exhausted, briefs

were filed with the District Court on the limited issue of

jurisdiction under §301. On December 22,1972 the District

Court issued its Memorandum and Order asserting

jurisdiction stating:

The “exciusivity” of this relationship, and the

alleged use of the private agreements to guide the

conduct of the Local and the Port Authority are

sufficient bases on which to irapose the duty of

fair representation upon the union. Since a “‘con-

tract” within the meaning of §301(a) includes

“any agreement significant to the maintenance

of labor peace,” Deaton Truck Line v. Local Un-

ton 612, 314 F.2d 418, 422 (5th Cir. 1962), the

Plaintiffs have sufficiently pled a cause of action

for breach of the duty of fair representation

within 29 U.S.C. §185(a) and have invoked the

jurisdiction of this Court (App. “A,” p. 3a).

Some six months later the case went to trial on its merits.

The District Court took the case under advisement and re-

quested briefs on all issues — including the issue of

jurisdiction under §301. In due course the District Court

issued its Memorandum Opinion and Order (App. “Bin

which it reversed its original decision, decided the case on

its merits (adverse to the Plaintiffs) and dismissed for

want of jurisdiction.

The Court of Appeals for the Fifth Circuit placed the

case on its Summary Calendar and, without passing on

6

the merits, affirmed the District Court’s dismissal for

want of jurisdiction. In its per curiara decision (App. “C’’)

the Court of Appeals held: (1) there was no collective

bargaining between Respondent and the Port of Houston

Authority; and (2) even if there was any such agreement it

would have been void as against the statutory policy of

the State of Texas. The only decisions cited by the Court

of Apyeals are set forth below together with the context in

whicn the cases were cited:

We think it is clear that there must be a collec-

tive bargaining agreement and a breach of that

agreement to confer jurisdiction on a federal dis-

trict court under Section 301 of the Act [footnote

omitted]. See Rae v. United Parcel Service of Pa.,

E.D. Pa. 197%, 356 F.Supp. 465, 468; Genesco, Inc.

v. Joint Council 13, United Shoe Workers of

America, 8.D. N.Y. 1964, 230 F.Supp. 923, 928-29,

2 Cir. 1965, 341 F.2d 482 (App. “C,” p. 18a).

Nor did the Court comment on the Fifth Circuit’s decision

in Deaton Truck Line v. Local Union 612 in which it was

held that a “contract” within the meaning of §301(a) in-

cludes ‘“‘any agreement significant to the maintenance of

labor peace.” Of greater significance the Couri did not

comment on this Court’s decision in Vaca v. Sipes' and

other Supreme Court decisions relating to jurisdiction un-

der §301.

We will comment on these decisions briefly in our argu-

ment.

1 314 F.2d 418, 422 (5th Cir. 1962)

2 WAU S. V7 STS Ct. 903).

eee 7

ARGUMENT

Point Number One

The Court of Appeals Has Decided A

Federal Question In A Way In Conflict With

Applicable Decisions Of This Court.

When wesay that the decision of the Court of Appeals is

in conflict with applicable decisions of this Honorable

Court, we do not intend to imply that the Court ignored

identical precedents on identical facts. We simply say

that there is sufficient Supreme Court enunciation of its

views so as to warrant an opposite conclusion.

Before discussing (and distinguishing) the two cases

relied on by the Court, let us examine the Supreme Court's

decisior in Vaca v. Sipes which deals in the mz in with the

duty of fair representation but, inferentially, with

jurisdiction under §301:

. . .the duty of fair representation has stood as a

bulkwark to prevent arbitrary union conduct

against individuals stripped of traditional

forms of redress by the provisions of federal labor

law. Were we to hold, as petitioners and the

Government urge, that the courts are foreclosed

by the NLRB’s Miranda Fuel decision from this

traditional supervisory jurisdiction, the in-

dividual employee injured by arbitrary or dis-

criminatcry union conduct could no longer be

assured of his complaint, since the Board's

General Counsel has unreviewable discretion to

8

refuse to institute an unfair labor practice com-

plaint. '

As pointed out to the Court of Appeals the above-quoted

related to whether the NLRB had pre-emptive jurisdic-

tion. This Court then amplified the issue of jurisdiction as

follows:

The existence of even a small group of cases in

which the Board would be unwilling [emphasis

supplied] or unable to remedy a union’s breach of

duty would frustrate the basic purposes underly-

ing the duty of fair representation doctrine. For.

these reasons we cannot assume from the

NLRB’s tardy assumption of jurisdiction in these

cases that Congress, when it enacted N.L.R.A.

§8(b) in 1947, intended to oust the courts of their

traditional jurisdiction to curb arbitrary conduct

by the individual employee’s statutory represen-

tative.'

