Petition — Sine v. Mitchell Transport, Inc.

8 . : . 2 5 dteme Court, U 2

4-478 4 FILED

866. SEP 9 198)

— ———

In The

Supreme Court of the United States

OCTOBER TERM, 1980

EASTERN CONFERENCE OF TEAMSTERS,

Cross-Petitioner,

versus

RONALD SINE AND LARRY DANNER,

Cross-Respondents.

Cross-Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

JONATHAN G. AXELROD

(Counsel of Record)

HUGH J. BEINS

Beins, Axelrod & Osborne, P.C.

1511 K Street, N.W., Suite 300

Washington, D.C. 20005

(202) 638-4620

Attorneys for Cross-Petitioner,

Eastern Conference of Teamsters

WO «

QUESTIONS PRESENTED*

1. Whether the statute of limitations which governs an

employee’s action against an employer to vacate an arbitra-

tion award also governs the action against the union for

breach of the duty of fair representation in the arbitration

proceeding.

2. Whether a union member who can obtain full relief

through his internal union procedure should be required to

exhaust such procedure prior to filing an action against his

union for breach of the duty of fair representation.

*In addition to the Eastern Conference of Teamsters, Ronald Sine and

Larry Danner, Mitchell Transport, Inc. and Local 992, International

Brotherhood of Teamsters were parties to the proceeding below.

8

TABLE OF CONTENTS

Page

,,, ss 2

r ̃ ... . 2

ä 2

STATEMENT OF THE CASE ................... 3

% ⁰ͤA ee ˙ . 3

B. The Distriet Court Decision 3 4

C. The Court of Appeals Decision 4

D. Proceedings Before this Court 5

REASONS FOR GRANTING THE WRIT

I. The Cross-Petition Addresses A Major Question

of Labor Law Left Unresolved By The Court’s

Recent United Parcel Service Decision ......... 5

II. The Cross-Petition Addresses A Major Question

of Labor Law Left Unresolved By the Court’s

Recent ITT Gilfillan Decision 8

tts ̃ dT... 9

ORDER DENYING PETITION FOR REHEARING . A-1

OPINION OF THE COURT OF APPEALS ......... B-1

DECISION OF THE DISTRICT COURT ........... C-1

iii

TABLE OF AUTHORITIES

Cases:

Bowen v. United States Postal Service,

en

Butler v. Teamsters Local 823, 514 F. 2d 442

(8th Cir. 1975), cert dendied, 423 U.S. 924 (1975)

Clayton v. UAW [ITT Gilfillan}, _.. U.S. ___ (1981)

Czosek v. O’Mara, 397 U.S. 25(1970) .............

de Arroyo v. Sindicato de Trabajadores Packinghouse,

425 F.2d 281 (Ist Cir. 1970), cert denied, 400

, ¾ʃ !

Hines v. Anchor Motor Freight, Inc.

D es.

IBEW v. Foust, 442 U.S. 42(1979) ...............

Milstead v. Teamsters Local 957, 649 F.2d 395

r ̃⅛ ]˙ a eukie tes

NLRB v. Electrical Workers Local 485, 454 F. 2d 17

hr AAA

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977)

United Auto Workers v. Hoosier Cardinal Corp.,

, kek cnuse duescetevens

United Parcel Service v. Mitchell,

E whee ccccceccdcespasas

Vaca v. Sipes, 386 U.S. 171 (1967) ................

8-9

iv

Statutes: Page

... se 2

Md. Cts. & Jud. Proc. Code Ann. § 3-201, et seq. .... 4

Miscellaneous:

Feller, A general Theory of the Collective

Bargaining Agreement, 61 Cal. L. Rev. 663 (1973) . 8

In The

Supreme Court of the United States

October Term, 1980

No.

Eastern Conference of Teamsters,

Cross-Petitioner,

v.

Ronald Sine and Larry Danner,

Cross-Respondents.

Cross-Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

Petitioner, Eastern Conference of Teamsters, affiliated

with the International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America, petitions for

a Writ of Certiorari to review the judgment of the United

States Court of Appeals for the Fourth Circuit, entered on

May 12, 1981, which affirmed in part, vacated and remand-

ed in part, a decision of the United States District Court for

the District of Maryland.

-2-

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 644

F.2d 997. It is reproduced infra in Appendix (hereafter

“App.”) Bl - B14.

The decision and order of the United States District Court

for the District of Maryland dated August 28, 1979, is

unreported and is reproduced infra (App. CI- C7).

JURISDICTION

The initial judgment (App. B1 - B14) of the Court of Ap-

peals was entered on March 24, 1981. The Court of Appeals

denied Sine and Danner’s petition for rehearing (App. Al

A2) on May 12, 1981. Sine and Danner filed a Petition for a

Writ of Certiorari on August 10, 1981.

STATUTE INVOLVED

Section 301(a) of the Labor Management Relations Act of

1947 (61 Stat. 156, 29 U.S.C. § 185(a)) provides, in pertinent

part:

§ 185. Suits by and against labor organiza-

tions

(a) Venue, amount, and citizenship. Suits for

violation of contracts between an employer

and a labor organization representing

employees in an industry affecting commerce

as defined in this Act, or between any such

labor organizations, may be brought in any

district court of the United States having

jurisdiction of the parties, without respect to

the amount in controversy or without regard

to the citizenship of the parties.

Cross-Petitioner received Cross-

“Respondents' Petition for a Writ™

of Certiorari on August 13, 1981.

-3-

STATEMENT OF THE CASE

A. Facts

Cross-Petitioner Eastern Conference of Teamsters

(hereafter the Conference’’) is an unincorporated labor

organization affiliated with the International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of

America. In early 1977, the Conference provided an at-

torney to assist Teamsters Local 992 (hereafter “Local

992”) in processing a grievance filed by Ronald Sine and

Larry Danner. The grievance was submitted to the Eastern

Area Tank and Cement Haul Joint Area Committee

(hereafter ‘the Joint Committee’’) pursuant to the contract

between Local 992 and Mitchell Transport, Inc. (hereafter

Mitchell“). The Joint Committee deadlocked the Sine and

Danner grievance, thereby referring the grievance to an ar-

bitrator (App. B7, C2 - C3).

As a result of the deadlock, Mitchell and Local 992, pur-

suant to the contract, utilized the services of the Federal

Mediation and Conciliation Service to select an arbitrator.

Jay Kramer, Esq., a nationally known arbitrator and former

Chairman of the New York State Labor Relations Board,

was selected (App. C3).

