John Carr v. Pacific Maritime Ass'n, Greg Brooks, Judy Checkers v. Pacific Maritime Ass'n , 904 F.2d 1313 ( 1990 )

KOZINSKI, Circuit Judge:

Applicants for registration as class B longshoremen and clerks seek damages and injunctive relief, claiming that the registration process was tainted by nepotism, favoritism and discrimination. The district court found that the applicants failed to exhaust contractual grievance procedures and that their failure was not excused. Plaintiffs appeal the district court’s grant of summary judgment and dismissal of their action. We review the district court’s grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

I. FACTS

Plaintiffs are 128 casual longshoremen and clerks whose applications for registration as class B longshoremen or clerks in the Los Angeles area were rejected.¹ Defendants are the Pacific Maritime Association (PMA), an association of West Coast stevedoring, shipping and terminal companies; the International Longshoremen’s and Warehousemen’s Union (ILWU), the exclusive bargaining representative of longshoremen and clerks who work for PMA members; ILWU Local 13 (Local 13), the chartered, affiliated local of the ILWU for longshoremen in the Los Angeles area; and ILWU Local 63 (Local 63), the chartered, affiliated local of the ILWU for clerks in the Los Angeles area. Defendants are parties to the Pacific Coast Long-shore Contract Document and the Pacific Coast Clerk Contract Document (the Contract), which govern the terms and conditions of employment for longshoremen and clerks.

This controversy arises out of the registration of approximately 387 class B longshoremen and clerks by defendants in late 1984. Approximately 22,250 applications were submitted for registration by September 26, 1984. Applications were scored by a Joint Registration Committee, a tripartite committee composed of representatives of the PMA, Local 13 and Local 63.

The first phase of the registration process was completed on May 4, 1985. The Coast Labor Relations Committee (Coast LRC), which issues rules governing the registration and grievance process, had established a ten-day grievance filing period to commence upon completion of the registration process. On May 6, 1985, notices were posted in the longshore, clerk and casual dispatch halls notifying individuals that the initial phase of the registration had been completed, and that appeals would be considered timely if received by the Joint Port Labor Relations Committee (Port LRC) on or before May 15,1985. The Port LRC received 318 timely grievances.

On October 23, 1985, more than five months after the close of the grievance filing period, 109 unsuccessful registrants (the Balsley Group) filed their First Amended Statement of Grievance with the Port LRC. They alleged favoritism, nepotism, arbitrary scoring and coaching of applicants (non-section 13 Contract claims) and discrimination on the basis of non-union membership (section 13 Contract claims) by the Joint Registration Committee. They also alleged violations of Local 13’s and Local 63’s duty of fair representation, and a breach of the collective bargaining agreement by all defendants.

Under the terms of the Contract,² the Port LRC resolves all non-section 13 claims. Its decision is final and binding on all parties, unless there is disagreement between the union and management members of the Port LRC, in which case an appeal to the Coast LRC is allowed. See Contract § 17.24.

Section 13 claims are processed pursuant to section 17.4 of the Contract. All section 13 claims must be filed within ten days of the alleged discriminatory incident. Contract § 17.41. The Port LRC has discretion to extend the deadline for filing section 13 claims up to six months from the date of the alleged discriminatory act “to prevent inequity.” Contract § 17.411. The Port LRC’s decision may be appealed to the Coast LRC, provided the request for review is made within seven days of the Port LRC’s decision. Contract § 17.42. The Coast LRC’s decision is further appealable to the Coast Arbitrator, again under the condition that the appeal be made within seven days of the Coast LRC’s decision. Contract § 17.43. Neither the Port LRC, the. Coast LRC nor the Coast Arbitrator can extend the latter two periods or the period for challenging non-section 13 claims.

On April 11, 1986, the Port LRC ruled that the Balsley Group’s section 13 and non-section 13 claims were time-barred. The Port LRC also rejected the grievants’ request that it extend the filing deadline for the section 13 claims to six months.

