KUSTERNS v. LOCAL UNION NO 433 INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRON WORKERS AFL CIO (1980)

I

This appeal is from the summary judgment rendered on July 21, 1978, against twenty-one iron workers on the sole ground that they failed to utilize a certain collective bargaining contract grievance procedure prior to the commencement of legal proceedings in court.

Plaintiff-appellants, who are members of Local 433, are hired when they seek work, by respondent employers through a hiring hall procedure. Appellants have alleged in two causes of action that, (1) the union and the employers have violated the collective bargaining agreement by operating the hiring hall in a discriminatory manner thereby damaging appellants and, (2) that the union by its discriminatory job referral practices has breached its duty of fair representation owed to the union members.

The union and employers moved for summary judgment which was granted on May 17, 1978. Employees appeal from the order of summary judgment.

II

Appellants are members of Local Union 433, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Local 433 and other Iron Worker local unions are represented in collective bargaining by The District Council of Iron Workers. Appellants assert, in their second amended complaint that the respondent employers and Local 433 were bound by certain “master” collective bargaining agreements which require that a certain procedure be followed in the referral of iron workers for jobs. Section 5 of the “Master Agreement” sets forth the procedure by which iron workers must be dispatched in a non-discriminatory manner to job openings. Appellants allege that they have been deprived of jobs to which they were entitled because the administrators of Local 433 and The District Council have refused to dispatch workers in rotation from the “out of work” list. They have instead, assert appellants, favored employees who have been their political supporters by preferentially referring them to jobs.

Section 5M of the “Master Agreement” requires that an aggrieved employee who feels the referral procedure has not been followed, must invoke and pursue arbitration. It reads as follows:

“M-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 ten (10) 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.”

Appellants take the position that to seek redress by utilizing section 5M would be futile. They assert in paragraph 13 of their second amended complaint, “... 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 ....” Respondents urge that 5M provides for the creation of a tripartite panel which may be utilized by any worker, with or without the assistance of the union, to process a grievance against either the union, the employer or both. They urge that the panel would be impartial and the failure of the appellants to utilize it prior to filing suit herein is fatal to their cause.

The order of summary judgment was upon the single ground that section 5M of The District Council Agreement was a necessary administrative remedy to be utilized before the institution of legal action. On May 23, 1978, appellants requested Findings of Fact and Conclusions of Law, which request was denied on June 9, 1978. Appellants then appealed from the order of summary judgment.

III

The parties do not dispute that jurisdiction to enforce the collective bargaining agreement(s) involved herein is vested concurrently in the federal and state courts, and that federal law applies. (Butchers Union v. Farmers Markets (1977) 67 Cal.App.3d 905, 136 Cal.Rptr. 894; Textile Workers Union of America v. Lincoln Mills (1956) 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; Safeway Stores v. Brotherhood of Teamsters (1978) 83 Cal.App.3d 430, 147 Cal.Rptr. 835.)

IV

Appellants contend that Findings were required in support of the summary judgment and the failure to render the requested Findings precludes a finding on appeal that the trial court, as to any factual issue, found in favor of the prevailing party. This contention is totally without merit. Findings of Fact and Conclusions of Law are required after the trial of a question of fact by the court. (See, Cal. Code Civ.Proc., s 632 and Cal. Rules of Court, rule 232.) Summary judgment procedures are concerned with determining if there is a triable issue of fact, not fact determination itself. (See Walsh v. Walsh (1941) 18 Cal.2d 439, 441, 116 P.2d 62; de Echeguren v. de Echeguren (1962) 210 Cal.App.2d 141, 148, 26 Cal.Rptr. 562; Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499, 508, 125 Cal.Rptr. 872.) Moreover, California Code of Civil Procedure section 437c specifies:

“Such motion (summary judgment) shall be granted if all papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ...”

Inasmuch as the court made no factual determination it follows that no Findings of Fact and Conclusions of Law could be formulated.

V

The Landrum-Griffith Act provides that a union may require its members to exhaust internal union remedies before commencing legal action,¹ but there are three well recognized exceptions to that general rule: (1) employer repudiation of the contract and its attendant dispute settlement procedure; (2) arbitrary refusal or perfunctory handling of an employee's grievance by a union; (3) circumstances which would make arbitration futile. (Derr v. Bright, 297 F.Supp. 12 (M.D.Pa.1969).) If the employer has repudiated the contract or the union has arbitrarily and wrongfully refused to prosecute the grievance the employee may seek judicial relief. Even the mere perfunctory handling of a grievance by a union might be a sufficient basis for a finding of a breach of the duty of fair representation which would excuse the exhaustion of grievance procedures and arbitration. (Vaca v. Sipes (1966) 386 U.S. 171, 185-186, 87 S.Ct. 903, 914-915, 17 L.Ed.2d 842; see also, Hines v. Anchor Motor Freight (1976) 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 431.) In the instant case these exceptions may well be applicable inasmuch as the appellants have presented several factual bases² upon which to rest their contention that there were circumstances present which made the grievance remedy unworkable or unsatisfactory to the point of futility. They assert:

(1) On September 9, 1974, three iron workers of Local 433 went to the Business Manager, Lansford, to complain about the hiring hall business agents/dispatchers “backdooring” their friends to jobs without reference to the “out of work” list or job referral procedures and about the illegal hiring practices of the employers. They asked, is there any way that the Union could act and clean up these violations? Business Manager Lansford replied that there was nothing he could do about it.