And, although a literal reading of Section 301(a) might at

first blush contemplate only lawsuits between employers

and labor organizations, this Court made it clear that an

individual employee had standing, under Section 301, to

sue his employer, his bargaining representative or both:

The employee should have no difficulty recover-

ing these damages from the employer, who can-

not, as we have explained, hide behind the un-

ion’s wrongful failure to act; in fact the employer

3 Vaca at 366 US. 162 087 S.Ct. 913).

A Vaca at 386US 19787 S Ct G20,

9

may be (and probably should be) joined as a

defendant in the fair representation suit,. . . °

* * *

The employee’s suit against the employer,

however, remains a §301 suit, and the jurisdic-

tion of the courts is no more destroyed by the fact

that the employee, as part and parcel of his §301

action, finds it necessary to prove an unfair labor

practice by the union, than it is by the fact that

the suit may involve an unfair labor practice by

the employer himself. The court is free to deter-

mine whether the employee is barred by the ac-

tions of his union representative, and, if nut, to

proceed with the case. And if, to facilitete his

case, the employee joins the union as a defend-

ant, the situation is not substantially changed.

The action is still a §301 suit, and the jurisdiction

of the courts is not pre-ernpted under the Garmon

principle’

The foregoing of course relates to a breach of the contract

by the emplover involved, rather than a breach by the un-

ion.

We can see no reason, however, why a breach of the con-

tract by a union should not be remedied by a §301 lawsuit

against the union alone. First the individual employee

has derivative §rights based upon a union’s implied con-

tractual obligation to represent him fairly. Secondly

were, as in the instant case, the union has acquired by

agreement or by arrogation the exclusive right to hire—a

5 Vaca at 386 US. 197 (87 S.Ct. 920)

6 Vaca at 386 US. IS6-IST XT SCH G55)

10

right peculiarly that of the employer — the union’s mis-

behavior in connection therewith would constitute a two-

fold breach. Surely had an employer made such

reassignments the bargaining agent would have had a

duty to sue, if necessary, under §301.

The Court of Appeals could have concluded that such

assignments were not arbitrary, and there was no breach

of the duty of fair representation. But we submit that the

court erred by concluding that it and the trial court were

without jurisdiction under §301 to decide the dispute.

Turing to the two cases cited by the Court of Appeals

we note that the first, Rae v. United Parcel Service of Pa.,’

was a czese wherein the union itself had terminated the

contract. The second, Genesco, Inc. v. Joint Council 13,

United Shue Workers of America,” involved an attempt to

invoke a no-strike clause under a terminated contract and

before a new contract had been agreed upon. Clearly the

contract between the Defendant and Long Reach did not

“terminate” when the Port Authority purchased Long

Reach, for the contract was specifically adopted respec-

ting wages, fringe benefits and particularly the Union's

exclusive hiring hall procedure. Let us set forth an

analogy urged to the Court of Appeals of the Fifth Circuit

involving this same defendant.

In N.L.R.B. v. International Longshore Ass’n, Local

No. 15819 the court below upheld a finding of discrimina-

tion against one Elias Guerra based on his lack of

citizenship. The charge was filed against the union alone

although the discrimination occurred in the employment

7 356 F.Supp. 465 (E.D. Pa. 1973).

8 230 F Supp. 923 (S.D. N.Y. 1964); aff'd 341 F.2d 482 (2nd Cir. 1965)

9 469 F.2d 635 (Sth Cir. 1974)

11

of another employer with whom the union had a contract,

Manchester Terminal Corporation. Suppose that the Port

of Houston Authority had purchased Manchester Ter-

minal in mid-contract, as it did Long Reach in the instant

case. Would Guerra’s charge against the union have been

dismissed because the Port Authority is exempt from the

Act? Would Guerra’s backpay have been tolled as of the

date of purchase? Would the union then be free to dis-

cipline Guerra for having filed the charge, or would the

Board assert jurisdiction to protect its processes?!” As

Guerra’s complaint to the Board was also a breach of the

union’s duty to represent him properly, could he have

successfully maintained a suit under §301(a) in the U.S.

District Court? Or would the Court say, as the Court

below in effect said here, that the rights Guerra had ac-

quired under the privately negotiated contracts were ex-

tinguished, and that the Court had no jurisdiction to en-

force them? .

Had the Court of Appeals followed its own decision in

Deaton Truck Line, Inc. v. Local Union 612, Etc.''! we sub-

mit that it would have conferred jurisdiction under §301.

In Deaton the issue was whether independent contractors

— 1.e., technically not “employees” — could proceed to ar-

bitration under §301. The facts show that the union had

entered into a separate commercial agreement with an

employer on behalf of these “individuals.” The Court

found that such an agreement was significant to the

maintenance of labor peace and asserted jurisdiction un-

der §301 notwithstanding their status as “individuals.”

