United States Court of Appeals
For the First Circuit
No. 08-2321
ROBERTO RAMÍREZ-LEBRÓN; FÉLIX FERNÁNDEZ-TORRES;
VÍCTOR APONTE-TORRES; JESÚS CASTRO-GELY;
RAMÓN MATTA-FLORES; DAVID DE JESÚS-ORTÍZ;
JOSÉ J. GONZÁLEZ-CENTENO,
Plaintiffs, Appellants,
v.
INTERNATIONAL SHIPPING AGENCY, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Baldock, * and Lipez, Circuit Judges.
Juan H. Saavedra Castro for appellants.
Antonio Cuevas Delgado for appellee.
January 29, 2010
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Circuit Judge. This appeal arises out of a
labor dispute over seniority rights between two groups of
employees of Defendant International Shipping Agency (ISA).
The two groups consist of three and seven employees
respectively (G3 and G7). The ten total employees, all
employed as “checkers,” are members of the Unión de
Empleados de Muelles de Puerto Rico (AFL-CIO), Local 1901
I.L.A. (Union). G7 filed a verified complaint pursuant to
§ 301 of the Labor Management Relations Act (LMRA), 29
U.S.C. § 185, alleging that ISA and G3 fraudulently
procured, in breach of the collective bargaining agreement
(CBA), an arbitration award granting seniority rights to G3.
Neither the Union nor G7 was a party to the agreement
between ISA and G3 that presaged the award. As alleged, the
Union, prior to the award, notified both ISA and the
arbitrator that the Union objected to any resolution of the
matter absent its participation as exclusive bargaining
representative for all ten member employees. G7 asked the
district court to (1) vacate the arbitration award in favor
of G3, (2) order an arbitration hearing at which the Union
and G7 would be provided a meaningful opportunity to be
heard, and (3) render damages against ISA. The district
court dismissed G7's complaint. According to the court, G7
lacked standing to request a vacatur of the arbitration
award and failed to exhaust its contractual remedies under
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the CBA’s grievance procedure.
We exercise jurisdiction under 28 U.S.C. § 1291. Our
review of a Rule 12(b) dismissal is de novo. See McCloskey
v. Mueller, 446 F.3d 262, 265-66 (1st Cir. 2006). Accepting
all well pleaded factual allegations of the complaint as
true, we conclude the district court erroneously dismissed
G7's complaint. Those factual allegations are sufficient
under § 301 to establish G7's standing and sustain G7's
claim that ISA, by entering into a side agreement with G3
designed to procure an arbitration award, breached the CBA
and effectively repudiated its arbitration provisions,
thereby estopping ISA from posing the defense of exhaustion.
See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (“[O]nly
a complaint that states a plausible claim for relief
survives a motion to dismiss.”).
I.
G7's complaint alleges as follows: In April 2002, ISA
and the Union agreed that G7, whose members were part of
the Union, would have seniority rights over G3. G3's
members joined the Union in May 2002. In February 2003, the
Union, at the request of G3, filed a grievance pursuant to
the CBA with the Puerto Rico Bureau of Conciliation and
Arbitration (Bureau) challenging the seniority rights of G7.
G7 thereafter demanded that the Union allow its seven
members to intervene in the arbitration of G3's grievance.
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The Union agreed and “informed the Bureau and ISA in writing
that the [G7 members] would be joined as parties to the
grievance because they could be ‘affected by any
determination of the grievance and that they had a right to
participate’ in the process.”
In March 2007, the Union, through its President, sent
a letter to ISA (with a copy to the arbitrator previously
selected through the Bureau) stating the Union was “not in
agreement” with any “arrangements” regarding seniority
rights that ISA might make with G3 (or G7 for that matter).
