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Court of Appeal, Second District, Division 1, California.


No. 57266.

Decided: July 30, 1982

Neil M. Herring, Louise A. Monaco, and Robert D. Neuman (Finkel & Herring), for appellants. Victor J. Van Bourg and David A. Rosenfeld (Van Bourg, Allen, Weinberg & Roger), for respondent union.


Plaintiff Waldo Kusterns and 20 other individually named iron workers (hereinafter collectively referred to as plaintiffs and/or the workers) appeal from a summary judgment granted in favor of defendants Local Union No. 433, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, an unincorporated association, District Council of Iron Workers of the State of California and Vicinity, an unincorporated association (hereinafter defendant unions) and various named companies (hereinafter defendant employers). The second amended complaint, a class action, brought by the workers pursuant to Labor Code section 1126,1 in essence alleges that they (plaintiffs) suffered monetary and emotional damages by reason that defendant unions and employers breached certain collective bargaining agreements by engaging in “backdooring”, the practice of making job referrals in a discriminatory fashion, favoring some workers and ignoring others, rather than following the job referral procedures set forth in section 5 of the Master Agreement(s). The trial court granted summary judgment on the ground that plaintiff workers had failed to exhaust a remedy for resolving their dispute as provided in the collective bargaining agreements prior to filing their suit in the superior court.


Plaintiff workers are members of Local Union No. 433, and are hired by employers through a hiring hall operated by the local union. The referral for employment procedure is precisely defined in certain “master” collective bargaining agreements, and involves dispatching workers in rotation from the “out of work” list. The District Council represents local unions in making collective bargaining agreements with employers.

Plaintiffs alleged in their complaint that Local Union No. 433 had been and was engaged in “backdooring”, the practice of making job referrals in a discriminatory fashion, favoring some workers and ignoring others, rather than following the job referral procedures set forth in section 5 of the Master Agreement(s). They allege that they were union members and had been deprived of work by the above described union practice and that jobs to which they would have been entitled, had the agreement procedures been followed, were denied to them, causing them monetary and emotional damage.

Plaintiffs further alleged in their complaint that “[p]rior to the institution of this action, plaintiffs, and each of them, have exhausted and/or attempted to exhaust all remedies available to them (a) under the provisions of said collective agreement(s), and (b) under the provisions of defendant Unions' constitutions and/or bylaws, to secure redress of the wrongful conduct herein described; and any further exhaustion of such internal and/or intra-union remedies by plaintiffs would be futile, or would be so time-consuming as to render such remedies ineffective, or is otherwise not required by law; or in the alternative, no such internal or intra-union remedies were available to plaintiffs to secure redress of the wrongful conduct herein described.” (Italics added.)

Plaintiffs also charged the defendant employers with breach of the collective bargaining agreement(s) by discriminatory hiring practices in violation of section 5's hiring hall referral procedure. While not explicitly pleaded, there is a strong inference from the pleadings that defendant unions and defendant employers engaged in collusion to defeat the evenhanded operation of the job referral process set forth in section 5.

There appears to be no dispute between the parties that the applicable “master agreement” does contain section 5 and specifically, subdivision M, which provides: “In the event any job applicant is dissatisfied with his Group Classification or his order of referral in that such applicant claims he was not placed in the proper Group set forth above or is aggrieved by the operation of the hiring arrangement or the provisions of this Section, such aggrieved job applicant may appeal in writing within 10 (ten) days from the day on which his complaint arose to an Appellate Tribunal consisting of a representative selected by the Employers and a representative selected by the Union and an Impartial Umpire appointed jointly by the Employers and the Union, and the decision of the Appellate Tribunal shall be final and binding.”

It is also undisputed that while plaintiffs did attempt to obtain redress for their grievances,2 they did not attempt to invoke the tripartite panel procedure of section 5, subdivision M.


The determinative issue on appeal from summary judgment is whether resort by plaintiff workers to the tripartite panel of subdivision M was a futile gesture within the meaning of the exceptions to Republic Steel Corporation v. Maddox (1965) 379 U.S. 650, 58 LRRM 2193, or whether their failure to invoke the tripartite panel precluded this suit as prematurely brought or potentially unnecessary.

Plaintiff workers argued below, as before this court, that they need not exhaust the grievance procedure of section 5, subdivision M, because it would be futile, given the hostility of those in control of the local union to plaintiff and their attempts to stop the “back-dooring”.3

Defendant unions and employers assert that it could not be assumed that the tripartite panel would not be fair, and point out that the grievance procedure in question had in fact been fashioned precisely to deal with the type of dispute which had arisen between the plaintiffs and the defendants herein.


It has long been the law of California that “a party to a collective bargaining contract which provides grievance and arbitration machinery for the settlement of disputes within the scope of such contract must exhaust the internal remedies before resorting to the courts in the absence of facts excusing such exhaustion.” (Johnson v. Hydraulic Research & Mfg. Co. (1977) 70 Cal.App.3d 675, 679; see, also, Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558; Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 894.) Federal law requires similar exhaustion by the complaining party, an “attempt” to invoke the remedy at the very least. (Republic Steel Corporation v. Maddox, supra, 379 U.S. 650, 652, 58 LRRM 2193.) The Maddox requirement was reiterated in Vaca v. Sipes (1967) 386 U.S. 171, 184, 64 LRRM 2369. Vaca also set forth the recognized exceptions to the rule of exhaustion of remedies: (1) employer repudiation of the collective bargaining agreement and its attendant dispute settlement procedure, (2) arbitrary refusal or perfunctory handling of an employer's grievance by the union, and (3) circumstances (undefined) making arbitration futile. (Id., at pp. 185-186.) In a later case, Glover v. St. Louis S.F.R. Co. (1969) 393 U.S. 324, 70 LRRM 2097, resort to administrative remedies were excused where it was adequately demonstrated that the complaining parties would be applying for relief to persons who had control of the grievance machinery and were, without a doubt, hostile to the granting of relief. This situation was found “futile” within the meaning of the Vaca exception.