As pointed out to the Court below, NLRB’s General

10) NLRB. v. Industrial Unwn of Marine & Shipbuilding Workers of

America, AFL-CIO, 391 U.S. 418 (8% S.Ct. 1717). See also Local 138. Inter

national Union of Operating Engineers. AFL-CIO, ‘4% NLRB 67°

Ilo 314 Fld ais «CA 5 1962)

12

Counsel refused to assert jurisdiction because, in his

view, the Plaintiffs herein were “individuals” rather than

“employees.” This strained distinction is not in harmony

with the views expressed by this Honorabie Court. In

Retail Clerks Inter. Ass’n v. Lion Dry Goods, Inc.'? this

Court held that jurisdiction existed under §301 upon a

mere contract, and that such contract did not have to bea

“collective bargaining agreement.” While the Port

Authority is prohibited by state law from entering into

“collective bargaining” agreements it is not prohibited

from entering into any and all agreements or contracts.

The District Court specifically found:

At the very most we have an informal, unwritten

agreement between the Local and the Port that

the Port will hire those employees sent to it by the

local and pay them the same wage and provide

the same benefits as the other employers at the

Port. (App. “B,” p. 10a-11a).

We do not construe the fact that the agreement is

“unwritten” prevents it from being a “contract” under

this Court’s decision in Retail Clerks (supra). thus the

decision of the Court of Appeals “that there must be a

collective bargaining agreement and a breach of that

agreement to confer jurisdiction on a federal district court

under Section 301” is clearly at odds with decisions of the

U.S. Supreme Court.

Finally we do not believe the dismissal is aided by the

District Court’s finding that the agreement was not

violated “because seniority is not an element of that

agreement” (App. “B,” p. lla). Seniority is not an ele-

ment of the agreements with the private employers. Both

12 369 US. 17 182 S.Ct. 54d.

13

the Port Authority and the private employers, by agree-

ing to the Defendant’s exclusive hiring hall, have

delegated to the Defendant the matter of seniority. While

an argument could be made that the private employers at

least are still responsible for the manner in which the Un-

ion operates the hiring hall, the Court of Appeals for the

Fifth Circuit has rejected this view.'' It would be a mark-

ed irony to hold that the Union’s breach of its obligation

to administer the hiring hall fairly cannot be remedied by

a lawsuit against the Union under §301.

We therefore submit that the per curiam decision of the

Court of Appeals is contrary to decisions and views

enunciated by the Supreme Court.

Point Number Two

The Court Of Appeals Has So Far Departed

From The Accepted And Usual Course Of

Judicial Proceedings As To Call For An Ex-

ercise Of This Court’s Power Of Supervi-

sion.

Petitioners’ second point is addressed to the Ceurt’s ac-

tion in peremptorily placing the case on its Summary

Calendar and summarily disposing of the case without

fairly setting forth the facts and treating with the issues

presented.

We recognize that Local Rule 18'* of the Court of

Appeals has the laudable objective of expediting cases by

130 N/ARB« Houston Maritime Ass'nof Texas, 418 F.2d 140th Cir., 1969)

140 Local Rule 18 provides in pertinent part

(a! Whenever the Court, sua sponte or on suggestion of a party, con-

cludes that a case is of such character as not to justify oral argument.

the case may be placed on the summary calendar

14

reducing oral argument. However we do not infer that the

Summary Calendar is merely a prelude to disposing of a

case in a manner suggesting that an appeal is utterly

frivolous. We would hope that the Court is simply

satisfied that the briefs alone provide a basis for it to

render a decision setting forth all pertinent facts, ad-

dressing itself to the cases cited and articulating its

reasons for its conclusions. Here the Court held that there

was no collective bargaining agreement between the

Respondent and the Port of Houston Authority. A more

factual statement would be that there was no written

agreement.

The parties stipulated that there was an oral agreement

that the Port Authority would abide by the Union’s ex-

clusive hiring procedure and pay the prevailing wages

and fringe benefits as set forth in the agreements with the

private employers. Similarly the Court stated that the

Port Authority looked to the Union as “a source of labor,”

while the record is clear that it did so as its exclusive

source of labor. The duty of a union in administering an

exclusive hiring hall is manifestly higher than that

where it merely serves as a source of labor. The Court’s

per curiam decision failed to note the dismissal of the

charges before the National Labor Relations Board —

generally a prerequisite for obtaining jurisdiction

elsewhere. And the Court did not note that most of the

seniority was acquired under privately negotiated con-

tracts.

The Court’s citation of cases of terminated contracts is

another example of judicial lethargy. Not only was the in-

stant contract with Long Reach not “terminated” nor

repudiated by the Port Authority, the Port Authority

15

specifically agreed to honor it in all pertinen’ respects.

And, as pointed out above, even if the cotiisacce was ter-

minated the seniority thereunder continued as a viable

part of the expired agreement. The more troublesome

feature of the decision is that it failed to deal with cited

precedent both in the Fifth Circuit and the Supreme

Court. Tnese decisions have been discussed above. But

they were also cited to the Court of Appeals and. we

believe, were deserving of comment. We agree that the

frivolous appeals shou!d be dealt with summarily, with or

without oral argument.

But we do not believe that an appeal should be dealt

with summarily merely because the briefs and record set

forth the facts and precedent to warrant placing the case

on the Summary Calendar so as to dispense with oral

argument.

