Petition — Local 13889, United Steelworkers v. Smith
Supreme Court brief1980
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IN THE
Supreme Court of the United States
October Term, 1979
LOCAL 13889, UNITED STEELWORKERS OF
AMERICA,
Petitioner,
Vv.
CHARLES W. SMITH, JOHN PASLEY AND
RALPH SERINI,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
MICHAEL H. GOTTESMAN CARL B. FRANKEL
BREDHOFF, GOTTESMAN, COHEN DANIEL P. MCINTYRE
& WEINBERG Five Gateway Center
1000 Connecticut Avenue, N.W. Pittsburgh, PA 15222
Washington, DC 20036
BARTLEY, GOFFSTEIN, BOLLATO EERNARD KLEIMAN
& LANGE One East Wacker Drive
130 South Bemiston Avenue Suite 1910
St. Louis, MO 63105 Chicago, IL 60601
Attorneys for Petitioner
SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219
TABLE OF CONTENTS
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STATEMENT OF THE CASE. .................cccccsccscsserssoees 3
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2. Opinion on Rehearing ...................sss00 10
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REASONS FOR GRANTING THE WRIT ................ 13
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TABLE OF CITATIONS
CASES PAGE
Maryland v. Baldwin, 112 U.S. 490 (1884) ....0000000.. 16
New York Times Co. v. Sullivan, 376 U.S. 254
al adetneginennes 16
Stromberg v. California, 283 U.S. 359 (1931) .......... 16
Sunkist v. Winckler & Smith Co., 370 U.S. 19 (1962) 16
Wilmington Star Min. Co. v. Fulton, 205 U.S. 60
ea a ledaidegaluiaNdiatwwasna nie 16
IN THE
Supreme Court of the United States
October Term, 1979
| ER
LOCAL 13889, UNITED STEELWORKERS OF
AMERICA,
Petitioner,
Vv.
CHARLES W. SMITH, JOHN PASLEY AND
RALPH SERINI,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Local 13889, United Steelworkers of America prays
that a writ of certiorari issue to review the judgment of
the United States Court of Appeals for the Eighth Cir-
cuit entered in this case.
Jurisdiction.
OPINIONS BELOW
The court of appeals issued a series of opinions in
this case, none of which is officially reported. The first,
decided by a panel, is reproduced in the Appendix to
this petition at App. 57a-86a.1 The second, decided by
the court en banc, is reproduced in the Appendix at App.
4a-56a. The third, an order issued en banc, clarifying the
second opinion, is reproduced in the Appendix at App.
2a-3a. The fourth, an order issued by the court of ap-
peals denying your petitioner’s renewed petition for re-
hearing and suggestion for rehearing en banc, is repro-
duced in the Appendix at la. There are two opinions of
the district court. The first is reported at 433 F. Supp.
690 and is reproduced in the Appendix at App. 87a-93a.
The second is reported at 442 F. Supp. 1144 and is re-
produced in the Appendix at App. 94a-98a.
JURISDICTION
The original panel opinion of the court of appeals
was issued on January 3, 1979. Thereafter, upon a peti-
tion for rehearing, the court of appeals issued a decision
en banc on January 21, 1980, modifying the judgment
entered by the panel. A second petition for rehearing
was filed following which the court of appeals issued
an order on March 26, 1980, clarifying its first en banc
opinion, That order, in turn, prompted a renewed peti-
tion for rehearing which the court of appeals denied in
an order entered April 30, 1980. Petitioner’s motion for
extension of time in which to file a petition for certiorari
1. The poe to this petition is séparatély“-""
s
paginated and is referred to herein as “the Appendix.”
Citations are to “App.”
Statement of the Case.
to and including June 17, 1980 was presented to and
granted by Justice Blackmun. This Court has jurisdic-
tion pursuant to 28 U.S.C. § 1254(1).
QUESTION PRESENTED
Instructions encompassing three alternative the-
ories of liability are submitted, over timely objection, to
the jury which returns a general verdict in plaintiffs’
favor. The court of appeals later holds that at least one
of those theories was improperly submitted to the jury.
The question presented is whether, in these circum-
stances, the court of appeals should have remanded for
a new trial rather than sustaining, as it did, the jury’s
award,
STATEMENT OF THE CASE
Proceedings Below
This action was filed by four employees against
Hussmann Refrigerator Company (hereinafter “Com-
pany” or “Hussmann’’) and Local 13889, United Steel-
workers of America (hereinafter ‘“Union”) charging
the former with breach of a collective bargaining agree-
ment and the latter with breach of the duty of fair rep-
resentation. In addition, one of the four, a black male,
alleged that both defendants had discriminated against
him on the basis of race in violation of 42 U.S.C. §§ 1981
and 1985. The case arose out of a job promotion dispute
in which an arbitrator ruled that Hussmann violated
the contract when it awarded the disputed jobs to plain-
tiffs rather than two employee grievants senior to plain-
tiffs. Plaintiffs’ breach of contract and fair representa-
tion claims were tried to a jury which rendered a gen-
eral verdict against both defendants and awarded two
Statement of the Case.
of the plaintiffs damages. In addition, the jury recom-
mended certain equitable relief, including assignment of
plaintiffs to the disputed job classification. Defendants
filed motions for judgment notwithstanding the verdict,
or, alternatively, for a new trial. At the same time,
plaintiffs sought a supplementary judgment implement-
ing the jury’s advisory verdict.
The district court issued a memorandum opinion
and order denying plaintiffs’ motion and granting de-
fendants’ motions to set aside the verdict and enter
judgment for defendants. Earlier, the district court had
removed the race discrimination claims from jury con-
sideration, and finding evidence of racial bias wholly
lacking, entered judgment for defendants on those
claims.
Plaintiffs appealed. After a panel decision and two
opinions on rehearing, a majority of the court of ap-
peals, sitting en banc, reversed the district court’s judg-
ment with respect to the breach of contract and fair
representation claims, reinstated the jury’s damage
award, and remanded so the district court might con-
sider the jury’s advisory recommendation for equitable
relief. At the same time, the court of appeals unani-
mously affirmed the district court’s judgment with re-
spect to the race discrimination claims.
The Facts
As indicated, this case relates to a dispute between
junior and senior employees (App. 3a). The dispute had
its inception in April and May of 1975, when, pursuant
to the provisions of the collective bargaining agreement,
the Company posted a series of openings for temporary
and permanent maintenance pipefitter positions. Even-
Statement of the Case.
tually, four permanent positions were posted. From
among groups of bidders interviewed by the mainte-
nance foreman, the Company filled the vacancies on the
basis of skill and ability—as determined from the inter-
views (App. 7a). Some twenty-six unsuccessful bidders
filed grievances challenging the Company’s selections
(App. 8a).2 The Union chose but four to process, name-
ly, those which had been filed by employees with greater
seniority than the bidders to whom Hussmann had
awarded the jobs. The Union processed the cases
through arbitration where it called the four senior griev-
ants as witnesses. For its part, the Company defended
selection of the plaintiffs for the job. It did so on the
ground that they possessed more relative skill and abil-
ity than the grievants and it called the maintenance
foreman to back up that contention. He testified to the
2. The collective bargaining agreement provided
in relevant part:
“ARTICLE 9
Seniority
SECTION 1. The Company recognizes the
principles of classification seniority and seniority
based upon the total length of continuous service
with the Company.
Seniority, skill and ability to perform the work
required shall be considered by the Company in
making promotions, transfers, layoffs and callbacks.
Where skill and ability to perform are substantially
equal, seniority shall govern. * * *
* # & #
[ARTICLE 10]
SECTION 2. Ability and required perform-
ance of an employee on the job shall be factors con-
sidered for promotion. When such factors are sub-
stantially equal between those being considered,
seniority shall govern. * * *” (App. 41a).
Statement of the Case.
skills and abilities of all contestants as revealed in the
interviews on which he had made his decision (App.
8a).
On October 3, 1975, the arbitrator issued his award.
He denied two of the grievances on the grounds that
the grievants lacked substantial equality of skill and
ability. But, he granted the other two on the grounds,
in one case, that the grievant was separated from his
junior competitor by only a hairline, and in the other
case, that grievant’s skill and experience were substan-
tially similar to those of at least two successful bidders.
The arbitrator ordered Hussmann to place the two win-
ning grievants on the jobs with retroactive seniority and
back pay (App. 8a-9a, 43a-47a).
A controversy then erupted over the meaning and
application of the award. Thus, Hussmann originally
interpreted the arbitrator’s decision as awarding the
classification to all six employees, that is, the two win-
ning grievants plus all the Company’s four choices for
the job. The Union, however, objected to this reading
of the award, arguing that the arbitrator did not have
authority to create six maintenance pipefitter classifica-
tions from four posted jobs. In addition, the award
had two technical errors: it misstated the seniority of
one plaintiff, giving him ten years more seniority than
he actually had, and it awarded another of the junior
employees a position for which he had not bid (App.
9a, 90a, 95a-96a).
3. This was significant because, by contract, em-
ployees holding the classification have priority in filling
vacancies. Thus, an interpretation producing two extra
“incumbents” would remove two future vacancies from
competition. Recognizing this “edge,” plaintiffs testified
that they would have been satisfied with such a resolu-
tion of the dispute (App. 9a).
Statement of the Case.
Officials of the Union and the Company met to dis-
cuss these problems with the award and came to a ten-
tative agreement. Since the Company had posted only
four jobs, only four employees should be granted the
classification; those employees would be the two success-
ful grievants and the two most senior of the four bid
awardees. To cure these ambiguities and errors in the
award and to avoid problems in its administration, the
parties returned to the arbitrator for clarification (App.
9a, 61a, 90a, 96a). A meeting for this purpose was held
October 31, 1975. No additional testimony was taken
and no employees were present except the representa-
tives of Hussmann and the Union. The parties informed
the arbitrator of their prior discussions and presented
him the supporting documentary evidence, including bid
sheets, seniority lists and personnel records (App. 9a,
61a-62a). They asked him to rank the persons entitled
to the jobs (App. 96a).
The arbitrator’s supplemental and corrective deci-
sion, issued November 4, 1975, awarded the pipefitter
classification to four employees, consistent with the
joint position of the parties, and in the order of the
employees’ seniority. Two plaintiffs thus lost the classifi-
cation. Of course, they were entitled to be paid for the
time they actually performed the job, but on any future
pipefitter vacancies their bid would be considered on the
same basis as any other employee without seniority in
the classification (App. 9a-10a).
Thereafter, plaintiffs attempted to file grievances
to challenge the November 4 arbitration decision. The
Union refused to process the grievances, relying on the
language of the collective bargaining agreement that
requires an arbitrator’s decision to be considered the
final and binding resolution of a dispute (App. 10a-11a).
The Decisions Below.
THE DECISIONS BELOW
District Court
Following presentation of the evidence, the trial
court submitted three alternative theories of liability to
the jury, in the form of “verdict directors,” instructing
as to each that if the jury should find that plaintiffs
established, by a preponderance of the evidence in the
case, certain enumerated facts, then the verdict shou!'d
be for the plaintiffs and against the Union.4
The three theories of liability encompassed in the
verdict directors were (insofar as they related to the
Union) as follows:
(a) that the Union breached its duty of fair rep-
resentation by its conduct in processing the initial
seniority grievances to arbitration,
(b) that the Union bréached its duty of fair repre-
sentation by its conduct in resubmitting the matter to
the arbitrator following the arbitrator’s initial deci-
sion, and
(c) that the Union breached its duty of fair repre-
sentation by its conduct in refusing to accept or process
the grievances submitted by plaintiffs following the
arbitrator’s second decision.
The jury returned a general verdict in favor of each
of the plaintiffs which did not specify which of the the-
ories of liability it found supported by the evidence.
In granting defendant Union’s motion for judgment
notwithstanding the verdict, the district court held, as a
4. The Union timely objected to the instructions
on the grounds that they were inconsistent with the evi-
dence and the law.
The Decisions Below.
matter of law, that the Union did not breach the duty
of fair representation either by its conduct in the first
arbitration hearing or in the resubmission to the arbi-
trator nor was there any such breach in the Union’s
refusal to accept plaintiffs’ grievances following the
arbitrator’s supplemental decision (App. 96a-98a).
Court of Appeals
1. PANEL DECISION
On appeal, the matter first came before a panel
(then Chief Judge Gibson, Circuit Judge Henley, and
District Judge Eisele). The panel found no breach of
contract by Hussmann (App. 84a). With respect to the
Union, it reversed the trial court on the ground that
though the Union was not hostilely motivated toward
the plaintiffs, it nevertheless breached its duty of fair
representation by basing its decision to process the
grievances solely on the principle of seniority, ignoring
plaintiffs’ skill and ability (App. 74a-75a).5 The panel
5. The policy underlying the panel’s rationale is
set forth in the following passage from the opinion:
“Contrary to the arguments of the union, sen-
iority is not a ‘neutral’ principle. A seniority system
is value-laden, embodying many salutary and legi-
timate expectations of labor. These systems promote
job security and acknowledge the values of longer
service, such as demonstrated loyalty and greater
experience. However, not all of the values embodied
in the principle of seniority favor the best interests
of labor or society. The use of seniority in making
promotions may sometimes frustrate the basic pur-
poses of congressional labor legislation and the
united labor movement. It can diminish worker
satisfaction and obstruct efficient production, thus
lowering productivity. As a matter of common
10
The Decisions Below.
rejected the other two theories which had been urged in
support of finding a violation. First, it regarded the re-
quest by Hussmann and the Union for clarification as
proper and concluded that plaintiffs were not prejudiced
by the failure to notify them of the second arbitration
(App. 80a-81a). Second, it concluded that in rejecting
plaintiffs’ grievances, the Union acted in good faith,
relying reasonably on the final and binding clause of
the collective bargaining agreement (App. 81a).
2. OPINION ON REHEARING
The Union sought rehearing en banc and the request
was granted.6 Though the panel’s opinion was with-
drawn, the outcome remained the same for on rehearing,
a majority of the court en banc held to the view that the
Union had breached ite duty of fair representation—
albeit on different grounds than those relied on by the
panel. Indeed, on rehearing the court of appeals divided
into four camps.
sense, verified by behavioral science, a company
must be able to reward employees for superior abil-
ity and performance or face a loss of its most com-
petent employees and an increase in worker frustra-
tion and idolence.
“The union’s choice to process all grievances
based on seniority unfairly discriminated against
employees receiving promotions on the basis of
merit. This conduct may be viewed as a perfunctory
dismissal of the interests and right of plaintiffs.
** *” (App. 75a).
6. In its petition, the Union pointed out that even
if the panel’s rulings of law were correct, its rejection of
two of the theories which had been submitted to the
jury required that the jury award be set aside and the
case remanded for a new trial (Union’s Petition for Re-
hearing, pp. 12-13).
11
The Decisions Below.
Chief Judge Gibson, in an opinion joined by Circuit
Judges Henley and McMillian, held that the jury could
have found a breach of the duty of fair representation
from any of the following acts of the Union:
1. Adhering to the principle of seniority in proc-
essing grievances which challenged the Com-
pany’s merit-based promotion choices (App.
20a-25a), and by other conduct in connection
with the first arbitration hearing (App. 25a-
27a).
2. Resubmitting the award to the arbitrator for
clarification (App. 28a-30a).
3. Failing to accept and process plaintiffs’ griev-
ances (App. 30a-31la).
Circuit Judges Bright and Ross concurred in Judge
Gibson’s opinion except that portion relating to the
failure of the Union to properly represent the plaintiffs
in the first arbitration hearing. They went on to say,
however, that in their judgment a jury could find that
the Union was derelict .. not giving the plaintiffs ade-
quate notice of the time, place and nature of the first
hearing (App. 39a). Circuit Judge Lay also concurred
but on the narrow ground that the agreement by the
Company and the Union to go back to the arbitrator
was not disclosed to the plaintiffs. In his view, that was
the only evidence of bad faith in the record (id.).
Circuit Judges Heaney and Stephenson filed a vigor-
ous dissent in which they argued that the Union did not
violate its duty of fair representation by any of the con-
duct cited above (App. 40a-41a). Moreover, they pointed
out, even if two theories were upheld, the case would
have to be remanded for a new trial inasmuch as the
court had no way of knowing on what theory the jury
found liability (App. 55a-56a).
12
The Decisions Below.
3. CLARIFICATION
Hussmann sought rehearing of the en banc decision.
The court of appeals denied the petition, but issued an
order clarifying the majority’s determinations as fol-
lows:
1. The evidence failed to establish that the Union
breached its duty of fair representation to the
plaintiffs at the first arbitration by advocating
the promotion of employees senior to plaintiffs.
2. Subsequent collaboration between the Company
and the Union for purposes of obtaining a mod-
ification of the arbitration award, without no-
tice to the plaintiffs, operated to deprive them
of valuable employment rights and constituted
sufficient evidence for a jury to decide that the
Union had breached its duty of fair represen-
tation.
