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Union Employees Vie Over Seniority Rights

Ramirez-Lebron v. International Shipping Agency, Case No. 08-2321 (C.A. 1, Jan. 29, 2010)

This appeal arises out of a labor dispute over seniority rights between two groups of employees of Defendant International Shipping Agency (ISA). The two groups consist of three and seven employees respectively (G3 and G7). The ten total employees, all employed as “checkers,” are members of the Unión de Empleados de Muelles de Puerto Rico (AFL-CIO), Local 1901 I.L.A. (Union). G7 filed a verified complaint pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, alleging that ISA and G3 fraudulently procured, in breach of the collective bargaining agreement (CBA), an arbitration award granting seniority rights to G3. Neither the Union nor G7 was a party to the agreement between ISA and G3 that presaged the award. As alleged, the Union, prior to the award, notified both ISA and the arbitrator that the Union objected to any resolution of the matter absent its participation as exclusive bargaining representative for all ten member employees. G7 asked the district court to (1) vacate the arbitration award in favor of G3, (2) order an arbitration hearing at which the Union and G7 would be provided a meaningful opportunity to be heard, and (3) render damages against ISA. The district court dismissed G7's complaint. According to the court, G7 lacked standing to request a vacatur of the arbitration award and failed to exhaust its contractual remedies under the CBA’s grievance procedure.

We exercise jurisdiction under 28 U.S.C. § 1291. Our review of a Rule 12(b) dismissal is de novo. See McCloskey v. Mueller, 446 F.3d 262, 265-66 (1st Cir. 2006). Accepting all well pleaded factual allegations of the complaint as true, we conclude the district court erroneously dismissed G7's complaint. Those factual allegations are sufficient under § 301 to establish G7's standing and sustain G7's claim that ISA, by entering into a side agreement with G3 designed to procure an arbitration award, breached the CBA and effectively repudiated its arbitration provisions, thereby estopping ISA from posing the defense of exhaustion. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”).

G7's complaint alleges as follows: In April 2002, ISA and the Union agreed that G7, whose members were part of the Union, would have seniority rights over G3. G3's members joined the Union in May 2002. In February 2003, the Union, at the request of G3, filed a grievance pursuant to the CBA with the Puerto Rico Bureau of Conciliation and Arbitration (Bureau) challenging the seniority rights of G7. G7 thereafter demanded that the Union allow its seven members to intervene in the arbitration of G3's grievance. The Union agreed and “informed the Bureau and ISA in writing that the [G7 members] would be joined as parties to the grievance because they could be ‘affected by any determination of the grievance and that they had a right to participate’ in the process.”



Jurisdiction: U.S. Court of Appeals, First Circuit
Related Categories: ADR , Civil Procedure , Civil Remedies
Circuit Court Judge(s)
Bobby Baldock
Kermit Lipez
Juan Torruella

Trial Court Judge(s)
Jay Garcia-Gregory

Appellant Lawyer(s) Appellant Law Firm(s)
Juan H. Saavedra Castro

Appellee Lawyer(s) Appellee Law Firm(s)
Antonio Cuevas Delgado



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the reasons that the arbitrator (1) acted without rather, the union expressed its view that "there is no for the first circuit the district court should fashion a remedy not inconsistent applicable law, that the factual allegations of g7's whose respective theories of the case depend on the of contracts § 55.60, at 279 (4th ed. 2001) (citing hines). order to succeed in a breach of contract action against the the two groups consist of three and seven employees for review of arbitration award (court of first unsuccessful. alleged mishandling of the employee's grievance has impugned leaman tank lines, inc., 437 f.2d 167, 171 (5th cir. 1971) bargaining representative of its member employees under the labor relations and review the substantive merits of an cabarga cruz v. fundacion educativa ana g. mendez, inc., 822 accuses both the employer and the union of wrongdoing, representation in taking a good faith position isa is solely responsible for the failure of the arbitration heard, and (3) render damages against isa. the district isa initially moved to dismiss g7's complaint on the action against the employer for breach of the cba under of the arbitration process. as alleged in g7's complaint, the union. the final award determined the seniority responsibility of representing their interests fairly freight, inc., 424 u.s. 554, 562 (1976), recognized that step would improperly substitute a judicial rights of the individual employees so represented diminish. however, the norm is the "hybrid" action in which the under § 301 to establish g7's standing and sustain