844 F.

2d 17
128 L.R.R.M. (BNA) 2119, 108 Lab.Cas. P 10,432

George A. WILLIAMS, Plaintiff, Appellant,

v.
SEA-LAND CORPORATION, et al., Defendants, Appellees.
No. 87-1908.

United States Court of Appeals,

First Circuit.
Heard March 10, 1988.
Decided April 15, 1988.

Jesus Hernandez Sanchez with whom Antonio Hernandez Sanchez

Roberto L. Garcia Vega, Santurce, P.R., and Ricardo Skerrett Yordan,
San Juan, P.R., were on brief for plaintiff, appellant.
David C. Indiano with whom Jimenez, Graffam & Lausell, San Juan, P.R.,
was on brief for defendant, appellee Sea-Land Corp.
Ginoris Vizcarra de Lopez-Lay with whom Lopez-Lay & Vizcarra,
Santurce, P.R., was on brief for defendant, appellee Seafarers Intern.
Union of North America, Atlantic Gulf Lakes and Inland Waters Dist.,
AFL-CIO.
Before BOWNES, Circuit Judge, WISDOM, * Senior Circuit Judge, and
BREYER, Circuit Judge.
BOWNES, Circuit Judge.

This is an appeal from a summary judgment dismissing plaintiff's complaint

against Sea-Land Corporation (Sea-Land) for breach of a collective bargaining
agreement and against the Seafarers International Union, Atlantic, Gulf, Lakes
and Inland Waters District, AFL-CIO (Union) for breach of its duty of fair
representation. See 29 U.S.C. Sec. 185. The plaintiff, George Williams, worked
as a fireman and water tender on the S.S. OAKLAND, a ship that sailed
between Puerto Rico and Jacksonville, Florida. On August 21, 1985, while at
sea, Williams and the chief engineer got into a heated altercation in the engine

room, as a result of which Williams was discharged. When the ship arrived in
Jacksonville, Williams called the Union and requested that a representative be
sent on board to investigate his dismissal. The Union complied by sending a
"patrolman" who, after meeting separately with Williams and the chief
engineer, determined that the discharge was for cause. Williams filed suit in the
United States District Court for the District of Puerto Rico in February 1986.
He alleged that Sea-Land dismissed him without reasonable cause in violation
of the collective bargaining agreement and that the Union breached its duty of
fair representation by not filing a grievance on his behalf pursuant to the
provisions of that agreement. The court granted Sea-Land's motion for
summary judgment and dismissed the case against both Sea-Land and the
Union with prejudice. We affirm.
I.
2

We begin with the procedural background of the case. On February 18, 1986,
Williams filed his complaint. Sea-Land filed its motion for summary judgment
on September 29, 1986. By January 1987, Williams had still not submitted his
opposition to the motion, even though the court had allowed him extra time to
do so on three occasions. The court, therefore, ruled that it would consider SeaLand's motion unopposed. The court further ordered that Williams was "hereby
precluded from filing any late opposition to said motion in view of his
unjustified delay." In a document entitled "Reply To Sea-Land Opposition To
Our Motion For Reconsideration And Request Its Motion For Summary
Judgment Be Denied," Williams attempted to oppose the summary judgment
motion by setting forth "legal and factual arguments" and by submitting
excerpts from his deposition taken during October 1986. The court ordered the
documents stricken from the record and denied Williams' motion for
reconsideration.

In its first order, issued on May 20, 1987, the court denied Sea-Land's motion
for summary judgment. But in a subsequent order issued on August 24, 1987,
after reconsideration pursuant to Federal Rule of Civil Procedure 60(b), the
court granted Sea-Land's motion on the ground that Williams had failed to
exhaust the remedies available under the collective bargaining agreement
before initiating his action in federal court. See Republic Steel Corp. v.
Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). The court also
ruled that Williams' situation did not fall within one of the exceptions to the
exhaustion requirement. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17
L.Ed.2d 842 (1967). This appeal followed.

II.