Rather, the Union expressed its view that “there is no
arrangement whatsoever until the arbitrator hears both
parties and issues his Award.” On August 27, 2007, a
hearing before the arbitrator, at which ISA, the Union, G3,
and G7 were set to appear, was suspended. That same day,
the Union, again through its President, sent a letter to the
arbitrator stating the Union did not recognize any agreement
ISA and G3 may have reached concerning the seniority rights
of G3 in relation to those of G7. The letter further stated
that the Union:
[H]ad a hearing today which was suspended since
Atty. Gonzalez Vargas [G3's attorney] and the
attorney from the company [ISA’s attorney]
requested that it [G3's grievance] be heard by
record, which was never requested from this Union
for its approval and we found out through you and
I reiterate that this Union is totally opposed.
Three days prior to the scheduled hearing, ISA and G3
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allegedly had “reached a secret agreement on the seniority
issue and submitted their agreement to the arbitrator.”
Under the agreement, “ISA and [G3] agreed to amend the 2002
Seniority List Agreement to allow [G3] to move up the list
and bump and acquire seniority rights over [G7].” The
arbitrator issued an award on April 3, 2008, incorporating
what G7's complaint refers to as a “sham, secret agreement.”
According to the complaint:
ISA and [G3] submitted their secret agreement to
the Bureau under false and fraudulent pretenses.
ISA intentionally mischaracterized this agreement
to suggest the Union and ISA had reached the
agreement. ISA knew that the Union had not
approved the agreement and that the Union required
a hearing on the seniority grievance, with the
presence of [G3] and [G7]. ISA also knew that the
Union rejected any attempt to settle the seniority
issue with [G3].
G7 also averred that ISA induced the arbitrator “to
issue an arbitration award based on a ruse and fraudulent
scheme, and the sham, secret agreement.” Based upon the
foregoing allegations, G7's complaint claimed that ISA had
breached the CBA and repudiated the arbitration process. As
its prayer for relief, G7 asked the court to vacate the
arbitrator’s award and render a declaratory judgment under
28 U.S.C. § 2201 “that any challenge or dispute relating to
the 2002 Seniority List must be resolved with the presence
and participation of [G7] and [G3], in accordance with the
terms and conditions established by the Board of Directors
of the Union.” G7 further sought an award of damages
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“including emotional and mental distress injuries suffered,
and any wages and compensation losses caused,” based on
ISA’s breach of the CBA “and/or the implied covenant of good
faith and fair dealing incorporated into the CBA.”
ISA initially moved to dismiss G7's complaint on the
basis that the latter’s claim to seniority rights was
subject to arbitration under the CBA. 1 The district court,
however, read G7's complaint as one to set aside an
arbitration award. Relying on Section 5 of the Federal
Arbitration Act (FAA), specifically 9 U.S.C. § 10(a)(1),
which empowers a court “upon the application of any party to
the arbitration” to vacate an award “procured by corruption,
fraud, or undue means,” the court held G7's allegations of
fraud on the part of ISA sufficient to withstand the motion.
ISA subsequently filed a motion to reconsider which the
district court construed pursuant to Fed. R. Civ. P. 60(b)
as one for relief from judgment based on a manifest error of
law. This time, the district court reasoned G7 was not a
party to the CBA or the arbitration proceeding. Rather, ISA
1
We are left to ponder why neither G7 nor ISA,
whose respective theories of the case depend on the
terms of the CBA, have never entered the CBA into the
record. On the limited record before us, we accept
G7's uncontroverted allegations that the Union is the
exclusive bargaining representative of its member
employees, and ISA and the Union agreed that disputes
over seniority rights were subject to the CBA’s
grievance procedures.
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and the Union were the only proper parties thereto. Thus,
the district court concluded G7 lacked standing to challenge
the arbitration award. According to the court, G7 would
have standing to challenge the award only if the complaint
had alleged ISA breached the CBA and the Union breached its
duty of fair representation. The court held that G7's
failure to allege wrongdoing on the part of the Union
sounded the death knell of its challenge to the arbitration
award. The district court further concluded the CBA
required G7 to submit its members’ breach of contract claim
to arbitration because the CBA contained a provision
requiring the arbitration of grievances involving seniority
rights.
II.
We need not address whether the district court in
holding that G7 lacked “standing” to maintain this action
properly characterized G7 as a “non-party” to the
arbitration within the meaning of Section 5 of the FAA.