g7's based upon isa's breach of the cba must await resolution of and bump and acquire seniority rights over [g7]." the - 19 - the union agreed and "informed the bureau and isa in writing true, we conclude the district court erroneously dismissed section 301 provides: "suits for violation of contracts arbitration (bureau) challenging the seniority rights of g7. all well pleaded factual allegations of the complaint as ct. 2579, 2592 (2009). more particularly, in the context of rights that isa might make with g3 (or g7 for that matter). arbitrator's final decision, and wisely so, because, as we we are left to ponder why neither g7 nor isa,1 suggests the union has wrongfully refused to process section 301. "[f]ull exhaustion is not inevitably required by a court circumstances. see id. § 1443, at 435. in drake bakeries, an obvious situation in which the employee should claim that isa and g3 entered into a "sham secret agreement" garment workers' union, 22 f.3d 8, 15 (1st cir. 1994) between an employer and a labor organization representing the lmra for breach of the cba. though somewhat inartfully employees generally must be willing to (1) exhaust the cba's review of a rule 12(b) dismissal is de novo. see mccloskey alleged here, where the union has not wrongfully refused to exclusive bargaining agent for both g3 and g7, had alleged isa breached the cba and the union breached its failed to abide in the first place. we agree that isa's because, according to the complaint, isa repudiated the collective bargaining and grievance process." id. at futility of arbitrating g7's claim to seniority rights. grievance procedures, the issue of whether the integrity of its duty of fair representation when the union, as resolution.6 301 suit against an employer for breach of a cba, namely circumstances have impugned the integrity of the arbitration black-clawson co. v. int'l ass'n of machinists, 313 f.2d 254, 262-63 (1962), the court told us: "[i]n determining edition). district court to (1) vacate the arbitration award in favor does not request a substantive merits review of the rather, as we shall see, the issue is whether g7 has alleged of course, in this case we are concerned principally interpretation of an existing [cba]." 29 u.s.c. § 173(d). union rejected any attempt to settle the seniority we need not belabor the point: the factual allegations of accordingly, courts have not allowed employees to challenge members joined the union in may 2002. in february 2003, the id. at 349. fed. r. evid. 201 take judicial notice of the official point appears left to arbitrate. the arbitrator, seniority list agreement to allow [g3] to move up the list 28 u.s.c. § 2201 "that any challenge or dispute relating to as one for relief from judgment based on a manifest error of - 4 - "uniquely personal" stake in the outcome of the controversy factual allegations. we therefore hold, based upon the in the challenged award's caption were isa and the union.2 fraud, or undue means," the court held g7's allegations of grievance disputes arising over the application or section 301 absent circumstances that have impugned the int'l union v. misco, inc., 484 u.s. 29, 36-38 (1987). i. section 301's plain reference to contracts between employers the union is not an indispensable party to g7's3 record. on the limited record before us, we accept attempted to exhaust the cba's dispute resolution procedures additionally, if employees seek judicial relief against § 301 of the labor management relations act (lmra), 29 no. 08-2321 injury to its members necessary to sustain g7's article iii an employer under section 301 before the union has at least business weighing the merits of the grievance, considering atty. gonzalez vargas [g3's attorney] and the isa's breach of the cba "and/or the implied covenant of good has standing to seek enforcement of a right . . . 2008). the union's petition apparently again is employee's right to prosecute a section 301 claim against an the process. these were the circumstances that led the seeking to vindicate `uniquely personal' rights of employees frustrating the cba's grievance procedure, isa's failure to allege wrongdoing on the part of the union on their behalf, the employer may raise the defense of "including emotional and mental distress injuries suffered, between two groups of member employees. "`by its determining whether there is particular language in the agreement" with any "arrangements" regarding seniority but the court in vaca also recognized a second, much (cba), an arbitration award granting seniority rights to g3. whether there is equity in a particular claim, or presence of [g3] and [g7]. isa also knew that the int'l shipping agency, no. kac08-0643 (507), petition employee joins both defendants in one suit. see, e.g., cba. according to g7, isa cannot now invoke as a defense to arbitration act (faa), specifically 9 u.s.c. § 10(a)(1), the bureau under false and fraudulent pretenses. that a procedurally sound arbitration award is "nearly grievance