# Petition — Local 13889, United Steelworkers v. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2554%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 839 ## Text 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 PAGE NI oo oc acdscenencadnecaxsinrccossossaneveseseennsecs 2 sa cascanbesictauanie 2 Rg 8G ay ys 0 3 STATEMENT OF THE CASE. .................cccccsccscsserssoees 3 a cack iivsscess vpasceiaksasinatinnbsvevaboewie 3 itr R ca penagunsansackys) vxvsiisecesisesvocsdvenisuabiewwes 4 yy | 2: 6 DF 8) | Gann 8 ee a ase dac sant vetgivasktwtacnacnesanssnins 8 I ci ccccente och sks sa vbcucinvencinenvnennce 9 Be oc niscnoncduscsacuaveliee ens 9 2. Opinion on Rehearing ...................sss00 10 a ev avieanchinguavuccniaiionens 12 REASONS FOR GRANTING THE WRIT ................ 13 I aoc circhaa angucdiavakincious 17 Nees sar mabunaicsevasinadcohiinnes la 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 arbitra [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2554%3A1. Public record. Not legal advice.