On October 3, 1977, Mitchell and Local 992, again assisted

by an attorney from the Conference, arbitrated the Sine and

Danner grievance. A court reporter was present and made a

transcript of the proceedings. Both Local 992 and Mitchell

submitted a large number of exhibits, including a three

volume transcript of an earlier civil action litigated before

the United States District Court for the District of

Maryland. Both counsel for Local 992 and counsel for Mit-

chell submitted post-hearing briefs.

On August 22, 1978, after examining this voluminous

record, Arbitrator Kramer issued his decision denying Sine

and Danner the back pay they sought, but granting their re-

quested seniority based upon an intervening change in the

.

relevant provision of the collective bargaining agreement.

Sine and Danner both received copies of Arbitrator

Kramer’s award prior to September 1, 1978, as did their

private attorney, Harry Goldman, Jr. (App. B8, C3).

On November 20, 1978, Sine and Danner filed suit in the

District Court for the District of Maryland, alleging that

Local 992 and the Conference breached their duty of fair

representation and seeking to vacate only that portion of

the arbitration award which was unfavorable to them (App.

C3).

B. The District Court Decision

On August 28, 1979, the District Court granted motions

for summary judgment filed by Mitchell, Local 992 and the

Conference. The District Court held that Sine and Danner’s

action to vacate the arbitration award was barred by the

30-day statute of limitations. Md. Cts. & Jud. Proc. Code

Ann. § 3-201, et seq. (App. C5 - C6). The District Court also

concluded that Sine and Danner’s grievance lacked merit

and that Local 992 and the Conference did not breach the

duty of fair representation.

C. The Court of Appeals Decision

On March 24, 1981, the Court of Appeals for the Fourth

Circuit held that the Maryland statute of limitations barred

the action against Mitchell to vacate the arbitration award

(App. B8 - B12). However, the Court of Appeals implicitly

held that the Maryland statute did not preclude an action

against Local 992 and the Conference. As to them, the

Court held that the District Court had not sufficiently

analyzed the relevant facts and that it had, therefore, im-

properly granted summary judgment to the Conference and

Local 992. The Court of Appeals remanded and directed the

District Court to reconsider the case on the existing record

or to schedule the case for trial (App. B12 - B14).

= %

On May 12, 1981, after considering this Court’s decision

in United Parcel Service v. Mitchell. U.S. ____ (1981),

the Fourth Circuit denied Sine and Danner's petition for

rehearing (App. Al - A2).

D. Proceedings Before this Cour’

On August 10, 1981, Sine and Danner filed a Petition for a

Writ of Certiorari to the United States Court of Appeals for

the Fourth © ‘cuit, No. 81-314. Sine and Danner urge the

Court to find the 30-day Maryland statute of limitations un-

duly restrictive and to apply either a 90 or 180-day statute of

limitations.

REASONS FOR GRANTING THE WRIT

I. THE CROSS-PETITION ADDRESSES A MAJOR

QUESTION OF LABOR LAW LEFT UNRESOLVED BY

THE COURT’S RECENT UNITED PARCEL SERVICE

DECISION.

Suits alleging violations of a collective bargaining agree-

ment are governed by Section 301 of the Labor Manage-

ment Relations Act. In United Auto Workers v. Hoosier

Cardinal Corp., 383 U.S. 696, 704-705 (1966), this Court

held that the timeliness of such actions must be determined

“by reference to the appropriate state statute of

limitations. More recently, in United Parcel Service, Inc. v.

Mitchell, U.S. ____ (1981), the Court held that, in a

hybrid action alleging both a union’s breach of the duty of

fair representation in a completed arbitration and an

employer’s breach of contract, a state statute of limitations

governing suits to vacate arbitration awards barred an ac-

tion against the employer. Because the union did not seek

review, the Court did not consider the effect of its decision

on the action against the union.

In Hines v. Anchor Motor Freight, Inc. 424 U.S. 554,

570-571 (1976), the Court concluded that employees have a

-6-

substantial burden in a fair representation case. To prevail

against either the company of the union, [employees] must

show not only that their discharge was contrary to the con-

tract but must also carry the burden of demonstrating

breach of duty of the Union.“ Where employee: are legally

barred from attacking the arbitration award they cannot

meet this dual burden of proof. The employer and the union

are entitled to treat the arbitration award as dispositive of

the underlying grievance when the grievant fails to file a

timely action to vacate the award. United Air Lines, Inc. v.

Evans, 431 U.S. 553, 558 (1977). Because the relatively

rapid disposition of labor disputes is one of the leading

federal policies in this area (United Parcel Service, Inc. v.

Mitchell, upru. U.S. at, quoting Hoosier Car-

dinal, supra, 383 U.S. at 707), the public policy considera-

tions prompting the selection of a short statute of limita-

tions in actions against employers apply with equal force to

More importantly, this Court’s analysis of the proper

remedies in fair representation suits demonstrates the futili-

ty of allowing an action against a union when the action

against the employer is barred by the statute of limitations.

In Vaca v. Sipes, 386, U.S. 171, 197 (1967), the Court held

that a union which breaches its duty of fair representation is

not liable for damages attributable solely to the employer's

breach of contract. The Court then established what has

become the guideline for awarding damages in fair

representation suits (Jd. at 197-198):

The governing principle, then, is to apportion

liability between the employer and the union

according to the damage caused by the fault

of each. Thus, damages attributable solely to

the employer’s breach of contract should not

be charged to the union, but increases if any

in those damages caused by the union’s

refusal to process the grievance should not be

charged to the employer. .

-7-

Applying that standard to the case before it, the Court con-

cluded (Id. at 198):

In this case, even if the Union had breached

its duty, all or almost all of Owens’ damages

would still be attributable to his allegedly

wrongful discharge by Swift. For these

reasons, even if the Union here had properly

been found liable for a breach of duty, it is

clear that the damage award was improper.

The court next reviewed the issue of a union's liability in the

fair representation context in Czosek v. O'Mara, 397 U.S. 25

(1970). In affirming the dismissal of a complaint against the

employer absent allegations implicating it in the union’s

alleged breach of the duty of fair representation, the Court

observed (Id. at 29):

The Court of Appeals permitted the railroad

to be made a party to the suit if it is properly

alleged that the discharge was a consequence

of the union’s discriminatory conduct or that

the employer was in any other way im-

plicated in the union’s alleged discriminatory

action. If these allegations are not made and

the employer is not a party defendant, judge-

ment against [the unions] can in any event be

had only for those damages that flowed from

their own conduct. Assuming a wrongful

discharge by the employer independent of any

discriminatory conduct by the union and a

subsequent discriminatory refusal by the

union to process grievanves based on the

discharge, damages against the union for loss

of employment are unrecoverable except to the

extent that its refusal to handle the grievances

added to the difficulty and expense of collec-

ting from the employer. If both the union and

the employer have independently caused

Hi.

damage to employees, the union cannot com-

plain if separate actions are brought against

it and the employer for the portion of the

total damages caused by each. (emphasis sup-

plied.)

