Frank Amaya et al., Plaintiffs and Appellants v. Hilton Hotel Corporation et al., Defendants and Respondents. (1970)

The parties concede that respondent hotel is engaged in interstate commerce, within the meaning of the national labor relations act.   It is now established, however, that the federal preemption rule does not apply to an action under section 301 of that act (29 U.S.C. § 185), and that state courts have concurrent jurisdiction (Vaca v. Sipes, [55 LC ¶ 11,731] 386 U.S. 171).   But in exercising that jurisdiction state courts are to apply federal law (id.;  Teamsters Local v. Lucas Flour Co. [44 LC ¶ 50,470], 369 U.S. 95, 104;  O'Malley v. Wilshire Oil Co., 59 Cal.2d 482, 486).

Appellants' principal contention is that amendment of the collective bargaining agreement, and the new provision that all grievances filed concerning allocation of tips were withdrawn with prejudice, cannot affect their “vested right” to the tips they had sought in grievances filed before the amendment.   The cases cited above make clear that this issue is to be determined under federal law.   Thus we need not consider the state authorities cited.

The federal court decisions are squarely contrary to appellants' view.   “[W]hen ‘vested rights' are impaired or extinguished in the course of the bargaining, any recourse by the person affected must then depend upon ‘a bad faith motive, an intent to hostilely discriminate’ on the part of the bargaining representative” (International Longshoremen's & Warehousemen's Union v. Kuntz, [50 LC ¶ 19,095] 334 F.2d 165, 171).  “Just as a union must be free to sift out wholly frivolous grievances which would only delay the grievance process, so it must be free to take a position on the not so frivolous disputes” (Humphrey v. Moore, [48 LC ¶ 18,670] 375 U.S. 335, 349-50;  see also Vaca v. Sipes, supra, 386 U.S. 171;  Ford Motor Co. v. Huffman, [23 LC ¶ 67,505] 345 U.S. 330).   Thus the mere fact that appellants assert a “vested right” does not bar its surrender by the union, as bargaining agent, in good faith negotiations conducted in the best interests of the members as a whole.

We recognize, of course, that the above authorities do not bar appellants if their bargaining agent acted in bad faith, arbitrarily, discriminatorily, or hostilely to them.   Their closing brief argues that such claims are presented here.   But “statements of counsel in briefs are not part of the record on appeal” (Gantner v. Gantner, 39 Cal.2d 272, 278).   No declaration, affidavit or pleading even suggests such impropriety on the part of the union.  “[B]reach of the collective bargaining agent's duty of fair representation” is not to be found in its “taking a good faith position contrary to that of some individuals whom it represents” (Humphrey v. Moore, supra, 375 U.S. 335, 349).   No more is shown or asserted here.

(Judgment affirmed.)

DRAPER, J.