Ramirez-Lebron v. INTERNATIONAL SHIPPING AGENCY

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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