Certainly, the named parties to the arbitration as reflected
in the challenged award’s caption were ISA and the Union. 2
2
That the arbitrator’s written award in favor of
G3's seniority rights is not a part of the record in
this case defies explanation. We may, however, under
Fed. R. Evid. 201 take judicial notice of the official
English translation of that award as it appears of
record in Unión de Empleados de Muelles de Puerto Rico
v. Int’l Shipping Agency Inc., No. 08-cv-01615-ADC,
ISA’s Motion Submitting Certified Translations (D.P.R.,
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This necessarily follows from the fact that ISA and the
Union are the named parties to the CBA. As the exclusive
bargaining representative of its member employees under the
terms of the CBA, the Union submitted G3's grievance over
seniority rights to ISA. But G7's action is not one to
vacate an arbitration award under Section 5 of the FAA.
Rather, G7 asserts a cause of action under Section 301 of
the LMRA for breach of the CBA. Though somewhat inartfully
pled, the remedies G7 seeks for that breach are a
declaration of contractual rights, vacatur, and damages.
Section 301 provides: “Suits for violation of contracts
between an employer and a labor organization representing
employees in an industry affecting commerce . . . may be
brought in any district court of the United States having
jurisdiction of the parties.” 29 U.S.C. § 185(a). Despite
Section 301's plain reference to contracts between employers
filed July 2, 2008) (Docket Entry #11). In that case,
the Union filed a petition in Puerto Rico commonwealth
court seeking to set aside the arbitration award for
the reasons that the arbitrator (1) acted without
jurisdiction in the absence of the Union’s consent;
(2) condoned the improper conduct of ISA and G3; and
(3) denied both the Union and G7 due process of law.
See Unión de Empleados de Muelles de Puerto Rico v.
Int’l Shipping Agency, No. KAC08-0643 (507), Petition
for Review of Arbitration Award (Court of First
Instance, Superior Part of San Juan, filed May 2,
2008). The Union’s petition apparently again is
pending in commonwealth court after ISA’s attempt
to remove the action to federal district court proved
unsuccessful.
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and unions, the Supreme Court in Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 562 (1976), recognized that
“Section 301 contemplates suits by and against individual
employees as well as between unions and employers; and
contrary to earlier indications § 301 suits encompass those
seeking to vindicate ‘uniquely personal’ rights of employees
such as wages, hours, [and] overtime pay.” Hines suggests
Section 301 is broad enough to encompass G7's action against
ISA for breach of the CBA, viewed as the first step in its
effort to vindicate its purported right to seniority status
vis-a-vis G3. See Tejidos de Coamo, Inc. v. Int’l Ladies
Garment Workers’ Union, 22 F.3d 8, 15 (1st Cir. 1994)
(recognizing that a Section 301 action may request a
declaration of contractual rights pursuant to Section 2201);
Black-Clawson Co. v. Int’l Ass’n of Machinists, 313 F.2d
179, 181-82 (2d Cir. 1962) (holding Section 301 is not
restricted to suits for damages or specific enforcement and
will sustain a request for a declaratory judgment).
Despite loose reference to the “standing” label in some
court opinions addressing employee claims under Section 301,
the overriding issue here is not whether G7 has standing.
Rather, as we shall see, the issue is whether G7 has alleged
circumstances sufficient to sustain a cause of action for
breach of the CBA against ISA under Section 301. G7
undoubtedly has standing because its members have alleged a
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“uniquely personal” stake in the outcome of the controversy
necessary to sustain federal jurisdiction under Section 301.
“To establish standing, a plaintiff must present an injury
that is concrete, particularized, and actual or imminent;
fairly traceable to the defendant’s challenged action; and
redressable by a favorable ruling.” Horne v. Flores, 129 S.
Ct. 2579, 2592 (2009). More particularly, in the context of
Section 301:
[T]he determination whether an individual employee
has standing to seek enforcement of a right . . .
granted under the [CBA] turns upon the nature of
the right . . . at issue, the test being whether
the right . . . sought to be enforced is ‘uniquely
personal’ to the individual plaintiff or whether it
is instead possessed by the bargaining unit as a
whole.