(2) On September 12, 1974, appellant Kusterns filed with the National Labor Relations Board an unfair labor practice charge against Local 433 alleging that the hiring hall was being operated in a discriminatory manner. The National Labor Relations Board ruled that Local 433 did violate sections 8(b)(1)(A) and (8)(b)(2) of the National Labor Relations Act and thereby breached its duty of fair representation by unlawfully engaging in backdooring practices on 76 specific occasions during a ten-month period and by engaging in threats and acts of violence against workers opposing the union's hiring hall practices.³ Local 433 was ordered to cease the unlawful operation of the hiring hall and to reimburse the employees for lost wages. The union did not comply voluntarily and an enforcement decree was sought and obtained.⁴

(3) Certain iron workers were, on February 13, 1975, and February 19, 1975, threatened by Business Agent Ward, and Ward pushed iron worker Sims causing him a serious back injury.

(4) A National Labor Relations Board decision⁵ contained a statement that it should not be necessary for an aggrieved party to resort to section 5M because:

“. . . the aggrieved party was opposed to the position of the Union, and there was no assurance that representatives of the employers or the Union, who together with an impartial umpire, composed the Appellate Tribunal whose decision was final and binding, would fairly represent the aggrieved party in his grievance against the union's administration of the hiring hall. . . .”

(5) Business Manager Lansford never mentioned to appellants that section 5M was an available procedure to remedy the massive job referral violations being complained of.

(6) Subsequent to the filing of this action iron worker Sims was threatened in the hiring hall in front of Business Agent Ward and Local 433 board member Duke regarding the lawsuit, and those Union officials said and did nothing.

(7) In March 1977, appellant Kusterns filed a grievance with Business Agent Ward regarding an employment termination and requested union assistance to prosecute the grievance. He was given no help and no notice of hearing.

It is our view for the reasons set forth below that these allegations present for factual determination the issue of whether an exception to the general rule of exhaustion of grievance procedures should apply in this case? Was the grievance remedy unsatisfactory to the point it is permissible for these employees to pursue judicial review of their claim despite their failure to first seek redress through the contract grievance procedure.

VI

First, if the facts alleged by appellants are true, they indicate a union animosity of sufficient magnitude that a jury might well find that any union member with a grievance could reasonably conclude that there was no possibility of a fair hearing irrespective of the procedures available. After all, appellants allege that they articulated their grievances to Business Manager Lansford who rebuffed them with his statement that there was nothing he could do about it. Moreover, the findings of the administrative law judge⁶ in the N.L.R.B. proceeding establish that there were possibly union threats and violence against appellants Sims, Kusterns and others. If so, it becomes a question of fact whether appellants were obligated to seek redress through a panel which arguably would have been constituted of those who had demonstrated their hostility toward appellants. In point is the case of Calagaz v. Calhoon, 309 F.2d 248, 260 (5th Cir. 1962) a proceeding in which the court found that exhaustion was futile where the appeal of the aggrieved parties had to be to officers against whom the complaint was directed. (See also, Fulton Lodge v. Nix, (1969) 415 F.2d 212, 216.)

Local 433 business manager, Mr. Lansford, apparently conceded that the complaint lodged by the appellants was meritorious. Arguably, therefore, his failure to act on this complaint of internal union discrimination and employer contract violations was tantamount to the union's arbitrary refusal to process an employee's legitimate grievance. Such conduct by a union is impermissible, Vaca v. Sipes, supra, 386 U.S. at p. 191, 87 S.Ct. at p. 917, and constitutes an act of bad faith which is a breach of the union's duty of fair representation. (Hines v. Anchors Motor Freight, supra.) Respondents deny the allegations in their answers. However, whether the appellants' or respondents' version of the facts is correct is, with respect to this appeal, of little moment. But whether there was antagonism by the union toward appellants, and if so, whether it was sufficiently intense that appellants could not reasonably expect their grievances would be fairly prosecuted by the union is a crucial factual issue to be determined. Upon close scrutiny of the evidence a jury might have found the existence of sufficient union hostility to conclude that the grievance would have been handled perfunctorily or not at all. For this reason and others stated herein we hold that summary judgment was not proper. (See, Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir. 1980); Winter v. Local Union # 639 etc., 186 U.S.App.D.C. 315, 569 F.2d 146 (1977).)