The Balsley Group appealed its section 13 claims to the Coast LRC on April 17, 1986.³ On May 1, 1986, the Coast LRC held that the group’s section 13 discrimination claim was time-barred. The Coast LRC also ruled that the Port LRC did not abuse its discretion by refusing to extend the filing period for the section 13 claims.

The Balsley, Brooks and Checkers Groups filed a consolidated appeal before the Coast Arbitrator in May 1986. The parties stipulated that the only issue before the Coast Arbitrator was the timeliness of their section 13 claims. District court proceedings were stayed pending the Coast Arbitrator’s decision.

On January 15, 1987, the Coast Arbitrator held that the grievants’ section 13 discrimination claims were time-barred. He found that the grievants either knew or should have been aware of allegations of nepotism, favoritism and discrimination in the registration process prior to the May 15, 1985, filing deadline. The Coast Arbitrator concluded that the allegations made in the October 23, 1985, amended grievance could have been raised in a timely manner. The Coast Arbitrator found that the Port LRC did not abuse its discretion in deciding not to extend the filing deadline for section 13 claims.

The district court granted summary judgment for defendants in all three actions.⁴ The district court refused to excuse plaintiffs’ failure to exhaust their contractual remedies and dismissed their claims for breach of collective bargaining agreements and for breach of the union’s duty of fair representation under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (1982).⁵

II. DISCUSSION

A. As a general rule, members of a collective bargaining unit must first exhaust contractual grievance procedures before bringing an action for breach of the collective bargaining agreement. See, e.g., Clayton v. UAW, 451 U.S. 679, 686, 101 S.Ct. 2088, 2093-94, 68 L.Ed.2d 538 (1981). This requirement applies with equal force to claims brought against a union for breach of the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967). Failure to utilize the grievance procedures, or to invoke them in a timely manner, bars grievants from pursuing remedies in court. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). At a minimum, therefore, members of the bargaining unit must first turn to the grievance procedures for a remedy. Id. at 652-53, 85 S.Ct. at 616.

Plaintiffs argue that they are excused from exhausting their contractual remedies because the alleged lack of neutrality of the Port LRC rendered resort to grievance process futile. See Republic Steel, 379 U.S. at 652, 85 S.Ct. at 616 (quoting Steele v. Louisville & Nashville Ry., 323 U.S. 192, 206, 65 S.Ct. 226, 234, 89 L.Ed. 173 (1944) (“employees should [not] be required to submit their controversy to ‘a group which is in large part chosen by the [defendants] against whom their real complaint is made’ ”)); see also Williams v. Pacific Maritime Ass’n, 617 F.2d 1321, 1328 n. 13 (9th Cir.1980) (dicta), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981). We have held, however, that a plaintiff waives his right to claim bias on the part of the grievance committee unless he raises the objection when the committee convenes. Sheet Metal Workers International Ass’n Local 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 746 (9th Cir.1985). This is the rule in several other circuits as well. See e.g., Early v. Eastern Transfer, 699 F.2d 552, 558 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983); Cook Industries, Inc. v. C. Itoh & Co., Inc., 449 F.2d 106, 107-08 (2d Cir.1971), cert. denied, 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 (1972); United Steelworkers of America Local 1913 v. Union Railroad Co., 648 F.2d 905, 913-14 (3d Cir.1981).

In Kinney, plaintiffs attempted to overturn an unfavorable arbitration award on the theory that the grievance process was biased. We held that plaintiffs had waived their bias claim because they had not objected to the makeup of the arbitration board at the time of the grievance procedure. Kinney, 756 F.2d at 746. The rule of Kinney is easily extended to this case.⁶ Here, plaintiffs failed to object in a timely manner to alleged bias in the Port LRC. Moreover, they did not attempt to use the grievance procedure within the specified time limits. Yet they come to court now claiming that such failure should be excused because of bias in the Port LRC. It would defy logic to hold that plaintiffs, like those in Kinney, who use a grievance procedure without objection waive their right to claim bias, while those, like the present plaintiffs, who offer no objection to the procedure and fail to use it are to be afforded the protection of the courts. To allow these plaintiffs to bring their bias claim would create perverse incentives to avoid grievance procedures that would undermine our traditional deference to private dispute resolution in labor relations. Therefore, because plaintiffs did not timely notify the Port LRC that they believed the grievance procedure was tainted, they cannot claim bias now.⁷