procedures and (2) abide by the cba's finality duty of fair representation in processing the grievance. collective bargaining system . . . of necessity subordinates should not allow isa to hide behind the very provisions of union." to that we add "so long as those terms and own judgment of the appropriate result, since this redressable by a favorable ruling." horne v. flores, 129 s. matter absent its participation as exclusive bargaining fairly traceable to the defendant's challenged action; and seniority rights between two groups of union employees. given the final and binding nature of the5 garcia, 808 f.2d at 721. in vaca, the supreme court requested that it [g3's grievance] be heard by absent complete exhaustion of contractual remedies because between an employer and his employees. breached its duty of fair representation in its handling ensure the realization of those remedies: alleged to have breached the cba by taking some adverse holding that g7 lacked "standing" to maintain this action survives a motion to dismiss."). employees of defendant international shipping agency (isa). jurisdiction of the parties." 29 u.s.c. § 185(a). despite agreement. isa knew that the union had not arbitration is only a part of a larger 344, 345-46 (1st cir. 1996). iv. that the union: suit the very grievance procedures of the cba by which it procured, in breach of the collective bargaining agreement the parties bargained for in the collective- allowed to stand, may effectively gag the union. as to - 5 - failure to exhaust contractual remedies where the employer representative. but an employer who by its conduct the cba's grievance procedure. 324, 330 (1969)(recognizing the futility exception to employees in an industry affecting commerce . . . may be complete good faith and honesty of purpose in participate' in the process." § 1443, at 434-35 (1962). rather, if the employer denies written instrument which will support the claim." united 436 (recognizing "that a breach may be of a kind that brought in any district court of the united states having [w]e are not ready to find a breach of the see ashcroft v. iqbal, 129 s. ct. 1937, 1950 (2009) ("[o]nly rarer, instance where an employee could maintain a section that the other party is excused, the circumstances of the agreement absent the participation of all interested employees as well as between unions and employers; and rights of g3, and thus necessarily those of g7. on its wrongdoing on the part of the union ­ a point on which permitted under the terms of the agreement. action against the employee unrelated to the cba's grievance a letter to isa (with a copy to the arbitrator previously which empowers a court "upon the application of any party to roberto ramÍrez-lebrÓn; fÉlix fernÁndez-torres; int'l corp.,808 f.2d 717, 721 (10th cir. 1986). in apparently bent over backwards in its effort to inform under the agreement, "isa and [g3] agreed to amend the 2002 in chauffeurs, teamsters & helpers local no. 391 v. terry, subject to arbitration under the cba. the district court,1 basis that the latter's claim to seniority rights was despite loose reference to the "standing" label in some see unión de empleados de muelles de puerto rico v. no cause of action against the union for breach of the duty requirement. g7 claims entitlement to section 301 review recognized an individual employee's right to secure judicial january 29, 2010 arbitration provisions of the cba when it entered into a (and there may of course be others), the employer action against the employer under section 301. see vaca, faith and fair dealing incorporated into the cba." isa subsequently filed a motion to reconsider which the suit. because isa allegedly acted unilaterally in its prayer for relief, g7 asked the court to vacate the suing their employers under section 301 for breach of a cba, issue an arbitration award based on a ruse and fraudulent of g3, (2) order an arbitration hearing at which the union grievance because they could be `affected by any not be pushed aside simply because the problem posed is grievances over seniority rights in a fundamentally fair contracts § 972, at 102 (cum. supp. 2009) (interim under section 301 and adjudicate g7's claim that isa 349-50. notably, humphrey also involved a dispute over review of a section 301 breach of contract claim despite the "to establish standing, a plaintiff must present an injury tim bornstein, ann gosline, & marc greenbaum, labor and which the union fairly represents the aggrieved employee(s). union, at the request of g3, filed a grievance pursuant to sipes, 386 u.s. 171, 182 (1967). when employees recognize isa intentionally mischaracterized this agreement declaration of contractual rights pursuant to section 2201); instance, superior part of san juan, filed may 2, isa for breach of the cba, viewed as the first step in its arbitrator that the union objected to any resolution of the the district court concluded g7 lacked standing to challenge where the employer through its conduct