Florin Dente v. International Organization of Masters, Mates and Pilots, Local 90, Anunincorporated Labor Organization

Florin Dente, a member of Local 90 of the International Organization of Masters, Mates and Pilots (hereinafter “MMP”), filed a grievance with the Local in December, 1969, against his employer for wrongful discharge. Since the Local was involved in contract rene-gotiations, this grievance, as well as many others, was not arbitrated until September, 1970. At that time, Dente was reinstated, but the arbitrator declined to award back pay.

Dente then initiated this damage action against his union, asserting that the delay between his grievance and the arbitration effectively deprived him of wages during the intervening period. The District Court held that under section 301(a) of the Labor-Management Relations Act, 29 U.S.C. § 185 (a), as construed, Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967), the union was liable to Dente for damages arising out of the delay in arbitration.

The threshold question is whether jurisdiction here exists under section 301(a), which vests jurisdiction in district courts over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . .…

(concurring in the result):

It is unnecessary to decide whether section 301(a) extends to suits for violation of a contract between an employer and an organization representing supervisory personnel, a problem more difficult for me than the opinion of the court would suggest. It is also unnecessary to decide the extent to which the statutory duty of fair representation bars conduct that might be characterized as negligent in traditional tort law; certainly the duty may be breached by conduct nei *13 ther hostile nor malicious. Vaca v. Sipes, 386 U.S. 171, 191 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967); Retana v. Local 14, Elevator Operators, 453 F.2d 1018 , 1023 n. 8, 1024 n. 10 (9th Cir. 1972). The judgment should be reversed, but upon other grounds.

1. There was no breach of a federal duty of fair representation. This federal duty is a concomitant of the right of exclusive representation conferred by section 9(a) of the National Labor Relations Act; no other source of the duty has been suggested. See, e. g., Ford Motor Co. v. Huffman, 345 U.S. 330, 337 , 73 S.Ct. 681 , 97 L.Ed. 1048 (1953); Vaca v. Sipes, supra, 386 U.S. at 177 , 87 S.Ct. 903 , 17 L.Ed.2d 842 ; Retana v. Local 14,…

492 F.2d 10 84 L.R.R.M. (BNA) 2982 , 72 Lab.Cas. P 14,159 Florin DENTE, Appellee, v. INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, LOCAL 90, anunincorporated labor organization, Appellant. No. 72-2499. United States Court of Appeals, Ninth Circuit. Dec. 5, 1973 Certiorari Denied May 28, 1974, See 94 S.Ct. 2607 . Donald S. Richardson, of Green, Richardson, Griswold & Murphy, Portland, Or., John Paul Jennings (argued), of Jennings, Gartland & Tilly, San Francisco, Cal., for appellant. Carl R. Neil (argued), of Lindsay, Nahstoll, Hart, Duncan, Dafoe & Krause, Portland, Or., for appellee. Before CHAMBERS, BROWNING, and ELY, Circuit Judges. ELY, Circuit Judge: 1 Florin Dente, a member of Local 90 of the International Organization of Masters, Mates and Pilots (hereinafter 'MMP'), filed a grievance with the Local in December, 1969, against his employer for wrongful discharge. Since the Local was involved in contract renegotiations, this grievance, as well as many others, was not arbitrated until September, 1970. At that time, Dente was reinstated, but the arbitrator declined to award back pay. 2 Dente then initiated this damage action against his union, asserting…