20 Samuel Williston & Richard A. Lord, A Treatise on the Law
of Contracts § 55.60, at 279 (4th ed. 2001) (citing Hines).
We need not belabor the point: The factual allegations of
G7's complaint readily establish the “uniquely personal”
injury to its members necessary to sustain G7's Article III
standing.
III.
Whether the district court may exercise jurisdiction
under Section 301 and adjudicate G7's claim that ISA
breached the CBA is another matter. 3 As preconditions to
3
The Union is not an indispensable party to G7's
suit. Because ISA allegedly acted unilaterally in
frustrating the CBA’s grievance procedure, ISA’s
possible liability to G7 does not depend upon any
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suing their employers under Section 301 for breach of a CBA,
employees generally must be willing to (1) exhaust the CBA’s
grievance procedures and (2) abide by the CBA’s finality
provisions. See Garcia v. Eidal Int’l. Corp., 808 F.2d 717,
720 (10th Cir. 1986). Subjecting an employee’s Section 301
suit to such preconditions is essential because “[t]he
collective bargaining system . . . of necessity subordinates
the interests of an individual employee to the collective
interests of all employees in a bargaining unit.” Vaca v.
Sipes, 386 U.S. 171, 182 (1967). When employees recognize
a union as their exclusive bargaining representative, the
rights of the individual employees so represented diminish.
See id. A CBA generally provides for the final, binding
resolution of labor disputes through grievance procedures in
which the union fairly represents the aggrieved employee(s).
Section 301's purpose is to promote the integrity of such an
agreement according to its terms. See United Paperworkers
wrongdoing on the part of the Union – a point on which
we subsequently expand in Part IV. See Garcia v. Eidal
Int’l Corp.,808 F.2d 717, 721 (10th Cir. 1986). In
fact, controlling precedent dictates that even if G7
had alleged such wrongdoing by the Union, G7 still
would have been entitled to sue ISA and the Union
separately. See Vaca v. Sipes, 386 U.S. 171, 187
(1967); Hayes v. New England Millwork Distribs., Inc.,
602 F.2d 15, 19 n.2 (1st Cir. 1979). Where an employee
accuses both the employer and the union of wrongdoing,
however, the norm is the “hybrid” action in which the
employee joins both defendants in one suit. See, e.g.,
Ayala v. Unión de Tronquistas de Puerto Rico, 74 F.3d
344, 345-46 (1st Cir. 1996).
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Int’l Union v. Misco, Inc., 484 U.S. 29, 36-38 (1987).
In nearly every instance, “[t]he refusal of courts to
review the merits of an arbitration award is the proper
approach to arbitration under [the finality provisions] of
collective bargaining agreements.” United Steelworkers v.
Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960); see
UMass Mem’l Med. Ctr, Inc. v. United Food & Commercial
Workers Union, 527 F.3d 1, 5-6 (1st Cir. 2008) (recognizing
that a procedurally sound arbitration award is “nearly
impervious to judicial oversight”) (internal quotation marks
omitted). Restricted judicial oversight of arbitration
awards is consistent with congressional recognition that
“[f]inal adjustment by a method agreed upon by the parties
is declared to be the desirable method for settlement of
grievance disputes arising over the application or
interpretation of an existing [CBA].” 29 U.S.C. § 173(d).
Accordingly, courts have not allowed employees to challenge
the underlying merits of arbitration awards by way of
Section 301 absent circumstances that have impugned the
integrity of the arbitration process, for instance, “fraud,
deceit, or breach of the duty of fair representation or
unless the grievance procedure was a ‘sham, substantially
inadequate or substantially unavailable.’” Harris v. Chem.
Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971)
(per curiam).