The courts of appeals have applied this analysis to limit

the union’s liability in a hybrid action against both union and

employer to the employees’ costs in obtaining a fair hearing

of his grievance against the employer. See, e.g., Milstead v.

Teamsters Local 957, 649 F.2d 395, 396 (6th Cir. 1981);

Bowen v. United States Postal Service, 642 F.2d 79, 82 (4th

Cir. 1981); Butler v. Teamsters Local 828, 514 F.2d 442, 447

(8th Cir. 1975), cert denied, 423 U.S. 924 (1975); de Arroyo

v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281,

290 (1st Cir. 1970), cert denied, 400 U.S. 877 (1970). See also

NLRB v. Electrical Workers Local 485, 454 F.2d 17, 23 (2d

Cir. 1972); Feller, A General Theory of the Collective

Bargaining Agreement, 61 Cal. L.Rev. 663, 819 (1973).

Where the employees are themselves responsible for their

inability to demonstrate a breach of contract, thereby

precluding any effective remedy for the breach, the

employees gain nothing in an action against the union. They

cannot obtain a fair hearing on their underlying grievance

against the company. They cannot obtain reinstatement or

backpay. Nor can they obtain punitive damages from the

union. IBEW v. Foust, 442 U.S. 42 (1979).

Certiorari is necessary, therefore, to assess whether

employees barred by the statute of limitations from attack-

ing an arbitration award should also be barred from suing

the union for breach of the duty of fair representation.

Il. THE CROSS-PETITION ADDRESSES A MAJOR

QUESTION OF LABOR LAW LEFT UNRESOLVED BY

THE COURT’S RECENT /TT GILFILLAN DECISION.

Assuming, arguendo, that an employee can pursue a fair

representation action against his union despite the statute

8.

of limitations which bars an action to vacate an arbitration

award. the Court must consider whether the employee must

exhaust his internal union remedies. In Clayton v. UAW

[ITT Gilfillan}, ___. U.S. ____ (198 1), the Court held that an

employee need not exhaust his internal union remedies

where those remedies are insufficient to provide full relief,

including the reactivation of a grievance wrongfully

withdrawn from arbitration. The Court also suggested that

exhaustion might be required where the member had chosen

to sue only the union. Where, as here, the employer is not,

and cannot be, a party to the action and where the arbitral

resolution of the grievance cannot be challenged, the only

judicial remedy against the union is monetary. Where a

union’s internal grievance procedure is capable of awarding

monetary relief, a union member should be required to ex-

haust his internal union remedies prior to seeking judicial

relief.

Certiorari is necessary, therefore, to resolve this pro-

cedural issue which will become increasingly significant

after United Parcel Service v. Mitchell.

CONCLUSION

For the reasons stated herein, we respectfully urge the

Court to grant a Writ of Certiorari in this case if it grants a

Writ in Case No. 81-314.

JONATHAN G. AXELROD

(Counsel of Record)

HUGH J. BEINS

Beins, Axelrod & Osborne, P.C.

1511 K Street, N.W., Suite 300

Washington, D.C. 20005

(202) 638-4620

Attorneys for Cross-Petitioner,

Eastern Conference of Teamsters

September 8, 1981

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-1625

RONALD SINE and

LARRY DANNER

Appellants

v.

LOCAL NO. 992 INTERNATIONAL

BROTHERHOOD OF TEAMSTERS;

EASTERN CONFERENCE OF TEAMSTERS;

and MITCHELL TRANSPORT, INC.

Appellees

FILED

MAY 12, 1981

ORDER

U.S. Court of Appeals

Fourth Circuit

The case of United Parcel Service v. Mitchell, No. 80-169,

49 L.W. 4378 (April 20, 1981), having been decided, and be-

ing of opinion the petition for rehearing in this case is

without merit,

A-2

It is accordingly ADJUDGED and ORDERED that the

petition for rehearing, together with its supplement, shall

be, and the same hereby is, denied.

With the concurrences of Judge Haynsworth and Judge

Hoffman.

For the Court

B-1

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-1625

RONALD SINE and

LARRY DANNER

Appellants

v.

LOCAL NO. 992 INTERNATIONAL

BROTHERHOOD OF TEAMSTERS;

EASTERN CONFERENCE OF TEAMSTERS;

and MITCHELL TRANSPORT, INC.

Appellees

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Joseph H. Young,

District Judge.

Argued June 3, 1980 Decided March 24, 1981

Before HAYNSWORTH, Chief Judge, WIDENER, Circuit

Judge, and HOFFMAN, Senior District Judge.*

B-2

Harry Goldman, Jr., for Appellant; Jonathan G. Axelrod

(Hugh J. Beins, on brief) for Appellees Eastern Conference

of Teamsters; Roger D. Susanin (Alfred J. D'Angelo,

Cunniff, Bray & McAleese, on brief) for Appellees Mitchell

Transport, Inc.; (Thomas H. Kohn, on brief) for Appellees

Teamsters Local 992.

*United States District Court for the Eastern District of

Virginia.

WIDENER, Circuit Judge:

This controversy comes before us for a second time. The

plaintiffs, Ronald Sine and Larry Danner, have brought suit

under § 301 of the Labor Management Relations Act, 29

U.S.C. § 185, and the United States Arbitration Act, 9

U.S.C. § 1 et seq, against their employer, Mitchell

Transport, Inc. (Mitchell or Company), Local 992 of the In-

ternational Brotherhood of Teamsters (Local), and the

Eastern Conference of Teamsters (Conference). Sine and

Danner are seeking to vacate an arbitration decision deny-

ing their claims for back pay against the Company. Addi-

tionally, they allege that the Unions breached their duty of

fair representation in not properly or adequately advancing

their claims against Mitchell. From summary judgement for

the defendents, plaintiffs appeal. We affirm the district

court’s denial of the claim to vacate the arbitration award,

but vacate the summary judgement on the claims for breach

of the duty of fair representation and remand that matter to

the district court for further consideration.

