Unpublished Disposition, 851 F.2d 360 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 360 (9th Cir. 1988)

Captain Alfred PETERSON, Master Mariner, United StatesMerchant Marine, Plaintiff-Appellant,v.OFFSHORE DIV. OF the INTERNATIONAL ORGANIZATION OF MASTERS,MATES AND PILOTS, Marine Division, InternationalLongshoremen's Association, AFL-CIO; and Robert J. Lowen,International President; and the General Executive Thereof,Defendants-Appellees.

No. 87-6374.

United States Court of Appeals, Ninth Circuit.

Submitted May 3, 1988.* Decided June 27, 1988.

Before: GOODWIN and CYNTHIA HOLCOMB HALL, Circuit Judges, and ROBERT C. BELLONI,***  District Judge.

MEMORANDUM** 

Plaintiff-appellant Alfred Peterson appeals in pro per the district court's grant of summary judgment in favor of defendant-appellee Masters, Mates and Pilots (MM & P). Construing his in pro per complaint broadly, see, e.g., Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975), Peterson contends that MM & P breached its duty of fair representation under the collective bargaining agreement in violation of section 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Peterson also alleges that MM & P's acts constitute unfair labor practices under section 8 of the National Labor Relations Act (NLRA), 29 U.S.C. § 158.1  We affirm in part, reverse in part, and remand.

* The district court granted MM & P's motion for summary judgment, finding "no item of material fact in dispute." The court erred, however, in apparently refusing to exercise jurisdiction over Peterson's claim of hiring hall discrimination brought under section 301(a). The district court improperly analyzed Peterson's claim solely in the context of section 8 of the NLRA; however, a hiring hall discrimination claim may be brought not only under section 8, but also as an alleged breach of a collective bargaining agreement under section 301(a) of the LMRA. Smith v. Evening News Ass'n, 371 U.S. 195 (1962); see Lewis v. Local Union No. 100 of Laborers' Int'l Union of North America, 750 F.2d 1368 (7th Cir. 1984). Apparently because Peterson represented himself, MM & P's moving papers on summary judgment did not adequately address this claim.2 

This court has previously held that a master mariner may bring a section 301(a) action against the MM & P. Dante v. Int'l Org. of Master, Mates and Pilots Local 90, 492 F.2d 10 (9th Cir. 1973), cert. denied, 417 U.S. 910 (1974). In Dante, we held that members of "supervisory unions," such as the MM & P, enjoyed the rights secured by section 301(a) of the LMRA. Id. at 12. Consequently, the district court has jurisdiction over Peterson's claim against MM & P of an alleged breach of the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171 (1967).

Peterson has sufficiently alleged a breach of the collective bargaining agreement in violation of MM & P's duty of fair representation. The pretrial conference order prepared by Peterson states that the union's job referral practices are governed by the union's Shipping Rules, which are incorporated into the collective bargaining agreement. Peterson alleged these rules constitute a "closed shop" in violation of the duty of fair representation. In addition, Peterson challenges a specific section of the collective bargaining agreement, alleging "kickbacks" in vacation pay.3  Therefore, although Peterson's section 301(a) claim may not survive a summary judgment motion on the merits, we reverse and remand to the district court on this cause of action for proceedings consistent with this opinion. See Lewis, 750 F.2d at 1373.

II

The district court granted MM & P's motion for summary judgment on Peterson's section 8 claim. The district court, however, should have dismissed Peterson's section 8 claim for want of jurisdiction. Under San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), when an action is brought for "activity [that] is arguably subject to Sec. 7 or 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board." Id. at 245. Peterson claims that MM & P is running a closed shop and has failed to give him any job assignments because he is not a member of the union. Peterson's claims fall under the NLRA, however, as " [d]iscrimination in hiring hall referrals constitute an unfair labor practice under Secs. 8(b) (1) (A) and 8(b) (2) ...". Farmer v. United Bhd. of Carpenters, 430 U.S. 290, 303 n. 11 (1977). Accordingly, we affirm the district court's dismissal of Peterson's section 8 claim on jurisdictional grounds.

Peterson took the appropriate steps when he requested the Regional Director to issue a complaint with the NLRB. This request was refused, however, because the evidence indicated that Peterson had been employed as a supervisor and was seeking further employment as a supervisor. On appeal, the decision was affirmed by the General Counsel. Under Garmon, even when the General Counsel fails to file a charge with the NLRB this does not give the district court jurisdiction to hear the matter. 359 U.S. at 245-46.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.


 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 ***

Honorable Robert C. Belloni, Senior United States District Judge for the District of Oregon, sitting by designation

 1

Peterson raises claims pursuant to numerous other federal statutes. All of these contentions are without merit

 2

Both below and on appeal, MM & P's only contention with regard to Peterson's section 301(a) claim is its incredulous assertion that Peterson does not allege a breach of the collective bargaining agreement resulting in a section 301(a) violation. We disagree

 3

It is apparent from the numerous pleadings and papers filed in the district court that Peterson continuously alleged a breach of the duty of fair representation. See also Defendant's Statement of Genuine Issues at 2-5

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