repudiates the scheme, and the sham, secret agreement." based upon the determination for the arbitrator's decision that section 301's purpose is to promote the integrity of such an arbitrator's award and render a declaratory judgment under determination of the grievance and that they had a right to this appeal in the end is about the fundamental fairness the existence or the scope of its alleged repudiation in a empleados de muelles de puerto rico (afl-cio), local 1901 g7's grievance. selection as bargaining representative, [the union] has of the employer amounts to a repudiation of those the underlying seniority rights' dispute between g3 and g7. g3's seniority rights is not a part of the record in employer, the employee must prove the union breached its over seniority rights were subject to the cba's cba designed to ensure a fair process. vaca teaches that we to suggest the union and isa had reached the according to the complaint, g3 and g7 assigned7 duty of fair representation. the court held that g7's issue and submitted their agreement to the arbitrator." process, that is, with the participation of both g3 and g7.7 not dismiss out of hand the idea that arbitrators too grievance procedures. dismiss. given the factual allegations buttressing g7's arbitration award ostensibly agreed to by the employer and 602 f.2d 15, 19 n.2 (1st cir. 1979). where an employee union, prior to the award, notified both isa and the g7's position accords with the sound view that even where steelworkers v. am. mfg. co., 363 u.s. 564, 567 (1960). rights. section 301 scenario. in such scenario, the employer is - 10 - ii. challenge to the arbitrator's substantive determination that precedents illustrate, chauffeurs speaks to the usual contractual procedures . . . . in such a situation against an employer unless he can show that the union according to the complaint: his promise to arbitrate discharges before it will exercise jurisdiction under § 301." id. whole. represents nor in supporting the position of g7's uncontroverted allegations that the union is the rather, g7 asserts a cause of action under section 301 of declaration of contractual rights, vacatur, and damages. - 6 - agreement according to its terms. see united paperworkers wide range of reasonableness must be allowed a on the failure to exhaust contractual remedies, the issue (addressing claim preclusion in the context of a prior cba to avoid arbitration or fraudulently procure an "section 301 contemplates suits by and against individual court dismissed g7's complaint. according to the court, g7 whether the district court may exercise jurisdiction itself"). one group of employees against that of another - 13 - issue with [g3]. at 184. this too is an "important qualification" on an to arbitration because the cba contained a provision united states court of appeals resolution of labor disputes through grievance procedures in vaca recognized that circumstances may arise, like those over seniority "must be resolved with the presence and required g7 to submit its members' breach of contract claim - 18 - the participation of the union or g7, all in breach of the allegedly had "reached a secret agreement on the seniority sounded the death knell of its challenge to the arbitration judicial relief would suggest the union had breached court opinions addressing employee claims under section 301, vÍctor aponte-torres; jesÚs castro-gely; international shipping agency, inc., to the detriment of g7. see corbin, supra § 1443, at the exercise of its discretion. legal recourse absent the union's decision in this case "[f]inal adjustment by a method agreed upon by the parties established by the contract occurs when the conduct - 17 - - 7 - ramÓn matta-flores; david de jesÚs-ortÍz; granted under the [cba] turns upon the nature of i.l.a. (union). g7 filed a verified complaint pursuant to employed as "checkers," are members of the unión de destroys the end and aim of the arbitration provision provisions of the] contract and thereby avoid arbitration." award and failed to exhaust its contractual remedies under of the grievance." (emphasis added). as the array of to seek judicial relief. without deciding the scope of arbitrator to issue an award favorable to g3 absent contrary to that of some individuals whom it reversed and remanded. both isa and the arbitrator of its objection to any permit isa and the union to arbitrate its member employees' [h]ad a hearing today which was suspended since hearing before the arbitrator, at which isa, the union, g3, integrity of the arbitration process, for instance, "fraud, - 14 - and the union were the only proper parties thereto. thus, filed july 2, 2008) (docket entry #11). in that case, lacked standing to request a vacatur of the arbitration participation of [g7] and [g3], in accordance with the terms g3 is entitled to seniority rights over g7. the complaint isa and g3 may have reached concerning the seniority rights (per curiam). terms of the cba, the union submitted g3's grievance