Point Number Three

The Court Of Appeals Has Decided An Im-

portant Question Of Federal Labor Law

And Policy Which Has Not Been, But Should

Be, Settled By This Court.

Petitioners also respectfully submit that there is a

broader issue involving employees’ rights in general and

federal labor policy that should be followed where collec-

tive bargaining agreements are attained by exercising

those rights.

The right of employees to organize and engage in ac-

tivities designed to foster the process of collective

bargaining has been the federal labor policy for years.

16

Bargaining collectively is merely he beginning,

however, not an end in itself. The end to be achieved is the

consummation of collective bargaining agreements so as

to minimize industrial strife among employers,

employees and labor organizations. An employee’s right

to so organize and obtain such an agreement would be

hollow indeed if the fruits of the contract could be taken

away by the very labor organization possessing the duty

and the power to represent him. Respondent admittedly

had the duty. ‘That it also had the power is the fact that,

even after the Port Authority took over Long Reach,

Respondent utilized seniority accumulated under the

private agreements to furnish the Port Authority with its

exclusive source of warehousemen. This is not a case

where the political subdivision has taken over a facility

and simultaneously rendered the bargaining agent impo-

tent to continue in its representative capacity. Where, as

here, the bargaining agent continues in its representative

capacity, Petitioners submit that it is obligated to do soin

a manner that is free of arbitrary and discriminatory

classification and considerations.

Thus, in a broad sense, where Section 301 rights have

survived the collective bargaining agreement, we urge

that as a matter of federal labor policy any breach of

those rights should be remedied through a lawsuit under

Section 301.

17

CONCLUSIONS

For these reasons, a writ of certiorari should issue to

review the decision of the Fifth Circuit.

Respectfully submitted,

Kenneth L. Tilley

Attorney for Petitioners

802 Texas Professional Tower

Houston, Texas 77002

(713) 222-9017

CERTIFICATE OF SERVICE

The undersigned certifies that three (3) copies of the

foregoing Petition For A Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit were served

on the Counsel for Respondent, International

Longshoremen’s Association, Local No. 1581, AFL-CIO,

Mr. Gerald J. Goodwin, Brock and Williams, Suite 250,

The Main Building, 1212 Main Street, Houston, Texas

77002, by Certified Mail on this the ___ day of October,

1974.

Kenneth L. Tilley

la

APPENDIX “A”

) IN THE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

FRANK V. GONZALEZ, ET AL,

Plaintiffs,

versus

INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION,

LOCAL NO. 1581, AFL-CIO,

Defendant,

Kenneth Tilley, Houston, Texas

Attorney for the Plaintiffs

Warner Brock, Houston, Texas

Attorney for the Defendant

December 22, 1972

MEMORANDUM AND ORDER:

This is a suit by several members of the Defendant

Longshoremen’s Union Local 1581 against their Local

seeking relief from alleged discrimination in the assign-

ment of seniority on which the Local bases its referrals-

for-work to private warehouses and the Port of Houston

Authority. The Plaintiffs claim that, because of a change

made by the union majority in the computation of seniori-

ty, they have been deprived of work with the Port Authori-

ty to which their seniority would otherwise entitle them.

2a

Jurisdiction is asserted under §301(a) of the Natior.al

Labor Relations Act, 29 U.S.C. §185(a), for violation of the

duty of “fair representation.” See, Ford Motor Co. v. Huff-

man, 345 U.S. 330 (1953). However the only collective

bargaining contracts in existence are those between

Local 1581 and the private warehouses. No such agree-

ment exists between Local 1581 and the Port Authority.

Indeed, as all acknowledge, the Port Authority cannot

enter into collective bargaining contracts with a labor

organization. V.A.T.S. Art. 5154c §1. Consequently.

Local 1581 has moved to dismiss this action for lack of

jurisdiction since there is no contract between the Local

and the Port Authority. See, Adams v. Budd Co., 349 F.2d

368 (2 Cir. 1965) and Beausoleil v. United Furniture

Workers, 244 F.Supp. 719 (D.N.H. 1965).

The “duty of fair representation” is predicated upon the

unicn’s position as the exclusive bargaining agent of its

members. Ford Motor Co. v. Huffman, supra, and see,

Morris, The Developing Labor Law, p. 726-731 (1971).

There is no collective bargaining agreement here, but the

Plaintiffs allege and the Defendant denies that the Local

and the Port Authority have an understanding or oral

agreement whereby the Port Authority complies with the

collective agreements in force in the port area. The

Defendant admits that the Port Authority generally com-

plies with such agreements, but insists that this is a un-

ilateral undertaking by the Port Authority. The Plaintiffs

allege and the Defendant admits that the Local has main-

tained an exclusive hiring procedure with the Port of

Houston Authority whereby the Local refers members to

the Port Authority for acceptance or rejection as

employees.