The facts surrounding this dispute are somewhat involved

and thus require a rather detailed account. Mitchell is an in-

terstate common carrier, engaged primarily in hauling ce-

ment. It maintains a number of terminals throughout the

B-3

United States, only two of which are pertinent here, one in

Union Bridge, Maryland and another in Baltimore.'

In the spring of 1971, Mitchell transferred seven of the

twelve tractors at the Baltimore facility to Union Bridge

because of a change in customer demands. The transfer

meant a loss of job opportunities at Baltimore and increased

the work available at Union Bridge. The Company posted

what is called a “sign-up bid' list at Baltimore, which

allowed the Baltimore drivers to volunteer to transfer to

Union Bridge. The transfer called for terminal seniority for

purposes of dispatch but company seniority whenever

layoffs occurred. Five of the Baltimore drivers, including

the present plaintiffs, signed the list and transferred to

Union Bridge. They were placed at the bottom of the driver

seniority list for job selection at Union Bridge in accordance

with § 5.7 of the Eastern Area Cement Haul Agreement.“

the collective bargaining agreement.

1. The Baltimore terminal is no longer operational.

2. Section 5.7 of the collective bargaining agreements, from March 1,

1 ee provided in pertinent part:

(b) Closing of branches, terminals, divisions or operations:

(2) Such employee, however, shall go to the bottom of the

seniority board and shall have the right of job selection

only in accordance with the seniority at such terminal.

However, he shall exercise his Company seniority for

layoff purposes and other contract benefits.

Effective March 1, 1977, § 5.7 was changed to provide for virtually

complete dovetailing of seniority rosters:

(b) Closing of branches, terminals, divisions or operations

(2) Such employee, however, shall be dovetailed in accord-

ance with procedures outlined in Article 5, Section 5.5

Section 5.5 calls for dovetailing of the active rosters and dovetailing

of the inactive rosters. When someone moves from inactive to ac-

tive, he is dovetailed into the active roster with full company

B-4

During the summer of 1971, a dispute arose at Union

Bridge regarding the seniority of the newly transferred

drivers from Baltimore. The original Union Bridge drivers

objected to the floating seniority of the transferees, who

could exercise their company seniority whenever they were

laid off.* As a result of that dispute, the Local 992 union

steward at the terminal, hoping to clear up the situation,

filed a grievance with the Union. The grievance, which

noted that two high seniority and three low seniority

Baltimore drivers had transferred to Union Bridge,

asserted that the original Union Bridge drivers were being

denied their full working opportunities. It requested that all

five drivers be returned to Baltimore because work was

available for them there.

The grievance was heard before the Eastern Area Tank

and Cement Haul Joint Committee, an arbitration panel

established by the collective bargaining agreement, whose

decisions, according to the agreement, are final and

binding.* The Joint Committee, in Case No. 839, determined

that only those employees who were forced to transfer to

3. A Company representative had interpreted § 5.7 to mean that once

a transferee driver had not worked on a consecutive Thursday, Fri-

day, and Saturday, that represented a layoff for purposes of the

contract and he could then exercise his Company seniority and thus

work where an old Union Bridge employee with greater terminal

seniority, but less company seniority, would not work. Because of

that interpretation, a number of the original Union Bridge drivers,

in order to protect their seniority, stayed out of work on a Thursday

to prevent the Baltimore drivers from obtaining layoff status

because the Company was forced to depend on the Baltimore

drivers in the absence of the Union Bridge drivers who had stayed

out.

4. The Joint Committee consists of three (or other equal number of)

representatives of the Company and three of the Union. A majority

of the Committee is required to rule on a grievance; in the event of a

deadlock, the grievance is submitted to an impartial arbitrator,

whose decision is also final and binding. See §§ 7.3 and 7.5 of the

collective bargaining agreement.

B-5

Union Bridge because of a loss of work at Baltimore were

entitled to exercise floating seniority. Thus, the decision

upheld only the right of the three junior drivers to transfer

to Union Bridge, which group included the present plain-

tiffs. The decision required the Company to repost a list at

Baltimore and required the senior drivers to return to

Baltimore at the soonest practical opportunity.

In October 1971, the five former Baltimore drivers had

meetings with representatives of the Company and the

Union. The original Union Bridge drivers wanted all the

Baltimore drivers to return to Baltimore; none of the

Baltimore drivers, however, wanted to return. In the end,

each of the Baltimore drivers, including the plaintiffs Sine

and Danner, signed a letter in which he agreed to accept ter-

minal rather than company seniority, except for fringe

benefits, in return for the right to remain at Union Bridge.

Some six months later, around May of 1972, Sine and

Danner were both laid off. Subsequently, both filed

grievances requesting company seniority for purposes of

layoffs, and the dispute was brought before the Joint Com-

mittee as Case No. 1007. The plaintiffs argued that the let-

ter they had signed forfeiting their entitlement to floating

seniority was null and void.“ The Committee, however, re-

jected their contention; ‘Based upon the facts presen*ed in-

cluding he letter dated November 10, 1971, which was ex-

ecuted by the parties, the grievance is denied.”

Following that decision, Sine and Danner, in July 1973,

brought suit in the District of Maryland einst the Local

and the Company, seeking damages and injunctive relief

restoring their company seniority. On June 6, 1975, the jury

5. They argued it was null and void pursuant to § 6.2 of the collective

bargaining agreement:

The Employer agrees not to enter into any agreement or con-

tract with his employees, individually or collectively, which in

any way conflicts with the terms and provisions of this Agree-

ment. Any such agreement shall be null and void.

B-6

returned a verdict in favor of the the plaintiffs against both

defendants and awarded Sine $14,000 and Danner $11,000

in damages. With regard to the claim for injunctive relief,

however, the court, in a letter dated October 29, 1975, ad-

vised that it was denying the plaintiffs’ claim:

After reviewing the instructions, the evidence,

and the pretrial order I find nothing in the jury's

verdict that would require or justify the issuance

of injunctive relief as requested by the plaintiffs.

The actions of the parties are controlled by

various union agreements and those agreements

set forth the procedures to be followed in enforc-

ing the rights of all parties. This enforcement

neither requires nor justifies Court intervention

based upon the jury’s verdict.

The court filed a formal order denying injunctive relief on

October 31, 1975.

In July 1975, prior to the court’s denial of the requested

injunctive relief, Sine and Danner once again filed

grievances asking for their rightful company seniority and

back pay from June 6, 1975, the date of the jury verdict.