3. The jury’s damage award is sustained? (App.
2a-3a).
Following issuance of the Court’s order, the Union
filed a renewed petition for rehearing to make a single
point. Noting that the jury in this case had been in-
structed that it could return a verdict in favor of p!ain-
tiffs on any one of the three alternative theories, and
that the court of appeals had now made clear that at
least one of those theories should not have been sub-
mitted to the jury, we pointed out that under well estab-
lished law, the general jury verdict could not stand.
7. The theories of liability had thus become in-
verted since the panel’s decision. The en banc court
found a violation on the two theories which the panel
had rejected, and it repudiated the one theory which the
panel had sustained.
13
Reasons for Granting the Writ.
Accordingly, the proper disposition of the appeal was a
remand for a new trial. On April 30, 1980, the court of
appeals denied the Union’s renewed petition without
comment (App. 1a).
REASONS FOR GRANTING THE WRIT
This is a case in which several alternative theories
of liability are submitted to the jury which then returns
a general verdict in favor of the plaintiffs. The court of
appeals ultimately decides that at least one of those
theories was erroneously submitted. Though it is im-
possible to determine with certainty the theory upon
which the jury based its verdict, the court of appeals
nevertheless upholds the verdict rather than remanding
for a new trial. Its judgment doing so squarely conflicts
with applicable decisions of this Court, going back one
hundred years. Indeed, because the lower court’s failure
to apply this Court’s decisions—of which it was fully
apprised—is so clearly in error, we respectfully request
that its judgment be reversed summarily.
The error is manifest from a simple review of the
proceedings.
1. The trial court submitted three alternative the-
ories of liability to the jury, in the form of “verdict
directors,” instructing as to each that if the jury should
find that plaintiffs established the enumerated facts by
a preponderance of the evidence, then the verdict should
be for the plaintiffs and against the Union. The jury
thus was instructed to return a general verdict for the
plaintiffs if it found any one of the three theories estab-
lished, by a preponderance of the evidence.
14
Reasons for Granting the Writ.
2. The Union timely objected to the trial court’s
submission of the verdict directors on the grounds, inter
alia, that the directors were inconsistent with the evi-
dence and the applicable case law.
3. The three theories of Union liability encom-
passed in the verdict directors were:
a. that the Union breached its duty of fair
representation by its conduct in processing the initial
seniority grievances to arbitration;
b. that the Union breached its duty of fair
representation by its conduct in resubmitting the matter
to the arbitrator following the arbitrator’s initial deci-
sion; and
ec. that the Union breached its duty of fair
representation by its conduct in refusing to accept or
process the grievances submitted by plaintiffs following
the arbitrator’s second decision.
4. The jury returned a general verdict in favor of
each of the plaintiffs which did not specify which of the
theories of liability it found supported by the evidence.
It is possible that the jury found for the plaintiffs only
on the first issue, only on the second, only on the third,
or on some combination of the three.
5. The district court granted defendants’ motion
for a judgment notwithstanding the verdict (alterna-
tively, defendants had asked for a new trial). The origi-
nal panel decision of the court of appeals held that the
jury could have found a breach of the duty of fair rep-
resentation under the first of the above theories, but
not on the strength of the other two. The latter, it ruled,
were lacking in legal merit.
15
Reasons for Granting the Writ.
6. The Union thereupon petitioned for a rehearing
en banc. The panel’s rejection of two theories and its
reinstatement of the jury verdict squarely presented the
remand problem. Accordingly, in its petition, the Union
specifically pointed out that even if the panel’s rulings
of law were correct, its rejection of two of the theories
which had been submitted to the jury required that the
jury award be set aside and the case remanded for a
new trial (Union’s Petition for Rehearing, pp. 12-13).
7. The January 21, 1980 decision of the court of
appeals en banc, as clarified by its subsequent March
26th order, c’early holds that “the evidence failed to
establish that the Union breached its duty of fair rep-
resentation to appellants ... at the first arbitration...”
(App. 2a-3a). This holding confirms the correctness of
the Union’s timely objection in the district court that
the “verdict director” relating to this theory of liability
was “inconsistent [with] the evidence” and should not
have been submitted to the jury. The order of clarifica-
tion is silent with respect to another of the theories of
liability submitted to the jury in another of the “verdict
directors”—i.e., that the Union breached its duty by
refusing to accept or process the plaintiffs’ grievances
but, for purposes of analysis, we assume that only one
of the verdict directors was erroneously submitted.
8. Following issuance of the court’s order of clari-
fication, the Union filed a renewed petition for rehearing
grounded entirely on the court’s failure to remand for a
new trial, given its rejection of at least one of the three
theories submitted to the jury. The petition was denied
without comment.
In light of the foregoing, it is possible that the jury
ruled for plaintiffs only on the theory of liability for
~-
16
Reasons for Granting the Writ.
which the court of appeals found no evidentiary founda-
tion, i.e., the claim respecting the Union’s conduct up
to and including the first arbitration. The jury returned
a general verdict for the plaintiffs and the judge’s in-
structions would have required that course even if that
were the only theory of liability which the jury thought
_proved, Inasmuch as the court of appeals ultimately
found that there was no evidence to support that theory
of liability, it was error for the trial judge to submit
that theory to the jury over the Union’s timely objec-
tion. As a matter of law, that error was prejudicial.
This Court has consistently held over a span of one
hundred years that where a case is submitted to a jury
upon several theories, one of which turns out to be
erroneous, and a general verdict has been returned, that
verdict cannot be upheld for the simple reason that it
is impossible to determine whether the jury reached its
verdict on a correct theory or an erroneous one. The
proper disposition in such cases is not to sustain the
jury’s award, but to remand for a new trial on the
theory or theories which could properly be submitted to
jury. Maryland v. Baldwin, 112 U.S. 490, 493 (1884) ;
Wilmington Star Min. Co. v. Fulton, 205 U.S. 60, 79
(1907); Stromberg v. California, 283 U.S. 359, 367-368
(1931) ; Sunkist v. Winckler & Smith Co., 370 US. 19,
29-30 (1962) ; New York Times Co. v. Sullivan, 376 U.S.
254, 284 (1964).
There are no technical obstacles to such a disposi-
tion. Petitioner filed timely objections to the jury in-
structions and moved for a. new trial in the district
court. It raised the matter in the court of appeals at
the earliest opportunity and again on a later occasion.
17
Conclusion.
Finally, the Supreme Court decisions cited in this
petition were cited to the court of appeals. We are aware
of no ground on which these decisions can be distin-
guished nor has any been suggested by the plaintiffs.
In a word, the judgment of the court of appeals squarely
conflicts with an unbroken chain of decisions of this
Court and nothing has been cited which explains the
departure. In the circumstances it is appropriate that
the judgment of the court of appeals be summarily re-
versed and the case ultimately remanded to the district
court for a new trial.
CONCLUSION
For the reasons set forth above, this Court should
grant certiorari to review the judgment below and
should issue an order reversing and remanding said
judgment.
Respectfully submitted,
MICHAEL H. GOTTESMAN CARL B. FRANKEL
Bredhoff, Gottesman, Cohen DANIEL P. MCINTYRE
& Weinberg Five Gateway Center
1000 Connecticut Avenue, N.W. Pittsburgh, PA 15222
Washington, DC 20036
BARTLEY, GOFFSTEIN, BOLLATO BERNARD KLEIMAN
& LANGE One East Wacker Dr.
130 South Bemiston Avenue Suite 1910
St. Louis, MO 63105 Chicago, IL 60601
Attorneys for Petitioner
APPENDIX
UNITED STATES COURT OF APPEALS
For THE EIGHTH CIRCUIT
September Term, 1979
Nos. 78-1034; 78-1073 & 78-1092. |
CHARLES W. SMITH, et al,
Appeals from th
Appellants/ Cross-Appellees, United States ‘District
Court for the Eastern
HUSSMANN REFRIGERATOR Co.; | District of Missouri.
Appellees /Cross-Appellants. d
The Court having considered petition for rehearing
en banc filed by counsel for appellee, Local 13889, United
Steelworkers of America, and, being fully advised in the
premises, it is ordered that the petition for rehearing en
banc be, and it is hereby, denied.
Considering the petition for rehearing en banc as a
petition for rehearing, is is ordered that the petition for
rehearing also be, and it is hereby, denied.
April 30, 1980
2a
Appendix.
UNITED STATES COURT OF APPEALS
For THE EIGHTH CIRCUIT
No. 78-1034
No. 78-1073
No. 78-1092
CHARLES W. SMITH, JOHN
PASLEY, and RALPH SERINI,
Appellants, Cross-Appellees,
Vv. Appeals from the
HUSSMANN REFRIGERATOR . ee beta
Company and Loca 13889, District of Missouri.
UNITED STEELWORKERS OF
AMERICA,
Appellees, Cross-Appellants. ,
Filed: March 26, 1980
Before Lay, Chief Judge, HEANEY, BRIGHT, Ross,
STEPHENSON, HENLEY and MCMILLIAN, Circuit Judges.
ORDER ON PETITION FOR REHEARING
The petition for rehearing is denied.
We observe that the petition of Hussmann Refrig-
erator Company reflects some confusion as to the precise
holding of the court in this case. In light of the several
opinions written, this court believes it might be appro-
priate to summarize below the determinations by the
majority.
3a
Appendix.
1) In this case, relating to a dispute between
junior and senior employees, the evidence failed to estab-
lish that the Union breached its duty of fair representa-
tion to appellants Smith, Pasley, and Serini at the first
arbitration by advocating the promotion of employees
senior to appellants.
2) The subsequent collaboration between the em-
ployer, Hussmann Refrigerator Company, and the Union,
for the purpose of obtaining a modification of the pre-
vious arbitration award, without notice or opportunity
to junior employees Smith, Pasley, and Serini to protect
their rights, operated to deprive appellants of valuable
employment rights and constituted sufficient evidence
in this case for a jury to decide that the Union had
breached its duty of fair representation to appellants
and that the Company had breached its collective bar-
gaining agreement.
3) The damage award is sustained. The appel-
lants’ claim for equitable relief is remanded to the dis-
trict court in accordance with part VI of the opinion.
We join in this order for purposes of clarification,
notwithstanding adherence to separate views as set
forth in the opinion of then Chief Judge Gibson, joined
by Judges Henley and McMillian, the concurring opinion
of Judge Lay, now Chief Judge, the separate concur-
rence of Judges Bright and Ross, and the dissent of
Judges Heaney and Stephenson.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
4a
Appendiz.
UNITED STATES COURT OF APPEALS
For THE EIGHTH CIRCUIT
No. 78-1034
No. 78-1073
No. 78-1092
CHARLES W. SMITH, JOHN
PASLEY, and ae 0 amp
Appellants, Cross- ees,
pre y, PPS Appeals from the
United States District
HUSSMANN REFRIGERATOR ‘ Court for the Eastern
ComPANy and LOCAL 13889, District of Missouri
UNITED STEELWORKERS OF
AMERICA,
Appellees, Cross-Appellants. |
Submitted: September 10, 1979
Filed: January 21, 1980
Before GiBsON, Chief Judge, LAY, HEANEY, BRIGHT,
Ross, STEPHENSON, HENLEY and MCMILLIAN, Circuit
Judges, en banc.
GIBSON, Chief Judge.
Plaintiffs Charles Smith, John Pasley and Ralph
Serini brought suit in the United States District Court
for the Eastern District of Missouri against Hussmann
Refrigerator Company (hereinafter referred to as Huss-
mann or the company) and Local 13889, United Steel-
workers of America (hereinafter referred to as the
da
Appendix.
union) for breach of the collective bargaining agreement
and breach of the duty of fair representation. In Counts
II and III, plaintiff Pasley, a black male, charged viola-
tions of 42 U.S.C. §§ 1981 and 1985 (1976), alleging that
defendants discriminated against him on the basis of his
race by denying him the right to make and enforce con-
tracts and by conspiring to deprive him of the equal pro-
tection of the law.
The claims of breach of the collective bargaining
agreement and breach of the duty of fair representation
were tried to a jury which rendered a verdict against
both defendants in favor of plaintiff Smith in the
amount of $6500 and plaintiff Pasley in the amount of
$2500. Also, in response to special interrogatories, the
jury found that plaintiffs Smith and Serini should be
awarded the classification of maintenance pipefitter,
and that plaintiff Pasley’s seniority in the pipefitter
classification should be upgraded. The District Court!
entered judgment in accordance with tiie jury verdict,
but subsequently denied plaintiffs’ motion for a supple-
mentary judgment to effect the advisory opinion of the
jury represented by the answers to special interroga-
tories, and granted defendants’ motions for judgments
notwithstanding the verdict.? Plaintiffs Pasley, Smith
and Serini appeal from the grant of defendants’ motions
and the denial of their motion. They request reinstate-
ment of the jury verdict and an order implementing the
jury’s advisory opinion.
1. The Honorable John F. Nangle, United States
District Judge, Eastern District of Missouri.
2. The District Court opinion is reported at 442 F.
Supp. 1114 (E.D. Mo. 1977).
6a
Appendix.
The claims of race discrimination set forth in
Counts II and III were removed from jury considera-
tion, and the court, finding no evidence of racial dis-
crimination, determined that neither defendant had vio-
lated 42 U.S.C. §§ 1981 and 1985.3 Plaintiff Pasley claims
error in the removal of this claim from the jury and
also appeals from the decision on its merits.
On cross-appeal, defendants argue that if the judg-
ment notwithstanding the verdict is reversed, they are
entitled to a new trial for the reasons that plaintiffs had
no right to a jury trial; certain jury instructions were
improper; the District Court erred in excluding evi-
dence of the National Labor Relations Board’s (NLRB)
dismissal of plaintiffs’ charges »>f unfair representation;
and the award indicates that the jury was impassioned
or confused.
This appeal was initially submitted to a panel of
this court which issued an opinion on January 3, 1979.
Thereafter a petition for rehearing en banc was filed and
granted. The panel opinion is hereby vacated and the
judgment is modified in accordance with this opinion.
We affirm the District Court’s judgment on Counts II
and III of the complaint but reverse the District Court’s
granting of the motions notwithstanding the verdict
and reinstate the jury verdict against Hussmann and
the union. We further remand to the District Court for
reconsideration of whether the jury’s advisory opin-
ions regarding classification and seniority status should
be implemented.
3. The District Court opinion is reported at 433 F.
Supp. 690 (E.D. Mo. 1977).
Ta
Appendix.
I
At all times relevant to this proceeding, plaintiffs
were employees at Hussmann’s Bridgeton, Missouri,
plant and were members of the union, and a collective
bargaining agreement between defendants was in effect
pursuant to which the union represented approximately
1500 production and maintenance employees at Huss-
mann’s Bridgeton plant. This agreement specifically pro-
vided that in the matter of promotions seniority should
govern when the factors of ability and skill are sub-
stantially equal between those being considered.4
On April 22, 1975, Hussmann, in accordance with
the collective bargaining agreement, posted two open-
ings for temporary positions as maintenance pipefitters.
Sixty-four employees bid for these openings. Huss-
mann’s maintenance foreman, Schwartz, interviewed
groups of the most senior employees and selected Pasley
and Smith on the basis of superior skill and ability. On
May 6, 1975, Hussmann posted an opening for a perma-
nent maintenance pipefitter. Although forty-six employ-
4. The collective bargaining agreement provides in
relevant part:
Article 9, SECTION 1. * * *
Seniority shall be by job classifications unless
otherwise specified below.
Seniority, skill and ability to perform the work
required shall be considered by the Company in mak-
ing promotions, transfers, layoffs and callbacks.
Where skill and ability to perform are substantially
equal, seniority shall govern. * * *
Article 10, SECTION 2. Ability and required per-
formance of an employee on the job shall be factors
considered for promotion. When such factors are
substantially equal between those being considered,
seniority shall govern. * * *
8a
Appendix.
ees bid for this position, it was awarded to Pasley since
he was already working in the classification. Three more
positions in this classification, one permanent and two
temporary, opened on May 13, 1975. An employee who
had previously held the classification received the per-
manent job. Plaintiff Serini and another employee, Wat-
son, received the temporary positions. Subsequently,
plaintiff Smith bid into a permanent position as main-
tenance pipefitter e3 a result of an opening posted May
20, 1975.
Twenty-six unsuccessful bidders filed grievances
claiming that Hussmann had violated the collective bar-
gaining agreement in making the promotions. Of these
grievances, the union selected four to process. These
four had been filed by employees with greater seniority
than the successful bidders. The union processe@ these
grievances through the five-step grievance and arbitra-
tion procedure, as described in the collective bargaining
agreement.
At the arbitration hearing, the union called each of
the four grievants to testify about his skill and ability.
The successful bidders were not invited to attend the
hearing and their only representation was presented by
Hussmann’s foreman, Schwartz, who related the sub-
stance of his interviews with the successful bidders as
well as the substance of his interviews with the griev-
ants.