In Republic Steel, the Supreme Court held that "individual employees wishing
to assert contract grievances must attempt use of the contract grievance
procedure agreed upon by employer and union" before seeking direct legal
redress. 379 U.S. at 652, 85 S.Ct. at 616 (emphasis in original). Vaca v. Sipes
recognized two situations when an employee "may obtain judicial review of his
breach-of-contract claim despite his failure to secure relief through the
contractual remedial procedures." 386 U.S. at 185, 87 S.Ct. at 914. The first is
when "the conduct of the employer amounts to a repudiation of th[e]
contractual procedures." Id. (citation omitted). The second is when "the union
has sole power under the contract to invoke the higher stages of the grievance
procedure, and if, ... the [employee] has been prevented from exhausting his
contractual remedies by the union's wrongful refusal to process the grievance."
Id. (emphasis in original). A "wrongful" refusal is one in which the union has
breached its duty of fair representation to the employee. Id. at 186, 87 S.Ct. at
914-15. And a breach occurs "only when a union's conduct toward a member of
the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Id. at
190, 87 S.Ct. at 916 (citations omitted). See also Hines v. Anchor Motor
Freight Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) (enforcement
of an arbitrator's decision where the arbitrator has erred, is conditioned upon
the union's having satisfied its statutory duty fairly to represent the employees
in connection with the arbitration proceedings). Vaca v. Sipes, in essence,
created two exceptions to the exhaustion requirement established in Republic
Steel: conduct by the employer repudiating the contractual procedures or the
wrongful refusal by the union to process the grievance.

To oppose successfully Sea-Land's motion for summary judgment, Williams

had to show that there was a "genuine issue" about a "material fact."
Fed.R.Civ.P. 56(c). See Daury v. Charles Smith, 842 F.2d 9, 11 (1st Cir.1988)
(setting forth the standard for reviewing a trial court's grant of summary
judgment). Williams contends that he created a "genuine issue" about two
material facts: (1) whether under the collective bargaining agreement1 an
employee may appeal a dismissal directly--that is, without the Union--to the
Seafarers Appeals Board; and (2) whether the Union's refusal to process his
grievance reflected conduct that could be characterized as "arbitrary,
discriminatory, or in bad faith."

Williams did succeed in creating a genuine issue about the first question. In its
Motion to Alter and Amend the district court's judgment of May 22, 1987, SeaLand contended that under the collective bargaining agreement, an individual
employee may submit a complaint about a wrongful discharge to the Seafarers
Appeals Board without representation of the Union.2 Sea-Land was correct to
call this contention a "threshold question." It is undisputed that Williams did

not appeal his discharge to the Board. And if it were true that Williams could
have appealed to the Board, his failure to do so would have been in direct
violation of the exhaustion requirement set forth in Republic Steel. Summary
judgment in favor of Sea-Land would have been proper on this ground alone.
7

But we cannot say that the collective bargaining agreement clearly gives an
employee a right to challenge his or her dismissal independently of the Union.
Article I, Section 4(a), provides in relevant part that

8 the Union considers the ... discharge of any member of the Unlicensed Personnel
[i]f
as being without reasonable cause such action by such Company shall be dealt with
under the grievance procedure....
9

The "grievance procedure" is set forth in Article II. An employee must first
inform the ship's "delegate" of his or her complaint. The delegate in turn must
present the complaint to his or her superior officers. Article II, Section 2(a). If
the grievance "cannot be satisfactorily adjusted on board the vessel there shall
be established a Port Committee" consisting of three representatives from the
Union and three from the Company. If the Port Committee cannot agree on
how to settle the matter, "[its members] shall select an impartial arbitrator
whose decision shall be final and binding." Article II, Section 3.