These grievances were heard together before the Joint

Committee as Case No. 1384. The Union's attorney

assisting Sine and Danner contended that not only was the

letter null and void as an extra-contractual agreement, but

also that the grievants were never aware of Case No. 839,

and that fact negated the letter. The Committee, however,

in its decision issued in November 1975, denied the

grievance with respect to both the seniority rights and back

pay.“ Sine and Danner made no attempt to vacate that deci-

sion of the Joint Committee.

6. Based upon the facts presented with respect to the grievants’

claim for back pay including interest, the grievance is denied.

Based upon the facts presented with respect to the grievants’

claim for seniority rights, the grievance is denied.”

B-7

On December 3, 1975, the Local signed a consent order in

which it agreed to observe the company seniority of the

plaintiffs for daily dispatch purposes. The Company was not

a party to that order which was entered by the district

court.

On March 10, 1977, this court, in an unpublished opinion,

affirmed the plaintiffs’ jury verdict against the Company

and the Local. We held:

There is sufficient evidence in this case to support

the jury’s verdict and to show both a breach of the

collective bargaining agreement by Mitchell and

unfair representation of Sine and Danner by the

Union.

The letter signed by the Baltimore drivers did

not operate as a waiver because a waiver is an in-

tentional relinquishment of a known right. Here,

there is a firm basis for a finding by the jury that

Sine and Danner were not adequately informed of

their rights, and, hence, under accepted principles

of contract law, did not waive their rights.

Sine v. Mitchell Transport, Inc., No. 76-1201 (4th Cir.

March 10, 1977), at 4-5.

Shortly after this court’s affirmance of the jury’s award,

Sine and Danner again filed a grievance seeking back pay

and seniority. This grievance went before the Joint Commit-

tee as Case No. 1524, and the Committee this time

deadlocked on the vote, thus sending the matter to arbitra-

tion pursuant to tne applicable provisions of the collective

bargaining agreement.’

7. See Note 4 supra. The plaintiffs also contended that the Union

representatives on the Committee voted to deadlock only because

of a threatening letter sent to the Committee by the plaintiffs’

counsel.

B-8

The arbitrator held, contrary to the jury’s determinauon

and contrary to that of this court, that Sine and Danner

waived their rights to company seniority when they signed

the letter. He thus denied the grievance with regard to the

claim for back pay. However, with regard to the claim for

seniority, the arbitrator upheld the grievance for equitable

reasons and divected that Sine and Danner be dovetailed in-

to the roster at Union Bridge in accordance with their com-

pany seniority. (The collective bargaining agreement which

became effective on March 1, 1977 had altered the transfer

policy and provided for complete dovetailing of rosters

whenever there was a transfer of work from one terminal to

another.) Because the Baltimore terminal had been closed

and the newly transferred drivers with less company

seniority would bump Sine and Danner, the arbitrator decid-

ed that the plaintiffs should be granted full seniority rights.

The arbitrator issued his decision on August 22, 1978, and it

was received at the Eastern Conference of Teamsters on

August 24, 1978.

Still dissatisfied, Sine and Danner filed this suit under the

Labor Management Relations Act and the United States Ar-

bitration Act against the Company, the Local, and the Con-

ference. The plaintiffs sought to vacate the arbitrator's

award on the theory that the earlier jury verdict and this

court’s affirmance of the award should be accorded res

judicata effect and thus require a finding that they receive

back pay. They also contended that the Unions breached

their duty of fair representation, alleging that the Unions

did not present a thorough case, that the Unions failed to

urge the arbitrator to render a more expeditious decision,

and that the Unions were responsible for the delay in the

resolution of the dispute. On cross motions for summary

judgment, the district court granted the defendants’ mo-

tions and denied the plaintiffs’. The court rejected the plain-

tiffs’ contention that its prior determination be given res

judicata effect. The court granted the Company’s motion on

the ground that the plaintiffs’ claim was barred by the

appropriate statute of limitations found in the Uniform

B-9

Arbitration Act effective in Maryland, Md. Code Ann. §

3-201 et seq, which provides for a thirty day period to set

aside an award. Finally, the court granted the Union's mo-

tions, saying that the plaintiffs’ claims were groundless and

had been discredited in the plaintiffs’ own words.“ This ap-

peal followed.

The first issue for consideration is whether the plaintiffs’

claim against the defendant Mitchell is barred, as the

district court held, by the thirty day limitations’ period pro-

vided for in the Maryland Uniform Arbitration Act. The

plaintiffs brought this action to vacate the arbitrator's

award under the United States Arbitration Act and § 301 of

the LMRA, 29 U.S.C. § 185.“ The United States Arbitration

Act provides for a three month limitations’ period for a suit

to vacate or modify an arbitration award. 9 U.S.C. § 12.

However, the act also expressly states that it is inapplicable

to actions concerning contracts of employment of workers

engaged in interstate commerce, 9 U.S.C § 1, and this court

has held that the exclusionary provision applies in cases

such as the one before us here. United Electrical Radio &

Machine Workers of America v. Miller Metal Products, Inc.,

215 F2d 221 (4th Cir. 1954); International Union United

8. Because of the manner in which it disposed of the case, the district

court did not pass upon other defenses urged by the Unions or the

Compaily, as we do not. Of course, those applicable to the Unions

may be considered on remand.

9. The plaintiffs’ claim of jurisdiction under the United States Arbitra-

tion Act, 9 U.S.C. § 1 et seq, is not well taken. This statute does not

furnish jurisdiction; rather, it requires an independent base for it. 9

U.S.C. § 4 provides for relief in a district court which “would have

jurisdiction under Title 28“ save for such [arbitration]

agreement, and this provision had been correctly literally con-

strued. E.. Commercial Metals Co. v. Balfour, Guthrie, & Co. Lid.

577 F2d 264 (5th Cir. 1978); Metro Industrial Parking Corp. v. Ter-

minal Const. Co., 287 F2d 382 (2d Cir. 1961). Nevertheless, we

reach the merits of the applicability of the United States Arbitra-

tion Act, for the district court “save for...[the arbitration] agree-

ment” had jurisdiction under 29 U.S.C. § 185(a).

B-10

Furniture Workers of America v. Colonial Hardwood Floor

Co., 168 F2d 33 (4th Cir. 1948). Mitchell is an interstate car-

rier, and this dispute concerns the collective bargaining

agreement. Thus, the United States Arbitration Act and its

— 4 month statute of limitations has no direct application

in case.

Although some courts have looked to the limitations’

period provided for in the United States Arbitration Act for

actions to vacate an arbitration award, see e.g., Com-

munication Workers of America v. Pacific Telephone &

Telegraph Co., 462 F.Supp. 736 (C.D. Cal. 1978), others

have looked to State law for the appropriate limitations’

period. See, e.g. Wallace v. American Telephone and

Telegraph Co., 460 F.Supp. 755 (E.D. N.Y. 1978). Interna-

tional Union (UAW) v. Hoosier Cardinal Corp., 383 U.S.