Appellant Nancy Davis presents a special case. She filed her grievance with the Port LRC before the close of the filing period. In her letter of April 24, 1985, to the Port LRC, Davis alleged, inter alia, nepotism, favoritism and coaching of favored applicants. The Port LRC rejected her claim without notifying her of her right to appeal any section 13 claims she might have presented. The Coast Arbitrator, in interpreting the Contract, apparently found that Davis had raised a section 13 claim, but that she had waived her right to appeal it by failing to appeal the Port LRC’s decision to the Coast LRC within seven days. Although a Coast LRC rule requires the Port LRC to inform all grievants who allege section 13 claims of their right to appeal to the Coast LRC, see Letter from ILWU-PMA Joint Coast Labor Relations Committee to ILWU Locals and PMA Area Offices (July 18, 1979), we cannot overturn the Coast Arbitrator’s interpretation of the contract or his application of the rules issued pursuant to it. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987). We must therefore reject Davis’ claim as well.

B. Plaintiffs next allege that their failure to exhaust their contractual remedies should be excused because of the inadequacy of the grievance processes and remedies. They argue that the grievance mechanisms are flawed because they do not provide for pre-hearing discovery, representation by counsel before the Port LRC, appointment of a special master by the Coast Arbitrator to control future registrations, or the award of attorney’s fees to grievants who succeed before the arbitrator. None of these alleged flaws, however, prevented plaintiffs from at least attempting to invoke the contractual remedies in a timely manner.⁸ At a minimum, grievants must present and prosecute their grievances through contractual procedures before complaining of the inadequacy of those processes. See e.g., Hines v. Anchor Motor Freight, 424 U.S. 554, 563, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976) (griev-ant cannot “sidestep the grievance machinery ... unless he attempted to utilize the contractual procedures for settling his dispute with his employer”); Beriault v. Local 40, Super Cargoes & Checkers, Int'l Longshoremen’s & Warehousemen’s Union, 501 F.2d 258, 262 (9th Cir.1974). Thus, the assertion by plaintiffs that the grievance and arbitration procedures were inadequate is entirely speculative, since plaintiffs failed to avail themselves of those remedies in a timely manner.

C. We must also reject plaintiffs’ claim that the Port LRC’s refusal to extend the filing deadline for their section 13 discrimination claim and its “discouragement of appeals” amounts to a repudiation of the grievance procedure. The plaintiffs’ ability to have a neutral arbitrator review the Port LRC’s decision cures whatever bias there may have been in the Port LRC’s decision-making process. See Ritza v. Int'l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 370 (9th Cir.1988) (“any hostility that may exist at the joint coast level is cured by the availability of neutral arbitration”). As already noted, the Coast Arbitrator determined that the Port LRC’s decision not to extend the deadline was not an abuse of discretion. We must accord great deference to such findings by arbitrators acting pursuant to collective bargaining procedures. See e.g., Misco, 484 U.S. at 36-38, 108 S.Ct. at 370-71. As to the non-section 13 claims, the Port LRC had no authority to extend the filing deadline. Plaintiffs may therefore not complain that the Port LRC abused its discretion or acted with partiality in failing to extend those filing deadlines.

The Port LRC’s failure to notify applicants of their right to appeal the Joint Registration Committee’s decision when applicants’ registration fees were returned does not constitute repudiation of any aspect of the contract. All applications contained a notice to applicants of their right to appeal the Joint Registration Committee’s decision; no other notification was required.

Nor does plaintiffs’ suggestion that “registration appeals were summarily reviewed and rejected by the Port LRC,” Appellants’ Brief at 47, establish that the Port LRC discouraged appeals. Indeed, the fact that numerous applicants successfully appealed the Joint Registration Committee’s decision suggests that the Port LRC was more than a rubber stamp.