over exhaustion requirement, an employee's section 301 complaint arbitration. see 6a arthur l. corbin, corbin on contracts awards is consistent with congressional recognition that - 15 - a different conclusion might leave g7 without6 review the merits of an arbitration award is the proper iii. the terms of the cba has no subsequent right to insist on over an employee's section 301 suit against an employer we have no quarrel with the supreme court's statement the interests of an individual employee to the collective arbitrator issued an award on april 3, 2008, incorporating defendant, appellee. in nearly every instance, "[t]he refusal of courts to breached the cba and repudiated the arbitration process. as g7's complaint. those factual allegations are sufficient that the [g7 members] would be joined as parties to the g7 thereafter demanded that the union allow its seven requiring the arbitration of grievances involving seniority (3) "resort to the grievance procedures would be futile." section 301: the unit it represents, subject always to the remedial procedures outlined in the cba. in the may inquire into their prior awards. see generally 9 simply vacate the award, thus leaving open the see id. a cba generally provides for the final, binding of the tenth circuit, sitting by designation.* unexhausted grievance and arbitration procedures as section 301's exhaustion requirement). just as courts 342 (1964). "conflict between employees represented by restricted to suits for damages or specific enforcement and parties and issues his award." on august 27, 2007, a are the agreed equivalents of each . . . . the complete satisfaction of all who face, that award binds isa and the union. assuming the rather, g7's complaint challenges the process through failure to exhaust contractual remedies. more so in g3's absence. because the agreement between isa inadequate or substantially unavailable.'" harris v. chem. section 301 is broad enough to encompass g7's action against that is concrete, particularized, and actual or imminent; f.2d 188, 192 (1st cir. 1987). absent an allegation of at process: where (1) "the union has the sole power to invoke whether a decision on the part of the union not to seek [t]he determination whether an individual employee misconduct, the arbitration process has not been jeopardized union was bound to represent both groups under the least one of these three exceptions to section 301's have standing to challenge the award only if the complaint certainly, the named parties to the arbitration as reflected terms of the cba, have never entered the cba into the - 2 - umass mem'l med. ctr, inc. v. united food & commercial that isa is estopped from utilizing the cba (as well as the process the employee's grievance, and thus the employee has consequent award) to shield itself from answering g7's inc. v. am. bakery & confectionery workers int'l, 370 u.s. - 11 - employment law § 226.06[1], at 226-33 (2009) we need not address whether the district court in - 3 - breach of the cba against isa under section 301. g7 may inquire into their prior judgments for fraud, we do award. the district court further concluded the cba claimed repudiation are critically important."5 bearing upon the availability of the employee's cause of - 22 - however, read g7's complaint as one to set aside an party to the cba or the arbitration proceeding. rather, isa - 21 - 20 samuel williston & richard a. lord, a treatise on the law themselves foreclose the employee's breach of contract isa and [g3] submitted their secret agreement to workers union, 527 f.3d 1, 5-6 (1st cir. 2008) (recognizing three days prior to the scheduled hearing, isa and g3 complaint, g7 recognizes that the dispute between g7 and g3 separately. see vaca v. sipes, 386 u.s. 171, 187 claim that isa, by entering into a side agreement with g3 undoubtedly has standing because its members have alleged a v. g7's complaint readily establish the "uniquely personal" raised is for the court after appropriate inquiry into the arbitration award. relying on section 5 of the federal record in unión de empleados de muelles de puerto rico that due to the finality provisions usually contained in a allegedly duped, has made his decision in favor of g3, employees, and isa and the union agreed that disputes fact, controlling precedent dictates that even if g7 is instead possessed by the bargaining unit as a (3) denied both the union and g7 due process of law. seniority rights to arbitration, a court generally has "no also justifiably concerned at this point about the possible liability to g7 does not depend upon any - 20 - ayala v. unión de tronquistas de puerto rico, 74 f.3d we subsequently expand in part iv. see garcia v. eidal the validity of the arbitration award remains for judicial process because it repudiated those very provisions of the if on remand g7's allegations ultimately prove accurate, necessary to sustain federal jurisdiction under section 301. the same union is a recurring fact. to remove or gag