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Additionally, if employees seek judicial relief against
an employer under Section 301 before the union has at least
attempted to exhaust the CBA’s dispute resolution procedures
on their behalf, the employer may raise the defense of
failure to exhaust contractual remedies. See Vaca, 386 U.S.
at 184. This too is an “important qualification” on an
employee’s right to prosecute a Section 301 claim against an
employer. Hayes v. New England Millwork Distribs., Inc.,
602 F.2d 15, 18 (1st Cir. 1979). But neither is this
precondition upon an employee’s Section 301 suit unlimited.
“[F]ull exhaustion is not inevitably required by a court
before it will exercise jurisdiction under § 301.” Id.
Consistent with Supreme Court precedent, we have recognized
three occasions when a court may exercise jurisdiction
over an employee’s Section 301 suit against an employer
absent complete exhaustion of contractual remedies because
circumstances have impugned the integrity of the arbitration
process: where (1) “the union has the sole power to invoke
the grievance procedures and the union wrongfully refuses to
process or perfunctorily handles the grievance;” (2) “the
employer repudiates the grievance procedures;” or
(3) “resort to the grievance procedures would be futile.”
Cabarga Cruz v. Fundacion Educativa Ana G. Mendez, Inc., 822
F.2d 188, 192 (1st Cir. 1987). Absent an allegation of at
least one of these three exceptions to Section 301's
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exhaustion requirement, an employee’s Section 301 complaint
may not survive an employer’s motion to dismiss based on the
failure to exhaust contractual remedies.
IV.
Of course, in this case we are concerned principally
with the second exception to Section 301's exhaustion
requirement. G7 claims entitlement to Section 301 review
because, according to the complaint, ISA repudiated the
arbitration provisions of the CBA when it entered into a
“sham, secret agreement” with G3, thereby inducing the
arbitrator to issue an award favorable to G3 absent
the participation of the Union or G7, all in breach of the
CBA. According to G7, ISA cannot now invoke as a defense to
suit the very grievance procedures of the CBA by which it
failed to abide in the first place. We agree that ISA’s
alleged conduct is suspect because the claim “of a sham
transaction, in the sense of being both covert and in bad
faith, implies a determination to repudiate the [relevant
provisions of the] contract and thereby avoid arbitration.”
Garcia, 808 F.2d at 721. In Vaca, the Supreme Court
recognized an individual employee’s right to secure judicial
review of a Section 301 breach of contract claim despite the
failure to exhaust contractual remedies where the employer
by its conduct repudiated the very procedures necessary to
ensure the realization of those remedies:
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An obvious situation in which the employee should
not be limited to the exclusive remedial procedures
established by the contract occurs when the conduct
of the employer amounts to a repudiation of those
contractual procedures . . . . In such a situation
(and there may of course be others), the employer
is estopped by his own conduct to rely on the
unexhausted grievance and arbitration procedures as
a defense to the employee’s cause of action.
Vaca 386 U.S. at 185. 4
ISA submits it is willing to arbitrate G7's grievance
over seniority rights consistent with the terms of the CBA,
and that means with the Union as G7's exclusive bargaining
representative. But an employer who by its conduct
repudiates a promise to arbitrate a dispute consistent with
the terms of the CBA has no subsequent right to insist on
arbitration. See 6A Arthur L. Corbin, Corbin on Contracts
§ 1443, at 434-35 (1962). Rather, if the employer denies
the existence or the scope of its alleged repudiation in a
Section 301 suit and moves for dismissal of the action based
4
Mutual promises to arbitrate a dispute
are the agreed equivalents of each
other. A repudiation by one party of
his promise to arbitrate discharges
the duty of the other party to perform
his reciprocal promise . . . . This
is true, even though the provision for
arbitration is only a part of a larger
contract such as a collective bargain
between an employer and his employees.
10 John E. Murray Jr. & Timothy Murray, Corbin on
Contracts § 972, at 102 (Cum. Supp. 2009) (interim
edition).
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on the failure to exhaust contractual remedies, the issue
raised is for the court after appropriate inquiry into the
circumstances. See id. § 1443, at 435. In Drake Bakeries,
Inc. v. Am. Bakery & Confectionery Workers Int’l, 370 U.S.