3a

The “exclusivity” of this relationship, and the alleged

use of the private agreements to guide the conduct of the

Local and the Port Authority are a sufficient bases on

which to impose the duty of fair representation upon the

union. Since a “contract” within the meaning of §301(a)

includes “any agreement significant to the maintenance

of labor peace,” Deaton Truck Line v. Local Union 612,

314 F.2d 418, 422 (5th Cir. 1962), the Plaintiffs have suf-

ficiently plead a cause of action for breach of the duty of

fair representation within 29 U.S.C. §185(a) and have in-

voked the jurisdiction of this Court.

The Defendant’s Motion to Dismiss for Lack of

Jurisdiction is denied.

Clerk will enter this Memorandum and Order and

provide counsel with true copies.

Done at Houston, Texas this 22nd day of December,

1972.

/s/ WOODROW SEAL

United States District Judge

4a

APPENDIX “B”

IN THE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RIGOBERTO GONZALEZ, FRANK V. GONZALEZ,

JESE O. GARCIA, MANUEL VILLAREAL, VICTOR

RODRIGUEZ. CARLOS RIVERA, RUBEN PEREZ,

SAM RAMOS, GUADALUPE AYALA, MARTIN 0.

CANTU, JOSE PEREA, JUAN F.GARCIA, RAMON M.

CASTELLON, ELOGIO L. RIVERA, JUSTINO LOPEZ,

CARLOS T. JASS, C. B. MURILLO, FIDEL PEREZ,

ARNULFO CASTILLA and ISMAEL RODRIGUEZ,

Plaintiffs,

versus CA No. 72-H-765

INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION LOCAL NO. 1581, AFL-CIO.

Defendant.

Kenneth L. Tilley, Houston, Texas

Attorney for the Plaintiffs

Brock & Williams (Gerald J. Goodwin)

Houston, Texas

Attorneys for the Defendant

MEMORANDUM OPINION:

This is a civil action brought pursuant to§ 301(a) of the

National Labor Relations Act, 29 U.S.C. § 185(a), for

violation of the duty of fair representation. The Plaintiffs

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are twenty individual members of Defendant

Longshoremen’s Union Local 1581. They seek relief from

alleged discrimination in the assignment of seniority on

which the Local bases its referrals-for-work to the Port of

Houston Authority. The Plaintiffs claim that because of a

change made by the union majority in the computation of

seniority they have been deprived of work with the Port

Authority to which their seniority would otherwise entitle

them. As relief Plaintiffs ask the Court to order Defend-

ant to reinstate and re-adopt the seniority assignments

that were in effect prior to June 19, 1972, and to pay back

wages for income lost as a result of loss of employment

following the institution of the June 19, 1972 seniority

plan.

The Court, after hearing all of the evidence and

arguments of counsel at trial, and upon all the files,

records, proceedings and briefs herein enters the follow-

ing Memorandum Opinion which shall constitute the

Findings of Fact and Conclusions of Law in this case.

The evidence indicates that for many years Local 1581

had contracts or collective bargaining agreements with

Manchester Terminal Corporation, Petty Terminal Cor-

poration and then finally with Long Reach Plant of Gulf

Atiantic Warehouse Company, each providing for certain

wages, hours and other conditions of employment for

employees who were members or represented by the

Local. The employees represented by the Local were per-

manently assigned to either of two departments at the

companies, the Cotton Compress Department or the

Dock/ Warehouse Department. On occasion, though, as

provided in the collective-bargaining agreement those

who usually did cotton compress work would be assigned

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temporarily to dock/warehouse work. The permanent

assignments were determined by either personal choice

or company decision. The difference between the two

types of work extended beyond just the type of work done

to include differences in wages and benefits. In general

cotton compress work paid a lower wage than

dock/warehouse work. Furthermore, the collective-

bargaining agreements in force provided for company

contributions to the union pension and health benefits

plans only for those employees working in the

Dock/ Warehouse Department. The workers in the Cotton

Compress Department were covered by a group health in-

surance plan selected and maintained by the employer

company, but no pension plan was provided for them.

Under the collective-bargaining agreement with these

private companies the Union Local served as a hiring

hall whereby it referred members and non-members for

employment to said employers for acceptance or rejection

as permanent or temporary employees. No seniority

system was provided for the collective bargaining agree-

ment except for the provision in the event it was

necessary to reduce the work force, preference in con-

tinued employment would be given by the employer to

qualified employees continuously employed by the

employer during the preceding twelve months.

Sometime in 1969, due to a declining amount of cotton

being brought to the Port of Houston, Long Reach discon-

tinued operations in the Cotton Compress Department,

transferring many of the employees to the

Dock/Warehouse Department. In January, 1971, the Port

of Houston Authority purchased Long Reach and began

operating it. All sides concede that the Port, as a political

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subdivision of the State, is barred from entering into

collective bargaining contracts with a labor organiza-

tion, V.A.T.S., Art. 5154c §1, and that therefore no collec-

tive bargaining agreement exists between the Port of

Houston and ILA Local 1581. However, the evidence in-

dicates that the Port looks to the Union exclusively to

supply employees and pays them the prevailing wage

rate as negotiated in the collective bargaining

agreements in force with private employers at the Port.