transaction, in the sense of being both covert and in bad parties. certainly nothing in the record before us effort to vindicate its purported right to seniority status representative for all ten member employees. g7 asked the the process has been so impugned as to call into question thereby estopping isa from posing the defense of exhaustion. terms and conditions established by the board of directors union are the named parties to the cba. as the exclusive the 2002 seniority list must be resolved with the presence juan h. saavedra castro for appellants. approved the agreement and that the union required the union, while bearing upon the remedy sought, has no court seeking to set aside the arbitration award for u.s.c. § 185, alleging that isa and g3 fraudulently attorney from the company [isa's attorney] of the union." g7 further sought an award of damages by its conduct repudiated the very procedures necessary to and that means with the union as g7's exclusive bargaining agreement between the "parties" to the cba. those his reciprocal promise . . . . this pending in commonwealth court after isa's attempt allegations of the complaint to be true, that award, if arbitration award granting g3 seniority rights, we are and participation of [g7] and [g3], in accordance with the mutual promises to arbitrate a dispute4 arbitration award). nonetheless, the arbitration award (2) condoned the improper conduct of isa and g3; and see vaca, 386 u.s. at 185-87. without proof of the union's as a rule the court must not foreclose further for the district of puerto rico complaint are sufficient to withstand isa's motion to may not survive an employer's motion to dismiss based on the to isa and the union through the cba the task of bargaining agreement. instead, the court should with the second exception to section 301's exhaustion provisions. see garcia v. eidal int'l. corp., 808 f.2d 717, the duty of the other party to perform g7 also averred that isa induced the arbitrator "to collective bargaining agent's duty of fair is estopped by his own conduct to rely on the (1967); hayes v. new england millwork distribs., inc., of g3 in relation to those of g7. the letter further stated resolving the two groups' differences. the union may the union, would have seniority rights over g3. g3's the cba it has allegedly repudiated. rather, vaca suggests exclusive bargaining representative of its member the arbitration" to vacate an award "procured by corruption, provisions. in that case, the employer's misconduct has not such as wages, hours, [and] overtime pay." hines suggests supreme court in vaca to comment prior to chauffeurs that in - 16 - statutory bargaining representative in serving importantly, we do not read g7's complaint as a direct possibility of further proceedings if they are repudiates a promise to arbitrate a dispute consistent with 386 u.s. at 185. and whether the employer repudiates the g7's complaint alleges as follows: in april 2002, isa jurisdiction in the absence of the union's consent; labor dispute over seniority rights between two groups of torruella, baldock, and lipez, circuit judges.* become the agent of all the employees, charged with the the grievance procedures and the union wrongfully refuses to cited vaca or addressed g7's allegations of repudiation. the union in these cases would surely weaken the breached the cba is another matter. as preconditions to3 the right . . . sought to be enforced is `uniquely vacate an arbitration award under section 5 of the faa. and courts, as we have explained, are loathe to interfere in is declared to be the desirable method for settlement of v. deceit, or breach of the duty of fair representation or (recognizing that a section 301 action may request a of fair representation. but such circumstances do not in 494 u.s. 558, 564 (1990), referred to by the district court, isa submits it is willing to arbitrate g7's grievance what g7's complaint refers to as a "sham, secret agreement." vaca 386 u.s. at 185.4 english translation of that award as it appears of respectively (g3 and g7). the ten total employees, all that the arbitrator's written award in favor of2 the merits of g7's claim to seniority, nothing at this with the foregoing. in that event, any damage determination fraud on the part of isa sufficient to withstand the motion. contrary to earlier indications § 301 suits encompass those g7 seeks to set aside ostensibly rests on a settlement 179, 181-82 (2d cir. 1962) (holding section 301 is not the underlying merits of arbitration awards by way of v. mueller, 446 f.3d 262, 265-66 (1st cir. 2006). accepting see glover v. st. louis-san francisco ry. co., 393 u.s. isa's motion submitting certified translations (d.p.r., antonio cuevas delgado for appellee. contract such as a collective bargain arrangement whatsoever until the arbitrator hears both the overriding issue here is not whether g7 has standing. proceedings by settling the merits according to its - 12 - cba, "an employee normally cannot bring a § 301 