254, 262-63 (1962), the Court told us: “[I]n determining
whether one party has so repudiated his promise to arbitrate
that the other party is excused, the circumstances of the
claimed repudiation are critically important.” 5
5
Given the final and binding nature of the
arbitration award granting G3 seniority rights, we are
also justifiably concerned at this point about the
futility of arbitrating G7's claim to seniority rights.
See Glover v. St. Louis-San Francisco Ry. Co., 393 U.S.
324, 330 (1969)(recognizing the futility exception to
Section 301's exhaustion requirement). Just as courts
may inquire into their prior judgments for fraud, we do
not dismiss out of hand the idea that arbitrators too
may inquire into their prior awards. See generally 9
Tim Bornstein, Ann Gosline, & Marc Greenbaum, Labor and
Employment Law § 226.06[1], at 226-33 (2009)
(addressing claim preclusion in the context of a prior
arbitration award). Nonetheless, the arbitration award
G7 seeks to set aside ostensibly rests on a settlement
agreement between the “parties” to the CBA. Those
parties, as the district court recognized, are ISA and
the Union. The final award determined the seniority
rights of G3, and thus necessarily those of G7. On its
face, that award binds ISA and the Union. Assuming the
allegations of the complaint to be true, that award, if
allowed to stand, may effectively gag the Union. As to
the merits of G7's claim to seniority, nothing at this
point appears left to arbitrate. The arbitrator,
allegedly duped, has made his decision in favor of G3,
to the detriment of G7. See Corbin, supra § 1443, at
436 (recognizing “that a breach may be of a kind that
destroys the end and aim of the arbitration provision
itself”).
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We have no quarrel with the Supreme Court’s statement
in Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry,
494 U.S. 558, 564 (1990), referred to by the district court,
that due to the finality provisions usually contained in a
CBA, “an employee normally cannot bring a § 301 action
against an employer unless he can show that the union
breached its duty of fair representation in its handling
of the grievance.” (emphasis added). As the array of
precedents illustrate, Chauffeurs speaks to the usual
Section 301 scenario. In such scenario, the employer is
alleged to have breached the CBA by taking some adverse
action against the employee unrelated to the CBA’s grievance
provisions. In that case, the employer’s misconduct has not
impugned the arbitration process. Rather, the union’s
alleged mishandling of the employee’s grievance has impugned
the process. These were the circumstances that led the
Supreme Court in Vaca to comment prior to Chauffeurs that in
order to succeed in a breach of contract action against the
employer, the employee must prove the union breached its
duty of fair representation in processing the grievance.
See Vaca, 386 U.S. at 185-87. Without proof of the union’s
misconduct, the arbitration process has not been jeopardized
and courts, as we have explained, are loathe to interfere in
labor relations and review the substantive merits of an
employee’s grievance.
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But the Court in Vaca also recognized a second, much
rarer, instance where an employee could maintain a Section
301 suit against an employer for breach of a CBA, namely
where the employer through its conduct repudiates the
applicable provisions of the CBA. The district court never
cited Vaca or addressed G7's allegations of repudiation.
Vaca recognized that circumstances may arise, like those
alleged here, where the union has not wrongfully refused to
process the employee’s grievance, and thus the employee has
no cause of action against the union for breach of the duty
of fair representation. But such circumstances do not in
themselves foreclose the employee’s breach of contract
action against the employer under Section 301. See Vaca,
386 U.S. at 185. And whether the employer repudiates the
CBA to avoid arbitration or fraudulently procure an
arbitration award ostensibly agreed to by the employer and
the union, while bearing upon the remedy sought, has no
bearing upon the availability of the employee’s cause of
action against the employer for breach of the CBA under
Section 301.
V.
