Unpublished Disposition, 875 F.2d 318 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1988)

Evelyn S. MIURA and Dayna Hu, Plaintiffs-Appellants,v.WESTERN UNION INTERNATIONAL, INC., a Delaware Corporation,Defendant-Appellee.

No. 88-1902.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1989.Decided May 12, 1989.

Before GOODWIN, HUG and TANG, Circuit Judges.


MEMORANDUM* 

Evelyn Miura was employed by WUI from September 1967 to December 1984. Dayna Hu was employed by WUI from April 1966 to January 1985. After Miura and Hu (collectively "the appellants") were terminated as part of a "force reduction," WUI paid severance pay to Miura on December 28, 1984, and to Hu in February 1985.

During the time of their employment with WUI, the appellants were represented by Local 111 of the American Communications Association, Communications Trade Division, International Brotherhood of Teamsters ("the Union"). WUI and the Union were parties to a collective bargaining agreement. Miura and Hu were among the WUI employees covered by the Agreement.

According to Miura, at the time she started work for WUI, the policy was to defer paying an employee's first week's wages until such time as the employment terminated, and then to pay the wages at the rate the employee was receiving at the time of termination. Apparently, although there is a factual dispute involved, WUI has never paid Miura these first week's wages.

Miura and Hu originally brought separate suits against WUI in Hawaii state court in May 1986. Miura claimed nonpayment of her first weeks' wages. Both Miura and Hu claimed that their severance pay should have included the 15% Cost of Living Adjustment ("COLA").1 

WUI had the matters removed to federal court in June 1986. WUI's motions for summary judgment were denied in August 1986 by Judge Fong. In November 1987, Miura and Hu filed amended complaints which included allegations that the Union acted in bad faith in failing to assist them with their severance pay claim against WUI. The district court then dismissed the claims for state law civil penalties and for punitive damages. The district court also consolidated the cases of Miura and Hu.

The district court granted summary judgment in favor of the defendants, filing an Amended Order for Summary Judgment on February 11, 1988. Miura and Hu jointly appeal.

We review a grant of summary judgment de novo, International Bhd. of Elec., Workers Local 532 v. Brink Constr. Co., 825 F.2d 207, 214 (9th Cir. 1987), and may affirm on any grounds supported by the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986).

We review a district court's discovery rulings for an abuse of discretion. Beneficial Std. Life Ins. Co. v. Madariaga, 851 F.2d 271, 277 (9th Cir. 1988).

In claiming that she is still owed her first week's wages, Miura argues that, WUI's deferral of wages policy notwithstanding,2  the non-payment of these wages is in violation of the minimum wage provisions of the Fair Labor Standards Act ("FLSA").3  "Every employer shall pay to each of his employees ... wages at the following rates." 29 U.S.C. § 206(a) (emphasis added).4  Miura cannot prevail because her claim is barred by the statute of limitations and because she did not exhaust her union remedies.

First, Miura's claim for first week's wages is barred by the two-year statute of limitations in the Fair Labor Standards Act. 29 U.S.C. § 255(a). Her claim accrued in 1967 and the statute of limitations period expired in 1969.

Second, " [a] bargaining unit employee may not bring an action for breach of a collective bargaining agreement unless he has exhausted the contractual grievance procedures." Truex v. Garrett Freightlines, 784 F.2d 1347, 1353 (9th Cir. 1985). Miura herself concedes that "implicit in [the Agreement] and in any collective bargaining agreement is the expectation that the wages called for in the schedules will actually be paid." Appellants' Opening Brief at 10. Thus, the nonpayment of Miura's first week's wages constitutes a breach of the Agreement by WUI, and because she did not exhaust her union remedies, her claim in federal court is barred.

Exhaustion is not required, however, when the union acts "in such a discriminatory, dishonest, arbitrary or perfunctory fashion as to breach the duty of fair representation." Delcostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983); see also Vaca v. Sipes, 386 U.S. 171 (1967). Miura does not claim that the Union breached its duty of fair representation with respect to her claim for first week's wages.

We next consider the appellants' claim for additional severance pay. The Agreement provides that " [t]he filing of any grievance ... must be initiated within ten days from the occurrence giving rise to the grievance." Art. IV, p b. The appellants did not notify the Union until January 1986, a year after their termination. The Union decided not to file a grievance on behalf of the appellants because it did not feel that the appellants had a meritorious grievance and also because the claim was not timely. We hold that the appellants cannot prevail on this claim because they did not exhaust their union remedies in a timely manner.

Finally, the appellants claim that WUI "should not have been allowed to stonewall plaintiff's efforts to secure the union official's oral deposition and then to use a less reliable deposition on written questions." Appellants' Opening Brief at 15. After reviewing the parties' briefs and the record, we conclude that the district court did not abuse its discretion regarding these discovery issues.

The judgment of the district court is

AFFIRMED.

 *

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

 1

Article X of the Agreement ("Security Rights Under Force Reduction") governs the calculation of severance pay: "Severance pay for a regular employee shall be calculated on the basis of pay for a full work week at the rate of pay at which the employee subject to involuntary furlough is working at the time he was forced reduced." p (i) (3) (a). According to Article XXII, p (c), a 15% COLA applies to employees in Hawaii: "Each employee in Hawaii in a job classification covered by the Article shall be paid currently a differential equal to fifteen (15) percent of the gross weekly earnings of such employee." The appellants' wages did reflect this 15% COLA. However, WUI did not apply the 15% COLA to the severance pay

 2

There is authority suggesting that " [p]rivate agreements between an employer and employee which have the effect of limiting or abrogating the scope or purpose of the [Fair Labor Standards] Act will not be upheld." Walling v. Lippold, 72 F. Supp. 339, 346 (D. Neb. 1947). Indeed, parties "may not contract to work for less than the minimum wage rate." Wirtz v. Leonard, 317 F.2d 768, 769 (5th Cir. 1963). Furthermore, an employer may not pay less than minimum wage by deferring compensation already earned to a later pay period. Olson v. Superior Pontiac-GMC, 776 F.2d 265, 267 (11th Cir. 1985)

 3

Miura also argues that the non-payment violates state law. Hawaii Rev.Stat. ch. 388. It is unnecessary for us, however, to decide the specific question of the applicability of state law because Miura's claim would be likewise barred by any relevant state statute of limitations

 4

We note that Miura does not allege that the wages to which she was entitled were below minimum wage. We assume, though, without deciding, that Miura's claim is cognizable under the minimum wage provisions of the FLSA. Certainly, we agree that implicit in the statutory mandate of payment of minimum wages is the requirement that the wages be paid promptly. See Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707-708 (1945)