On October 3, 1975, the arbitrator issued his award.
He clearly deniei two of the grievances on the grounds
that the grievants lacked substantial equality of skill
and ability. The arbitrator granted two grievances,
those of Dattilo and Krassinger, and ordered Hussmann
to give them the jobs with retroactive seniority and
9a
Appendix.
back pay. Further, the award named as those entitled to
hold the maintenance pipefitter classification: Dattilo,
Pasley, Smith, Watson, Krassinger and Serini.
Hussmann originally interpreted the arbitrator’s
decision as awarding the classification to all six employ-
ees named, with their seniority in the classification in
the order listed. While the plaintiffs did not rejoice at
this outcome, they were satisfied with this resolution
of the dispute because they retained the classification.5
The union, however, objected to the award arguing that
the arbitrator did not have authority to create six main-
tenance pipefitter classifications from four posted jobs.
In addition the award had two technical errors: it mis-
stated the seniority of plaintiff Smith, giving him ten
years more seniority than he actually ..ad, and awarded
Watson a position for which he had not bid.
Officials of the union and the company met to dis-
cuss these problems with the award. At this time they
agreed that only four employees should be granted the
classification and that those employees would be Dattilo,
Krassinger, Watson and Pasley. Then, ostensibly to seek
“clarification” of the award, they returned to the arbi-
trator. A meeting for this purpose was held October 31,
1975. No additional testimony was taken and no employ-
ees were present except the representatives of Huss-
mann and the union. The parties informed the arbitrator
of their prior agreement and presented him with the
correct seniority dates and bid sheets.
The arbitrator’s supplemental and corrective deci-
sion, issued November 4, 1975, awarded the pipefitter
5. The mere status of the classification was im-
portant because employees with the classification have
priority in filling vacancies.
10a
Appendix.
classification to the four most senior employees in the
order of their seniority. Thus, Dattilo, Krassinger, Wat-
son, and Pasley received the classification.6 Smith and
Serini were entitled to be paid for the time they actually
performed the job, but on any future vacancies their bid
would be considered on the same basis as any other em-
ployee without seniority in the classification. This de-
cision, however, retained the error in plaintiff Smith’s
seniority, which the arbitrator later corrected after it
was brought to his attention.
At the time of the second meeting with the arbitra-
tor, the parties also agreed that a grievance filed against
Serini by another employee, Pogue, would be processed
against Pasley instead of Serini. At the time Pogue filed
the grievance, Serini appeared to hold the fourth senior
position in the classification, but by the time the union
arbitrated the grievance Pasley held that position. Pas-
ley requested permission to be present at this arbitra-
tion hearing, but his request was denied. Pogue attended
the hearing at the union’s invitation. Subsequently,
Pogue’s grievance was denied.
Plaintiffs, who had learned from a union official the
result of the second meeting with the arbitrator before
he issued his decision, attempted to file grievances to
challenge the November 4 arbitration decision. Smith
and Serini alleged that they were entitled to the clas-
sification, and Pasley challenged the realignment of his
seniority. The union refused to process the grievances,
6. Because the arbitrator demoted Pasley to the
lowest seniority in the classification, he was temporarily
removed from the position due to a reduction in the work
force. He subsequently bid back into the position and
held it at the time of trial.
lia
Appendix.
relying on the language of the collective bargaining
agreement that requires an arbitrator’s decision to be
considered the final resolution of a dispute. In the
process of trying to file his grievance, plaintiff Smith
asked the president of the local union if he could be
permitted to speak at a regular monthly union meeting
in order to bring the matter before the membership. He
was told that he would not be given the floor. Plaintiff
Serini mailed a written request to the union to have the
matter placed on the agenda of the next monthly sched-
uled meeting of the local union, but he never received a
response to this request. Union officials, however, did
report the results of the arbitration hearings to the
membership at a regular meeting.
I.
On appeal, plaintiffs contend that the District Court
erred in granting the defendants’ motions for judgment
notwithstanding the verdict because the jury was prop-
erly instructed on the relevant law and was presented
with sufficient evidence to find that the union had
breached its duty of fair representation and that de-
fendants breached the terms of the collective bargain-
ing agreement.
The standard for granting judgment notwithstand-
ing the verdict is the same as for a directed verdict.
Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554
(8th Cir. 1968). As stated by this court in Lord v. Wil-
kerson, 542 F.2d 1034, 1035 (8th Cir. 1976) :
A motion for a directed verdict should be
granted “only when all the evidence points one way
and is susceptible of no reasonable inferences sus-
taining the position of the nonmoving party.” Bar-
12a
Appendix.
clay v. Burlington Northern, Inc., supra, 536 F.2d
at 267; Decker-Ruhl Ford Sales, Inc. v. Ford Motor
Credit Co., 523 F.2d 833, 836 (8th Cir. 1975). As
this Court has noted,
[A] motion for a directed verdict is properly
denied where the evidence presented allows
reasonable men in a fair exercise of their judg-
ment to draw different conclusions. * * * In
making this determination, the evidence, to-
gether with all reasonable inferences to be
drawn therefrom, must be viewed in the light
most favorable to the nonmoving party. (Cita-
tions omitted. )
Vickers v. Gifford-Hill and Co., 534 F.2d 1311, 1315
(8th Cir. 1976), quoting Giordano v. Lee, 434 F.2d
1227, 1231 (8th Cir. 1970), cert. denied, 403 U.S.
931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971).
See also Voegeli v. Lewis, 568 F.2d 89, 92 (8th Cir.
1977); Banks v. Koehring Co., 538 F.2d 176, 178 (8th
Cir. 1976); Griggs v. Firestone Tire and Rubber Co.,
513 F.2d 851, 857 (8th Cir.), cert. denied, 423 U.S. 865
(1975).
After a careful review of the jury instructions and
the evidence, we conclude that the jury’s verdict should
have been upheld and reverse the judgment of the Dis-
trict Court on this matter.
II.
The duty of fair representation developed as a corol-
lary to the collective bargaining system promoted by
Congress and administered by the NLRB. This system
grants to a union the power to act as exclusive bargain-
13a
Appendix.
ing representative and necessarily subordinates the in-
terests of an individual employee to the collective in-
terests of all employees in the bargaining unit. Vaca v.
Sipes, 386 U.S. 171, 182 (1967). Because of the reduction
in the individual rights of employees thus represented
by a union, the controlling statutes have long been in-
terpreted as imposing upon the union, as exclusive bar-
gaining agent in the negotiation and administration of
the collective bargaining contract, a responsibility and
duty fairly to represent as individuals as well as col-
lectively the employees within the bargaining unit.
Humphrey v. Moore, 375 U.S. 335, 342, (1964); Ford
Motor Co. v. Huffman, 345 U.S. 330, 337-38; Steele v.
Louisville & Nashville Railroad Co., 323 U.S. 192, 202
(1944).
The rationale for this satutory interpretation was
clearly expressed by the United States Supreme Court:
It is a principle of general application that the exer-
cise of a granted power to act in behalf of others
involves the assumption toward them of a duty to
exercise the power in their interest and behalf, and
that such a grant of power will not be deemed to
dispense with all duty toward those for whom it is
exercised unless so expressed.
Steele v. Louisville & Nashville Railroad Co., 323 US.
192, 202 (1944).
While the scope of the duty of fair representation
has never been precisely defined, it “is a legal term of
art, incapable of precise definition,” and calls for an
ad hoc review of each factual situation, Griffin v. Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, 469
F.2d 181, 182 (4th Ci~. 1972) ; its evolution through the
l4a
Appendix.
fires of court decisions leaves no doubt about its purpose.
St. Clair v. Local Union No. 515 of the International
Brotherhood of Teamsters, 422 F.2d 128, 130 (6th Cir.
1969). The duty of fair representation balances the col-
lective and the individual interests of employees in the
bargaining unit as these interests are represented by a
labor organization in order to promote the goals of con-
gressional labor legislation, to minimize industrial strife
and encourage full production.” In particular, “the duty
of fair representation has stood as a bulwark to prevent
arbitrary union conduct against individuals stripped of
7. 29U.S.C. § 141(b) (1976) provides:
(b) Industrial strife which interferes with the
normal flow of commerce and with the full produc-
tion of articles and commodities for commerce, can
be avoided or substantially minimized if employers,
employees, and labor organizations each recognize
under law one another’s legitimate rights in their
relations with each other, and above all recognize
under law that neither party has any right in its
relations with any other to engage in acts or prac-
tices which jeopardize the public health, safety, or
interest.
It is the purpose and policy of this chapter, in
order to promote the full flow of commerce, to pre-
scribe the legitimate rights of both employees and
employers in their relations affecting commerce, to
provide orderly and peaceful procedures for pre-
venting the interference by either with the legiti-
mate rights of the other, to protect the rights of
individual employees in their relations with labor
organizations whose activities affect commerce, to
define and proscribe practices on the part of labor
and management which affect commerce and are
inimical to the general welfare, and to protect the
rights of the public in connection with labor disputes
affecting commerce.
15a
Appendix.
traditional forms of redress by the provisions of federal
labor law.” Vaca v. Sipes, supra, 386 U.S. at 182.
In order to meet its purpose, the scope of the duty
of fair representation is in some ways very broad. The
responsibility fairly to represent employees is equal in
scope to the union’s broad authority in the negotiation
and administration of the collective bargaining agree-
ment. Humphrey v. Moore, 375 U.S. 335, 342 (1964).
Thus the duty attaches to all stages of the negotiation
and administration process and is owed to all employees
within the unit represented. However, because of the
need to balance the individual interests of employees
with their collective interests, the duty of fair represen-
tation must not be construed to subvert the basic pur-
poses of organized labor by inhibiting union representa-
tion of collective interests. The Supreme Court has
stated that in the negotiation process, “[a] wide range
of reasonableness must be allowed a statutory bargain-
ing representative in serving the unit it represents, sub-
ject always to complete good faith and honesty of pur-
pose in the exercise of its discretion.” Ford Motor Co. v.
Huffman, supra, 345 U.S. at 338. The standard by which
to measure union conduct was further defined in Vaca v.
Sipes, 386 U.S. 171 (1967). In the administration of the
collective bargaining agreement, the union has “a statu-
tory obligation to serve the interests of all members
[of a designated unit] without hostility or discrimina-
tion toward any, to exercise its discretion with complete
good faith and honesty, and to avoid arbitrary conduct.”
Id. at 177. See also King v. Space Carriers, Inc., No.
78-1873, slip. op. at 7-8 (8th Cir. October 16, 1979).
The Fourth Circuit Court of Appeals clearly articu-
lated the import of Vaca in Griffin v. International
16a
Appendix.
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, 469 F.2d 181,
183 (4th Cir. 1972):
A union must conform its behavior to each of these
three separate standards. First, it must treat fac-
tions and segments of its membership without hos-
tility or discrimination. Next, the -broad discretion
of the union in asserting the rights of its individual
members must be exercised in complete good faith
and honesty. Finally, the union must avoid arbi-
trary conduct. Each of these requirements repre-
sents a distinct and separate obligation, the breach
of which may constitute the basis for civil action.
*“*# & #
* * * Without any hostile motive of discrimina-
tion and in complete good faith, a union may never-
theless pursue a course of action or inaction that
is so unreasonable and arbitrary as to constitute
a violation of the duty of fair representation.
IV.
Applying this standard to the union’s conduct in
processing the grievances challenging plaintiffs’ pro-
motions, we find that sufficient evidence existed for the
jury to conclude that the union exceeded the permissible
range of reasonableness with regard to its representa-
tion of plaintiffs. There can be no question that the
scope of the duty of fair representation encompasses
plaintiffs’ interests in this situation. Plaintiffs were
employees within the bargaining unit and processing
grievances is within the broad authority of the union
as the employees’ exclusive agent in the administration
17a
Appendix.
of the collective bargaining agreement.® See Vaca v.
Sipes, supra, 386 U.S. at 177. The processing of the
grievances against plaintiffs was intended to and did
decide plaintiffs’ rights to the promotions, which plain-
tiffs had received from management on the basis of
their superior skill and ability. See Tedford v. Peabody
Coal Company, 533 F.2d 952, 959 (5th Cir. 1976) (‘the
union in making its decision not to put [grievant] back
in his old position had a duty to consider not only the
interests of [the grievant] but also those of the twelve
employees who would suffer from the resulting roll-
back * * *.”); Bond v. Local Union 823, International
Brotherhood of Teamsters, 521 F.2d 5, 9 (8th Cir. 1975)
(union processed ‘‘test’” case grievance rather than
plaintiff’s grievance. This is analogous to when a union
processes the grievances of some employees regarding
8. The collective bargaining agreement between
Hussmann and the union granted to the union the exclu-
sive power to process and settle grievances and to carry
cases to arbitration.
By virtue of this contractually derived status as
the exclusive enforcer of the collective agreement,
the union assumes a heavy responsibility to exer-
cise its control on behalf of, rather than against the
individual employee. The collective agreement cre-
ates rights in the individual employee which are en-
forceable under section 301. In the absence of a
union controlled grievance procedure the individual
can sue and enforce his rights in his own behalf. The
effect of the contractual provision giving the union
exclusive control over the grievance procedure is to
deprive the individual of his ability to enforce the
contract on his own behalf. The union, having de-
prived the individual of his ability to enforce his
rights, has a special obligation to act on his behalf.
Summers, The Individual Employees’ Rights Under The
Collective Agreement: What Constitutes Fair Represen-
tation? 126 U. PA. L. REV. 251, 256 (1977) (footnote
omitted ).
18a
Appendix.
their seniority status. Upholding the grievances neces-
sarily derogates the seniority of other employees. Butler
v. Local Union 828, International Brotherhood of Team-
sters, 514 F.2d 442, 445 (8th Cir.) , cert. denied, 423 U.S.
924 (1975). In that situation the union must fairly rep-
resent both groups of employees and may take a position
in favor of one group only on the basis of an informed,
reasoned judgment regarding the merits of the claims
in terms of the language of the collective bargaining
agreement.9 See Humphrey v. Moore, 375 U.S. 335
9. It is obvious that mere discrimination between
employees by the union cannot be the basis for a claim
of unfair representation. Employees are not all similarly
situated and a union needs to make many legitimate dif-
ferentiations in order to represent them. It is equally
apparent that a union and every employee it represents
will not always agree upon the lines drawn and the per-
ceived legitimate needs and rights of one group as op-
posed to another. In order to preclude imposing liability
on a union because of mere differences of opinion or an
error in judgment this court has frequently stressed the
importance of improper motivation or bad faith in find-
ing that a union’s discrimination constitutes a breach of
the duty of fair representation. Mavis v. Brotherhood of
Railway, Airline and Steamship Clerks, 585 F.2d 926,
930-31 (8th Cir. 1978) (union decision “based upon a
pragmatic assessment of the likelihood of success’) ;
Florey v. Air Line Pilots Association, 575 F.2d 673, 676
(8th Cir. 1978) (no allegation of bad faith or arbitrary
conduct); Augspurger v. Brotherhood of Locomotive
Engineers, 510 F.2d 853, 859 (8th Cir. 1975) (unsup-
ported conclusory allegations without factual inference
of bad faith or discriminatory intent insufficient to in-
voke fair representation exception to doctrine of primary
jurisdiction in ICC). In the situation of a direct conflict
between employees, a union’s decision to support a par-
ticular position must be made in good faith and not arbi-
trarily. This would seem generally to require an in-
— reasoned judgment regarding the merits of the
claim.
19a
Appendix.
(1964) ; Deboles v. Trans World Airlines, Inc., 552 F.2d
1005, 1015 (3d Cir.), cert. denied, 434 U.S. 837 (1977) ;
Price v. International Brotherhood of Teamsters, 457
F.2d 605, 611 (3d Cir. 1972).
This duty fairly to represent all employees is not
diminished because plaintiffs’ rights were created by
Hussmann. The particular provision of the collective
bargaining agreement at issue provided that employees
with superior skill and ability were entitled to promo-
tion over those with greater seniority only if the com-
pany elected to assert its right to promote on the basis
of skill and ability. This provision, typically referred to
as a “modified seniority clause,” controlled the promo-
tion machinery. The company asserted its right to choose
‘on the basis of skill and ability because of the belief that
the position of maintenance pipefitter required greater
expertise than most positions within the company. It is
significant that no openings in this classification had oc-
curred for over thirteen years; thus the company did not
have any established past practices for promotions into
this classification with which the union could challenge
compliance. Hussmann had a right to choose on the basis
of skill and ability, and by its exercise of this right it
vested plaintiffs with rights under the collective bar-
gaining agreement to hold the positions to which they
were promoted.!9 The collective bargaining agreement
clearly provided that employees promoted by the com-
10. Hussmann’s promotion of the junior employees
on the basis of substantially superior skill and ability
vested them with rights as third party beneficiaries of
the collective bargaining agreement. Thus the company
was bound to respect these rights and follow the terms
of the collective bargaining agreement in the event it
desired to remove the employees from the classification.
