OpenJurist

930 F2d 27 Harris v. Radio (Electronics) Officers Union

930 F.2d 27

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Michael F. HARRIS, Plaintiff-Appellant,
v.
RADIO (ELECTRONICS) OFFICERS UNION, et al., Defendants-Appellees.

No. 90-15853.

United States Court of Appeals, Ninth Circuit.

Submitted March 20, 1991.*
Decided April 1, 1991.

Before K.K. HALL, DAVID R. THOMPSON and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Michael F. Harris appeals pro se the district court's dismissal of his complaint against Radio (Electronics) Officers Union, its officers, and trustees of the employment committee and benefit plan (collectively "ROU") and Sea-Land Service, Inc., one of the employer parties to the collective bargaining agreement. In his complaint, which was filed on February 22, 1990 and which is largely duplicative of a complaint filed in an earlier action in 1987,1 Harris alleged that ROU denied him various ship assignments, failed to provide work assignments to accommodate his respiratory disability, denied him access to training programs, failed to credit him with seniority from his Navy experience, and failed to represent him on disputes he had with employers regarding wages and injuries. He asserted that these acts constituted unfair labor practices, breached the collective bargaining agreement, and were in violation of ROU's duty of fair representation. He also asserted that by engaging in these acts, ROU subjected him to involuntary servitude, violated ERISA, and conspired to defraud him in violation of RICO. We affirm.

3

* Harris asserts his case was improperly removed from state court to federal court because his suit requires no interpretation of the collective bargaining agreement and because the Jones Act, 46 U.S.C. Sec. 688, precludes removal. Although he does not mention the Jones Act in his complaint, in response to the defendants' motion to dismiss in district court he submitted a "Motion to Remand" recharacterizing part of his claim as a Jones Act claim.2 Specifically, he states that part of his claim is an action for a personal injury suffered on the "SS AMERICAN RACER in Winter 1981 and subsequent shipboard infections." Nevertheless, in his complaint he characterizes this claim as one against ROU for failing to represent him on a dispute he had with an employer for these injuries. Furthermore, Sea-Land did not own any of the vessels upon which Harris claims to have been injured. In any event, the Jones Act's three-year statute of limitations bars any action based on events occurring in 1981. See 46 U.S.C. Sec. 688; 45 U.S.C. Sec. 56.3 Finally, Harris's claims apparently are "substantially dependent on analysis of a collective-bargaining agreement," and thus removal was proper. Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987); see 29 U.S.C. Sec. 185(a).

II

4

In his complaint, Harris alleges specific violations by ROU including (1) denying him shipping assignments in November 1985, December 1985, February 1987, and February 1988, (2) denying him seniority and access to training programs from 1978 to 1983, (3) wrongfully finding him medically unfit for duty in 1987, and (4) failing to represent him on wage and injury disputes he had with various employers in 1979, 1981, and 1984.

5

To the extent Harris's claims of arbitrary union conduct and unfair labor practices are "arguably subject to Sec. 7 or Sec. 8" of the National Labor Relations Act (codified at 29 U.S.C. Secs. 157-58), neither state nor federal courts have jurisdiction over his claims. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959); accord Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 110 S.Ct. 424, 429 (1989). In any event, to the extent Harris asserts these acts violated the terms of the collective bargaining agreement and ROU breached its duty of fair representation, these claims are barred by 29 U.S.C. Sec. 160(b)'s six-month statute of limitations. See DelCostello v. International Brd. of Teamsters, 462 U.S. 151, 168-70 (1983).4

6

In his complaint, Harris also alleged that by engaging in these acts, ROU violated various miscellaneous rights. The district court properly dismissed Harris's conclusory allegations as to RICO violations. See Fed.R.Civ.P. 8(a) and (e) (short and plain statement of the claim; pleading averments to be simple, concise, and direct); Fed.R.Civ.P. 9(b) (fraud to be pleaded with specificity); 18 U.S.C. Sec. 1961 et seq. (RICO); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir.1981). Similarly, Harris's claim that ROU's acts subjected him to involuntary servitude is frivolous, see Neitzke v. Williams, 109 S.Ct. 1827, 1830 (1989), he does not allege that he is a member of a protected class in support of his claims under 42 U.S.C. Secs. 1981 and 1985, and although he invokes ERISA, he alleges no ERISA violations.

7

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition 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 9th Circuit R. 36-3

1

In the earlier action, the district court gave Harris notice of the deficiencies of his first complaint and an opportunity to amend. Eventually, the court dismissed the action without prejudice, stating that Harris failed to state a claim and that it lacked jurisdiction over the National Labor Relations Act claims

2

The Jones Act permits "any seaman who ... suffer[s] personal injury in the course of his employment" to "maintain an action for damages against his employer." 46 U.S.C. Sec. 688

3

Harris admits that the last time he worked aboard a ship was in 1986, and thus, any Jones Act claims are barred

4

In his complaint, Harris states that "ROU expelled me in July 1989 for non-payment of dues for arbitrary reasons" and that he learned of the expulsion on January 13, 1990. He also makes incomprehensible allegations in his complaint that he attempted to elect "financial core membership" under Communications Workers v. Beck, 487 U.S. 735 (1988), apparently to try to regain hiring hall privileges, but ROU expelled him anyway. This action by ROU, and Harris's status as a union member eligible for employment, are the subject of a dispute pending before the National Labor Relations Board