696 (1966), requires us to look to State law for determina-

tion of the limitations’ period for a claim under 29 U.S.C. §

185. Additionally, we are required under Campbell v. City of

Haverhill, 155 U.S. 610 (1895), to follow the Rules of Deci-

sion Act, 28 U.S.C. § 1652, in determining which statute of

limitations to apply. Under that statute the laws of the

several states, except where...Acts of Congress otherwise

require or provide, shall be regarded as rules of decision in

civil actions in the courts of the United States.. In this

case Congress has not provided for a limitations’ period for

action under § 301 to vacate an arbitration award, and has

specifically excluded the application of the United States

Arbitration Act to actions concerning such collective

bargaining agreements. Thus, given that Congress has not

provided otherwise, we look to the law of Maryland to deter-

mine the appropriate limitations’ period.

The State statute of limitations to be selected is

determined by characterizing the nature of the § 301 suit.

Hoosier Cardinal, supra. Because this action against the

Company is one which requires the vacation of an ar-

bitrator’s award, we characterize the suit as one to vacate

an award and look to the applicable arbitration statute of

B-11

the State for limitations of the action. E.g. Barbarino v. An-

chor Motor Freight, Inc., 421 F.Supp. 1003, 1006 (W.D.

N.Y. 1976), and cases there cited; Wallace, supra, and cases

there cited. This holding gives effect to the national labor

policy of deciding labor disputes by arbitration if possible.

Steelworkers v. Warrior & Gulf Co., 363 U.S. 574 (1960).

Section 3-224 of the Maryland Code Annotated provides

for a thirty day limitations’ period:

(a) Petition-(1) Except as provided in

paragraph (2), a petition to vacate the award shall

be filed within 30 days after delivery of a copy of

the award to the petitioner.

(2) If a petition alleges corruption, fraud, or

other undue means it shall be filed within 30 days

after the grounds become known or should have

been known to the petitioner.

The award here was issued on August 22, 1978, and the

Local’s attorney forwarded a copy of the opinion and award

to the plaintiffs’ counsel on August 24, 1978. The district

court found that the plaintiffs became aware of the outcome

no later than September 1, 1978, and the plaintiffs do not

challenge that finding on appeal. Plaintiffs filed the present

action on November 20, 1978, which is more than thirty

days after they received the award; thus, the action is un-

timely under Md. Code. Ann. § 3-224(a\1).

Although the plaintiffs allege that the arbitrator’s deci-

sion was “tainted with corruption,” they do not contend

that they filed this action within thirty days of learning of

10. There is no merit to plaintiffs’ argument that Howard v. Aluminum

Workers International Union, 589 F2d 771 (4th Cir. 1978), requires

a three year limitations’ period be applied here for actions based

upon tort. That case did not involve the vacation of an arbitration

award. Rather, it was only a § 301 action against a union for a

breach of the duty of fair representation.

B-12

the alleged corruption; indeed, the record would not support

such a contention.'' Thus, they cannot come within §

3-224(aX2) of the Maryland Act in order to avoid the bar of

the thirty days’ limitation period even if fraud was involved

as alleged (but which is not shown by the present record).

Because the claim is barred by the statute of limitations,

we need not consider the plaintiffs’ argument that the

earlier decisions of the district court and this court should be

given res judicata effect.

We now consider whether the district court erred when it

granted summary judgment against the plaintiffs on their

claim against the union for breach of the duty of fair

representation. In their complaint, the plaintiffs alleged

that the breach consisted of, among other things,

hindering, delaying and postponing the plaintiffs’

Grievance Procedures at each and every stage,

and, only after threat of suit from plaintiffs’

private attorney, grudgingly years late, deadlock-

ing the final step of the Grievance procedure

11. See Sine’s deposition testimony:

I want to know when in your own mind you reached the

decision that the arbitrator is corrupt?

A. After I got the decision.

Q. Okay. Now, how much after.

A. When I got it.

Q. When you got...

A. Yes.

Q. ...and read it, you reached that conclusion...

A. Right.

correct?

A. Right. When we got the reason for not giving it.

See also Danner’s deposition testimony:

MR. GOLDMAN: Go ahead. When did you reach a conclusion

that the arbitrator was corrupt after you got the decision?

THE WITNESS: After I got the decision or read it. I felt...

BY MR. SUSANIN:

Q. As soon as you became aware of the decision?

A. Yes. I would say that there.

B-13

before Arbitration, so as to require said Ar-

bitrator, who was either incompetent or corrupt,

or both, was mal-selected by the parties, failing to

advance and argue the simple and legal, factual

premises from the trial record, prayers and in-

struction, court charge, briefs of the parties,

record on Appeal and Opinion, in the United

States Court of Appeals for the Fourth Circuit,

waiving and permitting the delay of his Decision

for 10 months and 22 days, so that the amount of

back pay which the Arbitrator should have award-

ed to the employees, would have made an Award

of back pay even more costly, from which the Ar-

bitrator obviously shrank, and other breaches of

the aforesaid Union’s duty of fair representation,

were by it committed.

The district court stated that the essence of the plaintiffs’

claim against the Union was that the Local 992’s attorney

did not present a ‘thorough’ case, that the Union failed to

urge the Arbitrator to render a more expeditious decision,

and that the Union was somehow responsible for the

lengthy delay in the issuance of the arbitrator’s final deci-

sion.“ The court did not detail the evidence but held that

many of the plaintiffs’ aliegations were totally groundless,

as well they may have been, based on what it described as a

detailed and thorough refutation by the defendants and by

the plaintiffs’ own words. The other allegations, the court

held, did not amount to arbitrary or discriminatory behavior

by the attorney or any dishonest conduct on the part of the

Union. The district court thus granted the defendants’ mo-

tion for summary judgment on the breach of duty claim.

The plaintiffs have raised a number of factual allegations,

and some of the facts we are new asked to consider might

arguably have been considered by the district court to prove

that the Union's conduct was arbitrary, discriminatory, or

in bad faith. Vaca v. Sipes, 386 U.S. 171, 191 (1967). While

the district court did relate a few of the facts in part, we are

B-14

unable to ascertain from its opinion just what facts it relied

upon for determining that the plaintiffs’ claim against the

Unions was without merit. We feel that this is a case where

the district court did not undertake a critical review of the

relevant facts so as to give support to its conclusory find-

ings. Lewis v. Tobacco Workers’ International Union, 577

F2d 1135, 1146 (4th Cir. 1978). Accordingly, the judgment

of the district court with respect to the § 301 claim against

the unions for breach of the duty of fair representation is

vacated and remanded for reconsideration by the district

court.'? On remand, the district court may consider the case

on the record before it, or may, within its discretion, con-

sider further factual development if it be so advised.