On taking over the operation of Long Reach the Port of

Houston began hiring through Local 1581 on a day-to-day

basis; in effect the Local became a daily hiring hall Local.

Workers reported to the Union Hall each day to be

referred for dock warehouse work at Long Reach and the

evidence indicates that these referrals were made on the

basis of seniority as to number of years an employee had

worked through the Local, although no formal seniority

system existed.

The Executive Board of the Local began working on a

formal seniority system and met with the attorney forthe

Gulf Coast South Atlantic ILA for guidance. Their deci-

sion to institute a seniority plan resulted not only from

the change in ownership at Long Reach but also because

the ILA had in 1965 instituted a requirement that the

Locals adopt a seniority system, and further because

Local 1581, which is composed entirely of Mexican-

Americans, was attempting to protect itself in the face of

a possible court ordered merger with its Sister Local 1525,

an all black local.

The seniority system adopted in October, 1971 by a un-

animous vote of the members of the Local present at the

JS

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meeting was generally a formalization of the informal

system put into effect when the Port took over Long

Reach. Seniority was based on the number of years an in-

dividual had worked through the Local 1581 hiring hall,

and in the event of doubt, an individual was required to

furnish Social Security records as documentation. No

differentiation was made between the types of work done

by an individual; all that was considered was the number

of years one had worked through the Local. The net effect

of this was that some individuals who had spent all their

time in dock/warehouse work were bumped down the

seniority list by people who had worked in the Compress

Department until it closed and who had greater seniority

than the dock/warehouse workers. This of course would

potentially decrease the opportunities for a person with

less seniority to work. This displacement of

Dock / Warehouse Department employees disrupted their

accruing pension fund which had been instituted in 1956

and to which employers of Dock, Warehouse Department

employees had contributed regularly but to which no con-

tributions had been made for compress employees since

they were not covered by the plan. Significantly, in order

to qualify to receive the pension an individual needs

credit for twenty-five years of contributions. It takes a

minimum of one hundred hours per year in the

Dock/ Warehouse Department to receive a year’s credit

for the pension fund, and one thousand hours in a yearin

the Dock/ Warehouse Department to get a year’s seniority

credit.

After the October 1971 seniority agreement was im-

plemented, there arose some dissatisfaction in the Local

especially among those who had spent all their time in

dock ‘warehouse work, when they realized that those who

had worked in compress had more seniority than they

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did. The executive board consulted with the union at-

torney who advised them that they could institute a new

plan and subsequently they did present to the members of

the Local a plan which had dual lines of seniority — one

for compress work and one for dock/ warehouse work. The

plan was adopted by a two-thirds majority vote of the

members present at a meeting of the Local in June 1972.

Due notice of the meeting and subjects to be voted upon

was given.

The June hiring hall and seniority plan only assigned

seniority to those individuals working through the Local

for the Port of Houston Long Reach plant. The evidence

indicates that the department in which a man had work-

ed since 1945 can be determined by either Port of Houston

records, ILA Maritime Trust Fund records, Local 1581

records, or eye witnesses. Furthermore, adjustment in

original seniority assignments can be made by the

Seniority Comrvittee in cases of demonstrable error.'

Thus the net result of the new seniority system was that

those who had worked predominantly in compress found

themselves with less seniority than those who had work-

ed mainly in dock/warehouse, and thus arguably had

decreased opportunities to cbtaimn warehouse work.“

However, it should be pointed out that in the event the

Compress Department were to be reopened at Long

1 Indeed, since the institution of this pian, several individuals’

dock warehouse seniority has been adjusted upward by the committee when

prooi of dock warehouse assignments was made via letter or records of private

employers.

T. Rodriguez - i4 years to 15

R. Castillon - 10 years to 14

J. Renteria - 3 years to 4

M. Villareal - 9 years to 14

M. Cantu - | year to 3

2 The evidence reflects that in actuality Plaintiffs. as well as other in

dividuals working through the Local are working as much or more now as un

der the previous svstems but this 1s due to the increased volume of work at the

Port

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Reach, those jobs would be filled in order of compress

seniority. It was the institution of the June seniority

system that led to Plaintiffs’ bringing this lawsuit.

The Defendants have contended throughout the

pendency of this cause that this Court lacks jurisdiction

under § 301(a), Labor-Management Relations Act, 29

U.S.C. § 185(a) to consider Plaintiffs’ claims. By

Memorandum and Order of December 22, 1972 the Court

denied Defendant’s Motion to Dismiss for Lack of

Jurisdiction, holding that the Plaintiff had sufficiently

pled jurisdiction to that point. However, the jurisdiction

has remained a live issue and the Court has continued to

have grave doubts about its jurisdiction. Now that all the

facts are before the Court is clear that no jurisdiction ex-

ists in this Court under § 301(a) over this cause of action.