This appeal in the end is about the fundamental fairness
of the arbitration process. As alleged in G7's complaint,
ISA is solely responsible for the failure of the arbitration
process because it repudiated those very provisions of the
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CBA designed to ensure a fair process. Vaca teaches that we
should not allow ISA to hide behind the very provisions of
the CBA it has allegedly repudiated. Rather, Vaca suggests
that ISA is estopped from utilizing the CBA (as well as the
consequent award) to shield itself from answering G7's
factual allegations. We therefore hold, based upon the
applicable law, that the factual allegations of G7's
complaint are sufficient to withstand ISA’s motion to
dismiss. Given the factual allegations buttressing G7's
claim that ISA and G3 entered into a “sham secret agreement”
whereby ISA breached the CBA and repudiated the CBA’s
grievance procedures, the issue of whether the integrity of
the process has been so impugned as to call into question
the validity of the arbitration award remains for judicial
resolution. 6
Importantly, we do not read G7's complaint as a direct
challenge to the arbitrator’s substantive determination that
6
A different conclusion might leave G7 without
legal recourse absent the Union’s decision in this case
to seek judicial relief. Without deciding the scope of
the Union’s duty to fairly represent G7, we wonder
whether a decision on the part of the Union not to seek
judicial relief would suggest the Union had breached
its duty of fair representation when the Union, as
exclusive bargaining agent for both G3 and G7,
apparently bent over backwards in its effort to inform
both ISA and the arbitrator of its objection to any
agreement absent the participation of all interested
parties. Certainly nothing in the record before us
suggests the Union has wrongfully refused to process
G7's grievance.
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G3 is entitled to seniority rights over G7. The complaint
does not request a substantive merits review of the
arbitrator’s final decision, and wisely so, because, as we
have seen, that review would be “very limited,” perhaps even
more so in G3's absence. Because the agreement between ISA
and the Union is to submit irresolvable grievances over
seniority rights to arbitration, a court generally has “no
business weighing the merits of the grievance, considering
whether there is equity in a particular claim, or
determining whether there is particular language in the
written instrument which will support the claim.” United
Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 567 (1960).
Rather, G7's complaint challenges the process through
which the arbitrator reached such decision as contrary to
the remedial procedures outlined in the CBA. In the
complaint, G7 recognizes that the dispute between G7 and G3
over seniority “must be resolved with the presence and
participation of [G7] and [G3], in accordance with the terms
and conditions established by the Board of Directors of the
Union.” To that we add “so long as those terms and
conditions are consistent with the applicable provisions of
the CBA.” In other words, G7 appears quite willing to
permit ISA and the Union to arbitrate its member employees’
grievances over seniority rights in a fundamentally fair
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process, that is, with the participation of both G3 and G7. 7
G7's position accords with the sound view that even where
procedural aberrations have tainted an arbitration award,
as a rule the court must not foreclose further
proceedings by settling the merits according to its
own judgment of the appropriate result, since this
step would improperly substitute a judicial
determination for the arbitrator’s decision that
7
According to the complaint, G3 and G7 assigned
to ISA and the Union through the CBA the task of
resolving the two groups’ differences. The Union may
not be pushed aside simply because the problem posed is
between two groups of member employees. “‘By its
selection as bargaining representative, [the union] has
become the agent of all the employees, charged with the
responsibility of representing their interests fairly
and impartially.’” Humphrey v. Moore, 375 U.S. 335,
342 (1964). “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 process.” Id. at
349-50. Notably, Humphrey also involved a dispute over
seniority rights between two groups of union employees.
The Court was not troubled by the fact that the same
union was bound to represent both groups under the
terms of the CBA:
[W]e 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
represents nor in supporting the position of
one group of employees against that of another
. . . . The complete 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 discretion.
Id. at 349.
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the parties bargained for in the collective-
bargaining agreement. Instead, the court should
simply vacate the award, thus leaving open the
possibility of further proceedings if they are
permitted under the terms of the agreement.
Misco, 484 U.S. at 40-41 n.10.
If on remand G7's allegations ultimately prove accurate,
the district court should fashion a remedy not inconsistent
with the foregoing. In that event, any damage determination
based upon ISA’s breach of the CBA must await resolution of
the underlying seniority rights’ dispute between G3 and G7.
REVERSED and REMANDED.
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