20a
Appendix.
pany on the basis of superior skill and ability are en-
titled to hold their promotions even against challenges
by employees with greater seniority. Thus, plaintiffs
possessed rights under the collective bargaining agree-
ment which the union had a fiduciary duty to protect.11
The fact that their rights were contingent upon selec-
tion by the company became irrelevant once that con-
tingency was resolved. The condition of selection is no
different from the condition that plaintiffs possess su-
perior skill and ability, which was the condition neces-
sarily challenged by the grievants.
The nature of the union’s duty in a dispute among
employees is not changed by the company’s taking a
position in the grievance procedure. Even though a com-
pany may take a position favorable to a particular group
of employees, the union may not abandon that particu-
lar group to the representation as afforded by the com-
pany favoring them. See Deboles v. Trans World Air-
lines, Inc., 552 F.2d 1005 (3d Cir.) , cert. denied, 434 U.S.
837 (1977) ; Price v. International Brotherhood of Team-
sters, 457 F.2d 605 (3d Cir. 1972). The union is the agent
of all employees in the unit and owes a fiduciary duty
to represent their interests and rights under the collec-
tive bargaining agreement. Here the union not only
11. Because by the terms of the collective bargain-
ing agreement only the company had the power to vest
employees with a right to a promotion, the union ob-
viously owed no duty to represent employees other than
those selected by the company and those with greater
seniority than the employees selected. No other employ-
ees could possibly have any rights to the promotions
under the collective bargaining agreement. Local Union
1857, International Brotherhood of Electrical Workers,
AFL v. Mutual Telephone Company, 23 Lab. Cas. {| 67,634
at 83,792 (Sup. Ct. Hawaii 1952. )
21a
Appendix.
abandoned the plaintiffs but took an adversary attitude
toward them regarding the positions they had received
by reason of the company’s opinion of their skill and
ability. The union took the position that any represen-
tation of plaintiffs would be made by the company, while
the company declared that it had no duty to represent
plaintiffs and properly protected only its self-interest
which may or may not have corresponded to the inter-
ests of plaintiffs.
The first aspect of the union’s conduct in process-
ing the grievances challenging plaintiffs’ promotions
that indicates possible substandard representation of
plaintiffs’ interests is the union’s strict adherence to
the principle of seniority. The union argues that in proc-
essing the grievances it merely followed a policy of
favoring employees with the greatest seniority, and that
this cannot be a ground for finding a breach of the duty
of fair representation because it was merely in good
faith applying a neutral principle. Since we agree with
the District Court’s finding that there is no evidence
that personal hostility toward plaintiffs motivated the
use of this policy, we are squarely presented with the
issue of whether this course of action combined with
the other elements of the union’s conduct toward plain-
tiffs could be found “so unreasonable and arbitrary as
to constitute a violation of the duty of fair representa-
tion.” Griffin v. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, 469 F.2d 181 (4th Cir. 1972).
The union’s choice to process all grievances based
on seniority discriminated against employees receiving
promotions on the basis of merit. This conduct may be
viewed as a perfunctory dismissal of the interests and
22a
Appendix.
rights of plaintiffs. The uxrion simply failed to represent
them in any way. The modified seniority clause specifi-
cally required balancing the interests of merit and sen-
iority whenever Hussmann deemed that the position
warranted selection on the basis of merit. Under the col-
lective bargaining agreement, after the company chose
to select on the basis of merit, three separate considera-
tions were relevant in determining the right of any em-
ployee to be promoted. These were (1) his selection by
the company, (2) on the basis of skill and ability, (3)
superior to the skill and ability of any senior employee
who had bid for the position. Disregard for the qualifi-
cation of superior skill and ability could manifest an
arbitrary and perfunctory approach to promotion inter-
ests, as could ignoring the qualification of seniority or
selection by the company. See Griffin v. International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, 469 F.2d 181, 183
(4th Cir. 1972) ; De Arroyo v. Sindicato de Trabajadores
Packing House, AFL-CIO, 425 F.2d 281, 284 (1st Cir.),
cert. denied sub nom. Puerto Rico Telephone Co. v. De
Arroyo, 400 U.S. 877 (1970).
As one commentator, after reviewing the applicable
cases, concluded:
When the union’s effort to represent a member
of the collective bargaining unit falls below the
level at which the court can conclude that the union
has made a conscious, earnest effort to represent
him, liability should flow. Upon a claim of substand-
ard treatment, the union should be required to come
forward with evidence to show why it followed the
course of representation that it did. If the union’s
behavior is based on a conscious assessment of fair-
23a
Appendix.
ly competing values, it should be given broad dis-
cretion in its choice of representation tactics. But
the union should not be allowed to plead, in effect,
that it chose the easier path because of convenience
or rigid adherence to “union policy.”
Bryson, A Matter of Wooden Logic: Labor Law Preemp-
tion and Individual Rights, 51 Tex. L. Rev. 1037, 1102
(1973).
In this case the union has taken the position that
“a union’s freedom to follow seniority in job disputes
cannot coexist with a duty to evaluate the comparative
skills of competing employees.” It initially selected
which grievances it would process solely on the basis of
seniority. It never inquired of plaintiffs about their
experience or other qualifications. The only evidence
presented to indicate any concern on the part of the
union about the relative skill and ability of plaintiffs
was the testimony of the union’s international repre-
sentative who stated that he had reviewed the reports
of foreman Schwartz regarding his selection of plain-
tiffs. In contrast to this superficial review of plaintiffs,
the union representative personally discussed the back-
grounds, experience, and other qualifications of the sen-
ior grievants with them and invited them to testify at
the first arbitration hearing.
While we do not suggest that a union must hold in-
ternal hearings to investigate the merits of every griev-
ance brought to it, in certain situations it may be inap-
propriate for a union to tie its own hands by blind ad-
herence to a policy of favoring employees with seniority
in order to avoid disputes between employees. ‘Conflict
between employees represented by the same union is a
recurring fact. To remove or gag the union in these
24a
Appendix.
cases would surely weaken the collective bargaining and
grievance processes.” Humphrey v. Moore, supra, 375
U.S. at 349-50. The need for a union fairly to evaluate
the merits of grievances has been recognized repeatedly.
“In administering the grievance and arbitration machin-
ery as statutory agent of the employees, a union must,
in good faith and in a nonarbitrary manner, make deci-
sions as to the merits of particular grievances.” Vaca v.
Sipes, supra, 386 U.S. at 194. See Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 558 (1976) ; Foust v. Inter-
national Brotherhood of Electrical Workers, 572 F.2d
710, 715-16 (10th Cir. 1978), rev’d in part on other
grounds ............ _} Sener! , 99 S. Ct. 2121, 60 L.Ed. 2d
698 (1979) ; Minnis v. International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, UAW, 531 F.2d 850, 853-54 (8th Cir. 1975) ;
Ruzicka v. General Motors Corp., 523 F.2d 912 (6th Cir.
1975). In particular, this court has recognized that cer-
tain circumstances compel a union to evaluate the indi-
vidual capabilities of employees. Petersen v. Rath Pack-
ing Co., 461 F.2d 312, 316 (8th Cir. 1972). In the context
of this case the jury may have concluded that the union
failed to take adequate measures to insure a fair reso-
lution of the dispute created by the union’s processing
of the grievances of the senior employees.
By negotiating the modified seniority clause to con-
trol promotion decisions, the union has limited manage-
ment in an area regarded by management as one of its
most important prerogatives. This limitation on man-
agement has shifted some of the burden for making
promotions onto the union. Responsible union participa-
tion can ensure that the use of the seniority criterion in
these decisions is compatible with efliciency and em-
25a
Appendix.
ployee morale. Union involvement that is not character-
ized by care and thoughtful preplanning can lead to
subversion of the collective bargaining agreement by
processing baseless grievances. S. H. SLICHTER, J. J.
HEALY & E. R. LIVERNASH, THE IMPACT OF COLLECTIVE
BARGAINING ON MANAGEMENT 178-210 (1960). See also
Humphrey v. Moore, supra, 375 U.S. at 349-50. A policy
of processing all grievances based on seniority regard-
less of their merit may even significantly alter the nego-
tiated contract by chilling the exercise of the preroga-
tive to promote on the basis of merit. Since a business
runs on a cost-benefit basis, the cost of arbitrating the
grievances of all senior employees may at times be
greater than the benefit of advancing the most skilled
worker. Adherence to the union’s policy in this situation
would effectively set aside a provision of the collective
bargaining agreement.12 “Such a cavalier treatment of
the contract is scarcely consistent with the contempla-
tion of the parties and seems contrary to the union
members’ understanding and expectations when they
ratified the contract.” Summers, The Individual Employ-
ee’s Rights Under the Collective Agreement: What Con-
stitutes Fair Representation? 126 U. Pa. L. Rev. 251,
264 (1977). See also Vaca v. Sipes, supra, 386 U.S. at
191-92; Humphrey v. Moore, supra, 375 U.S. at 349-50.
The jury could also have found evidence of a breach
of the duty of fair representation on the basis that the
12. As stated by the Third Circuit in Bazarte v.
United Transportation Union, 429 F.2d 868, 872 (3d Cir.
1970) ; “The union has an obligation in exercising its
power as bargaining agent to act fairly under the col-
lective bargaining agreement and not to assert or press
grievances which it believes in good faith do not warrant
such action.”
26a
Appendix.
union failed to notify plaintiffs of the arbitration hear-
ing or invite them to attend. Regardless of the initial
evaluation of the grievances, it is obvious that once a
union has chosen to arbitrate a dispute adequate presen-
tation of all employee claims is necessary to ensure fair-
ness in the arbitration.13 See Clark, The Duty of Fair
Representation: A Theoretical Structure, 51 Tex. L. Rev.
1119, 1169 (1979). Since a union’s failure to inform an
employee whose interests are before an arbitrator of
the arbitration hearing is not necessarily sufficient to
support a claim of unfair representation, courts have
carefully searched the records for prejudice to the em-
ployee. When the position of the employee has been ade-
quately presented, no breach has been found. Cf. King
v. Space Carriers, Inc., No. 78-1873, slip. op. at 11-12
(8th Cir. October 16, 1979). For example, in Humphrey
v. Moore, 375 U.S. 334 (1964), a joint committee de-
cided to dovetail the seniority lists of two merging com-
panies. The Supreme Court, holding that the union was
entitled to take a position in the dispute between em-
ployees, carefully noted that the disfavored employees
had been given notice of the hearing and that three
stewards representing them were present at the hearing
and given every opportunity to state their position.
Humphrey v. Moore, supra, 375 U.S. at 350-51. See also
13. As a corrolary it should be noted that a com-
pletely fair arbitration of a dispute would necessarily
insulate a union from any alleged breaches of its duty of
fair representation because the allegedly aggrieved em-
ployee could not have suffered any injury from the
union’s conduct. If an employee’s position is changed as
a result of a fair arbitration, the union cannot be found
to have caused the change. Only if the arbitration is
tainted in some manner by the union’s conduct can the
result of an arbitration be attributable to the union.
27a
Appendix.
Ramsey v. NLRB, 327 F.2d 784, 788 (7th Cir.), cert.
denied, 377 U.S. 1003 (1964) ; Bernard v. McLean Truck-
ing Co., 429 F. Supp. 284, 286-87 (D. Kan. 1977) ; Siskey
v. General Teamsters, Chauffers, Warehousemen &
Helpers, Local No. 261, 419 F. Supp. 48, 53 (W.D. Pa.
1976) ; DeBelsey v. Chemical Leaman Tank Lines, 368 F.
Supp. 1159, 1163 (E.D. Pa. 1973); Davidson v. Interna-
tional Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, Local No. 1189,
332 F. Supp. 375, 378-79 (D.N.J. 1971). However, when
the employee is prejudiced by not having notice of the
hearing because the union inadequately prepared or
presented his or her interests, a breach of the duty of
fair representation has been demonstrated. Bond v.
Local Union 828, International Brotherhood of Teams-
ters, 521 F.2d 5, 9 (8th Cir. 1975) ; Thompson v. Inter-
national Association of Machinists, 258 F. Supp. 235, 239
(E.D. Va. 1966).
The union claims that plaintiffs could not have been
deprived of a fair hearing because Hussmann fully and
adequately defended their position. The company, how-
ever, has consistently taken the position that it had no
duty to represent plaintiffs. At trial, Hussmann pre-
sented evidence that even plaintiffs did not expect it to
represent their interests. Furthermore, regardless of
whether plaintiffs were inadequately represented at the
first arbitration hearing, the evidence is clear that no
one asserted their interests at the time of resubmission
to the arbitrator.
The union also appears to contend that specific rep-
resentation of plaintiffs was unnecessary since the only
evidence of plaintiffs’ skills and abilities cognizable at
the hearing was as they were known by the company
28a
Appendix.
foreman, Schwartz, who had selected plaintiffs. The
union asserts that this obviated any need for plaintiffs
to testify before the arbitrator. The facts belie this
argument. Although at the first arbitration hearing
Schwartz testified as to his evaluation and knowledge
of the skill and abilities of both plaintiffs and the griev-
ants, the union requested the grievants to attend and
testify as to their abilities and work experience. This
ex parte presentation by the union may well have hin-
dered plaintiffs’ effort to secure an objective considera-
tion of their promotions on the basis of superior skill
and ability because the arbitrator’s decision appears to
rely heavily upon the testimony of the grievants re-
lating their background experience in terms of work
they performed outside the plant. The arbitrator clearly
viewed this experience as determinative in his decision
regarding relative skill and ability. Although the com-
pany had some knowledge of plaintiffs’ outside work,
more work experience, while in a sense cumulative,
could indicate greater skill and ability. Since the griev-
ants appeared to have experience not related to the arbi-
trator by the company representative who interviewed
them, it can be inferred that plaintiffs would also be
able to relate their outside work experience better than
the company representative. Thus, the failure to invite
plaintiffs to attend the arbitration hearing may have
left them inadequately represented regarding a crucial
factor in dispute.
The fairness of the ultimate arbitration award also
necessarily involved consideration of the union’s and
company’s resubmission to the arbitrator of the initial
decision. The jury could have found that the resubmis-
sion constituted a breach of the duty of fair representa-
tion and breach of the collective bargaining agreement’s
29a
Appendix.
provision providing that arbitration is a final and bind-
ing resolution of a dispute.14 It was undisputed that at
the second hearing no additional testimony was taken.
Only representatives of Hussmann and the union met
with the arbitrator, presented him with the correct
seniority dates and bid sheets, and requested him to
clarify which four employees should be awarded the
four positions that had opened. Some testimony, how-
ever, indicated that the parties meeting with the arbi-
trator also told him, pursuant to a previous agreement,
specifically which four employees should receive the
positions. In this context, the jury was presented with
the issue of whether the second hearing resulted in a
substantial change from the original decision or merely
a “clarification” of it. If an agreement between the
union and the company substantially altered the award
by taking away plaintiffs’ rights granted by arbitration,
defendants could have been found to have violated the
“final and binding” provision of the collective bargain-
ing agreement.
By the first decision of the arbitrator, six employees
were granted the maintenance pipefitter classification.
Seniority was designated in the following order: Dattilo,
Pasley, Smith, Krassinger, Watson, Serini. According
to the supplemental decision, only Dattilo, Watson,
Krassinger, and Pasley were granted the classification,
with their seniority realigned in the order listed. It was
understood at the time of both decisions that only four
actual openings in the classification would be filled.
14. Article 7, Section 1 of the collective bargaining
agreement, outlining the grievance procedure, provides
in relevant part:
The majority decision of the arbitration board shall
be final and binding upon the parties. * * *
30a
Appendix.
While defendants argue that this changed result
must be viewed as a clarification because the first award
could not be implemented, the record reveals substantial
support for the position of plaintiffs that there would
be no problem with permitting an employee to hold a
classification status even though he did not currently
work within it. Plaintiffs’ position appears to have been
the company’s initial response and consistent with some
past practice. Additionally, it should be noted that in
his original decision the arbitrator specifically found
that Pasley possessed substantially greater skill and
ability than Krassinger, yet in the supplemental deci-
sion Pasley’s seniority was demoted to below that of
Krassinger.
The last element of the union’s conduct toward
plaintiffs that may indicate unfair representation is the
failure to accept and process plaintiffs’ grievances or to
place the matter on the agenda of a regular union meet-
ing. After the revision of the arbitration decision pur-
suant to the second hearing, plaintiffs filed grievances
challenging the award. The unior simply refused to
accept the grievances. Plaintiffs complained to union
Officials regarding what they perceived as unfair treat-
ment and requested permission to speak to the union
membership to discuss their treatment. They mailed
grievance forms directly to Hussmann, but it returned
them because they were not signed by the union and,
therefore, could not be processed under the terms of
the collective bargaining agreement. The union defends
its conduct by stating that it denied the grievances on
the basis that the final and binding clause of the collec-
tive bargaining agreement prohibited processing them
and that it did report the results of the arbitration at
a regular union meeting. Although a union clearly has
3la
Appendix.
the authority to deny grievances based upon a good
faith evaluation, Humphrey v. Moore, 375 U.S. 335
(1965), in view of the overall conduct of defendants the
jury may have perceived the conclusion of the union
regarding the effect of the final and binding clause as
unreasonable and not made in good faith. The original
award had been resubmitted to the arbitrator despite
the final and binding clause. The plaintiffs had not been
fully represented at the arbitration hearings. Also,
plaintiffs presented some evidence that one of the suc-
cessful grievants, Dattilo, who had then been a union
official, had falsified his testimony at the first arbitra-
tion hearing.