AFFIRMED IN PART,

VACATED AND REMANDED

IN PART.

12. The district court, because it determined that the plaintiffs’ claim

for breach of the duty of fair representation was without merit, did

not decide whether the Conference, independently of the Local,

owed such a duty to the plaintiffs. On remand, if the court should

determine that the plaintiffs’ claim does have merit, it should also

Local and the Conference.

C-1

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

RONALD SINE, et al. *

v. * CIVIL NO. V 78-2315

LOCAL NO. 992 INTERNATIONAL *

BROTHERHOOD OF TEAMSTERS, *

et al.

Filed: August 28, 1979

Harry Goldman, Jr., Esquire, Baltimore, Maryland, counsel

for plaintiffs.

Thomas H. Kohn, Esquire, Bethesda, Maryland, counsel for

defendant Local No. 992.

Hugh J. Beins, Esquire, Bethesda, Maryland, counsel for

defendant Eastern Conference of Teamsters.

Roger D. Susanin, Esquire, Alfred J. D'Angelo, Jr., Es-

quire, Bala Cynwyd, Pennsylvania, and Jeffrey Rockman,

Esquire, Baltimore, Maryland, counsel for defendant

Mitchell Transport, Inc.

Young, United States District Judge

I. THE FACTS

Plaintiffs Ronald Sine and Larry Danner have brought

this action under section 301 of the Labor Management

Relations Act (““LMRA”’), 29 U.S.C. § 185(a), and the provi-

sions of the Federal Arbitration Act, 9 U.S.C. § 1, in an ef-

fort to vacate an arbitration award. The present action

relates to an earlier case filed in 1973 in which plaintiffs

received a jury award of $25,000.00 as a result of a suit

C-2

brought against Local Union No. 992, International

Brotherhood of Teamsters (Union“ or Local 992“), and

Mitchell Transport, Inc. (“‘Mitchell’’).

Plaintiffs are driver employees of Mitchell, an interstate

motor carrier. They alleged that defendant Mitchell, in

violation of their collective bargaining agreement, denied

them proper seniority positions for dispatch purposes. They

also contended that the Union breached its duty of fair

representation in not properly or adequately advancing

their arguments against Mitchell. As a result, Sine and Dan-

ner filed suit in this Court against Mitchell and the Union,

Civil Action No. 73-724-Y (D. Md. 1975), in which they

sought both monetary as well as injunctive relief granting

them their seniority positions.

On June 6, 1975 a jury awarded the plaintiffs $25,600.00

in damages. By letter dated October 29, 1975, however, the

Court advised the parties that in light of the jury’s verdict,

injunctive relief would be unnecessary since “‘[t}he actions of

the parties are controlled by various union agreements and

those agreements set forth the procedures to be followed in

enforcing the rights of all parties. Letter dated October 29,

1975. The Court issued an appropriate Order denying plain-

tiffs’ seniority request on October 31, 1975.

After the verdict but prior to the October 31, 1975 Order,

plaintiffs filed two additional grievances on June 30, 1975

and July 31, 1975 seeking restoration of their seniority plus

back pay from June 6, 1975 to the date of the grievance.

After processing, these two grievances were presented to

the Joint Area Committee as case no. 1384.

The Union provided plaintiffs with an attorney from the

Eastern Conference of Teamsters, and their case was heard

by the Eastern Area Tank and Cement Haui Joint Commit-

tee (“JAC’’) on November 19, 1975. The JAC decision

denied the claim for seniority and the claim for back pay.

Under the terms of the collective bargaining agreement this

decision was binding and wus so recognized by plaintiff

C-3

Sine. See Sine Deposition at 208-09. Neither plaintiff tried to

appeal or vacate the JAC decision in case no. 1384.

On May 14, 1976 the Fourth Circuit Court of Appeals

denied plaintiffs’ cross appeal of this Court’s denial of their

seniority positions. Several months later, on March 10,

1977, the Fourth Circuit affirmed the jury’s $25,000.00

damage award.

Undaunted in their efforts to obtain their seniority posi-

tions, plaintiffs filed an identical grievance on April 13,

1977. See Sine Deposition at 204. Designated as case no.

1524, this case was heard by the JAC on May 24, 1977.

While no new factual matters were presented, plaintiffs did

submit a letter from their attorney who threatened to sue

each JAC member unless the case was deadlocked and sent

to arbitration.! The JAC did become deadlocked, and both

plaintiffs indicated that they believed their attorney’s letter

was a crucial reason for this result. See Sine Deposition at

212-13; Danner Deposition at 503-04.

Mitchell and the Union then utilized the Federal Media-

tion and Conciliation Service to select arbitrator Jay

Kramer, Esquire, on or about June 17, 1977. Kramer was a

former Chairman of the New York State Labor Relations

Board. Case no. 1524 was heard on October 3, 1977, and Ar-

bitrator Kramer issued his decision on August 22, 1978. The

arbitrator had denied plaintiffs’ back pay claim but granted

their requested seniority change based upon an intervening

change in the relevant provisions of the collective bargain-

ing agreement. As a result of this decision, plaintiffs filed

this action on November 20, 1978 in an attempt to vacate

only that part of the arbitrator’s award denying their back

pay claim.

The case is presently before this Court on cross motions

for summary judgment. Plaintiffs seek partial summary

1. A deadlock results when the Union representatives of the panel

vote in favor of the grievance and the company representatives vote

against it.

C-4

judgment vacating the arbitrator’s award denying damages

on the novel theory that this Court’s initial decision after the

jury’s verdict should be accorded res judicata effect insofar

as the present action is concerned. Defendants seek sum-

mary judgment on two grounds. First, they contend that the

appropriate statute of limitations mandates dismissal of

plaintiffs’ complaint. Second, they argue that the Union did

not, as a matter of law, breach its duty of fair representa-

tion to plaintiffs.

