

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1881

                       JOSE AYALA, ET AL.,

                     Plaintiffs, Appellants,

                                v.

     UNION DE TRONQUISTAS DE PUERTO RICO, LOCAL 901, ET AL.,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Hector M. Laffitte, U.S. District Judge]                                                                 

                                             

                              Before

                      Selya, Circuit Judge,                                                    

            Aldrich and Coffin, Senior Circuit Judges.                                                               

                                             

     John Ward Llambias on brief for appellants.                                 
     Ana  Rosa Biascoechea,  Raquel  M. Dulzaides,  and  Jimenez,                                                                           
Graffam &amp; Lausell on consolidated brief for appellees.                           

                                           

                         January 24, 1996
                                           

          SELYA, Circuit Judge.  This is a hybrid action  brought                    SELYA, Circuit Judge.                                        

pursuant to section 301 of the Labor Management Relations Act, 29

U.S.C.   185 (1994).   In it, the plaintiffs complain that  Union

de Tronquistas de  Puerto Rico,  Local 901 (the  Union) acted  in

dereliction  of its duty  of fair representation,  and that their

employer,  Crowley American  Transport, Inc.  (Crowley), violated

the collective bargaining agreement (the CBA)  that was in effect

at  the  times  relevant  hereto.    The  defendants  denied  the

plaintiffs'  allegations.    In  due course,  the district  court

granted the  defendants' motion for summary judgment.   See Ayala                                                                           

v.  Union de  Tronquistas de  P.R., Local  901, C.A.  No. 94-2234                                                        

(HL),  slip op. (D.P.R. June  16, 1995).   The plaintiffs appeal.

We summarily affirm.

          There is no need to tarry.  Having  read the record and

carefully  considered the  parties' briefs,  we find no  basis to

disturb  the district  court's  well-reasoned decision.   To  the

precise  contrary, we regard this as a paradigmatic case in which

to put  into practice our stated belief that, when "a trial court

has  produced a  first-rate  work product,  a reviewing  tribunal

should  hesitate to wax longiloquent simply to hear its own words

resonate."  In  re San Juan Dupont  Plaza Hotel Fire  Litig., 989                                                                      

F.2d  36,  38  (1st Cir.  1993).    Consequently,  we affirm  the

judgment for substantially the  reasons elucidated in the opinion

below.  We add only three brief comments.

          First:  The plaintiffs  (who are members of  Local 901)                    First:                         

urge   that   they  were   entitled   to   seniority  rights   by

                                2

classification,  and  that,  therefore,  the  Union  should  have

safeguarded them against being "bumped" from their laborers' jobs

by  non-laborers  with  greater  company-wide  seniority.    This

exhortation is unavailing.  While the CBA is admittedly ambiguous

on the key  point of what sort of seniority  (company-wide or in-

classification)  prevails in respect to laborers' positions, past

practice over many years   the so-called law of the  shop   makes

it  transpicuously clear that  the most plausible  reading of the

CBA favors  company-wide seniority  as the  appropriate measure.1

In  this situation,  the law  of the  shop controls.   See United                                                                           

Steelworkers  v. Warrior  &amp; Gulf  Navig. Co.,  363 U.S.  574, 580                                                      

(1960).

          Second:   In all  events, disaffected employees  do not                    Second:                          

possess  an  absolute  right  to  have  their  union  shepherd  a

complaint through the grievance  process to the bitter end.   "In

the   context  of   employee   grievances,  the   duty  of   fair

representation  is  not a  straitjacket  which  forces unions  to

pursue  grievance   remedies  under  the   collective  bargaining

agreement in every case where an employee has a complaint against

the company.  . . .  A  union is accorded considerable discretion

in dealing  with  grievance  matters,  and it  may  consider  the

interests  of all  its members  when deciding  whether or  not to

press the claims  of an  individual employee."   Seymour v.  Olin                                                                           

Corp., 666 F.2d  202, 208  (Former 5th Cir.  1982).  Put  another               
                                                  

     1It  is worthy of note  that several of  the plaintiffs were
themselves,   on   earlier   occasions,   beneficiaries   of  the
interpretation that they now strain to repudiate.

                                3

way,  a union, caught in the middle between dueling employees, is

not  obliged to throw some union members  to the wolves merely to

placate others.

          In this case,  the Union offered to process a grievance

that presented both sides of the  story.  The plaintiffs asked to

have  this   proposed  grievance  withdrawn.     They  sought  to

substitute  in  its  place  a grievance  containing  a  one-sided

presentation and  adamantly insisted that the  Union embrace this

version.    Understandably, the  Union declined  to  do so.   The

undisputed facts  reveal that the Union acted  reasonably both in

offering  to press a balanced grievance and in refusing to grieve

on the plaintiffs' terms.  No  more is exigible.  See, e.g., Vaca                                                                           

v. Sipes, 386 U.S.  171, 190-91 (1967); De Arroyo v. Sindicato de                                                                           

Trabajadores  Packinghouse, 425  F.2d  281, 284  n.2 (1st  Cir.),                                    

cert. denied, 400 U.S. 877 (1970).                      

          This   observation  leads   directly   to   a   further

observation.  Vaca teaches that, even if a union misconstrues the                            

CBA, its  misconstruction,  simpliciter, does  not  constitute  a                                                 

breach of its duty of fair representation.  See Vaca, 386 U.S. at                                                              

190.  There  is no breach  unless the union's  "conduct toward  a

member   of  the   collective  bargaining   unit   is  arbitrary,

discriminatory or in  bad faith."   Id.; accord  Air Line  Pilots                                                                           

Ass'n  v. O'Neill,  499 U.S.  65, 67  (1991); Alicea  v. Suffield                                                                           

Poultry,  Inc.,  902 F.2d  125, 130  (1st  Cir. 1990).    In this                        

instance, no  rational factfinder  could conclude that  the Union

crossed that line.

                                4

          Third:  The plaintiffs' case against Crowley is no more                    Third:                         

robust than  their case against the Union.  In point of fact, the

inadequacy of  the plaintiffs'  claim against the  Union presages

the  inadequacy  of their  claim against  Crowley.   In  order to

excuse  their  failure to  exhaust  contractual  remedies in  the

conventional manner and prevail in a hybrid section 301 action on

a  theory  that  the   employer  violated  the  CBA,  disgruntled

employees  must  first  prevail on  their  unfair  representation

claim.  See Breininger v. Sheet Metal Workers Int'l, 493 U.S. 67,                                                             

82 (1989);  DelCostello v.  International Bhd. of  Teamsters, 462                                                                      

U.S.   151,  164-65   (1983);  Chaparro-Febus   v.  International                                                                           

Longshoremen  Ass'n, Local  1575,  983 F.2d  325,  330 (1st  Cir.                                          

1992).  Failing in  the first instance, the plaintiffs  also fail

in the second instance.

          Mindful,  as  we  are,  of the  district  court's  more

exegetic  treatment of these (and  other) matters, we  need go no

further.  The judgment below is summarily affirmed.  See 1st Cir.                                                                  

R. 27.1.

          Affirmed.                    Affirmed.                            

                                5