Elementary to the maintenance of a suit under § 301 of

the Labor-Management Relations Act is that the suit be

for a violation of a contract or collective bargaining

agreement between an employer and a labor organiza-

tion, or between labor organizations.’ Hernandez uv.

National Packing Co., 455 F.2d 1252 (1st Cir., 1972);

Adams v. Budd, 349 F.2d 368 (3rd Cir., 1965). But here we

have no such contract because by law the Port is barred

from entering into such contracts. At the very most we

have an informal, unwritten agreement between the

Local and the Port that the Port will hire those employees

3 = Labor Management Relations Act, 29 U.S.C. §185 provides in pertinent

art:

. (a) Suits for violation of contracts between an employer anda 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 in controversy or without regard to the citizenship of the

parties.

lla

sent to it by the Local and pay them the same wage and

provide the same benefits as the other employers at the

Port. No violation of that agreement has occurred

because seniority is not an element of that agreement.

The seniority system in question in this case is one im-

posed by the union members on themselves by majority

vote. It is not a system bargained for by the union with the

employer. The employer is in no way involved in the day

to day administering of the system because the employees

are selected and supervised by gang foremen appointed

by the union executive board. If men must be cut from the

gang, it is the gang foreman, not the employer, who is

obligated to do se according to seniority. In Deaton Truck

Line, Inc. v. Local Union 612, 314 F.2d 418 (5th Cir., 1963),

the Court urged a broad interpretation of the word ‘‘con-

tracts” in § 301 suits observing:

It is now settled that “contracts,” ... includes

more than “collective bargaining agreements,”

and is broad enough to include any agreement

“between employers and labor organizations

significant to the maintenance of labor peace

between them.” Cite omitted.

Ibid. at 422. But even in that case the dispute arose out of a

term in an agreement between the employer and the labor

organization representing employees.‘ Clearly such is

not the case before us. The Plaintiffs have made no show-

ing of any agreement between the employer and the un-

ion, especially with respect to the employees’ seniority,

which has been violated. Thus the case does not fall

4 Significantly on rehearing the Fifth Circuit concluded they nad erred in

holding the agreement in question as being significant to labor peace and held

that such a determination went to the merits of the gnevance and would be

decided by the arbitration

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within the ambit of § 301 and this Court must dismiss for

want of jurisdiction.

Even if this Court were to find that its jurisdiction ex-

isted, it would still be compelled to deny to the Plaintiffs

the relief which they seek. In order for a Plaintiff to sus-

tain an allegation that the union has breached its

statutory duty of fair representation he must establish

that the union’s conduct toward a member of the collec-

tive bargaining unit is arbitrary, discriminatory, or in

bad faith. Vaca v. Sives, 385 U.S. 895 (1967). Such

evidence does not exist in this case. If anything, the

evidence shows the great extent to which the local has

attempted to please everyone — a difficult feat indeed

when attempting to represent as a Local two groups of

people who have traditionally performed two types of

work at two different wage rates. The two different

seniority systems were forumlated after much thought

and consultation with their attorneys. And most impor.

tantly, each was discussed and ratified by a majority of

the union local’s members. The situation in this case is

analagous to that in Humphrey v. Moore, 375 U.S. 335

(1964) where one company was absorbed by another and

the Union agreed with the company upon a plan which

dovetailed the seniority of the employees of the two com-

panies. The effect of this was to displace a number of

employees. The Union represented both the employees

who had been benefitted from the plan and the ones who

were displaced. In denying aclaim of breach of the duty of

fair representation made by those employees displaced

the Court commented on the wide range of

reasonableness which the Union must be allowed in

representing its members:

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. we are not ready to find a breach of the

collective bargaining agent’s duty of fair

representation in taking a good faith position

contrary to that of some individuals whom it

represented nor in supporting the position of one

group of employees against that of another. In

Ford Motor Co. v. Huffman, 345 U.S. 330, 31

LRRM 2548, the Court found no breach of duty by

the union in agreeing to an amendment of an ex-

isting collective bargaining contracting, gran-

ting enhanced seniority to a particular group of

employees and resulting in layoffs which

otherwise would not have occurred. “Inevitably

differences arise in the manner and degree to

which the terms of any negotiated agreement

affect individual employees and classes of

employees. The mere existence of such

differences does not make them invalid. The com-

plete satisfaction of all who are represented is

hardly to be expected. A wide range of

reasonableness must be allowed a statutory

bargaining representative in serving the unit it

represents, subject always to complete good faith

and honesty of purpose in the exercise of its dis-

cretion.” Id., at 338. Just as a union must be free

to sift out wholly frivolous grievances which

would only clog the grievance process, so it must

be free to take a position on the not so frivolous

disputes. Nor should it be neutralized when the

issue is chiefly between two sets of employees.

