(dissenting).
I respectfully dissent. I am aware that we do not reach the merits upon an appeal from a dismissal for want of prosecution, but in the unique circumstances of this ease I do not believe that we can appraise the district court’s exercise of discretion without revealing the positions of the parties. The complaint, prolix as it is, does show that:
1. The plaintiffs are ship clerks steadily employed on the San Francisco waterfront.
2. They do not belong to the union (which refuses to admit them), but for collective bargaining purposes are represented by defendant, ILWU Local 34, which is the exclusive statutory bargaining agent.
3. ILWU and defendant, Pacific Maritime Association, which represents the employers, have reached a collective bargaining agreement which fixes the terms and conditions of the employment of all ship clerks.
4. The agreement distingushes between registered ship clerks and non-registered ship clerks, who though required to make payments to the union, are not members.
The complaint, in effect, alleges that the defendants, by means of the collective bargaining agreement, have arbitrarily made second class employees out of the plaintiffs, have designed a system which keeps plaintiffs in the second class category permanently, and have imposed serious discriminations upon them. These allegations, if true, would warrant an inspection of the facts and law surrounding the collective bargaining agreement to determine whether ILWU has been guilty of such breaches of its fiduciary obligations to plaintiffs as to render the discriminatory provisions of the agreement void. See Steele v. L & NR Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
As indicated in the majority opinion defendants filed a motion for summary judgment on the ground that plaintiffs had failed to exhaust the arbitration procedures. Proceedings were then stayed and over plaintiffs’ protests (even to the extent of a fruitless appeal to this court) the case was sent off for arbitration. Under the provisions of the collective bargaining agreement the arbitrators had no power to pass upon plaintiffs’ contentions that the collective bargaining agreement was void.1 Pending termination of the arbitration, plaintiffs again tried to get the stay order lifted so that defendants would be required to answer the complaint and certain interrogatories which plaintiffs had propounded. These attempts were unsuccessful. Plaintiffs lost the arbitration and nine months later their case was dismissed for want of prosecution.
What happened here was that plaintiffs were sent off to arbitrators who could do nothing but apply the contract as written; they were foreclosed, and still are, from urging in court the invalidity of the provisions of the contract upon which the arbitrators based their decision, and finally had their case dismissed because they didn’t take some action about an arbitration award which *285they didn’t ask for, didn’t want, and shouldn’t, at least before the validity of the contract was determined, have been subjected to. I think that the defendants who started the arbitration matter in the first place and who won it, had the duty to do whatever ought to have been done about the arbitration award, but in any event I do not think that the plaintiffs’ duty to do something about the award was so clear that it can be said that their failure to act warranted' a dismissal for want of prosecution.
. The agreement provides: “Powers of Arbitrators shall be strictly limited to the application of the agreement as written.”