D. Plaintiffs also claim the union’s alleged breach of its duty of fair representation excuses their failure to comply with the grievance procedures. Although plaintiffs claim that the union breached its obligation to “represent those in a designated unit, to serve their interest without hostility or discrimination, and to exercise its discretion with complete good faith, honesty, and to avoid arbitrary conduct,” Appellants’ Brief at 40, in essence their fair representation claim focuses not on the union itself but on the actions of the union members on the Joint Registration Committee and the Port LRC.

There are two situations in which a breach of the duty of fair representation excuses the exhaustion requirement: First, where “the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if ... the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance,” Vaca v. Sipes, 386 U.S. at 185, 87 S.Ct. at 914 (emphasis original); second, where grievants allege a breach of the duty of fair representation with regard to negotiating the collective bargaining agreement. See Williams, 617 F.2d at 1328.

The district court correctly found neither exception applicable. See Carr v. Pacific Maritime Ass’n, No. CV 85-7243 FFF (C.D.Cal., filed June 3, 1987); Brooks v. Pacific Maritime Ass’n, No. CV 86-345 FFF (C.D.Cal. Sep. 29, 1987); Checkers v. Pacific Maritime Ass’n, No. CV 86-1859 FFF (C.D.Cal. Sep. 29, 1987). The first exception to the exhaustion requirement is inapplicable, because the grievants can utilize the contractual remedy process without the help or approval of the union. Thus, this case is distinguishable from those where the union has assumed sole responsibility of preparing and presenting the grievant’s claim. See Vaca v. Sipes, 386 U.S. at 185, 87 S.Ct. at 914. Nor is this a case where the grievants are seeking a remedy not available through the grievance procedure, such as modification of the contract. See Beriault, 501 F.2d at 266. Plaintiffs are not challenging some aspect of the registration process that cannot be corrected under existing grievance procedures; instead, they merely allege that certain union representatives on the Joint Registration Committee and the Port LRC unfairly reviewed their applications. This allegation neither excuses plaintiffs’ failure to file their grievances on time or to state their complaints with specificity, nor justifies their decision to sidestep the grievance process.

E. We do not consider plaintiffs’ argument that their failure to exhaust contractual remedies is excused because of delays in the grievance process, as that allegation was not raised in the complaint. Nor could they have raised such a claim when their suits were filed, as they sought judicial relief either before or shortly after filing their group grievances. The Carr Group brought suit on November 5, 1985, eleven days after filing its amended grievance before the Port LRC; the Brooks action was filed on January 15, 1986, one day before that group submitted its grievance to the Coast LRC; the Checkers action was filed on March 24, 1986, one day before that group filed its group grievance before the Coast LRC. Thus, plaintiffs base their assertion of unreasonable delay on what occurred after, rather than prior to, their resort to the district court.

For the same reasons, we do not consider Wasserman’s and Schreiner’s claims that the Port LRC’s delay in deciding their section 13 claims excuses their failure to exhaust the grievance procedures. In July 1985, the Coast LRC remanded Wasser-man’s section 13 grievance for further proceedings before the Port LRC. On October 3, 1985, the Port LRC considered his individual grievance. One month later, Was-serman filed suit in district court. See Carr v. Pacific Maritime Ass’n, No. CV 85-7243-FFF (C.D.Cal. Nov. 5, 1985). Schreiner brought suit less than four months after filing his second complaint with the Port LRC. See Carr v. Pacific Maritime Ass’n, No. CV 85-7243-FFF (C.D.Cal. Nov. 5, 1985). Schreiner’s and Wasserman’s claims are based on what occurred after, rather than prior to, the commencement of this action. The district court was therefore correct in dismissing both Wasserman’s and Schreiner’s claims without prejudice and allowing them to pursue their contractual remedies. AFFIRMED.

1 . Three groups brought suit: The Carr Group (109 unsuccessful Class B union registrants) filed suit on November 5, 1985; the Brooks Group (11 unsuccessful Class B union registrants) filed suit on January 15, 1986; and the Checkers Group (8 unsuccessful Class B union registrants) filed suit on March 24, 1986. These three actions have been consolidated on appeal.