10

Article I of the collective bargaining agreement establishes another complaint

procedure. Under Section 8(c), "[t]here is created the Seafarers Appeals Board,
a permanent board of four (4) members, to hear and determine all disputes
arising under this Article I, and to promulgate and administer the Shipping
Rules authorized by this Section 8." Section 8(h) authorizes "[a]ny person or
party subject to or aggrieved by the application of this Section 8" to "submit
any matter hereunder to the Seafarers Appeals Board for determination." The
language is confusing; it is not clear to what the phrase in Section 8(c) "arising
under this Article I" refers. Sea-Land claimed that the phrase authorizes the
Board to hear every dispute covered by Article I, including disputes about
wrongful discharges by the Company. Yet Section 8(h) appears to limit the
Board's jurisdiction to those disputes arising through the "application of Section
8." And Section 8 generally authorizes the promulgation of the Shipping Rules,
which, on their face, do not deal with wrongful dismissals by the Company.
Rather, these rules address, inter alia, such matters as seniority, shipping
procedure, and crew rotation. In short, although it is clear that an employee
may invoke the Union's protection by pressing a complaint through the several
steps of the grievance procedure, it is simply unclear whether such an employee
may also (or in the alternative) bring a complaint directly to the Seafarers
Appeals Board.

11

Williams failed, however, to create a genuine issue as to whether the Union's

refusal to process his grievance amounted to conduct that was "arbitrary,
discriminatory, or in bad faith." For even if we assume that Williams could not
have brought his complaint directly to the Seafarers Board, there is no question
that under the collective bargaining agreement he could have pressed his
grievance with the Union and sought a decision from the Port Committee, and
ultimately, from an arbitrator. Williams' failure to exhaust these internal
remedies is fatal unless he can show that the Union's refusal to file a grievance
on his behalf was a breach of its duty of fair representation--that is, under Vaca
v. Sipes, "arbitrary, discriminatory, or in bad faith." 386 U.S. at 190, 87 S.Ct. at
916. We find no evidence of such wrongful conduct here.3

12

The evidence of the Union's conduct before the district court, viewed in the
light most favorable to Williams, see Metropolitan Life Ins. Co. v. Ditmore,
729 F.2d 1, 4 (1st Cir.1984), was as follows. The altercation between Williams
and the chief engineer erupted when the chief engineer began "hollering" at
Williams. Williams grew angry and demanded "respect" but was dismissed for
what the chief engineer deemed insubordination. Williams asked the ship's
delegate to have his dismissal investigated by a Union representative. When a
ship docks, the Union generally sends a "patrolman" on board to meet with the
employees to hear of any problems that they may have had while at sea.
Williams complained to the patrolman sent aboard the S.S. OAKLAND upon
the ship's arrival in Jacksonville. After meeting separately with Williams and
the chief engineer, the patrolman concluded that the discharge was "for cause"-that is, the failure by Williams to follow orders. He informed Williams of his
decision and wrote up a report. At no point did Williams demand that the Union
proceed with his grievance.4 The Union never convened a Port Committee to
hear Williams' complaint; nor did it submit the complaint to an impartial
arbitrator.

13

The Union's behavior cannot be described as arbitrary, discriminatory, or in bad

faith. Vaca v. Sipes makes clear that although "a union may not arbitrarily
ignore a meritorious grievance or process it in perfunctory fashion," an
individual employee does not have "an absolute right to have his grievance
taken to arbitration...." 386 U.S. at 191, 87 S.Ct. at 917. Recognizing that
unions should be encouraged to settle frivolous grievances prior to the "most
costly and time-consuming step in the grievance procedures", id., the Court
concluded that "a union does not breach its duty of fair representation, and
thereby open up a suit by the employee for breach of contract, merely because
it settled the grievance short of arbitration." Id. at 192, 87 S.Ct. at 918.

14

Here, the Union neither ignored Williams' complaint nor processed it in a

14
perfunctory way. Cf. Soto Segarra v. Sea-Land Service, Inc., 581 F.2d 291 (1st
Cir.1978) (finding breach of duty of fair representation in union's failure to
respond to employee's repeated requests that the union investigate and process
his discharge grievance); De Arroyo v. Sindicato De Trabajadores
Packinghouse, AFL-CIO, 425 F.2d 281 (1st Cir.), cert. denied, 400 U.S. 877,
91 S.Ct. 121, 27 L.Ed.2d 115 (1970) (finding breach of duty of fair
representation in union's failure to discern an obvious basis under the contract
for pressing a number of grievances). Instead, after investigating, the Union
merely settled the complaint "short of arbitration." This was entirely proper.
See Robbins v. George W. Prescott Publishing Co., 614 F.2d 3, 4 (1st Cir.1980)
("under a grievance procedure an employee complaint is terminated if the union
concludes not to go ahead with it, absent bad faith"); cf. Early v. Eastern
Transfer, 699 F.2d 552 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78
L.Ed.2d 100 (1983) (union investigated grievance properly when its
representative spoke with the grievants and company officials on the day of the
allegedly wrongful discharge).
15

