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876 F2d 897 Prazak v. Alaska Local No International Union of Bricklayers and Allied Craftsman

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

William PRAZAK, Plaintiff-Appellant,
v.
ALASKA LOCAL NO. 1, INTERNATIONAL UNION OF BRICKLAYERS AND
ALLIED CRAFTSMAN, Jim Lane, et al., Defendants-Appellees.

No. 88-3671.

United States Court of Appeals, Ninth Circuit.

Submitted June 8, 1989.
Decided June 12, 1989.*

Before GOODWIN, Chief Judge, WRIGHT and WILLIAM A. NORRIS, Circuit Judges.

1

MEMORANDUM*

2

Because Prazak failed to invoke intraunion remedies before seeking judicial relief, we affirm dismissal of his claims without prejudice.

BACKGROUND

3

Prazak is a member of Alaska Local No. 1. In 1985, he worked for G & G Masonry, which had a collective bargaining agreement with the Union. G & G allegedly breached that agreement. At Prazak's urging, the Union brought a state court action against G & G. Following the advice of its executive board, the Union stipulated to dismissal of the suit with prejudice.

4

It did not notify Prazak of the dismissal. When he learned of it, he sued the Union and its executive board in district court. He did not attempt to resolve his complaint through the union before filing suit.

5

Prazak's complaint alleges 1) that Local No. 1 breached its duty of fair representation when it stipulated to dismissal of the G & G action; 2) that the executive board breached its duty to uphold the Union's constitution and bylaws when it recommended dismissal; and 3) that the Union conspired to deprive him of his rights as a union member.

6

The court dismissed all three claims without prejudice for failure to exhaust intraunion remedies. Because it considered evidence outside the pleadings, it treated the Union's motion to dismiss as one for summary judgment.

DISCUSSION

A. Standard of Review

7

The court should have treated the motion as a " 'nonenumerated' Rule 12(b)" motion to dismiss. See Ritza v. International Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir.1988). Failure to exhaust nonjudicial remedies is a matter in abatement not going to the claim's merits. Id. at 368. It should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment. Id. at 368-69. We review the court's factual findings for clear error and its application of the law de novo. Id. at 369.

B. Failure to Exhaust

8

Prazak acknowledges that he failed to present his claims against the Union before filing suit, but contends it would have been futile to do so. He bases this assertion on one prior experience with the union's grievance system. In that instance, he objected when another union member's name was placed ahead of his on the "A" (out of work) list. Local No. 1 gave him a hearing, but did not decide in his favor.

9

The court dismissed Prazak's claims properly. Under 29 U.S.C. Sec. 411(a)(4) (1982), courts have discretion to require exhaustion of intraunion remedies, provided such exhaustion does not take more than four months. Ornellas v. Oakley, 618 F.2d 1351, 1354 (9th Cir.1980). We excuse the failure to exhaust when intraunion grievance procedures are inadequate or invocation of them would be futile. See id.; Stelling v. IBEW Local 1547, 587 F.2d 1379, 1390 (9th Cir.1978), cert. denied, 442 U.S. 944 (1979). Local No. 1 must show the availability of adequate internal union remedies. See Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988) (summary judgment) (citation omitted). The burden then shifts to Prazak to demonstrate that the exhaustion of such remedies would have been futile. Id. Where the plaintiff not only has failed to exhaust his remedies but has neglected even to raise his claim with the union, dismissal is proper. See Stelling, 587 F.2d at 1391.

10

Local No. 1 demonstrated the availability of an adequate internal grievance procedure. Article XIX of the union's international constitution mirrors 29 U.S.C. Sec. 411(a)(4) and provides that no member shall bring a court action before he has exhausted all available procedures. According to the Union, Prazak could have submitted his claim in writing or raised an oral complaint at a meeting of the union's executive board. It notes that Prazak previously brought a claim before the union and obtained a hearing. Local No. 1 clearly has a procedure for addressing its members' grievances.

11

Prazak has not shown that use of union grievance procedures would have been futile in this instance. He asserts only that he invoked the procedure once before and did not obtain the relief desired. This allegation, without more, is inadequate. Because Prazak sought judicial relief without even attempting to resolve his grievance through the union, we affirm the dismissal without prejudice.

12

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3