This case involved a complex course of conduct on
the part of defendants and the evidence interrelates and
is susceptible of different reasonable inferences. In a fair
exercise of judgment, reasonable persons could have
concluded that defendants breached the collective bar-
gaining agreement and the union breached its duty to
represent plaintiffs fairly.
V.
On appeal, plaintiff Pasley claims that the District
Court clearly erred by removing Paslev’- claim of race
discrimination from consideration of the jury and by
holding that the evidence failed to establish that de-
fendants violated his rights on account of his race. We
find these contentions to be without merit and affirm the
District Court on the basis of its well-reasoned mem-
orandum opinion. Plaintiff Pasley failed to establish
that any action taken by defendants was the result of
race discrimination. The evidence revealed that both the
company and the union treated Pasley in exactly the
32a
Appendix.
same manner as they treated the other plaintiffs, who
are white. The only difference related to the Pogue
grievance, which was arbitrated against Pasley although
the employee had filed it against Serini. Although this,
along with the rest of the union’s conduct toward Pas-
ley, can be explained on the basis of his relative senior-
ity status, it also could not possibly be the basis of a
damage claim since the grievance was denied at arbitra-
tion and Pasley retained his position. In this context,
Pasley’s controverted testimony that a union official
had stated in a joking manner that Pasley’s position was
being challenged because of his race cannot be the basis
for a claim of race discrimination under 42 U.S.C.
§§ 1981 and 1985.
The removal of this claim from the jury cannot be
grounds for reversal since plaintiff Pasley did not pre-
sent sufficient evidence to support a jury verdict in his
favor.15 See Hays v. Consolidated Service Corp., 517
F.2d 564, 565-66 (1st Cir. 1975) ; Minnis v. International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, 531 F.2d 850,
853 (8th Cir. 1975); King v. United Benefit Fire Insur-
ance Co., 377 F.2d 728, 731 (10th Cir.), cert. denied, 389
U.S. 857 (1967) ; Freeman Contractors, Inc. v. Central
Surety and Insurance Corp., 205 F.2d 607, 612 (8th Cir.
1953).
15. We find it unnecessary to decide whether the
requested remedy of reinstatement of seniority classifi-
cation plus back pay should be characterized in this situ-
ation as a request for purely equitable relief. If his claim
were purely equitable, plaintiff Pasley might not be en-
titled to a jury trial. See Lynch v. Pan American World
Airways, Inc., 475 F.2d 764, 765 (5th Cir. 1973).
33a
Appendix.
VI.
Both Hussmann and the union assert that in the
event that the judgment notwithstanding the verdict on
Count I is reversed, errors in the trial stage warrant
remanding for a new trial.
First, the union argues that plaintiffs had no right
to a jury trial, although it candidly concedes that the
law in this circuit is contrary to its position. Minnis v.
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, 531
F.2d 850 (8th Cir. 1975), explicitly held that plaintiffs
charging a breach of the duty of fair representation are
entitled to ¢ jury trial. In view of the union’s failure to
show any error in the analysis made in Minnis, we de-
cline to overrule its holding.
The union also alleges that the jury was improperly
instructed concerning the duty of fair representation.
Part of the instructions seemed to indicate that a ver-
dict could be entered against the union merely upon a
finding that by not processing plaintiffs’ grievances the
union had violated a provision of the collective bargain-
ing agreement. As the union, however, acknowledges,
this instruction must be read in the context of the
charge as a whole, Simpson v. Norwesco, Inc., 583 F.2d
1007, 1013 (8th Cir. 1978); Fields v. Chicago, Rock
Island and Pacific Railroad Co., 532 F.2d 1211, 1213 (8th
Cir. 1976); Alabama Great Southern Railway Co. v.
Chicago & Northwestern Railway Co., 493 F.2d 979, 986
(8th Cir. 1974); Jiffy Markets, Inc. v. Vogel, 340 F.2d
495, 500 (8th Cir. 1965). Directly after the allegedly
erroneous instruction, the court instructed:
The union’s right to consider grievances of its mem-
bers and to make good faith decisions relative
34a
Appendix.
thereto cai ‘ies with it a broad discretion. That dis-
cretion means that the union’s decision should not
be disturbed so long as it was made honestly and
in good faith. This is true even if you were to be-
lieve that the union was in error.
** # &
If and only if you of the jury find that United
Steelworkers of America, Local 13889, breached its
legal duty of fair representation * * * may you re-
turn a verdict for any of the plaintiffs and against
either or both of the defendants.
A breach of the statutory duty of fair repre-
sentation occurs only when a union’s conduct to-
ward a member of the collective bargaining unit
is arbitrary, discriminatory or in bad faith. In or-
der to make out such a claim of arbitrary, discrim-
inatory or bad faith conduct there must be sub-
stantial evidence of fraud, deceitful action or dis-
honest conduct; this involves more than errors in
judgment. Simply stated, of necessity a wide range
of reasonableness must be allowed a bargaining
representative in serving the employees it repre-
sents and, as a result there is no basis for second-
guessing the decisions of that representative in
handling a grievance absent the requisite substan-
tial evidence of arbitrary, discriminatory or bad
faith conduct. If and only if you, the jury find sub-
stantial evidence of fraud, deceitful action or dis-
honest conduct may you conclude that United Steel-
workers of America, Local 13889 breached its duty
of fair representation.
We find that this instruction clarifies that mere
error on the part of a union is not sufficient to establish
35a
Appendix.
a breach of the duty of fair representation. Further-
more, we note that this instruction was overly generous
to the union. Fraud or bad faith is not necessary to
charge unfair representation if the union’s conduct is
otherwise arbitrary or perfunctory, Vaca v. Sipes, supra,
386 U.S. at 177; Ethier v. United States Postal Service,
590 F.2d 733, 737 n.3 (8th Cir. 1979); Griffin v. Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, 469 F.2d
181, 183 4th Cir. 1972), nor must a jury necessarily find
substantial evidence of fraud, deceitful action or dis-
honest conduct to conclude that a union breached its
duty of fair representation.16 See Foust v. International
Brotherhood of Electrical Workers, 572 F.2d 710, 714-15
(10th Cir. 1978), rev'd in part on other grounds, ........
WD cinvesss , 99 S.Ct. 2121, 60 L.Ed. 2d 698 (1979).
Hussmann challenges the trial court’s instructions
to the jury relating to the resubmission of the initial
arbitration award to the arbitrator. One instruction per-
mitted the jury to enter a verdict against both defend-
ants if it found that the resubmission violated the “final
and binding” clause of the collective bargaining agree-
ment. The other challenged instruction directed a ver-
dict against defendants if the jury found an agreement
before the resubmission between the union and Huss-
mann regarding the four men who should hold the classi-
fications a breach of tke union’s duty of fair representa-
tion, and a breach of the collective bargaining agree-
16. In Butler v. Local Union 823, International
Brotherhood of Teamsters, 514 F.2d 442, 453 (8th Cir.),
cert. denied, 423 U.S. 925 (1975), we approved jury in-
structions defining the union’s duty as “a legal duty
fairly to represent the plaintiff without arbitrariness,
discrimination, or bad faith * * *.”
36a
Appendix.
ment. Hussmann claims that these instructions were
erroneous and prejudicial because they assumed the
existence of a disputed fact and misstated the legal
effect of the “final and binding” provision of the collec-
tive bargaining agreement. We disagree. The instruc-
tions explicitly provided that the jury must find breaches
of both the collective bargaining agreement and the
duty of fair representation and whether the resubmis-
sion to the arbitrator constituted these breaches was
properly placed in the province of the jury. The jury
instructions must be read as a whole, especially in the
situation where the jury is presented with the case as
a whole and does not make particularized determina-
tions, but rather decides the entire case by a simple ver-
dict assessing damages. The function of an appellate
court is not to reconstruct the mental processes of the
jurors, but to uphold a jury verdict if it has received
proper instructions and reasonable inferences from the
properly admitted evidence support its findings.
The union also asserts that the District Court erred
when it excluded evidence of the NLRB’s failure to issue
a complaint after plaintiffs filed unfair labor practice
charges. A trial court has wide discretion in ruling on
the admissibility of evidence. Simpson v. Norwesco, Inc.,
583 F.2d 1007, 1013 (8th Cir. 1978) ; General Insurance
Co. of America v. Hercules Construction Co., 385 F.2d
13, 24 (8th Cir. 1967). The Federal Rule of Evidence,
Rule 403, permits exclusion of evidence if the court de-
termines that “its probative value is substantially out-
weighed by the danger of unfair prejudice.” On balance,
we do not think the decision to exclude the evidence of
the NLRB’s failure to issue a complaint was an abuse of
discretion. The possibility of jury confusion and poten-
37a
Appendix.
tial misunderstanding as to the weight to be accorded
this evidence presented a danger of unfair prejudice to
plaintiffs and the probative value of the evidence was
not overwhelming. The NLRB general counsel has un-
reviewable discretion to refuse to issue an unfair labor
practice complaint, and plaintiffs were not afforded a
hearing before the NLRB. Furthermore the courts, not
the Board, have the responsibility for defining the scope
of the duty of fair representation. See Vaca v. Sipes,
supra, 386 U.S. at 180-83.
Hussmann also argues for a new trial on the basis
that the jury’s determination of damages, of $6500 in
favor of Smith and $2500 in favor of Pasley, indicates
that it was confused or impassioned and inflamed be-
cause these amounts are in excess of the only tangible
evidence of damages in the record, the amount of back
pay lost by Smith and Pasley prior to the time of trial.
The evidence, however, adequately supports the verdict.
In determining the amount of damages, the jury was
entitled to take into account the continuing nature of
the injury sustained by plaintiffs. Plaintiff Smith lost
his classification as maintenance pipefitter, and plaintiff
Pasley suffered a demotion of his seniority status within
the classification. From the direct evidence of compensa-
tion already lost, the jury could compute the reasonably
foreseeable future losses attributable to the injury. Cf.
Richardson v. Communications Workers, 486 F.2d 801,
806 (8th Cir. 1973). There is no indication that the
amount awarded reflects damages for mental distress,
imposition of which the circumstances of this case do
not warrant. See Richardson v. Communications Work-
ers, 443 F.2d 974, 982-85 (8th Cir. 1971). The jury was
not instructed to consider punitive damages, and the
38a
Appendix.
award merely compensates for injuries caused by the
violations of plaintiffs’ rights as found by the jury.
VI.
Plaintiffs contend that they are entitled to the dam-
ages awarded by the jury and to a judgment in accord
with the advice of the jury, in response to special inter-
rogatories, in favor of restoring plaintiffs’ seniorities
and classifications to their positions before the union
processed grievances against them. The trial court re-
jected the jury’s advisory recommendation at the same
time it granted defendants’ motions for judgment not-
withstanding the verdict. In view of our holding upon
appeal, we find that the District Court should have the
opportunity to reconsider the advisability of implement-
ing the jury’s recommendation. In any event, the Dis-
trict Court is at liberty to accept or reject the advisory
findings related to equitable relief. Chicago & North
Western Railway Co. v. Minnesota Transfer Railway
Co., 371 F.2d 129, 130 (8th Cir. 1967).
VII.
The judgment of the District Court is affirmed in
part, vacated in part, and modified as set forth herein.
The case is remanded to the District Court for entry of
a judgment consistent with this opinion.
Costs assessed in favor of plaintiffs.
39a
Appendix.
Lay, Circuit Judge, Concurring.
I concur in the result reached by Judge Gibson. I
do so on the narrow ground that the agreement by the
company and the Union to go back to the arbitrator and
to rearbitrate the preference of the plaintiffs was not
disclosed to the plaintiffs. This was presented to the
arbitrator without any notice whatsoever to the plain-
tiffs and without anyone representing their rights. I
think this is the only evidence of bad faith in this rec-
ord. Compare Buchholtz v. Swift d Company, Lay dis-
senting, No. 78-1559 et al., September 7, 1979, p. 15.
BRIGHT and Ross, Circuit Judges, Concurring.
We concur in the result reached by Judge Gibson
in his opinion and concur with all of the reasoning ad-
vanced in that opinion except that portion relating to
the failure of the union to properly represent the plain-
tiffs in the first arbitration hearing. In our judgment,
the plaintiffs were adequately represented by manage-
ment in that first hearing, although a jury could find
that the union was derelict in not giving the plaintiffs
adequate notice of the time, place and nature of the
hearing.
As we view the case, the principal breach of the
union’s duty to represent the plaintiffs took place after
the first arbitration hearing. At that time, the record
indicates there was sufficient evidence of an agreement
between the company and the union to go back to the
arbitrator and arbitrarily rearrange the order of prefer-
ence among the plaintiffs and the other more senior
employees. This new agreement was not disclosed to the
plaintiffs, was presented to the arbitrator without any
notice whatsoever to the plaintiffs and without anyone
40a
Appendix.
representing their rights. It represented a complete
abandonment of the plaintiffs and of the original posi-
tion of the company by company officials without giving
any reason therefor. We thus feel that there was suffi-
cient evidence in the record to show that the union failed
to act in good faith and that the company breached its
collective bargaining agreement. Therefore, the jury
verdict should be allowed to stand.
HEANEY, Circuit Judge, dissenting, with STEPHENSON,
Circuit Judge, concurring.
We respectfully dissent with respect to those sec-
tions of the majority opinion which deal with the
Union’s duty of unfair representation. In our view, the
majority opinion is inconsistent with prior opinions of
this Court and the Supreme Court.! It substantially un-
dercuts the Union’s right to process grievances of senior
employees who complain that junior employees have
1. In Mavis v. Brotherhood of Rwy., Airline & 8. 8.
Clerks, 585 F.2d 926 (8th Cir. 1978) ; Florey v. Air Line
Pilots Ass’n, Intern., 575 F.2d 673 (8th Cir. 1978); and
Augspurger v. Brotherhood of Locomotive Engineers,
510 F.2d 853 (8th Cir. 1975), we held that improper
motivation is the crux of the fair representation doctrine
and is an essential element in fair representation actions.
In Ethier v. United States Postal Service, 590 F.2d 734
(8th Cir. 1979), we noted in dicta that a breach of duty
to fairly represent may also be found where the repre-
sentation was perfunctory (without concern or with in-
difference), and in Minnis v. Intern. U., United Auto.,
531 F.2d 850 (8th Cir. 1975), we held that failure to
inform an employee that a grievance would not be taken
to arbitration until it was too late for the employee to
take any action himself was a violation of the duty. We
have never suggested that a union cannot choose between
competing values if it chooses to do so without hostility
or improper motivation.
41a
Appendix.
been promoted to jobs for which the senior employees
are equally well qualified.
The collective bargaining agreement between the
Union and Hussmann Refrigerator Company provides as
follows:
ARTICLE 9
Seniority
SECTION 1. The Company recognizes the prin-
ciple of classification seniority and seniority based
upon the total length of continuous service with the
Company.
Seniority shall be by job classifications, unless
otherwise specified below.
Seniority, skill and ability to perform the work
required shall be considered by the Company in
making promotions, transfers, layoffs and callbacks.
Where skill and ability to perform are substantially
equal, seniority shall govern. * * *
** & &
[ ARTICLE 10]
SECTION 2. Ability and required performance
of an employee on the job shall be factors consid-
ered for promotion. When such factors are substan-
tially equal between those being considered, senior-
ity shall govern. * * *
“et & &
SECTION 3. When an employee is appointed to
a new position or vacancy under the provisions of
this article and it develops within a reasonable
length of time that the employee is not capable of
42a
Appendix.
handling the position, he shall be entitled to return
to his former position with full seniority accrued.
Should a vacancy of like nature again present itself
after a period of ninety (90) calendar days, he
shall be allowed the privilege of again making
application.
The Company processes approximately 35,000 bids
annually. From these bids, about 2,000 jobs are awarded.
The Company’s practice is to waive skill and ability with
respect to most jobs. No objection to this practice has
been made. When vacancies arose in the maintenance
pipefitter classification, the Company asked for bids
and numerous employees responded. The Company in-
terviewed the employees and selected plaintiffs Smith
and Pasley on the basis of what was judged to be their
superior skill and ability over at least four other men
who had more seniority. The four filed a grievance with
the Union, contending that they had skill and ability
substantially equal to that of the men selected, and
that the Company had violated the contract by its
action.