Williams may have been disappointed with the Union's judgment that his
discharge was "for cause," but that disappointment, without more, does not give
rise to a claim against the Union for breach of its duty of fair representation.
We are especially reluctant to infer wrongful behavior from the Union's failure
to press Williams' grievance when Williams himself failed to convey to the
Union his desire to invoke the grievance procedure. Williams' claim that the
Union's conduct was arbitrary, discriminatory, and in bad faith, reduces to
nothing more than a " 'skeletal set of bland allegations' ". Berrigan v.
Greyhound Lines, Inc., 782 F.2d 295, 299 (1st Cir.1986) (quoting Dewey v.
Univ. of New Hampshire, 694 F.2d 1, 4 (1st Cir.1982)); see MacKnight v.
Leonard Morse Hosp., 828 F.2d 48 (1st Cir.1987) (finding that the union
representative's personal opinion concerning the plaintiff's incompetence, stated
after an investigation and an unsuccessful arbitration, was an insufficient basis
upon which to oppose defendants' motion for summary judgment).

16

Affirmed.

Of the Fifth Circuit, sitting by designation

The parties agree that the collective bargaining agreement in effect at the time
of the dispute was the "1985 New Standard Freightship Agreement between
Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO and Contracted Companies (January 1, 1985-June 15, 1987)."

Sea-Land has not made this argument on appeal, but Williams has answered it
on appeal by arguing that there was a real controversy as to his authority and
capacity to proceed alone without the Union. To assure Williams that we have
considered this point, we will discuss it herein, even though, as will be clear
further on, resolution that there was a genuine issue on this matter does not
render inappropriate the district court's grant of summary judgment in favor of
Sea-Land

On June 15, 1987, Williams filed a "Motion to Amend Complaint Nunc Pro
Tunc" to add that the "[p]laintiff avers that defendant's UNION acted in an
arbitrary and bad faith manner under the facts of the present case breaching its
duty of fair representation." Both Sea-Land and the Union opposed the motion,
which the court denied on August 24, 1987. Williams appeals the denial of this
motion and Sea-Land and the Union argue for its affirmance. We fail to see the
point of raising the issue at all, since the district court treated Williams'
complaint as if it had alleged that the Union acted in an arbitrary and bad faith
manner. In short, although the court denied Williams' motion to amend the
complaint, the court read the complaint broadly, and treated it as if it alleged
what Williams sought by amendment, to include explicitly

On June 19, 1987, Sea-Land filed a "Motion Submitting Admissions of Plaintiff

Pursuant to Rule 16(c)(1) and (3)." Attached to that motion was a transcript of
the deposition of Williams taken on October 22, 1986. Unlike the deposition
excerpts submitted by Williams in his attempt to oppose (belatedly) Sea-Land's
motion for summary judgment, this transcript was properly before the district
court. The transcript did not contain the language of those excerpts struck from
the record. What it did contain, however, was a statement by Williams that
once back in Puerto Rico, where he returned after his discharge, Williams went
to the Union Hall to talk to a "Mr. Angel" about "the problem." Williams says
nothing more than this; in particular, he does not describe the outcome of that
discussion. The reference to "Mr. Angel" is apparently to "Mr. Angelo
Gonzalez," the port agent for the Union whom Williams' attorney wrote to on
February 8, 1986, just before filing the instant action. In that letter, Williams'
attorney asserts that "[i]mmediately after his discharge [Williams] spoke to ...
the union ship delegade [sic] requesting his case be submitted to the grievance
committee and let him know about the date of the hearing." This evidence is
much too weak to create a genuine issue as to whether Williams attempted to
grieve his dismissal. Had Williams wanted to present the point, he could have
submitted an affidavit attesting to it