In the case at bench we conclude that there was not sufficient demonstration of futility to excuse plaintiffs from their failure to invoke the tripartite panel procedure of subdivision M. Our reasoning follows:

FIRST: The Maddox opinion (supra) unmistakably describes the rationale for favoring extrajudicial treatment of labor disputes and points out that public policy favors informal adjudication of grievances on the local level if possible as the most appropriate and economical method of resolution.

SECOND: Applicable case law stresses the importance of attempting to use the local machinery, set up as the result of the collective bargaining process, before resorting to the courts. In the case at bench, It is uncontroverted that the dispute over the hiring hall situation had produced much strife and dissension within the membership of Local Union No. 433. It does not necessarily follow that an attempt to invoke the tripartite panel would have been ignored or perfunctorily dismissed by the union leadership. Here, such an attempt was not undertaken by plaintiffs.

THIRD: In our opinion, it was not inevitable that the tripartite panel would have prejudged the plaintiffs' complaints, and thus render it futile for plaintiffs herein to address their complaints to the panel. To accept that premise would require us to allow parties to a collective bargaining agreement a unilateral option in determining the probabilities of a hostile panel and an unfair result which is not an interpretation of the collective bargaining agreement we deem reasonable. We do not know whether plaintiffs were in fact aware of the grievance procedure and decided to forego it; the second amended complaint alleged a certain portion of section 5 of the “master” agreement, but did not include subdivision M. We note that the tripartite panel composed of members selected by the union and the employer would not of necessity be entirely within union control and that the affidavits offered in opposition to the motion for summary judgment by plaintiffs did not contain sufficient facts identifying any particular employers (including the named defendant employers) as unlikely candidates for impartiality.

We, therefore, agree with the trial court that no triable issue of fact was revealed below, and that summary judgment was correctly awarded defendants.

In view of the foregoing, we need not decide what impact the decision of the Ninth Circuit (see fn. 2, ante) up-holding the N.L.R.B. decision and ordering enforcement of its order concerning the union's “backdooring” would have on this action brought in this state's court by these plaintiffs while the federal administrative proceedings were still pending. While it is recognized that a breach of a collective bargaining agreement may also constitute an unfair labor practice, it is obvious that federal and state tribunals should not be granting the same relief (damages, for example) to the same individuals for the same incidents. That problem, however, awaits resolution at the appropriate time.

Plaintiff workers have also contended here that findings of fact and conclusions of law were required in support of the summary judgment, and the failure of the trial court to render the requested findings and conclusions precludes the presumption on appeal that the trial court, as to any factual issue, found in favor of the prevailing party. The contention is without merit. Findings of fact and conclusions of law are required after the trial of a disputed question of fact. (Code Civ. Proc., §632; Cal. Rules of Court, rule 232.) Summary judgment procedures are concerned with determining the existence of a triable issue of fact, not with factual determination itself; findings of fact and conclusions of law are thus not required.


The judgment is affirmed. Each party to bear his or its own costs on appeal.


1.  Labor Code section 1126 provides: “Any collective bargaining agreement between an employer and a labor organization shall be enforceable at law or in equity, and a breach of such collective bargaining agreement by any party thereto shall be subject to the same remedies, including injunctive relief, as are available on other contracts in the courts of this state.”It is well settled that federal pre-emption of labor disputes involving interstate commerce does not apply to the asserted breach of collective bargaining agreements, and that federal and state courts may have concurrent jurisdiction of such matters. (Smith v. Evening News Assn. (1962) 371 U.S. 195, 51 LRRM 2646.) Federal substantive law applies. (O'Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 486, 53 LRRM 2159; Butchers Union, Local 532 v. Farmers Markets (1977) 67 Cal.App.3d 905, 95 LRRM 2226.)

2.  Plaintiff Kusterns had filed a complaint concerning the “backdooring” against the union with the National Labor Relations Board in 1974, alleging unfair labor practices in violation of the National Labor Relations Act.In 1977, the Board ruled that the union had violated the Act on numerous occasions by evading the hiring hall procedures - specifying 76 incidents during a 10-month period. The Board ordered Local Union No. 433 to cease and desist from engaging in such conduct and also monetary reimbursement to aggrieved workers. The union did not comply voluntarily; enforcement was sought and obtained in 1979. (See, N.L.R.B. v. International Ass'n of Bridge, Etc. (9th Cir. 1979) 600 F.2d 770, 775, 101 LRRM 3119)

3.  In affidavits filed by plaintiffs opposing the motion for summary judgment, plaintiffs set forth in some detail the efforts they had made to stop “backdooring”, oral complaints to union officials and some written communications to those farther up in the union hierarchy; lack of response from certain union officials; some violent confrontations between members of the differing factions in the union, involving, on occasion, physical force in the form of pushing and shoving.

HANSON, Judge: –

SPENCER, Presiding Judge, and LILLIE, Judge, concur.

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