Conflict between employees represented by the

same union is a recurring fact. To remove or gag

the union in these cases would surely weaken the

collective bargaining and grievance processes.”

375 US. at 349-350.”

a)

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It is clear to the Court that no matter which seniority plan

is adopted some members would benefit at the expense of

others. The Defendant has acted with honesty ar.d good

faith in structuring and implementing the June 1972

seniority system and has committed no breach ofits duty

of fair representation.

Therefore, it is ORDERED, ADJUDGED and

DECREED that the relief sought by Plaintiffs is in all

things DENIED and that Defendant’s Motion to Dismiss

is in all things GRANTED, and this case is DISMISSED

for want of jurisdiction.

The Clerk will enter this Memorandum Opinion and

provide counsel with true copies.

Done at Houston, Texas this 28th day of December,

1973.

/s/ WOODROW SEALS

United States District Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RIGOBERTO GONZALEZ, FRANK V. GONZALEZ.

JESE O. GARGIA, MANUEL VILLAREAL, VICTOR

RODRIGUEZ, CARLOS RIVERA, RUBEN PEREZ,

SAM RAMOS, GUADALUPE AYALA, MARTIN 0.

CANTU, JOSE PEREA, JUAN F.GARCIA, RAMON M.

CASTELLON, ELOGIO L. RIVERA, JUSTINO LOPEZ,

CARLOS T. JASS, C. B. MURILLO, FIDEL PEREZ, AR-

NULFO CASTILLA and ISMAEL RODRIGUEZ,

Plaintiffs

versus C.A. No. 72-H-765

INTERNATIONAL LONGSHOREMEN’S ASSOCIA-

TION LOCAL NO. 1581, AFL-CIO,

Defendant

Kenneth L. Tilley, Houston, Texas

Attorney for the Plaintiffs

Brock & Williams (Gerald J. Goodwin)

Houston, Texas

Attorneys for the Defendant

JUDGMENT:

For the reasons set forth in the Memorandum Opinion

of even date and incorporated herein, it is ORDERED,

ADJUDGED and DECREED that the Plaintiffs take

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nothing, that the Defendant’s Motion to Dismiss be and

hereby is GRANTED and this cause is DISMISSED.

It is further ORDERED that the Defendant recover of

the Plaintiffs its cost of action as provided by Rule 54(d) of

the Federal Rules of Civil Procedure.

This is a Final Judgment.

The Clerk will enter this Judgment and provide counsel

for all parties with true copies.

Done at Houston, Texas, this 28th day of December.

1973.

s/ WOODROW SEALS

United States District Judge

Filed: Dec. 28, 1973

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APPENDIX “C”

Rigoberto GONZALEZ et al.,

Plaintiff-Appellant,

versus

INTERNATIONAL LONGSHOREMEN’S ASSOCIA-

TION LOCAL NO. 1581, AFL-CIO,

Defendant-Appellee.

No. 74-1658

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

Aug. 1, 1974.

Appeal from the United States District Court for the

Southern District of Texas

Before COLEMAN, DYER and RONEY, Circuit

Judges.

PER CURIAM:

Displeased because their seniority rights were alleged-

ly adversely affected by a majority vote of the union mem-

bership, plaintiffs brought suit under section 301(a) of the

National Labor Relations Act, 29 U.S.C.A. § 185(a), for

violation of the Union’s duty of fair representation. The

district court dismissed the complaint for want of jurisdic-

tion. We affirm.

* Rule 18, 5 Cir.: see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New

York et al. 5 Cir, 1970, 431 F.zd 404, Part I

18a

The Union served as a daily hiring hall for the Port of

Houston. While the latter looked to the Union as a source

of labor, there was no collective bargaining agreement

between the Union and the Port.'

As a result of a seniority plan adopted by a majority of

the Union in 1972, those who had worked predominately

in the Compress Department found themselves with less

seniority than those who had worked mainly in the Dock

Department and thus had decreased opportunities to ob-

tain dock work. The plaintiffs’ suit followed.

We think it is clear that there must be a collective

bargaining agreement and a breach of that agreement to

confer jurisdiction on a federal district court under Sec-

tion 301 of the Act. See Rae v. United Parcel Service of

Pa., E.D.Pa. 1973, 356 F.Supp. 465, 468; Genesco, Inc. v.

Joint Council 13, United Shoe Workers of America,

S.D.N.Y. 1964, 230 F.Supp. 923, 928-29, aff'd, 2 Cir. 1965,

341 F.2d 482. Fatal to the jurisdiction of the court below

was the showing that there was no bargaining agreement

between the Port and the Union.’

Affirmed.

1 Any such agreement would have been void as against the statutory policy of

the State of Texas. Vernon’s Ann.Civ.St. art. 5154c, § 1.

2 Section 301(a) of the Act provides: “Suits for violation of contracts between

an employer 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 in controversy or

without regard to the citizenship of the parties.”

3 Whether there was an “under the table” bargaining agreement between the

Port and the Union as suggested by the plaintiffs does not merit discussion