The grievances were processed through the first
three steps of the grievance procedure by personnel of
the loca) union. At each step, the Company took the
position that the employees it selected had superior
skills and ability. The Union argued that the grievants’
skills and ability were substantially equal to that of
Pasley and Smith, and that each had greater seniority.
At the fourth step, an International representative with
experience both as a pipefitter and in handling griev-
ances was requested to take over the matter. The Com-
pany furnished him all relevant information in its pos-
session with respect to the plaintiffs and the grievants.
43a
Appendix.
After reviewing the information, he decided to process
the grievances to the fourth step. The Company adhered
to its original position.
The representative then asked that the grievances
be submitted to arbitration. An arbitrator was appoint-
ed. At the proceeding, the Company’s maintenance fore-
man, who made the initial selection, testified at length
as to the skill and ability of each person selected. He
supported his testimony with documentary evidence. The
grievants each testified as to their skill and ability, and
the representative handling the grievance supported
their testimony with documentary evidence. Pasley and
Smith knew that the arbitration hearing was to take
place, but neither requested an opportunity to be present
and neither appeared at the arbitration hearing.
The arbitrator considered the matter carefully. He
determined that two of the grievants had skills and
ability substantially equal to those of Pasley and Sinith
and that two others did not. We quote his opinion at
length as it is indicative of the thoroughness of the
hearing and the decisionmaking process.
The seniority and promotion clauses, both in
Article 9 and Article 10 of the Contract between
the parties, express what is usually referred to as
a “modified seniority clause.”’ That is, under the
terms of the Contract seniority is to prevail only
when the other factors of ability and required per-
formance of an employee on the job are substan-
tially equal between those being considered. * * *
Certainly the existence of the disqualification
clause in Section 3 of Article 10 indicates that trial
periods are contemplated by the parties and the
Appendix.
Company is not bound by the promotion of an in-
capable employee. Certainly the existence of a rate
progression in the pipe fitter classification indicates
some on-the-job learning is contemplated after pro-
motion to that classification before the applicant
will possess all of the skills of a competent main-
tenance pipe fitter. While the implication of these
latter two provisions is indicative that some lib-
erality should be indulged in by the intent of the
parties by making promotions, where possible,
within the plant and by seniority, their existence
does not annul the clear provisions of Article 10,
Section 2, and Article 9, Section 1, which provide
that ability and the required performance on the
job are to be the governing factors, and seniority
is to prevail only when these factors are substan-
tially equal. These provisions clearly grant to the
Company the right to consider ability and to pro-
mote a junior employee over a senior one, where
the junior is significantly more qualified.
** &
[T]he ultimate inquiry must be whether or not the
Grievants possessed ability for the required per-
formance of a pipe fitter substantially equal to the
successful bidders. If they did, the Company must
be regarded as having violated their seniority
rights for having failed to select them. If they
did not, the Company did not violate the contract.
[T]he evidence shows that Grievant Dattilo did
possess the qualifications for the Maintenance Pipe
Fitter Job, according to Foreman Schwartz, al-
45a
Appendix.
though Schwartz considered Paisley [sic] more
qualified. Although Schwartz, in Dattilo’s case, did
not give particular consideration to the fact that
Dattilo had been a refrigeration mechanic and gen-
eral maintenance man, in the case of the successful
bidders Smith and Serini he did consider this be-
cause it reflected an ability to braze and do other
tasks. It is also significant that he felt that Smith
and Serini’s background with refrigeration and air-
conditioning was significant, and that Mr. Dattilo
had some ninety hours of formal training in these
fields. While Mr. Paisley [sic] had substantial gen-
eral background in plumbing due to his work out-
side of the Company, Mr. Dattilo had also done, in
addition to some home plumbing, some fitting in the
Company as a general maintenance man, and was
specifically familiar with the air system on the
Randsberg Paint System within the Company. Mr.
Schwartz’ admission that the question between Dat-
tilo and Paisley [sic] was very close is a strong in-
dication that the factors of ability and required
performance were substantially equal. The bare
fact that Paisley [sic] may have been more quali-
fied did not entitle the Company to disregard Dat-
tilo’s seniority, if the difference in qualification was
not substantial. Under the terms of the contract
seniority is to govern if the ability is substantially
equal. Thus to disregard seniority the differential
in qualifications must be significant. Since the dif-
ferential in qualifications was acknowledged to be
very close, it must be regarded that Dattilo and
Paisley [sic] were substantially equal in qualifica-
tions even though Paisley [sic] may have been the
more qualified of the two.
46a
Appendix.
It must be further noted that although the evi-
dence phrased the relative qualifications of Dattilo
against Paisley [sic], Dattilo had bid all four posi-
tions, had greater seniority than all of the success-
ful bidders, and was, therefore entitled to be con-
sidered also in relation to Watson, Serini, and
Smith, the other successful bidders. In comparison
to those men, Mr. Dattilo’s qualifications do not
oppose ten years experience as an outside plumber,
and whatever edge that gave Paisley [sic] is elimi-
nated. Under these circumstances the admittedly
close differential in qualifications between Paisley
[sic] and Dattilo probably does not render their
qualifications substantially unequal but, in any
event, as compared to Watson, Serini, and Smith,
this differential is reduced further. It follows that
under the terms of the contract Dattilo enjoyed
substantially equal qualifications and was entitled
to be awarded the job of Maintenance Pipe Fitter.
*“*# & &
Mr. Krassinger had substantial plumbing experi-
ence, which the Company regarded as important in
awarding the jobs to Paisley [sic] and Watson.
This had been more than merely occasional home
repair. Mr. Krassinger had, in fact, done the en-
tire plumbing on his own home and done two others
as a contractor, besides working for a plumbing
contractor as a second job. Under the evidence this
constitutes a very substantial amount of bid related
work, and the evidence from Mr. Krassinger was
that he was familiar with many of the aspects of
the trade which Mr. Schwartz considered important
with the other applicants, including copper tubing,
47a
Appendix.
soil pipe, sewer piping, and working with leaded
joints. He also testified to some experience with
air valves, soldering drains, and other like work.
All of this constitutes substantial pipe fitter re-
lated ability. Mr. Krassinger also bid all postings
and was entitled to be compared with all of the
successful bidders. As the evidence was detailed, his
abilities appear to be very comparable to Serini,
over whom he has seniority, and, as the evidence
was presented, I do find that the qualification fac-
tors were substantially equal between those two.
Accordingly, Mr. Krassinger’s seniority was en-
titled to consideration. While Mr. Krassinger also
enjoyed seniority over Mr. Paisley [sic], I do find
the the [sic] Company had grounds to find that
Paisley [sic] had substantially greater ability and
it follows that Mr. Krassinger would not have been
entitled to have been a successful bidder until May
23rd when Serini was awarded the job.
Supplemental and Corrective Decision of Arbitrator, pp.
11-12, 14-18.
The plaintiffs were dissatisfied with the arbitration
award and commenced this action. The District Court
eventually held that the Union did not breach its duty
to fairly represent the plaintiffs by processing the senior
employees’ grievances. A majority of this Court has now
reversed that holding. It appears to hold that if a union
is a party to a collective bargaining agreement contain-
ing a modified seniority clause, it cannot represent senior
employees as against junior employees who have been
tentatively selected by the Company for their skill and
ability unless it first conducts an internal hearing or an
intensive investigation to determine whether, in fact, the
48a
Appendix.
senior employees’ skill and ability is substantially equal
to that of the junior employee.
The majority opinion appears to be partially based
on a lack of appreciation of the principle of seniority.
Seniority is deemed so important by employees that it is
embodied, in one form or another, in virtually every col-
lective bargaining agreement.? Seniority will probably
always be a primary concern of unions? just as skill and
ability will probably always be primary concerns of man-
agement.* The modified seniority rule represents an at-
2. See Aaron, Reflections on the Legal Nature and
Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532,
1534 (1962).
3. It is difficult to overstate the importance at-
tached by the workers to union controls of this na-
ture. The feeling of independence, the relief from
insecurity attendant upon the rationalization of per-
sonnel policies can be appreciated only when con-
trasted with the feeling of subservience and the
despised need for bootlicking of previous days. No-
where is this truer than in the large corporation.
. 2 2 £2
To eliminate such favoritism and willfulness,
the unions have sought and obtained a sharing of
authority in the areas of concern. The seniority prin-
ciple is its answer to situations such as that de-
scribed above. To charges that seniority gives no
heed to a man’s ability or even his need, a union man
will reply that at least it is objective. He knows
where he stands. There is a rule, and a union to en-
force it on his behalf.
Chamberlain, THE UNION CHALLENGE TO MANAGEMENT
CONTROL 93-94 (1948).
4. In the collective bargaining process, the senior-
ity factor is there at the insistence of the union, and
it is management which insists on the protective
flexibility of the equal ability requirement. It is a
49a
Appendix.
tempt to reconcile the union’s concern for seniority with
management’s concern for skill and ability by requiring
that seniority prevail if skill and ability are substantially
equal.5 The ultimate decision in the case of a dispute is
management judgment that the junior employee has
such superior ability that seniority may be ignored.
The union is the defender of the seniority concept
and can be expected to grieve in all promotion-by-
pass cases except those in which the senior employee
is clearly unqualified (and even a fair number of
those situations get taken up). It is novel to assert
that the union has a duty to make its own deter-
mination of the qualifications of the junior employee
as a prerequisite to supporting the grievance of the
passed-over senior. Further, it is unrealistic to con-
sider the two employees as being on the same footing
as oo, as the contract and the union’s duty are con-
cerned.
W. Murphy, Due Process and Fair Representation in the
Public Sector, PROCEEDINGS OF THE THIRTIETH ANNUAL
MEETING, NATIONAL ACADEMY OF ARBITRATORS, BNA 139-
140 (1977).
5. In Butler v. Local U. 823, Int. Bro. of Teamsters,
514 F.2d 442 (8th Cir), cert. denied, 423 U.S. 924 (1975),
the operations of two plants of a corporation were con-
solidated into the newer of the two plants. The national
agreement covering both plants provided that when two
plants were consolidated in this fashion, seniority would
be governed by the length of service with the company.
Application of the rule would have resulted in almost all
of the employees from the older, abandoned plant retain-
ing their jobs and the employees of the newer plant
being laid off. To avoid this result, the local union and
management agreed to slot the employees according to
relative seniority in each plant rather than straight com-
pany seniority. When the older employees of the aban-
doned plant filed grievances, the local union refused to
process them. We held that the local union had violated
its duty to represent the employes fairly because it had
breached its duty to insist that the employer adhere to
50a
Appendix.
given to the arbitrator. We should leave it there.
The majority opinion effectively rewrites this and
thousands of similar collective bargaining agreements.
It places an intolerable burden on bargaining unit rep-
resentatives. In every case where two or more persons
bid for vacancies, a union will have no practical alterna-
tive but to hold an internal union hearing comporting
with minimum due process standards to determine
whether any of the senior employees who bid for the
job have skills and abilities substantially equal to those
of the junior employee awarded the position. No matter
how a union decides this issue, however, the problem will
not be resolved. If the senior employee loses before the
union tribunal, he rmay well bring an action against the
union for failure to fairly represent him. If the senior
employee wins before the union tribunal, he will still
have to proceed to arbitration. The new procedure will
waste time, increase back pay awards and keep the
unions in constant turmoil. The present procedure of
processing apparently meritorious claims of senior em-
ployees not only comports with the specific language of
the contract which resulted in discrimination against the
senior employees. Thus, we recognized the agreement be-
tween the parties and insisted that it be upheld although
a merger of the seniority list migh. have appeared
equitable.
6. We have no right to overturn the arbitrator’s
decision since it clearly drew its essence from the col-
lective bargaining agreement. United Steelworkers v.
Enterprise Corp., 363 U.S. 593 (1960) ; Kewanee Machin-
ery v. Local U. No. 21, Intern. Bro., 593 F.2d 314 (8th Cir.
1979) ; Local 4076, United Steelworkers v. United Steel-
workers, 338 F.Supp. 1154 (W.D. Pa. 1972).
5la
Appendix.
the agreement but also protects the rights of members
and insures industrial peace.
The majority quotes from Humphrey v. Moore, 375
U.S. 335 (1964), in its opinion. The opinion does not,
however, support the panel’s decision. To the contrary,
the view espoused by the panel is rejected.
[W]e are not ready to find a breach of the collective
bargaining agent’s duty of fair representation in
taking a good faith position contrary to that of
some individuals whom it represents nor in support-
ing the position of one group of employees against
that of another. * * * “Inevitably differences arise
in the manner and degree to which the terms of any
negotiated agreement affect individual employees
and classes of employees. The mere existence of
such differences does not make them invalid. The
complete satisfaction of all who are represented is
hardly to be expected. A wide range of reasonable-
ness must be allowed a statutory bargaining repre-
sentative in serving the unit it represents, subject
always to complete good faith and honesty of pur-
pose in the exercise of its discretion.” [Ford Motor
Co. v. Huffman, 345 U.S. 330, 338 (1953.)] Just as a
union must be free to sift out wholly frivolous griev-
ances which would only clog the grievance process,
7. The Union’s decision to process the grievances
of the four senior employees was not based on a blind
adherence to the seniority principle. The grievances were
taken to arbitration only after a staff representative
of the United Steelworkers International Union reviewed
the work and experience records of the employees ap-
pointed to the job by the Company and the grievants.
Nothing in the record supports the panel’s contention
that the Union takes every grievance of every senior
employee who claims a job by seniority to arbitration.
52a
Appendix.
so it must be free to take a position on the not so
frivolous disputes. Nor should it be neutralized when
the issue is chiefly between two sets of employees.
Conflict between employees represented by the same
union is a recurring fact. To remove or gag the union
in these cases would surely weaken the collective
bargaining and grievance processes.
As far as this record shows, the union took its
position honestly, in good faith and without hostil-
ity or arbitrary discrimination. After Dealers ab-
sorbed the Louisville business of E & L, there were
fewer jobs at Dealers than there were Dealers and
E & L drivers. One group or the other was going to
suffer. If any E & L drivers were to be hired at
Dealers either they or the Dealers drivers would not
have the seniority which they had previously en-
joyed. Inevitably the absorption would hurt some-
one. By choosing to integrate seniority lists based
upon length of service at either company, the union
acted upon wholly relevant considerations, not upon
capricious or arbitrary factors. The evidence shows
no breach by the union of its duty of fair represen-
tation.
Id, at 349-350.
The majority also cites a number of cases for the
proposition that the Union’s decision to process the
grievances of senior employees without first providing
some type of hearing to the applicants manifested an
arbitrary and perfunctory approach to handling the mat-
ter. We find them to be inapposite.
In Griffin v. International U., United Automobile,
A.& A. I. W., 469 F.2d 181 (4th Cir. 1972), a bargaining
53a
Appendix.
agent was found to have breached its duty to fairly
represent an employee discharged for fighting. Although
the bargaining agent filed a grievance contesting the
discharge with the supervisor invol]ved in the fight, it
subsequently refused to process the grievance because of
friendship between the union president and the super-
visor.
In De Arroyo v. Sindicato de Trabajadores Packing.,
AFL-CIO, 425 F.2d 281 (1st Cir.), cert. denied, 400 U.S.
877 (1970), six employees were discharged when the
plant was automated. They filed grievances contending
that employees with less seniority had been retained on
the payroll by the company. The bargaining agent was
found to have breached its duty to represent the em-
ployees fairly by failing to investigate the employees’
claim that junior employees had been retained on the
job in preference to them.
In Foust v. International Broth. of Elec. Workers,
572 F.2d 710 (10th Cir. 1978), an employee was dis-
charged for failure to report for duty at the expiration
of a leave of absence. He asked his bargaining agent to
file a grievance on his behalf. The bargaining agent
failed to file a grievance within sixty days as required
by the collective bargaining agreement, giving no reason-
able excuse for failing to do so.
In Minnis v. Intern. U., United Auto., Aerospace,
Etc., 531 F.2d 850 (8th Cir. 1975), an employee was dis-
charged for falsifying a medical form necessary to re-
ceive back pay. The bargaining agent processed the
grievance through the first three steps of the process
and then informed the company that it would not take
the matter to arbitration. The bargaining agent was
found to have violated its duty of fair representation
54a
Appendix.
because it failed to inform the employee of its decision
not to arbitrate the matter until six months after it had
made the decision.
In Ruzicka v. General Motors Corporation, 523 F.2d
306 (6th Cir. 1975), an employee was discharged for
intoxication. The bargaining agent processed his griev-
ance through the first two stages of the grievance pro-
cedure, but inexplicably neglected to take the grievance
through the third stage of the process. It failed to in-
form the employee that it was not going to continue
with the matter. Again, the bargaining agent was found
to have violated its duty to represent the employee fair-
ly because of this failure.