Second, although appellants do not specifically allege in their complaint that there was collusion between the employer(s) and the union to bar the employees from fairly obtaining work through the hiring hall procedure, the facts pleaded raise this as a reasonable inference. Collusion is a genuine issue of material fact which, if proven to exist, constitutes circumstances which would have made arbitration futile and would have excused the duty to exhaust administrative remedies. (See, Glover, et al. v. St. Louis-San Francisco Railway Co., et al. (1968) 393 U.S. 324, 329-331, 89 S.Ct. 548, 551-552, 21 L.Ed.2d 519; Vaca v. Sipes, supra, 386 U.S. p. 194, 87 S.Ct. p. 918.)

Third, appellants allege in their second amended complaint that the employers “. . . have repeatedly breached the collective agreement(s) by acts and conduct including . . . discriminatorily failing and refusing to hire applicants for employment . . . in accordance with said collective agreement(s); knowingly and discriminatorily selecting and hiring iron workers other than appellants in contravention of the collective bargaining agreement(s) procedures, such as hiring from sources other than the union hall.” In as much as the N.L.R.B. action (supra) established that 76 “backdooring” incidents occurred, certain employers albeit unidentified in those incidents, were necessarily involved. If any of the employers in the instant action were participants, and that is a question of fact to be determined, then the employer repudiation exception to the general rule would be applicable. In fact, when an employer, by his conduct in hiring iron workers in contravention of the union contract thereby repudiates that contract, he is estopped by his own conduct to rely on the unexhausted grievance procedure as a defense. (See, Vaca v. Sipes, supra, p. 185, 87 S.Ct. p. 914.)

Additionally, as to summary judgment the employers or some of them may not have had available to them the defense of failure to exhaust a grievance procedure. That nonjudicial remedy is provided for in the collective bargaining agreement to which several employers deny being a party.⁷ If these employers, or any of them, were not parties to this contract then they cannot avail themselves of a contractual union defense. (See, Orphan v. Furnco Construction Corp. (1972) 466 F.2d 795, 801 at n. 12 (7th Cir. 1972) and see, Retana v. Apt. Operator's Local 14, 453 F.2d 1018, 1027, n. 16 (9th Cir. 1972) (dictum).) Whether or not the employers, or any of them, were party to and breached the contract is, in our view, a genuine issue of material fact to be determined.

VII

We find unpersuasive respondents' countervailing contention that the doctrine of futility as a defense applies only to a situation where the union controls the grievance procedure, and is inapplicable here where there is the availability of a tripartite panel. It can be argued that inasmuch as one panel member would be a representative of the union and one member a representative of the union and one member a representative of the employers, both of whom the employees make their claim against, the prospect of dispassionate treatment of the grievance would be remote. This contention, it seems to us, presents a triable factual issue.

VIII

As exclusive bargaining agent of the employee the union has certain statutory duties.⁸ It must fairly represent the employee in any meritorious grievance without hostility or animosity; it must not perfunctorily deal with his problem or refuse to treat it; and, it must not discriminate against him or act arbitrarily toward him or his cause. (Humphrey v. Moore, (1963) 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370; Ford Motor Co. v. Huffman, (1952) 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048; Vaca v. Sipes, supra.) It was a question of fact to be determined whether or not in this case the union so acted. If so, the duty of the employees to exhaust any grievance procedure was, and is, excused.

For the above reasons, the summary judgment is vacated and this case is remanded for further proceedings.

FOOTNOTES

1.  29 U.S.C., s 411.

2.  Federal Rules of Civil Procedure, section 56(e) specifies that for a party to avoid summary judgment he “... may not rest upon the mere allegations or denials of his pleadings but ... must set forth specific facts showing that there is a genuine issue for trial.”

3.  See, N. L. R. B. v. International Ass'n of Bridge, etc., (9th Cir. 1979) 600 F.2d 770, 775.

4.  Ibid., pp. 779-780.

5.  Iron Workers Local 118 (Bostrom-Bergen), 219 NLRB No. 90 (1975).

6.  See, N.L.R.B. v. International Ass'n of Bridge, etc., supra, p. 774, fn. 3.

7.  See answers filed by Basalt Rock Co., R.D.M Erectors, Inc.; The Herrick Corp., Owl Constructors, Nemco, Inc., Bethlehem Steel Corp.; H. H. Robertson Co.; Federal Steel Corp.; United Riggers & Erectors, Inc.

8.  National Labor Relations Act section 8(b).

DUNN, Associate Justice (assigned).

LILLIE, Acting P. J., and L. THAXTON HANSON, J., concur.