2 .Section 11 of the Coastwise Registration Rules, adopted by the Coast LRC on August 10, 1984, provides that the grievance procedures set forth in the Contract “shall be the exclusive remedy with respect to any disputes involving registration or deregistration ... [of] persons working or seeking to work under this Agreement. ... No other remedies shall be utilized by any persons with respect to any dispute involving registration or deregistration until the grievance has been exhausted." Coastwise Registration Rules, § 11 (August 10, 1984), quoted in David Balsley, et al., Arbitrator’s Decision at 7 (January 15, 1987) (Kagel, Arb.).

3 . Two other groups filed grievances with the Coast LRC, incorporating by reference the allegations made in the Balsley Group grievance. The Checkers Group filed on March 25, 1986; the Brooks Group filed on January 16, 1986. Neither group filed a group grievance with the Port LRC before pursuing their remedies with the Coast LRC. The grievances of both groups were found to be time-barred by the Coast LRC.

4 . See Carr v. Pacific Maritime Ass’n, No. CV 85-7243-FFF (C.D.Cal., filed June 3, 1987); Brooks v. Pacific Maritime Ass’n, No. CV 86-345 FFF (C.D. Cal. Sept. 29, 1987); Checkers v. Pacific Maritime Ass’n, No. CV 86-1859 FFF (C.D.Cal. Sept. 29, 1987).

5 . The district court dismissed without prejudice claims by plaintiffs whose grievances were timely filed.

6 . The dissent argues that this case is distinguishable from Kinney because “appellants are not signatories to the applicable collective bargaining agreement,” and therefore "had no direct say in the establishment of procedures for selecting panelists who would hear and impartially decide their grievances.” Dissent at 1323. This seems to us irrelevant. It will almost always be true that a grievant will not be a signatory to the collective bargaining agreement; by virtue of representation, individual union members rarely have much of a direct say in the procedures set up to arbitrate grievances. Surely the Kinney rule is not limited to signatories to the collective bargaining agreement; any griev-ant is capable of objecting to the composition of an arbitration panel. See e.g., United Steelworkers, 648 F.2d at 913-14 (applying the rule to an individual union member); Early, 699 F.2d at 558 (same). Perhaps the dissent is referring to the fact that plaintiffs are not union members. It cannot be, however, that non-members of the union have greater rights to avoid grievance procedures than union members.

The dissent also contends that plaintiffs’ statement of grievance to the Port LRC may be read as an implied objection to the neutrality of the Port LRC itself. Dissent at 1323-24. This, too, is irrelevant. Plaintiffs’ filed their grievance over five months after the deadline. If, at the time of the original filing deadline, plaintiffs had reason to suspect the Port LRC was biased, plaintiffs could have filed their "implied” objections timely; if they did not suspect bias at that time, they had no reason not to file.

7 . Contrary to the dissent’s assertions, we do not require that plaintiffs have “exhausted the grievance procedure,” or that they "go through the[ ] entire" process. Dissent at 1324. To preserve their bias/futility claim, plaintiffs simply needed to notify the Port LRC in a timely manner that they believed the grievance procedure was biased so that the Port LRC might have an opportunity to act on that complaint.

8 . The dissent argues that "[i]t was highly unreasonable to expect individuals to muster, in ten days and without any discovery, proof of pervasive nepotism and favoritism sufficient to prepare a grievance stating a claim for violation of the collective bargaining agreement." Dissent at 1325. But, under the collective bargaining agreement, grievants aren't required to "muster proof’; the initial filing need only set out "the facts as to the alleged discrimination." Contract § 17.41. It is the job of the Port LRC to "investigate” all grievances. Contract § 17.124. Three hundred and eighteen other grievants apparently had no problem meeting the 10-day requirement. This group included Carr appellant Nancy Davis, whose timely filing alleged favoritism and nepotism.

Instead of filing timely, plaintiffs conducted an independent five-month investigation. As the dissent states, "the collective bargaining agreement neither required nor forbade” plaintiffs' investigation. Dissent at 1325. But the agreement did require that plaintiffs at least notify the Port LRC that they had a complaint.