Ramirez-Lebron, et al v. International Shipping Agency

Filing 920100129

Opinion

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var WPFootnote1 = '  Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = '  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.\
'

var WPFootnote3 = '  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.,\
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.\
'

var WPFootnote4 = '  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\
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).\
'

var WPFootnote5 = '                                            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).\
'

var WPFootnote6 = '  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”).\
'

var WPFootnote7 = '  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.\
'

var WPFootnote8 = '  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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