A common thread runs through De Arroyo, Foust,
Minnis and Ruzicka. In each case, the bargaining repre-
sentative was grossly or inexplicably negligent in fail-
ing to process a grievance submitted to it by an employee
without a sound reason for its decision. Compare Ethier
v. United States Postal Service, 590 F.2d 734 (8th Cir.
1979). In Griffin, there were allegations of bad faith.
Here, there are neither allegations of gross of inexplic-
able negligence nor of bad faith. We simply have a case
in which the Union has made a conscious assessment of
competing values and has made that assessment con-
sistent with past practice. We must, therefore, reject
the majority’s contention that “[t]he union’s choice to
process all grievances based on seniority discriminated
against employees receiving promotions on the basis of
merit.”
The majority’s alternative reason for overruling
the district court stands on equally shakey grounds. It
states that the “jury could also have found evidence of
a breach of the duty of fair representation on the basis
50a
Appendix.
that the union failed to notify plaintiffs of the arbitra-
tion hearing or invite them to attend.”
We agree that failing to notify union members of an
arbitration hearing or refusing to permit them to attend
and present their own case might, in some cases, consti-
tute grounds for finding a breach of the duty of fair
representation. See Bond v. Local Un. 823, Int. Br. of
T.,C., W. & H. of America, 521 F.2d 5 (8th Cir. 1975).
Contra, Ramsey v. N.L.R.B., 327 F.2d 784 (7th Cir.),
cert. denied, 377 U.S. 1003 (1964). Here, however, the
plaintiffs knew that the arbitration hearing would be
held and did not ask to attend. The plaintiffs had pre-
sented their case on skill and ability to management, and
management presented that same case to the arbitrator.
The plaintiffs made no claim that they could have pre-
sented additional evidence to the arbitrator that was not
merely cumulative. They made no showing that the re-
sult would have been different had the matter been dif-
ferently presented. Under these circumstances, the trial
court properly refused to speculate as to what would
have been added by their presence. See Humphrey v.
Moore, supra at 351; Deboles v. Trans World Airlines,
Inc., 552 F.2d 1005 (3rd Cir.), cert. denied, 434 U.S. 837
(1977). See also Cronin v. Sears, Roebuck & Co., 588
F.2c 616 (8th Cir. 1978).
Moreover, even if we were to hold that junior em-
ployees must be invited to attend arbitration proceed-
ings and be given a chance to present their own case on
skill and ability, and that the Union breached its duty
by failing to extend such an invitation, we do not know
whether the jury found liability on the first or second
theory since they were submitted conjunctively. Thus,
a remand for a new trial on this theory would be re-
56a
Appendix.
quired rather than a reinstatement of the jury’s verdict.
See Superior Combustion Industries v. Schollman Bros.
Co., 271 F.2d 357 (8th Cir. 1959).
Accordingly, we would affirm the District Court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
57a
Appendix.
UNITED STATES COURT OF APPEALS
For THE EIGHTH CIRCUIT
No. 78-1034
No. 78-1073
No. 78-1092
CHARLES W. SMITH, JOHN }
PASLEY and RALPH SERINI,
ee Appeals from the
HUSSMANN REFRIGERATOR $United States District
Company and Loca. 13889, | Court for the Eastern
UNITED STEELWORKERS District of Missouri
OF AMERICA,
Appellees-Cross-A ppellants. ;
Submitted: July 14, 1978
Filed: January 3, 1979
Before GIBSON, Chief Judge, HENLEY, Circuit Judge,
and EISELE, District Judge.*
GIBSON, Chief Judge.
Plaintiffs Charles Smith, John Pasley and Ralph
Serini brought suit in the United States District Court
for the Eastern District of Missouri against Hussmann
Refrigerator Company (hereinafter referred to as Huss-
mann or the company) and Local 13889, United Steel-
workers of America (hereinafter referred to as the
union) for breach of the collective bargaining agreement
and breach of the duty of fair representation. In Counts
*The Honorable G. Thomas Eisele, Chief Judge,
United States District Court for the Eastern District of
Arkansas, sitting by designation.
58a
Appendix.
II and III, plaintiff Pasley, a black male, charged viola-
tions of 42 U.S.C. §§ 1981 and 1985, alleging that de-
fendants discriminated against him on the basis of his
race by denying him the rights to make and enforce
contracts and by conspiring to deprive him of the equal
protection of the law.
The claims of breach of the collective bargaining
agreement and breach of the duty of fair representation
were tried to a jury which rendered a verdict against
poth defendants in favor of plaintiff Smith in the amount
of $6500 and plaintiff Pasley in the amount of $2500.
Also, in response to special interrogatories, the jury
found that plaintiffs Smith and Serini shouid be awarded
the classification of maintenance pipefitter, and that
plaintiff Pasley’s seniority in the pipefitter classification
should be upgraded. The District Court! entered judg-
ment in accordance with the jury verdict, but subse-
quently denied plaintiffs’ motions for supplementary
judgment to effect the advisory opinion of the jury in
answer to the special interrogatories, and granted de-
fendants’ motions for judgments notwithstanding the
verdict.2 Plaintiffs Pasley, Smith and Serini appeal from
the grant of defendants’ motions and the denial of their
motion and request reinstatement of the jury verdict
and an order implementing the jury’s advisory opinion.
The claims of race discrimination set forth in Counts
II and III were removed from iury consideration, and the
court, finding no evidence of racial discrimination, de-
termined that neither defendant had violated 42 U.S.C.
1. The Honorable John F. Nangle, United States
District Judge, Eastern District of Missouri.
2. The District Court opinion is reported at 442
F. Supp. 1144 (E.D. Mo. 1977).
59a
Appendix.
§§ 1981 and 1985.° Plaintiff Pasley claims error in the
removal of this claim from the jury and also appeals
from the decision on its merits.
On cross-appeal defendants argue that if the judg-
ment notwithstanding the verdict is reversed, they are
entitled to a new trial for the reasons that plaintiffs had
no right to a jury trial; certain jury instructions were
improper; and the District Court erred in excluding evi-
dence of the National Labor Relations Board’s (NLRB)
dismissal of plaintiffs’ charges of unfair representation.
At all times relevant to this proceeding, plaintiffs
were employees at Hussmann’s Bridgeton, Missouri,
plant and were members of the union, and a collective
bargaining agreement between defendants was in effect
pursuant to which the union represented approximately
1500 production and maintenance employees at Huss-
mann’s Bridgeton plant. This agreement specifically pro-
vided that in the matter of promotions seniority should
govern when the factors of ability and skill are substan-
tially equal between those being considered.+
On April 22, 1975, Hussmann, in accordance with
the collective bargaining agreement, posted two open-
ings for temporary positions as maintenance pipefitters.
Sixty-four employees bid for these openings. Hussmann’s
maintenance foreman, Schwartz, interviewed groups of
3. The District Court opinion is reported at 433
F. Supp. 690 (E.D. Mo. 1977).
4. As stated in the company’s brief: ‘The parties’
contract provides generally (Article 9, § 1 and Article
10, § 1) that seniority, skill and ability are factors to be
considered by the company in making promotions. These
two sections further expressly provide that when skill
and ability are substantially equal, ‘seniority shall gov-
ern.’ ”
60a
Appendix.
the most senior employees and selected Pasley and Smith
on the basis of superior skill and ability. On May 6, 1975,
Hussmann posted an opening for a permanent mainte-
nance pipefitter. Although forty-six employees bid for
this position, it was awarded to Pasley since he was
already working in the classification. Three more posi-
tions in this classification, one permanent and two tem-
porary, opened on May 13, 1975. An employee who had
previously held the classification received the permanent
job. Plaintiff Serini and another employee, Watson, re-
ceived the temporary positions. Subsequently, plaintiff
Smith bid into a permanent position as maintenance
pipefitter as a result of an opening posted May 20, 1975.
Twenty-six unsuccessful bidders filed grievances
claiming that Hussmann had violated the collective bar-
gaining agreement in making the promotions. Of these
grievances, the union selected four to process. These four
had been filed by the most senior employees with greater
seniority than the successful bidders. The union proc-
essed these grievances through the five-step grievance
and arbitration procedure, as described in the collective
bargaining agreement, solely on the basis of the griev-
ants’ seniority. At no time did the union evaluate the
merits of these grievances in terms of comparing the
skill and ability of the grievants with those of the suc-
cessful bidders even though the validity of the griev-
ances depended upon substantial equality of skill and
ability.
At the arbitration hearing, the union called each of
the four grievants to testify about his skill and ability.
The successful bidders were not invited to attend the
hearing and their only representation was presented by
Hussmann’s foreman, Schwartz, who related the sub-
6la
Appendix.
stance of his interviews with the successful bidders as
well as the substance of his interviews with the griev-
ants.
On October 3, 1975, the arbitrator issued his award.
He clearly denied two of the grievances on the grounds
that the grievants lacked substantial equality of skill
and ability. The arbitrator granted two grievances, those
of Dattilo and Krassinger, and ordered Hussmann to
give them the jobs with retroactive seniority and back
pay. Further, the award named as those entitled to hold
the maintenance pipefitter classification: Dattilo, Pasley,
Smith, Watson, Krassinger and Serini.
Hussmann and the union received this award with
some hesitations. Only four jobs were open, but six em-
ployees had been awarded the classification. While Huss-
mann interpreted the award to grant the pipefitter clas-
sification to all those on the list, the union objected that
the arbitrator did not have authority to create six clas-
sifications from four posted jobs.5 The award also mis-
stated the seniority of plaintiff Smith, giving him ten
years more seniority than he actually had, and awarded
Watson a position for which he had not bid.
To cure these errors and ambiguities in the award
and to avoid problems in its administration, defendants
asked the arbitrator for clarification. A meeting for this
purpose was held October 31, 1975. No additional testi-
mony was taken and no employees were present except
representatives of Hussmann and the union. As a result
5. The mere status of the classification was im-
portant because employees with the classification have
priority in filling vacancies. Thus, two extra classifica-
tions would remove two future vacancies from prospec-
tive bidders.
62a
Appendix.
of prior discussions the parties agreed to stipulate to
the employees’ actual seniority dates and that only four
employees could obtain the pipefitter classification. The
arbitrator’s supplemental and corrective decision, issued
November 4, 1975, awarded the pipefitter classification
to the four most senior employees in the order of their
seniority. Thus, Dattilo, Krassinger, Watson, and Pasley
received the classification in that order.6 Smith and
Serini were entitled to be paid for the time they actually
performed the job, but on any future vacancies their bid
would be considered on the same basis as any other em-
ployee without seniority in the classification.
Plaintiffs attempted to file grievances to challenge
the November 4 award. Smith and Serini alleged that
they were entitled to the classification, and Pasley chal-
lenged the realignment of his seniority. The union re-
fused to process the grievances because of the view that
the collective bargaining agreement requires an arbitra-
tor’s decision to be considered the final resolution of a
dispute, precluding further grievances on the matter.
Thereafter, plaintiffs instituted this action.
I. RACE DISCRIMINATION
On appeal, plaintiff Pasley claims that the District
Court clearly erred by removing Pasley’s claim of race
discrimination from consideration of the jury and by
holding that the evidence failed to establish that de-
fendants violated his rights on account of his race. We
6. Because the arbitrator demoted Pasley to the
lowest seniority in the classification, he was temporaril
removed from the position due to a reduction in the wor
force. He eecmigie pm bid back into the position and
held it at the time of trial.
63a
Appendix.
find these contentions to be without merit and affirm the
District Court on the basis of its well-reasoned memo-
randum opinion. Plaintiff Pasley failed to establish that
any action taken by defendants was the result of race
discrimination and the evidence revealed that he was not
treated differently from other, white employees. Further-
more, the removal of this claim from the jury cannot
be grounds for reversal since plaintiff Pasley did not
present sufficient evidence to support a jury verdict in
his favor.7 See Hays v. Consolidated Service Corpora-
tion, 517 F.2d 564, 565-66 (1st Cir. 1975) ; Minnis v. In-
ternational Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, 531
F.2d 850, 853 (8th Cir. 1975); King v. United Benefit
Fire Insurance Co., 377 F.2d 728, 731 (10th Cir.), cert.
denied, 389 U.S. 857 (1967) ; Freeman Contractors, Inc.
v. Central Surety and Insurance Corp., 205 F.2d 607, 612
(8th Cir. 1953). ys
II. THE COLLECTIVE BARGAINING AGREEMENT
On appeal, plaintiffs contend that the judgment not-
withstanding the verdict was improper because the jury
could have found that defendants violated the collective
bargaining agreement by submitting the original arbi-
tration decision to the arbitrator for clarification. We
view this as too rigid a position. While the collective
7. We find it unnecessary to decide whether the re-
quested remedy of reinstatement of seniority classifica-
tion plus back pay should be characterized in this situa-
tion as a request for purely equitable relief. As an equi-
table claim, plaintiff Pasley would not be entitled to a
jury trial regardless of unsupported allegations for puni-
tive damages. See Sige v. Pan American World Air-
ways, Inc., 475 F.2d 764, 765 (Sth Cir. 1973).
64a
Appendix.
bargaining agreement provided that arbitration should
be the final resolution of a dispute and binding on the
parties, this does not preclude requesting an arbitrator
to clarify an ambiguous award. The arbitral process is
not complete until it produces a decision, properly lim-
ited to the scope of the controversy, that clearly speci-
fies the respective rights and duties of those involved.
The original award contained errors and ambiguities
and it may have been beyond the scope of the arbitra-
tor’s authority. It could not be implemented without
engendering further dispute. The District Court appro-
priately concluded that the proper course of action was
to request clarification from the arbitrator. Bell Aero-
space Company Division of Textron, Inc. v. Local 516,
International Union, United Automobile Aerospace and
Agricultural Implement Workers of America (UAW),
500 F.2d 921, 923-24 (2d Cir. 1974) ; San Antonio News-
paper Guild Local No. 25 v. San Antonio Light Division,
481 F.2d 821, 825 (5th Cir. 1976) ; International Brother-
hood of Electrical Workers, Local 869, AFL-CIO v. Olin
Corporation, 471 F.2d 468, 472 (6th Cir. 1972) ; Printing
Pressman’s Union No. 135 v. Cello-Foil Products, Inc.,
459 F.2d 754, 756 (6th Cir. 1972) ; La Vale Plaza, Inc. v.
R. 8. Noonan, Inc., 378 F.2d 569, 572-73 (3d Cir. 1967) ;
Local 719, American Bakery and Confectionery Workers
of America, AFL-CIO v. National Biscuit Company, 378
F.2d 918, 926 (3d Cir. 1967); Hanford Atomic Metal
Trades Council, AFL-CIO v. General Electric Company,
353 F.2d 302, 307-08 (9th Cir. 1966).
Before the clarification hearing, Hussmann and the
union discussed the problems with the arbitration award
and agreed to resolve some of the conflict. Before the
arbitrator, they stipulated to the correct seniority dates,
65a
Appendix.
the bids made for the positions, and that only four clas-
sifications could be awarded. Plaintiffs allege that the
stipulation concerning the number of classifications
violated their rights under the collective bargaining
agreement. We cannot accept this characterization of
the stipulations. The collective bargaining agreement did
not cover the issue of whether six employees could be
awarded the classification and the past practices of the
parties did not set a clear example. By agreeing to limit
the number of classifications to the number of openings,
the parties merely resolved a problem not covered by the
collective bargaining agreement; they did not modify
or alter contractual rights. See Price ». International
Brotherhood of Teamsters, 457 F.2d 605, 610-11 (3d Cir.
1972). The settlement was within the range of reason-
ableness permitted the bargaining agent. Ford Motor
Company v. Huffman, 345 U.S. 330, 338-39 (1953). It did
not prejudice the ability of any particular employee to
enter the maintenance pipefitter classification in the
future, but merely placed all employees on an equal foot-
ing. Also, it is clear that the company and the union were
free to negotiate a good faith settlement of the dispute
before resorting to arbitration. Vaca v. Sipes, 386 U.S.
171, 192 (1967).
III. THE Duty or FAIR REPRESENTATION
Plaintiffs contend that the District Court erred in
granting the union’s motion for judgment notwithstand-
ing the verdict because sufficient evidence was presented
from which the jury could have found that the union
breached its duty of fair representation as owed to plain-
tiffs. The standard for granting judgment notwithstand-
ing the verdict is the same as for a directed verdict.
Schneider v. Chrysler Motors Corp.,.401 F.2d 549, 554
66a
Appendix.