II. RES JUDICATA

If ever a case were litigated beyond the point of all prac-

tical utility, this case constitutes a prime example. In deny-

ing plaintiffs’ request for injunctive relief over four years

ago, this Court clearly indicated that the monetary damages

awarded by the jury were to constitute the exclusive remedy

obtained from this forum. Now, having had several addi-

tional bites at the same apple by filing grievances subse-

quent to the jury’s award, plaintiffs seek to present their

case before this Court yet again. While noting plaintiffs’

dogged perseverance, this Court has a duty both to litigants

and society to bring litigation to a halt when enough is too

much. See, e.g. Todd Shipyards Corp. v. Industrial Union of

Marine and Shipbuilding Workers of America, Local 15,

AFL-CIO, 242 F. Supp. 606, 610-11 D. N. J. 1965).

One jury verdict, two grievances, and one partly suc-

cessful arbitration later, plaintiffs have returned to this

Court to obtain what Arbitrator Kramer denied them. Hav-

ing already used the arbitration route to obtain the injunc-

tive remedy denied them in this Court, plaintiffs without

hesitation seek to turn a denial of injunctive relief into a

binding award of back pay for a one month period subse-

quent to the jury’s award of $25,000.00. While res judicata

may be a mystery to some, it surely does not operate

through the vehicle of the non sequitur.

In denying plaintiffs’ request for injunctive relief the

Court did nothing more than that. It expressed no opinion

C-5

as to any award of back pay - an issue which arose after the

original trial had been concluded. Having persisted long

enough to win injunctive relief from Arbitrator Kramer,

plaintiffs now refer to that same arbitrator’s decision as a

“completely lawless interpretation of the facts and law

which flounted' what plaintiffs claim was finally put to

rest by this Court.

The principles of res judicata may not be applied so as to

allow a party to play both ends against the middle. What

they could not obtain from this Court, plaintiffs got through

arbitration, and what they could not win through arbitra-

tion, they now seek to recover in this forum. This Court’s

earlier ruling denied plaintiffs injunctive relief so as to per-

mit further grievance proceedings de novo to decide their

seniority complaints. The arbitration award resulted from

that de novo procedure, and this Court’s ruling obviously

cannot be given res judicata effect in the present litigation.

III. STATUTE OF LIMITATIONS

Defendants seek to dismiss plaintiffs’ complaint on the

grounds that since it constitutes an action to vacate an ar-

bitration award it must have been filed within thirty days of

the decision as required by the Maryland Uniform Arbitra-

tion Act, MD. CTS. & JUD. PROC. CODE ANN. § 3-201 et

seq. Plaintiffs contend that the appropriate limitations

period is the ninety day period permitted under the U.S. Ar-

bitration Act, 9 U.S.C. § 12. Arbitrator Kramer rendered

his decision on August 22, 1978, and plaintiffs became

aware of the outcome no later that September 1, 1978. Sine

Deposition at 219, 220. The present case was instituted on

November 20, 1978.

Plaintiffs have brought this case under Section 301 of the

LMRA, 29 U.S.C. § 185(a) and the provisions of the Federal

Arbitration Act, 9 U.S.C.§ 1. The latter act, however, ex-

pressly states that it is inapplicable to actions brought con-

cerning collective bargaining agreements covering workers

C-6

engaged in interstate commerce. See United Electrical R &

M Workers v. Miller Metal Products, 215 F.2d 221 (4th Cir.

1954); International Union United Furniture Workers of

America v. Colonial Hardwood Flooring Co., 168 F.2d 33

(4th Cir. 1948). Defendant Mitchell is an interstate carrier,

making the Federal Arbitration Act irrelevant.

Under the remaining basis for jurisdiction, 29 U.S.C. §

185({a), the appropriate statute of limitations must be that

contained in the Maryland Uniform Arbitration Act since

there are no express limitations in the LMRA on bringing a

section 301 action. Federal common law therefore directs

the that the analogous state limitations period be adopted

and applied. United Auto Workers v. Hoosier Cardinal

Corp., 383 U.S. 696 (1966). Section 3-224 of the Maryland

Uniform Arbitration Act provides a thirty day limitations

period for actions seeking to vacate an arbitrator's award.

Since plaintiffs brought the present case beyond the limita-

tions period, it is clearly untimely.

IV. FAIR REPRESENTATION

Plaintiffs also submit that Local 992 breached its duty of

fair representation in handling their claims during the

grievance and arbitration process. They now contend that

Local 992’s attorney did not present a thorough case,

that the Union failed to urge the arbitrator to render a more

expeditious decision, and that the Union was somehow

responsible for the lengthy delay in the issuance of the ar-

bitrator’s final decision. Taken together, these allegations

purport to establish that Local 992 represented plaintiffs’

interests in an arbitrary, discriminatory, and bad faith man-

ner in violation of the standards set forth in Hines v. Anchor

Motor Freight, 424 U.S. 554 (1976); and Vaca v. Sipes, 386

U.S. 171 (1967).

Counsel for Local 992 as well as for Mitchell have

prepared a detailed and thorough refutation of plaintiffs’

C-7

claims, and the Court is satisfied that they are totally

groundless. Both Local 992 and Mitchell have documented

repeated instances either in plaintiffs’ own depositions or in

the transcripts from prior proceedings involving these par-

ties where the allegations have been totally discredited in

plaintiffs’ own words. Such behavior clearly undermines

plaintiffs’ claims of inadequate representation. Hardee v.

North Carolina Allstate Services, Inc., 537 F.2d 1255, 1259

(4th Cir. 1976). While other allegations seek to challenge at-

torney tactics, there is nothing in these claims amounting to

arbitrary or discriminatory behavior by the attorney or any

fraudulent, deceitful, or otherwise dishonest conduct on the

part of the union. Griffin v. International Union, United

Automobile, Aerospace and Agricultural Implement

Workers of America, UAW, 469 F.2d 181 (4th Cir. 1972);

Walden v. Local 71, International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, 468 F.2d 196 (4th Cir. 1972).

Since this case may be fully disposed of for the reasons

already supplied, the Court declines comment on defendant

Mitchell’s contention that plaintiffs’ grievances which

resulted in the Kramer award were never arbitrable because

of the previous JAC decision in case number 1384. Mitchell

never sought to vacate the Kramer award, and this Court is

content to put matters completely to rest by preventing

plaintiffs from themselves vacating that part of Kramer's

award which denied them back pay.

Accordingly, it is this 28th day of August, 1979, by the

United States District Court for the District of Maryland,

ORDERED:

1. That plaintiffs’ motion for partial summary judgment

be, an the same is, hereby DENIED; and

2. That all defendants’ motions for summary judgment

be, and the same are, hereby GRANTED.

Joseph H. Young

UNITED STATES DISTRICT JUDGE