                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 25 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


INTERNATIONAL LONGSHORE AND                      No.   15-35620
WAREHOUSE UNION, LOCAL 40,
                                                 D.C. No. 3:13-cv-00513-AC
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

COLUMBIA GRAIN, INC., AKA
Willamette Stevedoring,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                      Argued and Submitted October 4, 2017
                               Portland, Oregon

Before: PAEZ and BEA, Circuit Judges, and LAMBERTH,** District Judge.

      In this action under Section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185(a), International Longshore and Warehouse Union,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
Local 40 (“Local 40”) seeks to compel arbitration of its lost-work grievances

against Columbia Grain, Inc. (“CGI”). Local 40 argues that it has the authority to

compel arbitration under the terms of the Pacific Coast Clerks Contract Document

(the “White Book”), a collective bargaining agreement between International

Longshore and Warehouse Union (“International Union”) and the Pacific Maritime

Association (“PMA”).1 Finding no error in the district court’s Findings of Fact and

Conclusions of Law, we affirm.

1.     The district court correctly determined that the question of arbitrability was

for the court to decide, not the arbitrator. As the Supreme Court recently said,

“whether the parties have agreed to submit a particular dispute to arbitration is . . .

an issue for judicial determination.” Granite Rock Co. v. Int’l Bhd. of Teamsters,

561 U.S. 287, 296 (2010). Arbitration is a contractual matter as “arbitrators derive

their authority to resolve disputes only because the parties have agreed in advance

to submit such grievances to arbitration.” Id.; see also McKinstry Co. v. Sheet

Metal Workers Int’l Ass’n Local Union No. 16, 859 F.2d 1382, 1384 (9th Cir.

1988) (providing that whether the parties can be compelled to arbitrate “is


      1
        Willamette Stevedoring, a former subsidiary of CGI, was a member of the
Pacific Maritime Association and therefore bound by the White Book, which
includes provisions providing for arbitration of grievances. After CGI shut down
Willamette Stevedoring, Local 40 brought this lawsuit alleging an alter ego theory
against CGI.
                                            2
ultimately decided by the court, not the arbitrator, on the basis of the contract

entered into by the parties”). Where there is a question about whether the parties

agreed to arbitrate a specific dispute, that question is resolved by the court. See

Granite Rock, 561 U.S. at 297.

      The essence of this case is whether there is an agreement to arbitrate the lost-

work grievance between Local 40 and CGI. If Local 40 cannot enforce the White

Book, then it does not have the right to compel arbitration. Therefore, under

Granite Rock, the issue of arbitrability was for the district court to decide.

2.    Local 40 argues that it was entitled to enforce the White Book as either a

party to the agreement or as a third-party beneficiary. However, we need not

decide that question. Regardless of whether Local 40 was a party to or third-party

beneficiary of the White Book, the Memorandum of Agreement (“MOA”) entered

into between the International Union and CGI forecloses Local 40’s claim that it

has the right to compel arbitration of its grievances.

3.    The MOA provides that the International Union and Locals 4, 8, and 19, “on

behalf of themselves and all of their members . . . agree[] to waive, release and

discharge the Employer, collectively and each company individually, from any and

all claims, including any court claims, administrative claims, unfair labor practice




                                           3
charges, or labor relations related claims.” This provision effectively released any

claims against CGI by Local 40 and its members.

      Unions have the authority to bind their members to a settlement agreement

absent allegations that the union’s actions were made in bad faith or arbitrarily.

See Vaca v. Sipes, 386 U.S. 171, 177, 190-91 (1967); NLRB v. Allis-Chalmers Mfg.

Co., 388 U.S. 175, 180 (1967) (“The employee may disagree with many of the

union decisions but is bound by them.”). Under Section 301 of the LMRA, “[a]ny

labor organization which represents employees in an industry affecting commerce

. . . shall be bound by the acts of its agents.” 29 U.S.C. § 185(b). When the

International Union’s Committeeman, an elected representative of Local 40's

supercargoes and clerks, executed the MOA, he had the authority to bind the

members of Local 40. Therefore, the International Union could properly settle and

release “any and all claims” by its members that had occurred prior to the MOA,

which includes Local 40’s lost-work grievances.

      Further, the MOA covers Local 40. The settlement and release is “on behalf

of [the signatories] and all of their members.” The members of Local 40 are also

members of the International Union. Additionally, Local 40 maintains that it is a

member of the International Union for purposes of the White Book. The district




                                           4
court did not err in concluding that the MOA encompasses Local 40, irrespective

of the fact that it is not a named signatory to the agreement.

4.    The Side Letter of Agreement entered into by the International Union, Local

8, and CGI contemporaneously with the MOA does not exempt Local 40 from the

MOA. The Side Letter of Agreement provided in relevant part that in the event

CGI is ordered “to employ a Local 40 supercargo as a result of Local 40’s current

lawsuit against [CGI], then upon the hiring of a Local 40 supercargo, the

[International Union] and its Local 8 agree that Shipboard manning levels will be

reduced by one.” This side agreement was a contingency plan in case Local 40

prevailed on its lost-work grievances and CGI was ordered to employ a member of

Local 40. As a contingency agreement, the Side Letter does not exclude Local 40

from the terms of the MOA. Thus, the MOA settled and released the lost-work

grievances on behalf of Local 40.

      AFFIRMED.




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