(8th Cir. 1968). As stated by this court in Lord v. Wil-
kerson, 542 F.2d 1034, 1035 (8th Cir. 1976) :
A motion for a directed verdict should be
granted “only when all the evidence points one way
and is susceptible of no reasonable inferences sus-
taining the position of the nonmoving party.” Barc-
lay v. Burlington Northern, Inc., supra, 536 F.2d
at 267; Decker-Ruhl Ford Sales, Inc. v. Ford Motor
Credit Co., 523 F.2d 833, 836 (8th Cir. 1975). As this
Court has noted,
[A] motion for a directed verdict is properly
denied where the evidence presented allows
reasonable men in a fair exercise of their judg-
ment to draw different conclusions. * * * In
making this determination, the evidence, to-
gether with all reasonable inferences to be
drawn therefrom, must be viewed in the light
most favorable to the nonmoving party. (Cita-
tions omitted. )
Vickers v. Gifford-Hill and Co., 534 F.2d 1311, 1315
(8th Cir. 1976), quoting Giordano v. Lee, 434 F.2d
1227, 1231 (8th Cir. 1970), cert. denied, 403 U.S. 931,
91 S.Ct. 2250, 29 L.Ed.2d 709 (1971).
See also Voegli v. Lewis, 568 F.2d 89, 92 (8th Cir. 1977) ;
Banks v. Koehring Co., 538 F.2d 176, 178 (8th Cir. 1976) ;
Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851, 857
(8th Cir.), cert. denied, 423 U.S. 865 (1975).
After a careful review of the record, we conclude
that plaintiffs presented sufficient evidence to support
the jury’s finding of a breach of the duty of fair repre-
sentation, and, therefore, reverse the judgment of the
District Court as it relates to this claim.
67a
Appendix.
The duty of fair representation developed as a
corollary to the collective bargaining system promoted
by Congress and administered by the NLRB. This sys-
tem grants to a union the power to act as exclusive bar-
gaining representative and necessarily subordinates the
interests of an individual employee to the collective
interests of all employees in the bargaining unit. Vaca
v. Sipes, Supra, 386 U.S. at 182. Because of the reduction
in the individual rights of employees thus represented
by a union, the controlling statutes have long been inter-
preted as imposing upon the union, as exclusive bargain-
ing agent in the negotiation and administration of the
collective bargaining contract, a responsibility and duty
to fairly represent as individuals as well as collectively
the employees within the bargaining unit. Humphrey v.
Moore, 375 U.S. 335, 342 (1964) ; Ford Motor Company
v. Huffman, 345 U.S. 330, 337-38, Steele v. Louisville &
Nashville Railroad Co., 323 U.S. 192, 202 (1944).
The rationale for this statutory interpretation was
clearly expressed by the United States Supreme Court:
It is the principle of general application that the
exercise of a granted power to act in behalf of
others involves the assumption toward them of a
duty to exercise the power in their interest and be-
half, and that such a grant of power will not be
deemed to dispense with all duty toward those for
whom it is exercised unless so expressed.
Steele v. Louisville & Nashville Railroad Co., 323 U.S.
192, 202 (1944).
While the scope of the duty of fair representation
has never been precisely defined, it “is a legal term of
art, incapable of precise definition” and calls for an ad
68a
Appendix.
hoc review of each factual situation. Griffin v. Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, 469 F.2d
181, 182 (4th Cir. 1972). Its evolution through the fires
of court decisions leaves no doubt about its purpose.
St. Clair v. Local Union No. 515 of the International
Brotherhood of Teamsters, 422 F.2d 128, 130 (6th Cir.
1969). The duty of fair representation balances the col-
lective and the individual interests of employees in the
bargaining unit as these interests are represented by a
labor organization in order to promote the goals of con-
gressional labor legislation, to minimize industrial strife
and encourage full production. In particular, ‘‘the duty
8. 200U.5S.C. § 141(b) provides:
(b) Industrial strife which interferes with the
normal flow of commerce and with the full produc-
tion of articles and commodities for commerce, can
be avoided or substantially minimized if employers,
employees, and labor organizations each recognize
under law one another’s legitimate rights in their
relations with each other, and above all recognize
under law that neither party has any right in its
relations with any other to engage in acts of prac-
tices which jeopardize the public health, safety, or
interest.
It is the purpose and policy of this chapter, in
order to promote the full flow of commerce, to pre-
scribe the legitimate rights of both employees and
employers in their relations affecting commerce, to
provide orderly and peaceful procedures for prevent-
ing the interference by either with the legitimate
rights of the other, to protect the rights of indivi-
dual employees in their relations with labor organi-
zations whose activities affect commerce, to define
and prescribe practices on the part of labor and
management which affect commerce and are inimical
to the general welfare, and to protect the rights of
the public in connection with labor disputes affect-
ing commerce.
69a
Appendix.
of fair representation has stood as a bulwark to prevent
arbitrary union conduct against individuals stripped of
traditional forms of redress by the provisions of federal
labor law.” Vaca v. Sipes, supra, 386 U.S. at 182.
In order to meet its purpose, the scope of the duty
of fair representation is in some ways very broad. The
responsibility to fair)y represent employees is equal in
scope to the union’s broad authority in the negotiation
and administration of the collective bargaining agree-
ment. Humphrey v. Moore, 375 U.S. 335, 342 (1964).
Thus the duty attaches to all stages of the negotiation
and administration process and is owed to all employees
within the unit represented. However, because of the
need to properly balance the individual interests of em-
ployees with their collective interests, the duty of fair
representation must not be construed to subvert the
basic purposes of organized labor by inhibiting union
representation of collective interests. The Supreme Court
has stated that in the negotiation process, “‘[a] wide
range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it repre-
sents, subject always to complete good faith and honesty
of purpose in the exercise of its discretion.” Ford Motor
Company v. Huffman, supra, 345 U.S. at 338. The stand-
ard by which to measure union conduct was further de-
fined in Vaca v. Sipes, 386 U.S. 171 (1967). In the admin-
istration of the collective bargaining agreement, the
union has “a statutory obligation to serve the interests
of all members [of a designated unit] without hostility
or discrimination toward any, to exercise its discretion
with complete good faith and honesty, and to avoid arbi-
trary conduct.” Jd. at 177.
70a
Appendix.
The Fourth Circuit Court of Appeals clearly articu-
lated the import of Vaca in Griffin v. International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, 469 F.2d 181, 183 (4th
Cir. 1972) ;
A union must concern its behavior to each of these
three separate standards. First, it must treat fac-
tions and segments of its membership without hos-
tility or discrimination. Next, the broad discretion
of the union in asserting the rights of its individual
members must be exercised in complete good faith
and honesty. Finally, the union must avoid arbitrary
conduct. Each of these requirements represents a
distinct and separate obligation, the breach of which
may constitute the basis for civil action.
** & &
* * * Without any hostile motive of discrimina-
tion and in complete good faith, a union may never-
theless pursue a course of action or inaction that is
so unreasonable and arbitrary as to constitute a
violation of the duty of fair representation.
Applying this standard to the union’s conduct in process-
ing the grievance challenging plaintiffs’ promotions, we
find that sufficient evidence existed for the jury to con-
clude that the union exceeded the permissible range of
reasonableness with regard to its representation of plain-
tiffs. There can be no question that the scope of the duty .
of fair representation encompasses plaintiffs’ interests
in this situation. Plaintiffs were employees within the
bargaining unit and processing grievances is within the
broad authority of the union as the employees’ exclusive
agent in the administration of the collective bargaining
71la
Appendix.
agreement.9 See Vaca v. Sipes, Supra, 386 U.S. at 177.
The processing of the grievances against plaintiffs was
intended to and did decide plaintiffs’ rights to the pro-
motions, which plaintiffs had received from management
on the basis of their superior skill and ability. See Ted-
ford v. Peabody Coal Company, 533 F.2d 952, 959 (5th
Cir. 1976) (‘the union in making its decision not to put
[grievant] back in his old position had a duty to con-
sider not only the interests of [the grievant] but also
those of the twelve employees who would suffer from the
resulting rollback * * *.”); Bond v. Local Union 823,
International Brotherhood of Teamsters, 521 F.2d 5, 9
(8th Cir. 1975), (union processed “test” case grievance
rather than plaintiff’s grievance). This is analogous to
9. The collective bargaining agreement between
Hussmann and the union granted to the union the ex-
clusive power to process and settle grievances and to
carry cases to arbitration.
By virtue of this contractually derived status
as the exclusive enforcer of the collective agree-
ment, the union assumes a heavy responsibility to
exercise its control on behalf of, rather than against
the individual employee. The collective agreement
creates rights in the individual employee which are
enforceable under section 301. In the absence of a
union controlled grievance procedure the individual
can sue and enforce his rights in his own behalf.
The effect of the contractual provision giving the
union exclusive control over the grievance proce-
dure is to deprive the individual of his ability to
enforce the contract on his own behalf. The union,
having deprived the individual of his ability to en-
force his rights, has a special obligation to act on
his behalf.
Summers, The Individual Employees’ Rights Under The
Collective Agreement: What Constitutes Fair Represen-
tation? 126 U. Pa. L. Rev. 251, 256 (1977) (footnote
omitted).
72a
Appendix.
when a union processes the grievances of some employ-
ees regarding their seniority status. Upholding the
grievances necessarily derogates the seniority of other
employees. Butler v. Local Union 8238, International
Brotherhood of Teamsters, 514 F.2d 442, 455 (8th Cir.),
cert. denied, 423 U.S. 924 (1975). In that situation the
union must fairly represent both groups of employees
and may take a position in favor of one group only on the
basis of an informed, reasoned judgment as to the merits
of the claims in terms of the language of the collective
bargaining agreement. See Humphrey v. Moore, 375 U.S.
335 (1964); Deboles v. Trans World Airlines, Inc., 552
F.2d 1005, 1015 (3d Cir. 1977); Price v. International
Brotherhood of Teamsters, 457 F.2d 605, 611 (3d Cir.
1972).
This duty to fairly represent all employees is not
diminished because plaintiffs’ rights were created by
Hussmann. The particular provision of the collective
bargaining agreement provided that employees with
superior skill and ability were entitled to promotion over
those with greater seniority only if the company elected
to assert its right to promote on the basis of skill and
ability. This provision, typically referred to as a “modi-
fied seniority clause,” controlled the promotion machin-
ery. The company asserted its right to choose on the
basis of skill and ability because of the belief that the
position of maintenance pipefitter required greater ex-
pertise than most positions within the company. It is
significant that no openings in this classification had
occurred for over thirteen years; thus the company did
not have any established past practices for promotions
into this classification with which the union could chal-
lenge compliance, Hussmann had a right to choose on
the basis of skill and ability, and by its exercise of this
73a
Appendix.
right it vested plaintiffs with rights under the collective
bargaining agreement to hold the positions to which
they were promoted.19 The collective bargaining agree-
ment clearly provided that employees promoted by the
company on the basis of superior skill and ability are
entitled to hold ‘heir promotions even against challenges
by employees with greater seniority. Thus, plaintiffs
possessed rights under the collective bargaining agree-
ment which the union had a fiduciary duty to protect.11
The fact that their rights were contingent upon selection
by the company became irrelevant once that contingency
was resolved and not challenged. It is no different from
the condition that plaintiffs possess superior skill and
ability, which was the condition challenged by the
grievants. The union took a blind, arbitrary stand in
favor of seniority without even investigating plaintiffs’
skill and ability, and treated plaintiffs as adversaries in
its zealous insistence on seniority vel non.
10. Hussmann’s promotion of the junior employees
on the basis of substantially superior skill and ability
vested them with rights as third party beneficiaries of
the collective bargaining agreement. Thus even the com-
pany would be bound to respect these rights and follow
the terms of the collective bargaining agreement in the
event it desired to remove the employees from the clas-
sification.
11. Because by the terms of the collective bargain-
ing agreement only the company had the power to vest
employees with a right to a promotion, the union ob-
viously owed no duty to represent employees other than
those selected by the company and those with greater
seniority than the employees selected. No other em-
Lag ea could possibly have any rights to the promotions
under the collective bargaining agreement. Local Union
1857, International Brotherhood of Electrical Workers,
AFL v. Mutual Telephone ween gees A 23 Lab. Cas. {]
67,634 at 83,792 (Sup. Ct. Hawaii 1952).
74a
Appendix.
The nature of the union’s duty in a dispute among
employees is not changed by the company taking a posi-
tion in the grievance procedure. Even though a com-
pany may take a position favorable to a particular group
of employees, the union may not abandon that particu-
lar group to the representation as afforded by the com-
pany favoring them. See Deboles v. Trans World Air-
lines, Inc., 552 F.2d 1005 (3d Cir. 1977) ; Price v. Interna-
tional Brotherhood of Teamsters, 457 F.2d 650 (3d Cir.
1972). The union is the agent of all employees in the
unit and owes a fiduciary duty to represent their inter-
ests and rights under the collective bargaining agree-
ment. Here the union not only abandoned the plaintiffs
but took a negative and adversary attitude toward them
regarding the positions they had received by reason of
the company’s opinion of their skill and ability.
The first aspect of the union’s conduct in processing
the grievances challenging plaintiffs’ promotions that
indicates substandard tepresentation of plaintiffs’ inter-
ests is the union’s strict adherence to the principle of
seniority. The union concedes that in processing the
grievances it merely followed a policy of favoring em-
ployees with the greatest seniority, but argues that this
cannot be a ground for finding a breach of the duty of
fair representation because it was merely in good faith
applying a neutral principle. Since we agree with the
District Court’s finding that there is no evidence that
hostility toward plaintiffs motivated the use of this
policy, we are squarely presented with the issue of whe-
ther this course of action nevertheless could be found
“so unreasonable and arbitrary as to constitute a viola-
tion of the duty of fair representation.” Griffin v. Inter-
national Union, United Automobile, Aerospace and Agri-
75a
Appendix.
cultural Implement Workers of America, UAW, 469 F.2d
181 (4th Cir. 1972).
Contrary to the arguments of the union, seniority
is not a “neutral” principle. A seniority system is value-
laden, embodying many salutary and legitimate expec-
tations of labor. These systems promote job security
and acknowledge the values of longer service, such as
demonstrated loyalty and greater experience. However,
not all of the values embodied in the principle of senior-
ity favor the best interests of labor or society. The use
of seniority in making promotions may sometimes frus-
trate the basic purposes of congressional labor legisla-
tion and the united labor movement. It can diminish
worker satisfaction and obstruct efficient production,
thus lowering productivity. As a matter of common
sense, verified by behavioral science, a company must
be able to reward employees for superior ability and
performance or face a loss of its most competent em-
ployees and an increase in worker frustration and in-
dolence.
The union’s choice to process all grievances based
on seniority unfairly discriminated against employees
receiving promotions on the basis of merit. This conduct
may be viewed as a perfunctory dismissal of the inter-
ests and rights of plaintiffs. The union simply failed
to represent them in any way. The modified seniority
clause specifically required balancing the interests of
merit and seniority whenever Hussmann deemed that
the position warranted selection on the basis of merit.
Under the collective bargaining agreement, after the
company chose to select on the basis of merit, three
separate considerations were relevant in determining the
right of an employee to be promoted. These were (1)
his selection by the company, (2) on the basis of skill
76a
Appendix.
and ability, (3) superior to the skill and ability of any
senior employee who had bid for the position. The
unions’ disregard for the qualification of superior skill
and ability manifests an arbitrary and perfunctory ap-
proach to promotion interests, just as if it had chosen
to ignore the qualification of selection by the company.
See Griffin v. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, 469 F.2d 181, 183 (4th Cir. 1972); De
Arroyo v. Sindicato de Trabajadores Packing House,
AFL-CIO, 425 F.2d 281, 284 (1st Cir.) , cert. denied, 400
US. 877 (1970) ; Gilstrap v. Mitchell Bros. Truck Lines,
270 Ore. 599, 529 P.2d 370, 374-75 (1974), cert. denied,
421 U.S. 1011 (1975).
As one commentator, after reviewing the applicable
cases, concluded:
When the union’s effort to represent a member
of the collective bargaining unit falls below the level
at which the court can conclude that the union has
made a conscious, earnest effort to represent him,
liability should flow. Upon a claim of substandard
treatment, the union should be required to come
forward with evidence to show why it followed the
course of representation that it did. If the union’s
behavior is based on a conscious assessment of fair-
ly competing values, it should be given broad dis-
cretion in its choice of representation tactics. But
the union should not be allowed to plead, in effect,
that it chose the easier path because of convenience
or rigid adherence to “union policy.”
Bryson, A Matter of Wooden Logic: Labor Law Pre-
emption and Individual Rights, 51 TEX. L. REV. 1037,
1102 (1973).
77a
Appendix.
The jury could easily have found that the union
owed plaintiffs a duty to investigate the merits of the
grievances that challenged plaintiffs’ rights to the pro-
motions. The union may not tie its own hands by blind
adherence to a policy of favoring employees with senior-
ity in order to avoid disputes between employees. ‘‘Con-
flict between employees represented by the same union
is a recurring fact. To remove or gag the union in these
cases would surely weaken the collective bargaining
and grievance processes.” Humphrey v. Moore, supra,
375 U.S. at 349-50. The need for a union to evaluate the
merits of grievances has been recognized repeatedly.
“In administering the grievance and arbitration machin-
ery as statutory agent of the employees, a union must,
in good faith and in a nonarbitrary man
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