action pled, the remedies g7 seeks for that breach are a this case defies explanation. we may, however, under record, which was never requested from this union before is true, even though the provision for conditions are consistent with the applicable provisions of over seniority rights consistent with the terms of the cba, and effectively repudiated its arbitration provisions, the right . . . at issue, the test being whether and g7 were set to appear, was suspended. that same day, personal' to the individual plaintiff or whether it circumstances sufficient to sustain a cause of action for we exercise jurisdiction under 28 u.s.c. § 1291. our josÉ j. gonzÁlez-centeno, vis-a-vis g3. see tejidos de coamo, inc. v. int'l ladies a complaint that states a plausible claim for relief whether one party has so repudiated his promise to arbitrate misco, 484 u.s. at 40-41 n.10. a defense to the employee's cause of action. consistent with supreme court precedent, we have recognized the arbitration award. according to the court, g7 would neither the union nor g7 was a party to the agreement between isa and g3 that presaged the award. as alleged, the and conditions established by the board of directors of the collective bargaining agreements." united steelworkers v. to remove the action to federal district court proved approach to arbitration under [the finality provisions] of omitted). restricted judicial oversight of arbitration have seen, that review would be "very limited," perhaps even district court construed pursuant to fed. r. civ. p. 60(b) other. a repudiation by one party of seniority rights to isa. but g7's action is not one to enter. wheel & car corp., 363 u.s. 593, 596 (1960); see suit to such preconditions is essential because "[t]he and any wages and compensation losses caused," based on process or perfunctorily handles the grievance;" (2) "the arbitrator stating the union did not recognize any agreement 602 f.2d 15, 18 (1st cir. 1979). but neither is this precondition upon an employee's section 301 suit unlimited. baldock, circuit judge. this appeal arises out of a and g7 would be provided a meaningful opportunity to be standing. [hon. jay a. garcía-gregory, u.s. district judge] which the arbitrator reached such decision as contrary to for its approval and we found out through you and terms of the cba: this necessarily follows from the fact that isa and the a hearing on the seniority grievance, with the had alleged such wrongdoing by the union, g7 still 10 john e. murray jr. & timothy murray, corbin on unless the grievance procedure was a `sham, substantially the union, again through its president, sent a letter to the would have been entitled to sue isa and the union procedural aberrations have tainted an arbitration award, employer. hayes v. new england millwork distribs., inc., and impartially.'" humphrey v. moore, 375 u.s. 335, and unions, the supreme court in hines v. anchor motor v. int'l shipping agency inc., no. 08-cv-01615-adc, the union's duty to fairly represent g7, we wonder employer repudiates the grievance procedures;" or section 301 suit and moves for dismissal of the action based i reiterate that this union is totally opposed. are represented is hardly to be expected. a and the union is to submit irresolvable grievances over - 9 - faith, implies a determination to repudiate the [relevant appeal from the united states district court members to intervene in the arbitration of g3's grievance. impervious to judicial oversight") (internal quotation marks in march 2007, the union, through its president, sent plaintiffs, appellants, designed to procure an arbitration award, breached the cba properly characterized g7 as a "non-party" to the will sustain a request for a declaratory judgment). "sham, secret agreement" with g3, thereby inducing the the court was not troubled by the fact that the same selected through the bureau) stating the union was "not in not be limited to the exclusive remedial procedures alleged conduct is suspect because the claim "of a sham - 8 - foregoing allegations, g7's complaint claimed that isa had whereby isa breached the cba and repudiated the cba's failure to exhaust contractual remedies. see vaca, 386 u.s. a union as their exclusive bargaining representative, the the union filed a petition in puerto rico commonwealth arbitration within the meaning of section 5 of the faa. the cba with the puerto rico bureau of conciliation and impugned the arbitration process. rather, the union's three occasions when a court may exercise jurisdiction parties, as the district court recognized, are isa and interests of all employees in a bargaining unit." vaca v. employee's grievance. applicable provisions of the cba. the district court never 720 (10th cir. 1986). subjecting an employee's section 301 the cba." in other words, g7 appears quite willing to law. this time, the district court reasoned g7 was not a and the union agreed that g7, whose members were part of

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